Australia’s family relationship centres: A possible solution to creating an accessible and integrated family law system as envisaged by the South African Law Reform Commission’s Issue Paper 31 of 2015?

Abstract

In the first part of this article certain problems with the adversarial system of litigation in family matters as highlighted by the South African Law Reform Commission in Issue Paper 31 of 2015 are investigated. Next, reference is made to the various alternative dispute resolution processes as recognised by the Issue Paper, namely family mediation, voluntary court-annexed mediation, African dispute resolution, online dispute resolution, collaborative practice, arbitration and parenting coordination. It is indicated that these processes developed in an unstructured and piecemeal manner and that little specific provision has been made to cater for these processes in our family law system. The various structures necessary for dealing with family dispute resolution are also examined. Here it is pointed out that there are a variety of structures or services available to families facing separation or other family disputes, namely the different official courts, the tribal or chiefs’ courts, community structures, private mediators and/or Legal Aid South Africa. However, some of the available and widely-used structures or services are not regarded as part of the official family law system in South Africa. The conclusion is therefore that South Africa has not succeeded in establishing a comprehensive family law system.

Subsequently, the development of a coherent family law system is examined. Specific focus is placed on the manner in which the establishment of family relationship centres has led to a more accessible and integrated family law system in Australia. Lastly, in the light of the Australian example, which reframed parental conflicts arsing from divorce and separation from a legal problem with relationship conflicts to a public health problem with legal elements, it is proposed that the network of primary healthcare clinics in South Africa should be transformed into fully fledged family health and relationship centres which also cater for families in distress. At the clinics people would first receive information and education and from there they would be referred to the appropriate service or services, which would not necessarily include the official courts, but rather the chiefs’ courts, community structures and private mediators, arbitrators, parenting coordinators or collaborative practitioners. All these services should form part of a coherent procedural family law system in South Africa.