Children's participation in family law proceedings in New Zealand and Australia: inclusion and resistance

The family law systems of Commonwealth countries, like New Zealand and Australia, were traditionally focussed around the supremacy of fathers’ rights over all aspects of their children’s upbringing. Gradually the rights of mothers became recognised, and eventually those of the children, with the welfare and best interests of the child now being the paramount consideration. As the law’s conceptions of childhood have evolved, children have become better regarded as active participants in family and legal decision making processes. We now stand at a critical point along this historical continuum. If children are increasingly understood as having the capacity to contribute to legal processes, how well can and do family law systems facilitate and develop their meaningful participation? Family law is a potentially significant vehicle for accommodating children’s interests and rights, yet childinclusive practice continues to meet resistance due to attitudinal and systemic constraints. This paper will review research, statutes and caselaw to trace the current positioning of children’s participation rights in residence and contact disputes in Australia and New Zealand. The tensions between the parallel trends of inclusion and resistance will be considered within the context of each nation’s obligations under the UN Convention on the Rights of the Child.