Shared Parenting Information Group (SPIG) UK
- promoting responsible shared parenting after separation and divorce -
Child Contact Orders: Enforcement and Penalties
- a report by the Family Law Council (Australia), Canberra, June 1998
Read our summary
The full report can be found at: http://law.anu.edu.au/flc/reports/penrpt2REV.htm (349 K bytes)
Recommendations of the report
1. Community education
That a program of community education on child contact be established. The program should focus on the general community, the legal profession and others and should cover child contact, contact orders and the enforcement of orders, and other matters referred to throughout this report. This proposal will have cost implications initially, but any improvements in the operation of the present system should result in a reduction of expenditure in the long term.
The aim of the community education program should be to reinforce the right of children to have contact on a regular basis with both parents and with other people significant to their care, welfare and development. It is important that all sections of the general community understand that, following separation, the residence parent (irrespective of whether that person is the mother or father of the child) does not set the conditions and determine the individual circumstances under which the other parent - or others, including grandparents and relatives - can have contact with a child of the marriage.
The community education program should complement other measures recommended in this report.
2. Role of the court
That the legislation dealing with enforcement of contact orders makes it clear that the court is to ensure that breaches of its orders are appropriately and adequately dealt with and that wilful or repeated breaches of orders are punished. Council recommends that there should be an objects provision in the legislation which clearly states that this is the intention of the legislation.
3. Post-order counselling
That, in appropriate cases, judicial officers should be empowered to require both parties to attend for compulsory post-order counselling where they identify the need for such counselling at the time residence and contact orders are made.
4. Use of Primary Dispute Resolution (PDR) processes
That parents who are having difficulties maintaining contact with their children should have the option, if they so choose, of contacting a conciliation counsellor or mediator who would be able to initiate and facilitate remedial action wherever possible and appropriate.
5. Section 112AD counselling
That section 112AD(5) of the Family Law Act 1975 be re-drafted to remove the current ambiguity which exists in relation to its interpretation as to the point at which counselling can be ordered.
6. The court process
Council recommends that the following changes be made to the system for determining contact enforcement applications:
- That in the short term Judges/Judicial Registrars and State Magistrates continue to hear applications to the court concurrently with programs designed to develop specialist expertise for handling contact enforcement cases and, as far as possible, there should be consistency of personnel handling individual cases;
- That in the short term the Family Court give greater priority to hearing contact enforcement applications and meet its Case Management Guidelines of a hearing within 14 days.
- Subject to the matters in (d) below being put into place, that in the long term the jurisdiction to hear such applications be transferred to Federal and State Magistrates who would use a summary procedure and would be empowered to transfer a matter to the Family Court where they considered this desirable. There would be a right of appeal to the Family Court against a Magistrates decision only on a question of law;
- That Federal and State Magistrates who hear such matters should have the following assistance:
- provision of a comprehensive and specialised training program.
- the supply of adequate information and resource material, including up-to-date legislation and a handbook;
- a 24 hour help line which enables them to seek urgent advice from the Family Court; and
- access to both court and community based counselling, mediation and family report services.
7. Counsel assisting the court
That in cases involving more complex issues, the court should be able to appoint Counsel to assist the court. Child Representatives, because of their special training, would be appropriate for appointment to undertake this role. Where Counsel to assist the court is appointed, Council recommends that the Legal Aid Guidelines should direct that this be taken into account by Legal Aid Commissions when considering applications for legal aid by the parties.
8. Court action
That after the effects of the implementation of recommendations made in this report are known, the cost and merits of the proposal to give responsibility for taking court action against breaches of court orders to a public body should be fully examined. Relevant public bodies, such as the Director of Public Prosecutions, should be consulted about the proposal at that time.
9. Drafting of contact orders
That standard contact orders be developed by the Family Court in consultation with judicial officers, legal practitioners, counsellors, mediators and others for use by legal practitioners, the parties and others in preparing court orders.
Orders should have endorsed on them appropriately worded warnings which indicate the seriousness of breaching contact orders and explanatory information about orders, including the consequences of breaching an order and advice about what to do when an order is breached.
10. Recovery orders
That the availability of recovery orders for the delivery of children to contact parents be included in the community education program, particularly in relation to legal practitioners. Council considers that the number of cases where this would offer a practical solution would be small and the education program should make this quite clear.
11. Use of recovery orders
That existing arrangements for enforcing recovery orders issued in favour of a residence parent under the Family Law Act should also operate in relation to recovery orders issued for the delivery of a child to a contact parent under section 67T(b) of the Act.
12. Special legislation
Contact problems are unique and there is a need for special provisions to apply in relation to the making, and breaches, of contact orders. Provisions separate from those relating to other court orders should, therefore, be inserted in the Family Law Act addressing these matters.
A solely punitive approach for breaches of contact orders has shortcomings and the legislation should recognise the need for preventative, remedial and punitive approaches to be available to the parties and the court in relation to breaches of contact orders.
In extending the powers of the court to take preventative, remedial and punitive action appropriate to individual cases, Council recommends that the issues discussed in paragraphs 8.09, 8.10, 8.12, 8.14, 8.16 and 8.21-8.25 be taken into account.
13. Contact handover centres
Council notes the Government's current initiatives in relation to contact handover centres and stresses that such centres offer some parents their only means of maintaining regular contact with their children. Council notes that at present the availability of centres is inadequate in metropolitan areas and that, apart from Mildura, the needs of rural and regional areas are not addressed.
Council supports the further expansion of publicly subsidised services as additional funds become available, the encouragement of the use of informal arrangements between parents and the development of commercial operations. However, Council considers that there is a need for commercial operations to be studied and, if necessary, regulated by Government in the interests of the children involved.
14. Child support and contact
Council strongly recommends that there be no link between payment of child support and child contact.
15. Resource implications
That the Government invest funds in the proposals put forward in this report on the basis that it will ultimately lead to a moreefficient and effective system for dealing with child contact problems. Council considers that in the long term the improvements proposed in this report will result in cost savings in both financial and human terms.
Read the SPIG summary of the Family Law Council report
Last updated - 27 March 1999
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