Parenting orders: Research on compliance and enforcement and insights from practice
30 November 2022, 1:00 pm to 2:00 pm (AEDT)
Rae Kaspiew, Rachel Carson, Michele Robinson
About this webinar
This webinar was held on Wednesday, 30 November 2022.
Non-compliance with family law parenting orders arises from a complex range of personal and systemic dynamics. Recent research has highlighted the role that negative interpersonal dynamics, including family violence and safety concerns, play in difficulties with the implementation of parenting orders. These difficulties can be compounded by limitations in identifying, assessing and responding to risks in the family law system. The Compliance with and Enforcement of Family Law Parenting Orders Project examined the drivers of non-compliance with parenting orders and the operation of the parenting order enforcement regime in Australia. Findings from the report indicated that there is a need for:
- specialised screening and assessment approaches for matters involving family violence and/or child abuse that focus on identifying the predominant aggressor
- case management to ensure litigation is managed quickly, cost-effectively and in a way that is not inconsistent with the best interests of the child.
This webinar brings together researchers, a relationship service practitioner and a representative from the Federal Circuit and Family Court of Australia, to discuss:
- findings from the report about the operation of the contravention regime in Division 13A Part VII of the Family Law Act 1975 (Cth)
- the National Contravention List, a new initiative in the court to streamline the management of contravention applications
- practice insights from a relationship sector practitioner who works with families in relation to parenting orders.
This webinar is of interest to legal and non-legal practitioners working with families in relation to parenting orders. The Compliance with and Enforcement of Family Law Parenting Orders Project was commissioned by ANROWs as part of a research program aligned with the Fourth Action Plan of the National Plan to Reduce Violence Against Women and their Children 2010–2022.
This webinar is presented in collaboration with ANROWS.
Audio transcript (edited)
MICHELE ROBINSON: Welcome everyone, to today's webinar, Parenting Orders Research and non-compliance and enforcement. My name is Michele Robinson, I'm the Director of Evidence to Action at ANROWS, Australia's National Research Organisation for Women's Safety. I would like to start with an acknowledgement of the traditional owners of the land I am speaking to you, from the Gadigal People of the Eora Nation. As well as Wurundjeri, the Woiwurrung, and Bunurong and Boonwurrung people of the Kulin Nations who are the traditional owners of the lands in Melbourne where our other panelists are joining us from.
I would like to pay my respects to their elders, past and present, as well as to any Aboriginal and Torres Strait Islander people who are joining us today. This webinar is about compliance with, and enforcement of Family Law parenting orders. The current regime for responding to breaches of the Family Law parenting orders is contained within 13A of Part 7 of the Family Law Act.
Contraventions are not particularly common, reflecting about 8% of applications for final order in parenting matters each year. However, as series of inquiries suggested a need for a raft of changes to the Family Law system, concerning parenting matters generally, and contravention matters in particular. Today you will hear key findings from a research program on this topic, conducted by the Australian Institute of Family Studies, and funded by ANROWS.
This is a significant study because prior to it being published, there was no current empirical evidence on the operation of the contravention regime in Australia. We will also be discussing how the federal circuit of the Family Court of Australia is already responding to these issues. During the course of this research, a new court structure took effect, replacing two separate courts, The Family Court of Australia, and The Federal Circuit Court of Australia, with the Federal Circuit Family Court of Australia.
The Court also introduced some very significant initiatives including The Lighthouse Project involving triage, risk screening and specialist family matters, and implemented a National Contravention List. We will also hear some important insights from a practitioner who works with separated families. Now to our presenters. Joining us on the panel we have Rae Kaspiew, Research Director, Systems and Services at AIFS. Welcome, Rae.
RAE KASPIEW: Hi Michele. Hello, audience.
MICHELE ROBINSON: We also have Rachel Carson, Executive Manager, Family Law, Family Violence and Elder Abuse at AIFS. Rae and Michele, as some of you might know were the authors of the research. Melonie Creek, Senior Clinician and Communities for Children Program Coordinator at Relationships Australia, welcome, Melonie.
MELONIE CREEK: Thank you, welcome.
MICHELE ROBINSON: And Maria Kourtis, Senior Judicial Registrar with the Federal Court, Federal Circuit, and Family Court of Australia. Welcome everyone.
As we begin the panel discussion with a series of questions for the panel, I'd just like to make a general comment that we won't be providing any legal advice during the discussion, and we cannot discuss individual cases. Turning to you Rae and Rachel, we might start with an overview of the research and the implications as you discuss them.
RAE KASPIEW: Thank you, Michele. Before I start talking about the research findings specifically, I'm just going to set the scene with a brief overview of the legislative provisions relating to enforcement, just so that people understand what we're talking about when we're referring to the law, and you're not left in the dark if you're not a lawyer and not familiar with Division 13A of Part 7. These provisions operate where a parenting order is not complied with circumstances where a party subject to the order has intentionally failed to comply or has made no reasonable attempt to comply.
Parties against whom are contravention application is made may argue that they had a reasonable excuse to contravene the parenting order. Circumstances in which a reasonable excuse may be upheld can include situations where they have safety concerns, or they can show that they did not understand the obligations established by the order. Or, as I've said, that non-compliance was reasonably necessary to protect the health and safety of a person, including the child who is the subject of the order.
The legislative framework identifies serious and less serious contraventions where a reasonable excuse has not been made out. There are a range of remedies or responses available in the legislative framework, depending on the circumstances of the case and whether the degree of severity that the court attaches to a contravention that's upheld. These responses include orders that require the resumption of time to occur. They can include the variation of an existing parenting order. They can place a person on notice that if the person does not comply with an order, they may be punished.
And at the more punitive end of the spectrum, the legislative framework provides for fines, community service orders, orders for bonds, orders for the party attend counselling or family dispute resolution. At the most extreme end of the spectrum, imprisonment. I'll be talking about the frequency with which those kinds of remedies are applied in a moment, but before I do that, I want to explain that the inclusion of penalties in Division 13A, means that that Division operates in a quasi-criminal context, requiring a high level of legal particularity and legal rigour, to establish a case.
This raises a longstanding conceptual tension between the punitive aims of the contravention resume on the one hand and child-focused decision-making on the other. I'm now turning to a brief overview of the methodology that we applied in this research, but before I do that, I just want to acknowledge everybody that's contributed to the research, including, importantly ANROWS and the Department of Social Services for the funding. I would like to acknowledge the Courts particularly because they gave us access to court files and facilitated interviews with judicial officers and our survey with professionals.
And we also had fabulous support from a range of other Family Law system stakeholders, including Family Relationship Services Australia, and the members of that organisation. We also had support from parents with parenting orders as you'll hear in a moment. So this was a four part methodology that we applied in this research. We conducted a national survey of parents and carers with parenting orders. They provided a case number and we were able to verify, with the cooperation of the court that they did have a parenting order. And we had 470 parents respond to our survey.
We also did, as I've mentioned, an analysis of data from files from the Federal Circuit Court of Australia, and the Family Court of Australia that predated the restructure of the courts, and we looked at 300 court files where a contravention application had been finalised between 2017 and 2021. We also included a sample of published and unpublished court judgements, numbering 147 in matters involving contravention.
The fourth element of our methodology involved an examination of approaches to enforcement in three international jurisdictions, namely England and Wales, New Zealand, and Michigan in the United States of America. Importantly, we also obtained the views of 343 family law system and family violence system professionals, as well as 11 judicial officers who we interviewed.
I'm not going to focus on the core findings from the court final analysis, given that we're focusing on the more legal aspects of our findings in this particular webinar. We previously did a webinar where we did a deep dive into some other aspects of the findings, including those focusing on family violence and child safety concerns, and that was the webinar Michele referred to, and our production person Anne Kyle will post a link to that webinar in the chat for this webinar.
Turning now to the patterns that we saw in what happens with contravention applications when they proceed to court. I'm just going to provide an overview of some of the key high level findings. And I'm referring back at this point to the fact that this is a quasi-criminal jurisdiction and so it's important to, as I've said, understand that there is a very high level of legal rigour involved in these applications.
What's significant is that our file analysis data collection showed that two-thirds of all contravention applications were dismissed, withdrawn or struck out, in part because they did not meet that level of legal rigour. That was two-thirds. In terms of other outcomes, the next most common outcome was a variation of the parenting orders. That applied in 15% of cases. It was quite rare in the sample for the more punitive responses to be applied, so we only saw bonds in five percent of matters. We saw, overall the contravention application being upheld in six percent of matters.
And there were very small proportions of matters where there was fines or sentences of imprisonment. They were only applied in less than once percent of cases. That gives you a good indication of what happens when contravention applications are lodged. I'm also just going to refer briefly to our findings in relation to reasonable excuse. Most responses to contravention applications involved an argument by the respondent, that they had a reasonable excuse for non-compliance. This was most frequently on the basis of safety concerns, or that they didn’t understand the obligations established by the order, or that they had another reasonable excuse.
It was also not uncommon particularly, for the argument to be raised that compliance was inconsistent with the views of the child involved. That gives you a snapshot of the high-level findings in relation to what happens when a contravention application is lodged, and the extent to which they result in substantive findings and outcomes.
What's also significant is that our analysis of the court files demonstrated that many matters had an intense litigation history and occurred over a protracted period of time. When we take into account both the parenting proceedings and the contravention proceedings. Against this background it's important to note that the contravention matter files involved complex histories. Taking the material from the primary parenting proceedings and the contravention proceedings together, more than 90% had allegations of family violence and/or child abuse.
Around half had involved personal protection order processes in the state or territory courts, and about a quarter had Child Protection Agency engagement. Many had particularly complex and protracted litigation histories. Six in 10 of the sample had five or more parenting or contravention applications. There was an average rate of six court processes across the sample. The mean overall duration from the start of the parenting matter to the end of the contravention was quite extensive, in some cases numbering some years.
In this context, it's very important to place focus on the recent developments in the Federal Circuit and Family Court of Australia, and Maria will discuss those before we hear from Rachel a little bit more about the findings of the research.
MICHELE ROBINSON: Thanks, Rae. That was a really good overview. Maria, as Rae just mentioned, the Court was undertaking its own reform agenda during the course of the research and the National Contravention List was introduced on the 1st of September 2021, to streamline court management of contravention applications. Could you tell us about these reforms, The Lighthouse project as well, and how the list operates?
MARIA KOURTIS: I'd love to, thank you. I’m very pleased to be here today to talk about some of those reforms that have come into operation over the last year or so. And also to talk about contravention applications and the National Contravention List. As we've already covered, the Federal Circuit and Family Court of Australia came into being on the 1st of September last year. The most obvious change was to the structure of the courts. The Family Court became Division One, and the Federal Circuit Court became Division Two.
But the reforms went well beyond just a structure. The commencement of the new court also saw reforms such as a single point of entry for all family law matters, so now all cases start in the same way with the same rules, processes. And that feeds into the second reform, which is harmonised rules, where previously the processes and rules were different in each court. There's also a dispute resolution focus that's been introduced, and this recognises that most cases that end up in court do resolve at some point along the pathway and we look at maximising opportunities for parties to achieve resolution, and if they can't reach resolution, to at least narrow the issues in dispute between them.
There's also a significant increase in the number of dispute resolution events that are offered and run by the court. And finally there's a new case management pathway, which is led by intensive registrar support and intervention. In very brief terms, the new case management pathway lets parties know from the outset, the different stages of the proceeding, or what's like to happen at each stage, and sets timeframes for each stage.
The pathway is administered by judicial registrars, who from the very first court date work to identify the issues in each case, make orders for the gathering of evidence about those issues, scheduling hearings if there are interim issues in dispute that require determination, and scheduling dispute resolution to take place at a time when the parties should have available to them, detailed evidence about the issues in dispute so that when they engage in dispute resolution they can do so from an informed position.
If the matter doesn’t settle, then it moves onto a final hearing or a determination phase, and the court is working towards having matters proceed through the entirety of that pathway, from the point of filing, through to final determination if that's to be by a judge within 12 months. In practical terms though, to think about the case management pathway, in a first court hearing I'll have read both of the parties material, and identified if for example, the case is at risk, represented by one of the parents, or maybe it's about children with special needs or identify what other issues exist.
I can then make orders from the very first court date to obtain the evidence that's needed to illuminate those issues. If there's a disagreement for example, about where the children live or the amount of time they're spending with one of the parents, I'll schedule a hearing to determine that issue if the parties are unable to resolve it themselves. I'll also look to rescheduling the timeframe for dispute resolution and will look at when is evidence available? Do we need to gather more evidence? And we ensure that the dispute resolution is scheduled at a time after that's available. Or after time has been given to the parties to settle into any interim arrangements that they may have agreed to, or that may have been made by court order.
Running alongside this case management pathway there are specialist lists. That includes specialists lists like the Magellan List, and the Magellan List involves cases with the most serious allegations of child abuse and also things like the National Contravention List. These specialists lists are designed to meet the specific needs of specific classes of cases. Before I start talking about the National Contravention List, I will also touch a little bit on the Lighthouse model. This was rolled out nationally on Monday that's just past.
The Lighthouse model applies to all new applications that are filed as of Monday. It comprises a number of steps. The first step is risk screening. So parties in a matter are asked to complete a risk screen via a confidential and secure online platform. The next step is triage. A dedicated and specialised team within the court assesses and directs cases into the most appropriate case management pathway based on the level of risk that is assessed through the triage process and they identify parties who may require additional support and safety measures. This might include online referrals or interviews with those who are most risk.
The third stage is case management. The matters with the highest levels of risk are placed in the Evatt List, which is another specialist list. This list was developed and designed to assist those families that have been identified as being high risk of family violence or other safety concerns. The Evatt List focuses on early information gathering and intervention from the very commencement of the proceedings, so even before the very first court date. Lower risk cases will be considered for a range of other case management pathways and including suitability for dispute resolution.
The Lighthouse model was piloted successfully in three registries across Australia over the last year, and the expansion of the model nationally is a really important development in the court's continuing commitment to better address family safety risks and improve the experience of families entering the family law system.
Now I'll talk a little bit more about the National Contravention List. This list was developed to deal with contravention applications. The law around contravention applications is complex and technical, and what I'm about to provide is a brief overview, really to provide context for our discussion today. Contravention application are a different species of proceeding from the kinds of applications that we've been discussing so far. When the court is considering making parenting orders, the paramount consideration is the best interest of the child. The Family Law Act sets out a detailed list of factors that are to be taken into account when determining the best interest of the child.
These factors can be groups broadly into categories such as considerations relating to the child, such as their views, their relationships, their maturity, sex and lifestyle. Considerations relating to the parents including their own circumstances, their decision making, the time they've spent with the child, how they've fulfilled their parental obligations, their attitudes, capacities and things like that. And finally, interfamily violence considerations.
What a contravention application is, is it's one party alleging that the other party, without reasonable excuse, has contravened the orders in some way. Whether that is by intentionally failing to comply with the orders, making no reasonable attempt to comply with court orders, intentionally preventing compliance with an order by a person who's bound by the order, or by aiding and abetting a contravention of an order by a person who's bound by the order. The applying party has to set out the date, time and place of the alleged contravention and the specific order which is said to have been contravened.
If the applying party is alleging that there's been more than one breach, they have to set out each individual breach separately and the court then considers and makes findings about them. The contravention application's supported by an affidavit, which is the applying party's sworn evidence about the circumstances around the alleged contravention. An important part of the consideration of whether a part has contravened orders will be whether that party had a reasonable excuse for so doing. And a reasonable excuse may include that the party didn’t understand the obligation imposed by the order, that the party believed on reasonable grounds that the contravention was necessary to protect the health or safety of a person, including the child, and that the period of the contravention was not longer than was necessary to provide that protection.
Those examples I've just cited are directly cited from the Family Law Act, but the case law around contravention applications tells us they're not the only examples of reasonable excuse. It's not a closed list and each case has to be assessed on its own merits and takes into account its own facts and circumstances when making that assessment. You can see that a contravention application, at least at this stage, is about a court making a determination about whether at a defined, date, time and place, something did or didn’t happen and whether there was a reasonable excuse for it.
Just like contravention applications are not like a usual parenting case, the process at a final hearing is different too. This has been averted to earlier when we talked about these applications being regarded as quasi-criminal. At a final hearing of a contravention, the Act sets out a very specific process that must be followed in each case. In fact if it's not followed it will render the decision subject to an appeal. It'll make it an appealable error.
To summarise, and again this is a very broad summary, the respondent must indicate from the outset if they admit or deny the allegations. The applicant must then, based on their application and affidavit, and other evidence, satisfy the court that there is a case for the respondent to answer. If there is a case to answer, the respondent then has the opportunity to lead evidence as to their reasonable excuse and the court then makes a finding about whether that's accepted. We then move to the outcome phase of the hearing and the specific powers of the court depend on the findings made during the hearing.
There are different powers, depending on whether or not a reasonable excuse was established and whether the contravention is regarded as a more or less serious contravention. Regardless of the outcome the court has the power to vary the orders. But other options available to the court include orders for compensatory time, orders that a party or parties attend a post-separation parenting program, to adjourn the case so that one of the parties can bring an application to vary the orders, costs consequences, and then in more serious cases you're looking at things like the imposition of a bond or a fine, or a community service order, and in the most serious cases imprisonment.
The consideration of the powers enlivened by a finding of a contravention is important for a number of reasons, including that first it's an explanation for why it's necessary for the strict application of the process in these cases. The casebook tells us that where the consequences are so serious potentially that a party may be deprived of their liberty, it's important that proper process is strictly followed. Second, and even though such potentially harsh outcomes are open to the court where a contravention is proved, the full court has stated plainly, that the outcome in contravention applications is not to punish non-compliance.
Contravention applications for parenting orders are primarily enforcement tools, so the court has to consider, when they're making orders of the outcome phase, imposing outcomes that aid or promote future compliance with orders. The reality is that imprisonment is not even an option for the vast majority of cases. Nor are the options of fines or community work orders. In my experience, and this is consistent with what has already been talked about today, the most common outcomes relate to the undertaking of programs, compensatory times, and perhaps if the contraventions are getting more serious or persistent, the imposition of a bond.
That's in addition to the power, as I say, to vary the orders if the court considers that it's in the best interests of the children to do so. Ultimately a contravention application is one of an number of enforcement mechanisms that are available to parties and it's important that parties seek legal advice about their options if they're in a situation where enforcement or compliance is an issue. There are also options if there is a material change in circumstances to apply to vary the orders in question.
The National Contravention List was developed to deal exclusively with contravention applications. It's one of the specialist lists that I referred to earlier. Even if there are ongoing proceedings, the contravention application will be going through and dealt with through the list, the National Contravention List. The key objectives of the National Contravention List are to efficiently deal with applications in a timely, cost-effective and safe way for all litigants, to list applications for a first return date within 14 days of filing, to promote compliance with court orders, to impose appropriate penalties or sanctions where a contravention has been proved, and where a party has failed to demonstrate that they had a reasonable excuse.
To proactively facilitate the resolution of underlying issues in disputes that lead to the filing of such applications, to triage appropriate matters to dispute resolution processes and to be responsive to parties wishes to resolve matters without recourse to additional litigation.
Legal practitioners and parties are also required to act consistently with the overarching purpose of Family Law practice and procedure, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Upon the filing of a contravention application, and it doesn’t matter where you are in Australia, the process is exactly the same, the matter will have a first court date in the National Contravention List. There are five Contravention Registrars nationally, and we each have a list once a fortnight, so fortnightly.
The courts published a practice direction about the National Contravention List which provides a lot of information to parties and practitioners about these kinds of applications and about the court processes and the Court's expectations of parties and practitioners. About the hearings on the first return date, the practice direction sets out that as contravention registrars, we may ask the respondent to identify whether or not they concede that there was a non-compliance, and whether they are asserting that they had a reasonable excuse.
If a reasonable excuse is being asserted to consider, ordering the filing of evidence that will be called up to rely upon or to support that assertion. To advise parties and practitioners of the costs, penalties and sanctions that my be imposed, including the possibility of personal cost orders if the application is determined to be frivolous or without merit, or where the respondent is unable to demonstrate a reasonable excuse for non-compliance. To refer the parties to participate in family counselling, family dispute resolution, or other course, program or service pursuant to Section 13C of the Family Law Act, to identify what outcome is sought by the applicant in filing their application, including if they seek to vary the orders, whether they're seeking a particular penalty, whether they are simply seeking the resumption of time.
We're also there to reaffirm the Court's focus on the best interest of the children and to consider whether it's appropriate to refer the matter to a Court Child Expert for the preparation of the Child Impact Report. We are to try and identify if there are ongoing proceedings, and if so to discuss whether the issues can really be dealt with as part of the substantive proceedings and avoid unnecessary and costly litigation. And also to explore a resolution if that's possible without the need for a trial, including assisting parties with varying the orders through negotiation or referral to other dispute resolution.
In other words what we try to do is we try to directly engage with the parties to identify what the underlying issues are and to consider how we might be able to assist them to find a way forward without having to engage in further litigation. And outcomes, as has already been discussed, can include the parties agreeing on what terms to resume arrangements in accordance with the existing orders, the parties agreeing to vary existing orders, to address concerns or issues that may have come up since the orders were made, the parties agreeing to engage with a family therapist to work on interrelationship issues between themselves or between a parent and a child.
And the withdrawal of a contravention application in favour of an application that seeks to consider the current orders from the perspective of the best interests of the child, and look, sometimes the resolution is a simple withdrawal of the application. If the matter can't be resolved through those processes, then we try to progress the matter through to a final hearing as quickly as possible, and that will include the hearing of the case and the imposition of sanctions if the application is successful. There are dedicated contravention judges, so there's very much a focus on trying to move them, if they need to get to that stage through as quickly as possible.
We really want to avoid delays with these kinds of application. The operation of this list is having the effect of having these applications dealt with more expeditiously than may have occurred in the past, but like all recent reforms, this is part of a process and the court remains committed to ongoing dialogue with various stakeholders about refinement of the existing reforms and the development of ongoing reform. Thanks.
MICHELE ROBINSON: Thanks so much, Maria. It's been really helpful to have the Court as part of this conversation, and your insights into, and experience with both the legislative requirements and the practice I think has just been very, very helpful as part of the conversation that we're having today. So thank you. And I just wanted to pick up on one of your points around other tools. You said that contravention applications weren't the only tool for responding to non-compliance and I thought I'd throw to you, Rachel, welcome to the conversation, in terms of what you found in the research around this.
RACHEL CARSON: Thanks, Michele. And yes, thank you Maria for that very helpful proceeds of the Court's approach. In thinking about the tools for responding to non-compliance we need to take a step back and look at the reasons for non-compliance. The data from our compliance with and enforcement of separated parents project, the survey data in particular shows us that a substantial majority of parents and carers, indeed 80% attributed non-compliance with family or parenting orders to vindictive, obstructive or abusive and controlling behaviour on the part of the non-compliant party.
Fathers were more likely than mothers to attribute non-compliance to difficult or vindictive behaviour on the part of the mother and on the flip side mothers were more likely than fathers to attribute non-compliance to concerns about safety. And that is that it was never safe to comply with orders or that it was no longer safe to comply with the orders. They were also more likely to note that children themselves were resisting compliance. Around 80% of professionals who participated in our survey professional's component reported that parents sometimes, often, or always complied with orders despite being concerned about the safety of children.
With that backdrop in mind and following on from the findings that Rae discussed earlier in relation to the orders that can be made, it's important to note that the court file sample shows that most frequently the orders sought in relation to a contravention was to vary those parenting orders, and that was 26% of applications. Order for compensatory contact, or make-up time as Maria mentioned earlier, as it's known were the next most common at 14% of applications, and recovery orders were also an option sought at eight percent.
So these were much more common than the punitive orders that both Maria and Rae had been mentioning, which were at two to four percent of applications, depending on the type of punitive option that was sought. We see that punitive options are very rarely sought, and indeed professionals participating in our survey, professionals raised a range of concerns about the potential for these sorts of responses, punitive responses that is, to result in adverse consequences for children, and that includes depriving them of a parent who is important to them, diminishing financial resources available to them, and compelling compliance, potentially with unsafe parenting orders.
Together these findings indicate a lack of confidence amongst professionals in the compatibility between punitive and child-centre approaches. In our surveyed professionals we also found significant support for therapeutic options for reducing non-compliance. For example over half, indeed 56% of professionals endorsed the need for educative and therapeutic support for parties to engage in effective communication. And a similar proportion also endorsed early therapeutic intervention to address those underlying issues early in the dispute resolution process.
Parents who participated in our survey also indicated a need for these educative and therapeutic support services, and they included both pre and post-order support services. Together these findings identify a need for a very well resourced family law system to support compliance and that includes these educative and therapeutic support services to address those underlying issues and to enhance parents capacities to implement their parenting arrangements, and to avoid further litigation.
Some of the suggestions in our research included employing a specialist unit within the courts involving conferencing processes with a registrar and court child expert to support the families where implementation difficulties arise, together with a more sophisticated triage system that effectively screens and assess family violence and children's needs that arise from trauma. And to be more trauma-informed and child-centred in their approaches. And the Court's introduction and recent expansion of the Lighthouse initiative as Maria has indicated, is very important in terms of contributing to addressing these needs in particular.
We also identified among the respondents, a new for improved case management during litigation and the Court's Central Practice Direction and the National Contravention List, as Maria's outlined, may also be very important, an important measure in this regard as well.
MICHELE ROBINSON: Thanks, Rachel. And I think it might be timely here to bring in Melonie, in terms of the levels of support for therapeutic assistance to address non-compliance in significant in light of your practice. Are you able to talk to us around perhaps the work that you do with parents experiencing these issues, and some of the other drivers apart from the concerns that Rachel has identified already?
MELONIE CREEK: Sure. We have several service responses within our organisation, family violence responses, mediation and family dispute resolution, as well as counselling. It's generally in counselling that I'm going to talk to, because that's my main area. We do receive Family Law counselling funding and we do see these cases, sometimes at the beginning, sometimes at the middle, and sometimes at the point of contravention.
We're talking about the other percentage that is not family violence related in terms of drivers. We're looking at challenges around the orders still be fit for purpose and around that particularly, the orders being relevant to teenagers versus young children, when the orders might have first initially made. Also really looking at the orders still having a capacity to have the voice of the children, well, they're not children anymore, but adolescents represented. And the fact that what with see as well is adolescents not being prepared to comply, for a variety of reasons with those orders that might have been some time ago.
That may be due to a variety of reasons, a different relationship with different parents. It might be because friends are more important and they don’t want to share time between parents. It can be really because they don’t have the same relationship equally with both parents, or the same emotional attachment.
Also looking at one of the other drivers being really entrenched conflict. We see that. Mental health being something that does really affect people's capacity to comply, along with homelessness, and neurodiversity and special needs for children with neurodiversity. And I guess the response from the counselling team towards all of those issues when they come in, is first of all, Maria mentioned this, we're looking at what the underlying issues may be in a counselling capacity and working with parents in an educative as well as a therapeutic sense in – all of our work is really trying to bring the voice of the children into those sessions so that the parents can understand the needs for them to really understand in an emotional way, what the experience of the children is and to make arrangements around those.
Also we're very trauma-informed and really trying to explain to parents that with entrenched conflict in particular, there doesn’t need to necessarily be family violence. The impacts for children in living between two parents where there is entrenched conflict for a long period of time we know affects the long-term outcomes for those children in terms of learning, in terms of relationships, and we're really in a position where we're trying to get them to understand that if they can keep the conflict out of it and make decisions really around the best needs of their children, they keep their relationships and the attachment for the children intact and that is the best outcome for their children.
I think that probably one of the other focuses for us has really been future focused around, one of the things with entrenched conflict that happens is staying in the past and staying in what has happened previous in the conflict and not being able to be future-focused around what the needs of the children may be, very different in terms of teenage hood versus young children.
And also focusing, instead of on the conflict, really around the capacity to keep the child at the centre of those decisions and wherever possible to give that child a voice in being able to talk about their needs are. I'm not sure if that's helpful, Michele.
MICHELE ROBINSON: Very helpful, thanks so much Melonie. And I think you made the point that these were looking at areas where there was family violence and as Rae mentioned earlier, there is the webinar that ANROWS and AIFS have posted I think in the resources, that our practitioners and anybody else watching can look at there. Melonie, I'm going to turn, we've got lots of questions from the audience and I want to first of all, thank the panel. I think all of their contributions that you've made, it is a truly collaborative piece of work as Rae mentioned earlier, and I think having Relationships Australia and the Court represented in the discussion today, it's been incredibly helpful and very useful.
One of the first questions that's come through live is probably for you, Melonie. How can social workers supporting families through this process, assist them when orders are contravened?
MELONIE CREEK: I guess there's a couple of different answers to that. It's a very complex question in some ways because it really depends on the circumstances around the individual case. Maria was talking about this too, every case is different so the needs around every single family are going to be different. Sometimes it can be helpful and sometimes it's imperative and mandated in fact, that there's referrals into appropriate support services, family violence services, Orange Door, child protection services and other services to support the families.
Other times it's about referral into appropriate counselling, and sometimes it's mediation, and sometimes it's legal advice. And sometimes it's all of those things. I think the main part from a therapeutic stance is really identifying what the conflict is really about and if there are safety concerns, appropriately managing those and making sure that the appropriate services are involved to support risks for children. And getting good legal advice and mediation services particularly.
MICHELE ROBINSON: And another one that's come through live is, what advice or processes do you recommend to ensure children's views are taken into account safely? Rachel, would you like to lead with this one? And please, if any of the rest of the panel want to add –
RACHEL CARSON: Yes, feel free to jump in. Enhancing children and young people's participation in the decision-making process was a factor that was identified by parents and carers in our survey in this project, as a means of supporting compliance. We had qualitative data also from both participating professionals and parents who indicated the importance and reflected on that importance of providing children and young people with that opportunity to have their views heard and considered in the decision-making process.
I've collated a couple of quotes to share with you if we have time. One parent for example stated that their children should get more of a say. They said, "My children are very young and in the right environment they should have been given the opportunity to say what they want and how they feel." Some parents emphasised the importance of listening to children throughout the proceedings as a means of supporting compliance going forward also. For example we had a parent who stated that, "We must start listening to the child far more at the beginning of proceedings so that the agreed orders could possibly be more closely complied with."
And this parent went on to say, "Please give the child a voice in matters that affect them. In the beginning and as part of the process, give the child more credit for how they feel and what they want, and treat each child as an individual and not as a number or a statistic based on their age. This approach may well again support compliance." So that parent has brought together a number of the themes that we've talked about already.
The need for child-inclusive practices were also emphasised by the Family Law system professionals as I mentioned, and they were both legal and non-legal professionals that were participating in our survey. More than three-quarters of these professionals agreed that more effective and widely available processes to support participation of children and young people would reduce non-compliance. And these participants described child-inclusive processes that support parents to focus on their children and to have that focus in formal, flexible arrangements where that's possible, that can adjust with the child and the family's changing needs.
As we spoke of before as well, these professionals described the importance of taking that genuinely child-centred approach that focuses on addressing those underlying issues also in a very child-focused manner. I have a couple of quotes that professionals indicated. We had a child consultant who stated that, "What is needed is a child-inclusive process to build parents and child focus and making more flexible agreements to tailor to a child and family's changing needs." And FDR practitioner who stated, "It's a requirement for family lawyers to put the interests of the children above both their client's and their own interests. And a judicial officer who stated, "What is required is a contravention regime that focuses on what are the underlying causes and how can they be addressed in a child-focused way?"
In our research, while ICL, Independent Children's Lawyers appointments in these family law proceedings had occurred in most of the sampled cases in our court files at some point in the proceedings, in relation to the contravention proceedings in particular there was limited evidence of ICL involvement, or Independent Children's Lawyer involvement, or of family reports specific to the contravention proceeding. And the findings and the reasons for decisions in judgements about children's views were only evident in a small proportion of matters.
This reflects very much a tension at play between parenting orders being made in the Court's exercise of the best interests jurisdiction, but when contravention applications are made, and the contravention regime applied, in the Family Law Act it's intended to operate as upholding the authority of the Court as Maria identified earlier as well. What are the implications I guess, when we think about these findings for both policy and practices that children and young people's participation emerged from the research as being of importance to ensuring compliance with parenting orders, and that we make orders that are fit for purpose and meet children's needs and that can be supported by ensuring child inclusive practices throughout the proceedings.
That means they're consulted at the outset when parenting orders are being made, and that their views and, including any concerns about safety, are considered through that decision-making process, and that the process of making decisions and outcomes in the process, children are kept informed about those, and there's some measure of flexibility where there's possible to reflect those needs, changing needs over time.
MARIA KOURTIS: Can I just add to that, that part of the challenge that I think most of us face is that families involved in Family Law litigation quite often have a high level of conflict between the two of them, and quite often there's the concern about the children's exposure to the conflict and the extent to which they've been drawn into the conflict. All these things need to be taken into account about children not feeling that they are the decision-makers, or children bearing the burden of the conflict or trying to find a way forward, which is unfortunately something that we see more often than we should.
It's a fraught situation because if you've got these children who are caught between two parents that are barely able to communicate, who are barely able to agree on things that you would hope they'd be able to agree upon, or at least discuss, that bringing them in and the way that they're brought in, the way that views are sought, the way that that's incorporated in a proceeding is something that really needs to be really carefully considered and carefully managed.
RACHEL CARSON: Absolutely. That's right, Maria, and yes, child-inclusive practice needs to be very sensitively applied and trauma-informed of course. And what we know from previous research with children and young people directly is that they don’t want to make the decisions, they just want to be part of that decision-making process. So respectfully engaging in that way is important to, and not applying that pressure or drawing them into a position that they don’t wish to be in. Just having an opportunity to have a say should they wish to do so. So very important points that you're making, Maria.
MICHELE ROBINSON: All right, in the interest of time, thank you. We will look at one more question. We've got, or potentially two. How frequently are parties referred to FDR as a first step for resolving less serious or minor breach issues? Melonie, would you like to add to that, and perhaps Maria, if you had a view.
MELONIE CREEK: I guess it's really hard to say, would be my first response. Before the court proceedings, FDR is involved, usually as a first step. It really depends on the cases and whether there's family violence or safety concerns as to whether it's referred back in as appropriate for mediation or as a unit to be dealt with in the courts.
MARIA KOURTIS: I don’t have any statistics that I can draw upon to answer that question, but as Melonie said, there are pre-action procedures prior to commencing court actions, and that includes contravention applications. There are exceptions to the requirement for engaging in pre-action procedures, but certainly if it's possible to do so then the hope is that that will have been done before parties come on.
But again, it always comes down to an assessment of what the particular needs and circumstances are of each family and that is such a complex assessment. It takes into account the history of the matter. It takes into account past attempts at dispute resolution. It takes into account particular circumstances of the case. It takes into account what might be happening in the moment, what the allegations are, so much feeds into the assessment, but it is very much something that we are constantly considering, whether it's appropriate.
And there are some cases where the time for dispute resolution, or the suitability for dispute resolution might change over time. There are some cases where early on, really, it's not appropriate. There are some acute concerns that need to be explored, perhaps over time that might change. It's a question we're asking on an ongoing basis.
MICHELE ROBINSON: Okay, so we've got some more live questions from the audience now. Maria, this first one I think is probably best for you. This listener would like to understand how the court works with state-based services, such as Child Protection, to determine whether a matter is frivolous or supported? They're the words used.
MARIA KOURTIS: Well, the decision making process about frivolity or otherwise is a complex consideration, but on the question of how state-based organisations such as Child Protection work with us, what we have developed is, because each of the Child Protection authorities for example, is state-based, it's not something that can be done nationally. But what we've been able to do is on a state-by-state basis, develop protocols for the interaction between the state-based Child Protection authority and authorities like Police, to provide information to the court.
That can take the form of requests for information to assess matters for listing for priority. And that's not information that goes towards final decision-making, that's information obtained purely for case management purposes. There's also things like, I'm based in Victoria, in Melbourne, so in Victoria when the Notice of Risk is filed, which is filed in every case, if risk is asserted by either of the parties, the Notice of Risk is forwarded to Child Protection and they provide a written response, which we call the 67Z response.
They provide information directly to the court which is released to the parties of course, indicating whether they have information, what that information is, and of course there's also capacity for more detailed information to be obtained through other provisions of the Act. And of course parties can also in certain circumstances, subpoena that information.
There's also what we call co-located officers, so there's people who are directly, who are effectively liaison for Child Protection or Police authorities, with the court to facilitate that information exchange.
MICHELE ROBINSON: Great, thank you Maria. Now, this next one I think is probably best for Melonie to lead on, given that she works with families probably on a reasonably protracted basis at times. Melonie, wouldn’t it be useful to review orders at six months, 12 months, and maybe five years, to check their effectiveness and appropriateness and tweak if necessary?
MELONIE CREEK: Is that a question of personal professional opinion? I think professionally of course, is a short response. And with a caveat too, nothing is ever simple to answer, it really depends on the case. You could do that and therefore the orders, if they had the voice of the children, would be much better represented as a live document if you like, of the needs of the children. There's one part that I think that absolutely, it would be very helpful if that was part of the process.
However, where there's been consistent coercion and control and previous family violence, I think having very firm court orders is actually part of the safety involved in that as well. Bringing the matters continually before whatever that panel looked like, to review, if it was in a legal sense, I could imagine that those issues may become much more unresolvable in some ways. And we do know that one of the reasons in being very, that women don’t take these matters back to court is about litigation and about consequence, and where there has been previous family violence and they've been involved in the court.
So it depends for me on what the forum was that these reviews happened. If the reviews happened in a therapeutic sense, and with a mediation model, which was child inclusive if possible, that would be a really great way of making sure that the orders were live if you like. And that the voices of children was relevant for those particular times.
MICHELE ROBINSON: Okay, thank you. We have a question about the choice of jurisdictions in the desktop review that I referred to. How was Michigan, USA chosen to be included in the research as well as the other regions included? I'll take it upon myself to answer that question. We sought to identify, we had a couple of criteria that we applied in selecting jurisdictions. First of all we wanted them to have a legal system that in its overall character wasn’t too distant from the Australian legal system. But at the same time we also wanted to illustrate different approaches that were taken in different jurisdictions.
We also prioritised jurisdictions where there was some research evidence. But I should say that of the three jurisdictions that we looked at, Michigan had the least research evidence, but we did choose that jurisdiction because it was an interesting one because their approach is for a state agency to look after contravention matters, both in the child support and the parenting order context. So we chose Michigan because it was conceptually different to what happens in Australia, and interestingly we also looked at the UK, well England and Wales and New Zealand, and one of the points of distinction with those two jurisdictions was that they each have, to different extents, slightly greater emphasis on the children's views and the best interests of the children in the contravention context.
And in England and Wales there's also a significant statutory emphasis on obligations to explain. And that's all set out in the report. I might ask one more question, and this one is perhaps for Maria, well not perhaps, it's definitely for Maria. This listener would like to understand how the Lighthouse intake assessment and case management processes work in, and whether they work in collaboration with family relationship centres, and family dispute resolution services to change the way separated parents resolve parenting disputes and family relationship issues without litigation in the best interests of the child?
RAE KASPIEW: Fabulous question.
MARIA KOURTIS: All right, well that's, really, the focus of it is about, it's really about that initial triage, and it's about, and the risk screening. It's to ensure that those cases where there's high risk are going to get specific and targeted case management from the very outset, before the matter is even in the court. Better the matter has even had its first court return date. It's about the gathering of information because we're a court. You have to make decisions based on information, otherwise you have two affidavits that tell you wildly disparate stories.
So it's bringing the resources together at a very early stage so that these things can be addressed quickly. It's also about some referrals as well, as part of the support, and it's also about how the matter is then going to proceed through the court system. There might be some referrals to some community organisations, but otherwise really the Evatt List is so important for those high-risk cases because of the additional resources that its able to bring in and the, I already talked about an intensive level of case management by registrars in the new case management, but this is an even higher level of case management as well.
As I said, the expansion has literally come into effect as of Monday so for most of us we haven't yet had a lot of interaction. Melbourne, my registry wasn’t one of the pilot registries, but the education and the information that I've got around it has been that it's been really successful in terms of identifying those risk factors at an early stage and promoting safety and promoting evidence gathering and those kinds of really important factors in these kinds of cases.
MICHELE ROBINSON: Great. Thank you. Thanks Maria, and I think I might draw it to a close here because we've got less than a minute till the end of the discussion. I'd like to think everybody, the presenters for sharing their insights and experiences. It's been particularly helpful to have the Court's perform agenda unpacked and the progress of those reforms outlined by you, Maria. And also the insight into the Court's practices as a senior judicial registrar is very, very helpful for everybody on the call.
And then Melonie, hearing from the practice with your practice expertise. And that of your team as the other part of this discussion has been really helpful alongside the research which we are able to read in the reports. This has been very, very useful in looking at the legal aspects of contravention of parenting orders, and we appreciate your expertise and your insights.
And thank you all at home and at work for joining the webinar today. We hope that you found it useful and thought-provoking. So with that we look forward to joining you at our next webinar, and until then, stay safe and have a wonderful week. Bye everyone.
RAE KASPIEW: Thank you.
RACHEL CARSON: Thank you.
MICHELE ROBINSON: Thank you again.
Research Director, System and Services, AIFS
Dr Rae Kaspiew leads the research programs that focus on systems and services at the Australian Institute of Family Studies. She is a socio-legal researcher with expertise in research on the complex issues that cause challenges for families. She has been involved in an extensive range of studies and is the lead author of two large-scale evaluations of successive waves of reforms in family law (2006 and 2012 reforms). She led the team that completed the National Elder Abuse Prevalence Study in 2021 and the Compliance with and Enforcement of Family Parenting Orders Project in 2022.
Senior Research Fellow and Executive Manager, AIFS
Dr Rachel Carson is the Executive Manager of the Family Law, Family Violence and Elder Abuse Research Team at the Australian Institute of Family Studies. She has 20 years’ experience undertaking socio-legal research focusing on the Australian family law system, including examining the intersections between the family law system and family violence and, particularly, legislative, policy and practice reforms designed to improve the system. Rachel has represented the Institute in various capacities, including at the Senate Estimates Hearings and as a recently appointed member of Family Law Council, an independent body of experts that provides advice on family law to the Australian Attorney-General.
Director of Evidence to Action, ANROWS
As the Director of Evidence to Action at ANROWS, Michele leads a multidisciplinary team who have considerable impact on policy and legislative reform in the areas of coercive control, improving police responses to domestic and family violence, and at the intersections between child protection and domestic and family violence services.
Michele has extensive experience in building knowledge partnerships and developing strategies for the translation, application and exchange of research evidence to reduce domestic, family and sexual violence. Michele has provided strategic advice to Australian and international governments and peak bodies on legal, policy and practice initiatives to prevent and respond to domestic, family and sexual violence.