In Chapter 3 of this report, the committee outlined evidence received from individual parties to family law matters in relation to issues experienced in finalising the parenting arrangements for their children after separation. Submissions from organisations and academics also raised significant concerns about the way parenting arrangements are currently arrived at. The matters raised have been broad and numerous and span key issues such as:
the complexity of the legislated decision making pathway to determine a child's best interests;
whether the presumption of shared parental responsibility should be retained;
the role of children's voices in family law parenting proceedings;
how non-compliance with orders are dealt with;
the lack of access to and regulation of children's contact services (CCS); and
the rights of grandparents to see their grandchildren.
This chapter will consider the evidence provided to the committee on these issues, as well as current reforms being undertaken to address some of the problems raised and recommendations for reform arising out of recent reports on the family law system.
As discussed in Chapter 1, the committee considers that a primary task of the committee’s work is to identify measures that reduce the risk of harm to children and parents traversing the family law system. The committee recognises the ALRCs approach in its 2019 Report to the decision making framework for parenting matters which :
emphasises the paramount importance of the best interests of the child;
provides core factors to be applied in determining what is most consistent with a child’s best interests, with an emphasis on safety, while recognising that other factors may be relevant to a particular case; and
emphasises that parenting arrangements should be shaped around the circumstances of the particular child.
Complex legislative framework
Parenting arrangements are only made by court order in about three per cent of family law matters—this includes court orders by consent. However, the families that do utilise the court 'are often those affected by a range of complex issues correlated with family breakdown, including family violence, child safety concerns, mental ill health and substance abuse'. Around 38.1 per cent of parents who resolved parenting matters through the court reported four or more of the following issues as relevant to their situation prior to separation: alcohol or drug use; mental health; gambling; problematic Internet or social media use; pornography use; emotional abuse and/or physical violence. The committee heard that it is important that the law relating to parenting arrangements is clear and easy to understand for these parties (many of whom are self-represented), as well as those families who look to settle parenting arrangements between themselves without recourse to the courts.
Part VII of the Family Law Act 1975 (Family Law Act) sets out the legislative framework for determining the parenting arrangements for children after separation:
Part [(Pt)] VII provides the family courts with a wide power to make such orders about children's care and living arrangements, parental responsibility, and other matters relevant to a child's welfare ('parenting orders') as it thinks proper. In making parenting orders, Pt VII provides that the best interests of the child must be the paramount consideration.
However, as the Australian Law Reform Commission (ALRC) noted in its 2019 Final Report, Family law for the Future – An inquiry into the Family Law System (ALRC 2019 Report), 'the current law imposes on courts a complex set of requirements (sometimes described as a 'pathway') to determine what is in the child's best interests'.
A number of submitters called for the simplification of Part VII of the Family Law Act, highlighting the complexity of the current framework. For example, the Australian Bar Association noted that:
Through a succession of amendments, it now takes 42 separate steps to determine what is in a child's best interests. In turn, to cover each of these steps and to address the relevant considerations each requires makes for longer affidavits, longer cross-examination, longer submissions, longer judgment writing time and longer judgments: i.e., more time, more resources and more money. A simplified Part VII would go a long way to reducing the time, resources and money spent on each of these matters and would make the system far easier to understand and navigate. It would not detract from decision making which is in children's best interests.
The Attorney-General's Department (AGD) also noted that:
The complexity of the Family Law Act has contributed towards community misunderstanding of key elements of the law, which particularly affects self-represented litigants and those seeking to resolve their matters outside of the courts.
AGD highlighted in particular the misinterpretation of the presumption of equal shared parental responsibility (discussed in detail later in the chapter) and remarked that, as the majority of families resolve post-separation issues between themselves or through non-legal interventions, 'the usability of the law is critical to the effectiveness of the family law system'.
The ALRC 2019 Report recommended a number of amendments to Part VII of the Family Law Act, including reducing and simplifying the factors to be taken into account in determining which arrangements are most likely to promote a child's best interests. The ALRC referred to one judge who described the application of the best interests framework in interim matters as causing 'a dilemma of labyrinthine complexity to arise'. The ALRC noted that '[t]he legislation needs to provide a decision making framework for judicial decision making, and a guide for parenting decisions made outside the court'.
Former Justice of the Family Court of Australia, Professor Richard Chisholm AM, expressed his support for the ALRC discussion and recommendations about the provisions that set out guidelines for determining children's best interests contained in the ALRC 2019 Report. He stated that, 'for the reasons set out in that report, the existing provisions are complex and misleading and need to be simplified'.
Not all submitters to this inquiry supported the ALRC recommendations. For example, Ms Zoe Rathus AM, Senior Lecturer at Griffith University Law School, has expressed concerns about some of the ALRC recommendations for simplification of Part VII. While she supported the general direction of these reforms, she did not consider that the ALRC proposed the right formulation, in particular with regard to the list of factors to be considered when determining parenting arrangements that promote a child's best interests.
A number of concerns raised by Ms Rathus and other submitters are included in further detail later in this chapter. Further, Ms Rathus' submission is critical of the ALRC's proposal to include in section 60CC of the Family Law Act, when considering the factors relevant to a child's best interest, the requirement that the court consider what arrangements best promote the safety of the child and the child's carers. Ms Rathus stated:
I believe that the word 'safety' is not the best choice for the first factor. Safety is all about looking into the future and, at a practical level, working out if the child might be in danger as result of spending time with someone. This is actually quite a high bar to set and asks the wrong question. I am concerned that this might unintentionally focus attention mostly on physical and sexual safety. Although physical and sexual safety are critical, I submit that it is the impact of having lived with a parent who abuses the other parent which is dealt with most poorly in the current family law system – and that may not be captured in the idea of 'safety'. It is the legacy of living with family violence, not always what might happen in the future, that is a concern.
Instead, Ms Rathus suggested that the wording around 'safety' could be replaced with the following formulation:
… ensuring the physical, psychological and emotional safety of the child taking into account any family violence or abuse which has been or may be experienced by the child or to which the child has been, or may be exposed.
Presumption of shared parental responsibility
One of the most canvassed issues in submissions before the committee was the issue of whether the presumption of equal shared parental responsibility and the language of equal shared time between parents should be retained, removed or replaced with a starting position of 50:50 shared care.
The Family Law Act provides that, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. This presumption does not apply where there are reasonable grounds to believe that a parent has abused the child (or another child in the family) or engaged in family violence. The presumption will also not apply where the court considers it is not appropriate in the circumstances and it can be rebutted by evidence that it would not be in the best interests of the child to have equal shared parental responsibility.
Despite some confusion, this is not a presumption about the amount of time that the child spends with each parent. Rather, parental responsibility is defined as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Where a parenting order provides for equal shared parental responsibility between a child's parents, the court must consider whether the child spending equal time with each parent is in the best interests of the child and is reasonably practicable. If it is, the court must then consider making an order for the child to spend equal time with each of the parents.
Where the presumption does not apply, the courts must then determine what orders regarding parental responsibility and time with each parent are in the best interests of the child. This does not mean that one parent will get 100 per cent care and responsibility for the child. As the Australian National Research Organisation for Women's Safety (ANROWS) states, where orders are not made for equal shared parental responsibility, a court can still decide that equal or substantial and significant time with a parent is best for the child. It is rare for a court to make an order for the child not to have contact with a parent. The AGD has advised that where parenting orders are made by a court:
orders for no contact with one parent are rare (3% of parenting orders determined by courts)
court orders are less likely to result in fathers having no contact with their children (3% of parenting orders determined by courts) compared to the separated population generally (9%), and
arrangements where children spend the majority of their time with their father are more common (10-19% of parenting orders determined by courts) compared to the separated population generally (2%).
Support for removing the presumption
Women's Legal Service Victoria was one of many organisations that called for the removal of the presumption of equal shared parental responsibility and the language of equal shared time from the Family Law Act. This is in line with the recommendation of the House of Representatives Standing Committee on Social Policy and Legal Affairs' 2017 Report, A better family law system to support and protect those affected by family violence (2017 Family Violence Report), to consider removing the presumption of equal shared parental responsibility.
Many submitters have expressed concern that the presumption of equal shared parental responsibility and the requirement to consider equal time has caused confusion and contributed to unsafe outcomes for children. For example, the Peninsula Community Legal Service stated that the current presumptive provision has:
… given rise to a community misconception that equal shared parental responsibility means 'equal time'. This misconception has created significant concern for many of our Centre's clients and resulted in them agreeing to unsafe arrangements.
Women's Safety NSW agreed that an amendment removing the presumption:
… would be important in alleviating any confusion and ensuring that the safety of the child is not subjugated by a mistaken belief that the provision intends for both parents to spend an equal amount of time with their child.
The Peninsula Community Legal Service further expounded on the dangers they consider arise with this presumption, explaining that:
… the presumption potentially increases parental conflict and the risk of family violence or child abuse because of the legal requirement that parents must jointly make decisions, involving a degree of cooperation that is inherently not possible in cases involving family violence. These risks are increased in the current situation where family courts do not have a dedicated pathway for addressing family violence issues and do not presently determine the issue of family violence or child abuse until final hearing or trial.
Professor Chisholm, in discussing the presumptions and requirements that the court consider certain outcomes (such as equal time) provided for in Part VII of the Family Law Act, noted that:
The problem is that even if these ideas are suitable for the majority of families in the community, they can be unhelpful and misleading when applied to the tiny minority of cases that require adjudication by the courts. Those cases are not typical of most families, and present acute difficulties when the court is trying to determine what outcome is best (or often the least damaging) for the child. The court needs to analyse the particular facts with great care, and generalisation based on the majority of less troubled families can distract from that task.
Professor Chisholm went on to identify the following additional disadvantages with existing provisions in Part VII:
They can mislead people into thinking that the law favours certain outcomes for children.
They can distract courts, and parties attempting to resolve disputes, from the essential task of working out what is likely to be best for the children in the particular circumstances of each case.
They are clumsy as a means of public education – that task would be better achieved by other means.
YWCA Canberra expressed its concern that the family law system does not place the safety of victims and survivors at its heart, observing that in cases where disclosures of family violence are made, the:
… presumption of shared parental responsibility is still being applied in practice by judges, a practice that privileges the rights of those who use violence to maintain contact with their children as opposed to prioritising the safety of the children and the parent who is experiencing or witnessing violence.
In arguing for the removal of this presumption, YMCA Canberra stated that the presumption is a 'court sanctioned [loop-hole] allowing perpetrators to continue to use violence during sanctioned access and in negotiating access', and that its removal would shift the culture and practice of family courts towards a greater focus on safety and risks to children.
The idea of a cultural shift where the greater focus is on the safety of children was advocated in many of the submissions supporting removal of the presumption. For example, Australian Women Against Violence Alliance (AWAVA) noted:
As each family is unique, rather than focusing on presumptions, decisions about children should be made on a case-by case basis in the best interest of the child and placing a greater focus on safety and risks to children, and not on parental rights.
With regard to the requirement to consider equal time, or significant and substantial time, the ALRC noted that it is not clear why the legislation requires this consideration if neither parent is seeking it. In its 2019 Report, the ALRC stated that to the extent that shared time would improve the outcome of a specific child, it can be considered as part of the best interests of the child and does not require a separate provision, recommending that the Family Law Act should:
… make it clear that in determining what arrangements for the care of a child will best promote the child's best interests, the court must determine, on all of the material before it, what is best for the particular child in their particular circumstances.
The ALRC therefore recommended the repeal of section 65DAA which requires the court to consider, in certain circumstances, the possibility of the child spending equal time, or substantial and significant time, with each parent.
The committee also heard concerns about the appropriateness of presumptions in family law proceedings. For example, Ms Rathus stated that she has:
… strongly argued that the legal devi[c]e of a presumption was, and continues to be, completely the wrong tool to use in the way it has been in the [Family Law Act]. A presumption at law should be used only in situations where what is presumed is extremely likely to be true ...
The idea that the best interests of children are served by parents having equal shared parental responsibility is an entirely different type of construct. It is a policy, or perhaps a social science, ideal that is not applicable in many families – and therefore is dangerous when it performs the role of a presumption – perhaps invisibly or unnoticeably inviting limited evaluation and encouraging acceptance of its truth.
Ms Rathus also pointed to scholars such as Dr Peter Jaffe, who have argued against any presumptions that apply to parents who are litigating. Dr Jaffe noted that 'parents who enter the justice system to litigate about child custody or access have passed the point where shared parenting should be presumed or even encouraged'.
Women's Legal Service Victoria similarly expressed its strong view that presumptions in family law can lead to unsafe and unfair outcomes, and offered an alternative, namely the:
… discretionary nature of decision making in family law which places a greater emphasis on what is in the best interests of a child or children in parenting matters and fair financial outcomes in property matters. Decisions about children and property should be made on a case-by case basis in the best interest of the child and placing a greater focus on safety and risks to children, and not on parental rights.
The AGD also highlighted that, in the absence of a presumption about parental responsibility, current section 61C of the Family Law Act provides that, subject to a court order, each parent of a child has parental responsibility for the child.
In its 2019 Report, the ALRC considered the problems caused by the presumption and recommended replacing it with a presumption of joint decision making about major long term issues. The ALRC supported:
… the idea that a presumption of shared parental responsibility serves as a good starting point for negotiations between parents and recommends that the concept be retained.
However, the ALRC felt that to reduce the confusion surrounding the term 'equal shared parental responsibility' and the conflation with equal time, the presumption should be redrafted to refer to 'joint decision making on major long-term issues'.
The committee received limited support for this recommendation. Save the Children Australia (Save the Children) expressed the more common view that:
… while this would be an improvement on the current position, the presumption should instead be removed altogether. Save the Children also notes that removing this presumption is not intended to derogate from the important principle that parents should continue to have obligations as a parent to their child, irrespective of the amount of time the child spends with the parent, except in rare circumstances.
Support for retaining or strengthening the presumption
The committee also received evidence provided in favour of retaining the presumption of shared parental responsibility and the equal time provisions. For example, the Lone Fathers Association Australia (Lone Fathers) expressed their disappointment at the proposed ALRC recommendation to change to the existing presumption of shared care, stating:
There appears to be no evidence that the many separating parents who have gone down this pathway by consent have had their experiences considered, rather we suspect that the presumption for shared care is under attack for reasons considered in respect to parents who are unable to reach any parenting agreement and take the matter to the Federal Circuit Court or the Family Court as their first and only option. There appears to be little or no account for facts which apply to a significant number of successful shared care arrangements by consent.
The Australian Brotherhood of Fathers (ABF) also strongly opposed the ALRC proposal to amend the presumption of shared parental responsibility:
The 2018 ALRC Review of the Family Law System proposes to undo many of the hard fought of the [sic] improvements brought about by previous changes. The most profound recommendation is pertaining to the presumption of shared parental responsibility. This would profoundly impact children's best interests and rights to have a meaningful relationship with their Fathers.
The proposal is regressive and, if implemented, would, we firmly believe, be highly detrimental to the best interests of children. The proposal fails to acknowledge that the overall interests of a child, including with respect to safety, are best served by promoting the active involvement of both parents in a child's life ...
A limited number of organisations called for the strengthening of the presumption and shared time provisions by amending the best interest of the child considerations so that the consideration of the child having a meaningful relationship with both parents is given greater weight than the need to protect the child from abuse or family violence in the event of any inconsistency in applying these considerations.
The committee was pointed to a body of research which supported the notion of shared parental responsibility and equal time with each parent. For example, Professor Augusto Zimmermann referred the committee to the research of Canadian sociologist and social worker Dr Edward Kruk, who stated that 'researchers can conclude with confidence that the best interests of children are commensurate with a legal presumption of shared parenting responsibility after divorce'. Dr Kruk continued:
… without a legal presumption, judges can make decisions based on idiosyncratic biases, leading to inconsistency and unpredictability in their judgements [sic]. And with two adequate parents the court really has no basis in either law or psychology for distinguishing one parent as 'primary' over the other.
Professor Zimmerman also noted the conclusion of Dr Sanford Braver, a psychology professor at Arizona State University, that:
… social scientists can now cautiously recommend presumptive shared parenting to policymakers … shared parenting has enough evidence [that] the burden of proof should now fall to those who oppose it rather than those who promote it.
A number of organisations and individual submitters also called for a mandatory starting point of 50:50 care for children in all parenting arrangements.
For example, the Facebook Group, Australians Against the Family Law Courts, suggested a definition of what is in a 'child's best interest' be included in the Family Law Act which would provide, among other definitions, that:
both parents have equal 50:50 parenting rights, whether they are the primary care-giver or not; and
start with 50:50 shared parenting, unless valid evidence of abuse or violence.
The committee also heard from a number of individuals who believed that 50:50 time between mothers and fathers should be mandatory. A snapshot of some of the views expressed are set out below:
50/50 care arrangements must be the default position of the Family Court. Unless by mutual consent and in the absence of any extenuating circumstances such as violence, health issues, drug or alcohol dependencies, both parents have an equal right to care for their children.
Mandatory 50/50 shared parenting until a court orders otherwise. Failing the ability for either parent to provide equal shared parenting, a default level of involvement should be established to ensure the child/parental relationship remains intact and a status quo is not established that the courts can later rely upon.
The default position should be 50/50 custody. And if this is not adhered to, there should be a simple, cost effective and fast way to ensure the alienating parent does not continue.
Settlement of living arrangements for children should be split evenly unless there is evidence of abuse. There are studies out of Sweden that support the 50:50 arrangements. This would reduce the legal issues as parents often use the children as bargaining and allow both parties to work.
50:50 custody should be the status quo in all situations where it is possible and wanted. A parent should only be able to provide an argument for WHY NOT after a trial period of 6 months with proof as to why it is not in the child's best interests. This provides children with the ability to have strong and stable relationship with both parents.
The Family Law Act currently provides that, in determining what is in the child's best interests, the court must consider:
… any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.
The court may be informed of the child's views through an Independent Children's Lawyer (ICL), a family consultant's report, or by any other means the court considers appropriate. A child cannot be compelled to express their views.
Despite the ability of a court to consider a child's views on parenting arrangements, a number of submitters have noted that the views of children are often not adequately sought by family law professionals, are filtered as part of the professional's broader assessment of the circumstances, or are not given due weight by the court. The Royal Australian and New Zealand College of Psychiatrists (RANZCP) noted in their submission that:
In many cases, children want to express their views in relation to parenting and care arrangements. Some children have expressed that 'the court processes needed to better focus on the children and young people [involved] as they are the ones experiencing the impact of the court's decisions'. There is also evidence which indicates that being inclusive of children's views in the course of parenting proceedings results in better outcomes for children, including children feel less distressed about their parents' conflict.
The National Children's Commissioner, Ms Megan Mitchell, shared with the committee the messages she hears from children about their involvement in the family law system:
Children and young people consistently say to me, and to others, that they would like to have more of a say in, and be informed about, legal decisions that affect them. However, there are numerous barriers that are inhibiting child participation in the family law system. This includes a lack of understanding and concerns about children's participation and how to facilitate it. While a child should not be compelled to express a view in a family law matter, the Commission considers that children should be provided with the opportunity to do so in a manner appropriate to their age and maturity. This includes children whose parents are involved in alternative dispute resolution processes.
Relationships Australia expressed support for an assumption that hearing from children should be the default position in both service provision and court processes. However, Relationships Australia advised against children being the decision-maker:
Advocating for improving opportunities for children to be heard does not mean that children are the decision-makers or that their views should be determinative. Children themselves are generally clear that this is not what they want. Evidence shows that children prefer that the parents make the final decisions. What children and young people do want is information and to have the opportunity to talk to someone, beyond their parents, about their fears, concerns and hopes … they do want to know that they are being taken into account.
It was Relationships Australia's position that the views of children should be expressed through an intermediary, not directly to parents and caregivers. The RANZCP similarly suggested that:
… specialist child and adolescent forensic psychiatrists can play an important role in children voicing their views in the context of a family law dispute. They can give the child an opportunity to express their wishes and assess the child for any mental health issues, while also being aware of how best to assist the Court with independent expert evidence.
However, RANZCP cautioned that care should be taken to ensure that children are not re-traumatised through participating in family law matters, especially where family violence is a factor.
Carinity Talera made a similar recommendation:
Children need to be given the opportunity to have their voices heard and listened to in the Family Law Court. However, it is crucial that children's views are put before the court in appropriate ways that do not expose them to harm. In doing this, it is important that children are supported by a practitioner with appropriate qualifications and training in child development, trauma, attachment, and [domestic and family violence].
The Caxton Legal Centre noted the view that the adversarial process of family court proceedings has made the participation of children unsafe and recommended that, unless there are exceptional circumstances, children should not directly participate in family court hearings. However, they suggested that 'processes that are child-focused and non-adversarial may provide the safe environment necessary to facilitate their ongoing participation'.
The South Australian Commissioner for Children and Young People, Ms Helen Connolly, expressed her view that improving the system to be more child‑focused is not impossible. Ms Connolly noted that overseas jurisdictions are increasingly recognising the importance of child-focused practices and that children in other jurisdictions have the right to make an application to court, are able to communicate directly with the Judge, attend court and be a party to the proceedings.
For Kids Sake submitted that a primary recommendation of this inquiry should be that more needs to be done to keep children out of the adversarial family court, not that children need to be involved even more. They stated that the adversarial process tends to promote unhealthy and potentially abusive parent-child interactions and that:
We should not gloss over the profound differences between involving children in a collaborative, conciliatory, problem-solving and child‑ friendly environment and involving them – often for unconscionably long periods of time – in the hostile, adversarial and torturous environment of the family court. There is a world of difference between empowering children and allowing their voices to be heard in a safe and conciliatory environment and allowing them to participate, even indirectly, in adversarial litigation.
Ms Rathus noted that the role of judges in the direct participation of children remains a contentious issue in Australia, despite there being similar overseas jurisdictions where 'judicial interviewing of and meeting with children is common'. She advised that:
Special skills are required to do this well and judges have no training for this task. There are questions about who should be present and how the interaction should be recorded and reported. And exactly what can a judge do with anything they learn through the interaction?
While acknowledging that more research is required and a training program would have to be developed and implemented, it was Ms Rathus' view that Australian family law judges should become more active in their direct engagement with children.
Rainbow Families Victoria also expressed support for the position that the experiences of children and young people within the family law system should be urgently updated to ensure a process allowing for active participation by, and engagement with, children and young people.
For Kids Sake also submitted that it is a highly specialist skill to interview children and that a majority of professionals within the court system, including judges, do not have the prerequisite, specialist skill to assess children in an adversarial, litigious setting.
In her submission, Ms Mitchell noted that the Australian Human Rights Commission has previously recommended that:
… judicial officers and family law professionals, including Independent Children's Lawyers, family consultants and mediators are provided with training and resources to assist them to engage and communicate effectively with children about family law matters that concern them.
The committee also heard that it is important that family court processes are clearly explained to children:
Frustrations with and misunderstandings about the court processes may cause children to feel aggrieved when decisions are made which do not accord with their wishes, particularly in the case of children of an age and/or maturity where they are able to clearly articulate their views and have done so. It is reported by our clients that this causes distress, frustration or resentment towards either the parents themselves or the court process generally.
Independent Children's Lawyers
Where the court determines that a child's best interests or welfare are the paramount, or a relevant, consideration, the court may order that the child interests in the proceedings be independently represented by a lawyer. The appointed ICL is not the child's legal representative, but is required to act in what the ICL believes to be the best interests of the child. However, in doing so, the ICL is required to ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court.
A number of submitters have levelled criticism at the ability of ICLs to ensure that the child's views are before the court. This is particularly due to the fact that ICLs are not required to meet with the child whose best interests they are tasked with representing. It has been submitted that:
Independent Children's Lawyers (ICLs) should be required to meet with the children whose interests they are representing, and to ensure the child's views are presented to court and taken into account. In principle, ICLs can play a valuable role in enhancing children's participation in family law proceedings. In practice, however, ICLs frequently do not meet children, seek their views, seek to have any views of the child taken into account, or sufficiently understand children's needs - particularly in situations of violence and abuse - to represent their best interests.
For Kids Sake questioned whether ICLs serve a valuable purpose:
We largely do not see a role for – and see great dangers in appointing – a Children's Lawyer in many cases. If that lawyer is to represent 'the best interests' of a child rather than the apparent wishes of that child (an important distinction that many children's lawyers do not successfully recognise), then that becomes synonymous with the role of the court itself and of the presiding judicial officer. As such, we believe it is generally more appropriate for a single judicial officer to be appointed for each family/case and for that judicial officer to ensure strict case-management and to conduct hearings with an inquisitorial, problem-solving and urgent approach.
Relationships Australia also expressed that, on balance, the role of ICLs has not provided an effective mechanism for children's participation. Relationships Australia proffered that:
This is not a reflection on the capacity, effort and commitment that so many ICLs bring to their work. Rather, it is an inevitable consequence of unreasonable expectations and function creep. Dividing functions between a children's advocate, a legal representative, and a case manager/counsel assisting would better facilitate children's participation in ways that are safe and developmentally appropriate.
In contrast, National Legal Aid (NLA) highlighted the positive role of ICLs noting:
A high proportion of matters where an ICL is appointed settle 'before trial', with an estimated national average settlement rate of those matters in 2018-19 of 60%. It is suggested that this settlement rate is particularly significant as these matters involve issues which are usually highly contested.
A number of submitters, including NLA, expressed support for the ALRC's recommendation in its 2019 Report, that the Family Law Act be amended to include a specific duty that ICLs comply with the Guidelines for Independent Children's Lawyers. These guidelines provide that ICLs should seek to provide a child with the opportunity to express a view in relation to the matter, and that ICLs should ordinarily meet with a child. The ALRC noted that:
It is essential to the efficacy of the [ICL] role in acting in the best interests of the child that there be adequate funding, both for the appointment of appropriately qualified lawyers and for ongoing training.
Save the Children, while supporting the ALRC's recommendation, were concerned about the potential for the guidelines to be amended and the requirement for ICLs to meet with the child weakened. Save the Children therefore recommended that the Family Law Act specifically provide that:
… ICLs have a duty to enable the child to be involved in decision-making and, in discharging that duty, should ordinarily meet with the child and put evidence of the child's views before the court.
The NLA supported the ALRC's view that adequate funding is essential to the efficacy of the ICL role, and proposed that, in addition:
Adequate funding be provided to ensure that the best interests of children in these most complex and challenging family law matters are appropriately represented.
Funding be provided for the piloting of a more structured model of case practice involving ICL and social scientist partnership, enhanced child participation, and post order work.
The AGD noted in its submission that the ALRC Discussion Paper for its family law inquiry canvassed a proposal to establish a new professional role, titled 'Children's Advocate', to support the participation of children in proceedings. The role would be additional to that of the ICLs. However, AGD advised that the proposal received mixed feedback in further submissions and was not included as a final recommendation. In its final report, the ALRC stated that, on balance, it was persuaded that 'introducing an additional professional role within an already crowded suite of professional services within the family law system may do more harm than good'.
The AGD suggested that there would be benefit in further exploration of opportunities to better support children's participation in family law proceedings.
Along similar lines, the Australian Human Rights Commission noted that it had urged the ALRC to consider recommending the Family Court establish a children's board or committee similar to the Family Justice Young People's Board in the United Kingdom, to provide ongoing advice to the Family Court on how to better realise children's rights in the family law system. In its 2019 report, the ALRC recommended that the Family Law Council should establish a Children and Young People's Advisory Board, which would provide advice and information about children's experiences of the family law system to inform policy and practice, stating:
The ALRC supports children's participation in family law matters that affect them, as well as broader participation in system oversight and reform. Providing children and young people with a mechanism through which to participate in the governance of the family law system will assist future policy and practice development to be child-centred. An Advisory Board populated with children and young people will allow them to provide feedback, including on their experiences of the system, and to share ideas for its improvement.
The AGD advised the committee that the Australian Government has provided funding for the redevelopment of the national training program for ICLs, to ensure they are receiving appropriate guidance on the role of ICLs and the necessary skills and competencies required to perform the role. This training was developed by Legal Aid New South Wales on behalf of National Legal Aid, and is a prerequisite for entry to the Independent Children's Lawyer practitioner panel maintained by legal aid commissions in each state and territory.
Many submitters and witnesses have put forward a polarised range of views on the extent to which a parent can be alienated from their children by another parent or family member. This divergence is particularly stark on the issue of whether parental alienation is a recognised mental disorder. While the term ‘parental alienation’ was used regularly by both individuals and organisations in both submissions and oral evidence, it was clear that the term had different meanings to different witnesses. As highlighted by the differing understandings set out below, the meanings ranged from one parent not letting the other parent have access to their children, to a parent actively seeking to turn a child against a parent, which many considered to be a form of family violence and finally, to a clinical syndrome.
The Eeny Meeny Miney Mo Foundation set out its understanding of the definition of this process:
Parental alienation is a process of one parent (known as the alienating parent) influencing a child to turn against and reject their other parent (known as the targeted parent) without legitimate justification.
The alienating parent can also be a grandparent, a step parent and even a non-family member. Parental alienation can occur even when the relationship between the targeted child and targeted parent was once a very positive one.
Parental alienation can be viewed as a form of family violence and child maltreatment perpetrated by the alienating parent. This is because the tactics used by alienating parents to turn their child against the other parent are emotionally abusive and coercive behaviours.
Divorce Justice, a legal practice, shared with the committee its experience of parental alienation:
At The Divorce Centre we see so many cases where separated families have high conflict, stress, and anxiety due to very poor co-parenting skills. The total disrespect and disregard for each other has an enormous impact on the children being in a toxic environment. Couples are lacking the awareness of how their behaviour escalates into conflict, being poor role models, and the impacts on the children's development and mental health. Parents punish their ex through parental alienation, poisoning children against the other parent, denying access for children to see grandparents out of spite, or restrict financial access.
Ms Tania Murdock, Family Dispute Resolution Practitioner, Dispute Management Australia also relayed her professional experience with parental alienation:
I have specialist training in domestic violence and I have specialist training in parental alienation. I understand clearly what it involves. As part of family mediation, I certainly have witnessed alienation, particularly on the female side. Whether or not that is, once again, a societal kind of process, where the mother regards that she should be in charge of the children, because of old-school societal processes, I'm not sure, but I certainly have experienced it within mediation. And I have experienced fathers being completely distressed, similarly to the gentleman I was mentioning earlier that actually said he was ready to take his own life. He said to me: 'You saved my life, because if I had waited four months for the family relationship centre, I don't think I would have lasted.' He was experiencing parental alienation. The mother was not allowing him to see the child, for no apparent reason. She just said that she didn't think he was fit. There was no actual evidence to say that he wasn't fit. In her determination, he wasn't fit.
Some, like Professor Zimmerman, argued that the current child support system 'actively provides a perverse incentive for parental alienation' by primary caregivers who do not wish to reduce their caregiving time in order to avoid a reduction in child support obligation.
Notwithstanding this evidence, a number of witnesses put forward an opposing view and disagreed with the premise that parental alienation is a recognised mental disorder. For example, Dr Heather Nancarrow, Chief Executive Officer, Australia's National Research Organisation for Women's Safety (ANROWS) contended that 'there has been evidence that has debunked the concept of parental alienation syndrome. It's not something that's accepted in the scientific community'.
Ms Mitchell was quite scathing in her assessment:
I think that's a pretty kooky theory. I think that it's been pretty much debunked. I'm a psychologist by trade, so I've looked at this issue and can see that this theory was something that didn't have an evidence base behind it. The fellow who concocted it back in the 1980s or 1990s had some pretty wacky views, I have to say … So I think we really need to be careful when we're thinking that this is a thing.
Dr Rachel Carson, Senior Research Fellow, Family Law, Family Violence and Elder Abuse, Australian Institute of Family Studies provided a summary of their research and, specifically, whether parental alienation has been raised as an issue in their surveys of children. Dr Carson noted that parental alienation:
… was not something that was apparent in our research. I know that concerns have been raised in relation to this issue over many years. While acknowledging those concerns, I would say that it's not an issue that's emerged in the context of our very extensive research in the family law and family violence space. In fact, evidence from the AIFS evaluation of the 2012 family violence amendments, for example, emphasises that underdisclosure [sic] and issues associated with screening, identifying, assessing and responding to domestic and family violence and child abuse and other child safety concerns are issues of particular significance in our family law system. In relation to the accounts of children and young people in particular, I would say that they very much reflected their own experiences of domestic and family violence and the safety concerns that they experienced in their case.
Dr Mandy Matthewson, Director, Eeny Meeny Miney Mo Foundation conceded that there was some confusion about the terminology used to describe parental alienation. Whilst maintaining the view that parental alienation was widespread, Dr Matthewson accepted that there was some contention about what is known as parental alienation syndrome and whether it should be formally documented as a mental disorder:
There are thousands and thousands of peer reviewed journal articles and books that show that parental alienation does indeed exist and occur. There is documented evidence that what we now call 'parental alienation' has occurred as early as the 1800s. It's been known by many different terms, but we now refer to it as parental alienation. I understand that there's some confusion about the difference between parental alienation and parental alienation syndrome. During the 1980s a psychiatrist and academic by the name of Richard Gardner coined the term and the phenomenon of parental alienation syndrome. He argues that the syndrome has eight indicators seen in children, and there was a lot of debate about persistence of parental alienation syndrome and whether it should be included in the [Diagnostic and Statistical Manual of Mental Disorders (DSM)] or the [International Classification of Diseases (ICD-11)]. This, I think, confused a lot of debate and understanding of parental alienation, the phenomenon. I think the most recent academic literature now considers parental alienation as a form of family violence that fits within the realm of coercive control and emotional abuse, rather than a disorder that is diagnosing a child. So I think there is ample recognition in the literature that parental alienation is a wider problem than people first thought during the 1980s.
Whilst acknowledging that alienation can occur in some circumstances, Ms Rathus explained why there can be a perception that parental alienation is occurring when there may instead be other factors at play:
I do not say that no woman has ever alienated the children from their father or joined with them in some kind of resistance. Men and women can do terrible things after separation. The person that they loved is now the person that they hate. The difficulty though with that term is it is so tied up in the baggage of its creation and it is so tied up in a very gendered use that there is no question that parental alienation becomes a very easy answer for men who have been violent, either physically or coercively controlling. As soon as the kids are resistant to seeing them, instead of the men taking responsibility for the violence they might have committed and perhaps working on becoming a more attractive proposition to their kids, they go, 'She's alienating them.' It's too easy to do that, and it then becomes very difficult to unpick the truth in that situation.
In addition, Ms Rathus acknowledged the difficulty when two parties fundamentally disagree on whether family violence transpired during their relationship and then in turn, determining the factors that lead children to decide on which parent they would prefer to live with:
… how do we know that the violence wasn't true in a particular situation? For example, if someone is giving evidence here before this committee and they say 'I got alienated from the children. She said I committed domestic violence. I didn't.' we don't really know which party is telling the truth. Sometimes even judgements [sic] get it wrong. So even if a judgement [sic] says 'We don't think there was much violence here, so we're going to say it's alienation.' that could be wrong. It's very difficult to be certain about what has occurred in terms of being able to say: how do we deal with children who choose? Sometimes children choose because there is violence and that violence has been able to be [proved]. I have read hundreds of these alienation cases. Odd things happen in some cases—for example, one child prefers one parent, and the other child happily goes off to the other parent; yet the mother gets accused of alienation. That seems really odd to me. Why would she do that? So kids do make these decisions.
Enforcement of parenting orders
The Family Law Act contains provisions that enable a court to make orders penalising a party where they are found to have contravened a parenting order. These have not been set out in detail as the majority of submissions have not questioned the adequacy of the courts legislative powers to deal with non‑compliance. Rather, submissions have highlighted the difficulty in having contravention applications heard by the court and the perceived lack of willingness by judges to take action in response to a contravention of an order.
The AGD provided the following insight into some of the issues surrounding enforcement of parenting orders:
Enforcement of family law orders, particularly parenting orders, is a complex and contentious issue, with no easy answers or one-size-fits-all solution. Family law matters are different in nature from other civil law matters, particularly where children are involved. Courts considering enforcement actions may be faced with difficulties in balancing the interests of upholding orders of the court, fulfilling the expectations of litigants, instituting appropriate deterrents for non-compliance and making decisions in a child's best interest.
Enforcement of interim orders is also a significant issue, particularly in matters which may take a number of years to resolve on a final basis. In these cases, interim orders can be in place for 12 months or more, and non‑compliance can have a serious impact on relationships between the parties and the child during the course of proceedings.
The Law Council of Australia (Law Council) expanded on the difficulties of the enforcement process:
The current process of enforcing orders (particularly parenting orders) is time consuming, cumbersome and complicated. Parties that seek to enforce orders are at risk in relation to costs and establishing a contravention can often be complicated, costly and a lengthy process. Even if successful, the outcome can be less than satisfactory.
… there must be an improvement to the process of bringing such proceedings before the Court. Currently, if an application for contravention is filed, it is listed before a judicial officer in a busy list. It is time consuming and an expensive process. Even if the contravention is proved, the penalty (particularly in relation to a first stage of contravention of a parenting order) offers little deterrence. It is the view of many that it is often not worth the trouble in bringing the application.
The Hon Diana Bryant AO QC, former Chief Justice of the Family Court, also discussed the complexities that arise in the enforcement of parenting orders, acknowledging that questions around how best contraventions could be dealt with had engaged her over the years:
Parenting orders are more problematic. It isn't quite as simple as saying, as people do, 'That order hasn't been complied with.' There may be a reason why it hasn't been complied with. Circumstances change, so you get much more complexity when you are trying to influence. That said, within the court system itself, I have long thought you could perhaps have a standing registrar's list where people could come along and act for themselves and get default orders made pretty quickly; and then, if the matter was more complex, it could be referred off to a judge. I think that is possibly one way of dealing with contraventions or noncompliance.
The Law Council suggested that the lack of adequate funding and inadequate judicial and registrar resources are the overwhelming contributors to difficulties relating to the enforcement of orders. Further discussion around the issues of court resourcing is contained in Chapter 6.
Contravention of orders
The committee heard from a large number of individuals and organisations, in submissions and hearings, about the difficulties parties have experienced in making contravention applications in parenting proceedings and the dissatisfying outcomes of these applications.
Men's Rights Agency advised the committee that:
… the court (judiciary) seem to be particularly reluctant to deal with contravention orders where the mother is the alleged offender. The applicant and the respondent will be sent out of the court to discuss amending the orders for contact to a timetable that is more amenable to the offender and any other part of the order causing concern and the contravention is then dismissed. A good talking to might result, but most often an offender, particularly female will leave the court without any penalty being applied. The courts must overcome their reluctance to punish a female offender, then the orders made will have meaning and respect. There appears to be no reluctance on the court's behalf to punish a male offender with heavy fines and in some instances gaol.
The Eeny Meeny Miney Mo Foundation provided evidence on how the contravention process works to the benefit of an alienating parent:
… an alienating parent can withhold ordered contact with a targeted parent until that parent can bring a contravention application before the court, which can in some instances take up to 12-months, by which time significant damage can be done to the parent/child relationship. Legal Aid is not available for the prosecution of contravention applications which are notoriously difficult to run for a self-represented litigant. Any adjournment or procedural delay works to the advantage of the alienating parent. Courts are reluctant to place children in the care of parents with whom they have not had any relationship for long periods of time, which may well not be the fault of the targeted parent seeking to spend time, or even to simply communicate, with their children.
For Kids Sake also commented on the impact of the time delay between when an order is not complied with and when the court hears the contravention application:
By not making swift, enforced decisions, it is the family court itself that has created the rod for its own back; it has made itself almost powerless to enforce its own orders because it routinely rewards, and fails to punish, those who flout its orders.
… by not pro-actively, automatically and swiftly enforcing their own orders, family courts have incentivised one of the most pernicious and damaging forms of child abuse: the turning of a child against a parent.
Victims of Crime Assistance League Inc NSW (VOCAL) noted that, in their experience, most victims of family violence do not have the financial capacity, legal knowledge or emotional strength to take a perpetrator back to court for continually breaching consent or final court orders. VOCAL further advised that:
This is not a system that holds people to account for non-compliance or contravening orders. The cost and lengthy time process of contraventions is extensive, and many victims who are subjected to repeat contraventions reluctantly chose not to take it back into the court system. With mandatory Family Dispute Resolution being required, Client feedback includes 'it forces more contact with the abuser', 'it's too costly', 'they [the Judge] won't see it as serious'.
Women's Legal Services Queensland highlighted that enforcement of parenting orders cannot be considered in isolation of the high levels of domestic violence in family law courts. Women's Legal Services Queensland added:
… a major driver of contravention applications is their use by perpetrators of domestic violence who are attracted to the punitive nature, using them as a vehicle to 'punish' their ex-partner.
Springvale Monash Legal Service also detailed how the contravention process is often abused by the perpetrator of family violence to continue to control their ex-partners, by making multiple contravention applications. They have recommended that the Family Law Act be amended so as to require that, after a prescribed number of failed contravention hearings, family violence perpetrators must seek the permission of the court before they proceed to seek further contravention hearings. They advise that this is based on requirements in the [Victorian] Family Violence Prevention Act.
A large number of individual submitters also outlined the problems they encountered in seeking to enforce parenting orders where the other party had failed to comply with the terms of the order. Some representative examples of the evidence the committee heard are set out in Chapter 3 and below. For example, one father advised the committee that:
The Family and Federal Circuit Courts are the only courts in the country that I am aware of that there [sic] orders mean absolutely nothing and are not worth the paper they're written on. Parenting orders are routinely ignored and contravened, with all parties aware that the Courts will not hold the contravening party accountable.
… I filed a Contravention application one year ago approx. To date the matter is yet to be heard, and has been repeatedly adjourned, some 5 times in total, due to the Respondent refusing to present to the Court.
The delay in contravention applications being heard and orders enforced was a source of confusion and frustration for many submitters:
… it's not clear to me why non-compliance of court orders is not enforced, upfront. A contravention application is pretty clear and must determine whether there are any reasonable grounds for the breach or not. If not, this should be dealt with immediately, rather than being attached to invariably protracted proceedings. Where a party is found to be in breach of an order, without reasonable grounds, they need to be dealt with appropriately and immediately. Again, existing legislation does provide for this already.
The delay experienced by another parent led that parent to recommend that:
Contravention matters need urgent attention in the courts and any one that has lodged in the family court system that is not currently seeing child X should have a court hearing within a month. It's taken almost 2 years for my Contravention matter to have a final hearing date. In that time I am unable to see or have time with my daughter.
Submitters informed the committee that they were often advised not to pursue contravention of orders:
We have been told that contravention application is not worthwhile due to the cost and the trouble with arguing a successful case. There is no immediate punishment if a parent is non-compliant with the orders and the onus is very much on the other parent to take the non-compliant parent to court after the fact.
… I have been advised by that solicitor that the judge does not like-and will not do-contraventions. If I go and do a contravention- he wanted me to sign a bit of paper to say that I was advised not to do it and said, 'You will lose in court.'
When contravention proceedings are initiated and reach court, the committee often heard experiences along the lines of the following:
When I filed a contravention application as a self-represented party, the judge told me that if I ran that application myself he would find against me and also award costs against me! The judge wasn't interested in even hearing the application.
… when seeing the judge, the judge refused to even look at the evidence, changed the Final Orders (my son's rights) that were fought for so hard, to make it easier for the mother to adhere to them and removed rights from my son in the process. I was told if I came back my son would lose the right to communicate with me once per week and I would never speak to him.
Another submitter outlined the experience of her son, whom she stated had 100 documented breaches of court parenting orders by his former partner. She advised the committee that every breach that was raised in the court was completely ignored or dismissed by the judge, resulting in the ex-partner continuing to breach the orders without fear or penalty. She submitted that there are two major problems relating to compliance with Family Court orders:
First, the process of notifying the court of non-compliance is very complex and expensive, requiring a lawyer to submit the paperwork to the court.
Second, there are generally no repercussions whatsoever for breaches of the orders.
The submitter recommended that:
… breaches of court orders should be capable of being reported without the involvement of lawyers and without expense, and – if a judge has made orders – then the Court should penalise any parent that breaches those orders, especially where the breaches are frequent and serious.
The committee also heard that being successful in a contravention proceeding does not necessarily result in better compliance by the other party with the court orders. For example, one parent informed the committee that: 'I was successful in the contravention hearing however there were no consequences for my ex-partner and she continues to refuse me any contact with my daughter'.
A number of submitters called for tougher penalties for contravention of parenting orders, including 'an almost zero tolerance for non-compliance without valid reasons'. Another suggested that:
There should not need to be an ability for a court to make an order of non‑compliance. The penalties are laid out in Court and Parenting Orders. The word 'May' needs to be removed and replaced with the word 'Will' and if a Contravention Order is submitted to the court the court needs to have that person arrested and brought to court (the same thing that happens when there is a breach of a DVO) to show reasons why they have not been complying with the orders. If there is reasonable excuse, they receive a warning. However, if there is no reasonable excuse, they can receive a non-custodial sentence. If there are more than two breaches, they receive the prison sentence of up two years as stated on the Parenting Orders.
Dedicated contravention lists
Victoria Legal Aid advised the committee that:
The Melbourne registry of the Federal Circuit Court of Australia … is currently piloting a contravention list. Early indications are that the list is working effectively to streamline contravention hearings and improving enforcement of orders. This pilot is supported by greater use of Registrars to supervise contravention matters, which frees up judicial resources and provides for greater efficiency. However, the matter must still go before a judge for determination because registrars do not currently have power under the Family Law Act to make orders regarding enforcement.
Victoria Legal Aid therefore recommended that further resourcing be provided to the family law courts to establish contravention lists at registries and regional circuit locations to allow for more contravention applications to be heard promptly and that the Family Law Act is amended to provide Registrars with the power to hear and determine contravention applications.
The committee was also informed that the Family Court of Australia and the Federal Circuit Court of Australia have each recently established a court list dedicated to dealing exclusively with urgent family law disputes that have arisen as a direct result of the COVID-19 pandemic. Where a party meets the criteria for the COVID-19 list, the parties will receive a first return date within 3 business days of the application being assessed as suitable. These matters are being dealt with by electronic means, such as virtual court hearings and electronic dispute resolution.
NLA indicated its support for the list and for its continuation beyond the pandemic:
Our view is that it's been a really successful initiative. I think that there are some more lessons to be learnt by all of us about the ability of the court to channel their registrar resources to deal with matters from across the nation. I had a case in our office where, due to a COVID-related issue, a parent had not returned a child in accordance with orders. The application was filed on the Wednesday. It was before the registrar on the Friday and before a judge at 2 pm on the Monday, with the child returned, pursuant to those orders, on that Monday evening. That is a significant game changer in the family law system. We are incredibly supportive of these innovative approaches for the best use of the resources of the court to ensure that matters can be resolved efficiently and with good outcomes for children.
Supporting families to comply with parenting orders
A number of organisations raised the benefit of a preventative approach to the contravening of parenting orders. The Victoria Legal Aid noted that the Family Law Act currently allows the court to make orders requiring a family consultant to supervise compliance with a parenting order or an order requiring a family consultant to provide assistance to a parent to comply with a parenting order. However, these orders are rarely made. The Victoria Legal Aid suggested there is significant benefit to families from greater use of these orders in the period following the making of final family law orders, but recognised the need for adequate resourcing for this to be effective.
The ALRC in its 2019 Report also identified that any approach to compliance must include, in the first instance, preventative measures which promote compliance and support parents to comply with parenting orders. As such, the ALRC recommended that the Family Law Act should be amended to require that:
all parties (and their children if appropriate) involved in contested proceedings for final parenting orders must meet with a Family Consultant to have their orders explained to them;
the court must consider whether the parties should be required to see a Family Consultant for the purposes of post-order case management, to assist them in implementing and complying with their orders; and
the appointed Family Consultant be powered to seek that: the courts place the matter in a contravention list, or recommend the court make additional orders directing a party to attend a post-separation parenting program.
There are also programs available in the community for parents seeking additional support to parent after separation. The AGD advised that the Australian Government currently funds the Parenting Orders Program – Post Separation Cooperative Parenting Program, which helps separating families to manage matters about parenting arrangements and increase cooperation and communication, using child focused and child‑inclusive interventions with the support of a case worker. This program offers education and support to parents where conflict is affecting their relationships with their children. These programs are discussed further in Chapter 12.
The Association of Family and Conciliation Courts, Australian Chapter, noted that it is promoting the role of parenting coordinators, a new role in Australia:
It is a process by which, mostly but not only in complex cases, parties can, with a consent order, agree to have a parenting coordinator who will supervise their dispute, typically for one or two years after the orders are made, to assist them in making sure that the orders work after they've got them and also to help in giving the parties themselves the skills to enable them to continue to negotiate the issues which arise in parenting matters until the children are 18. With the AFCC, we are putting some effort into developing a training course for parenting coordinating matters. That is still in the early stages.
Simplification of the contravention provisions in the Family Law Act
The Law Council expressed its support for the recommendations suggested by Professor Chisholm in 2018 for amendment to Division 13A of Part VII of the Family Law Act in relation to the contravention of parenting orders. The proposed amendments seek to simplify the current contravention regime which it is claimed is repetitious and difficult to follow.
The ALRC 2019 Report also recommended that Division 13A 'be redrafted to achieve simplification, and to provide for' the following:
a power to order that a child spend additional time with a person;
a power to order parties to attend relevant programs at any stage of proceedings; and
a presumption that a costs order will be made against a person found to have contravened an order.
The Law Council stated that implementation of that recommendation alone would do much to improve the court process and benefit those families in the system.
Parenting Management Hearings
At present, families who are unable to reach agreement on parenting matters, for example, through alternative dispute resolution processes, have no option but to commence court proceedings to have the arrangements determined for them. As mentioned earlier in this chapter and throughout the report, the adversarial process involved in family law proceedings tends to promote unhealthy and potentially abusive interactions between parties.
As explained in Chapter 4, AGD raised the concept of a tribunal based model as an alternative way to deal with disputed parenting matters called Parenting Management Hearings (PMH):
The Government has previously introduced legislation to establish a new forum for resolving parenting matters outside of court, to be called 'Parenting Management Hearings'. Under the proposed legislation, parents would have been able to consent to having their parenting matter determined by a Parenting Management Hearing Panel made up of family law practitioners, family violence specialists, psychologists, and social workers. The Parenting Management Hearing Panel would have the power to make binding parenting decisions that would be enforceable in court. The intention was for the Parenting Management Hearings to be conducted in an inquisitorial rather than adversarial manner, with panel members actively managing the hearings and no legal representatives present. The proposed model for Parenting Management Hearings received limited support from stakeholders, being particularly opposed by the legal profession, and the legislation has since lapsed.
The Law Council asserted that one of the potential issues with the PMH was that although the parenting aspect of a family law dispute would be heard in the tribunal style, financial matters would potentially still need to be heard in the court.
Children's contact services
The committee has heard concerns from both individuals and organisations about the lack of funding, availability and regulation of CCSs. The CCSs are independent services that enable children of separated parents to have contact with the non-residential parent in a supervised environment or that can facilitate the handover of children between parents without the parents having to meet in person. The key objective of CCSs is to:
… give children the opportunity to re-establish or maintain a relationship with both parents and other significant persons in their lives, while the key goal of CCSs is to help families using the service make the transition to self-managing their parenting time arrangements, when this is a possible and safe option for the family.
Families who use CCSs are often experiencing high levels of conflict and complex issues such as family violence, mental health problems and drug and alcohol abuse. The majority of families who use CCSs have been referred through a court order. The CCSs can be private or government funded. The 65 government-funded CCSs are required to comply with the AGD's Children's Contact Service Guiding Principles Framework for Good Practice. Private CCSs are encouraged to follow these guidelines, however, there is no formal regulation or accreditation of these services.
The committee heard from a number of individuals about the substantial wait times to get access to CCSs. For example, one submitter advised that:
In South Australia (where I am from and have worked in family law), it is then absolutely typical for there to be a 5-6 month wait to access a children's contact service for supervised visits (private supervision services are almost non‑existent and family member supervisors are often not suitable or agreed).
One father advised that these wait times were used by an ex-partner to prolong non-contact as they were permitted by the court to choose the CCS with the longest wait times:
… the Children's Contact Service at Logan which had a wait list of around 2-3 months in comparision [sic] to the Eight Mile Plains Supervised Contact Centre which had a wait list of 6+ months.
One mother described to the committee a number of issues that she experienced with her private contact centre:
The issues that I encountered were that the owners of the centre had assisted another party in breaching a DVO. I wasn't notified of the intent of the respondent by the centre ... These people stalked me on my Facebook. They filed affidavits to the court of contacts they had screenshotted after I posted a GoFundMe campaign to seek help with paying my legal fees, which my lawyer had approved before I posted it. There were a number of issues. The most concerning one, I found, was that one of the centre owners had presented in front of the … Court in 2015, where they pleaded guilty to a fraud charge.
… When he would bring the kids back he was told to wait there for the 10 minutes … But they would release him at the same time that I was grabbing the kids from the door.
I recorded him filming me at the centre. He had a camera out and he was deliberately trying to provoke an argument with me one day. The centre directors didn't pull him up on it even though it's in their policy that he's not allowed to do that.
This submitter called for the regulation of these CCSs noting that, as these private centres are completely unregulated, when you have issues, unless you can resolve these with the owner, there is no one to go to for assistance.
The need for regulation of private services was repeated by other submitters. For example, one submitter identified that:
… this is the big part of the supervised visits: they are not regulated. I have rung everyone-the Attorney-General; I have gone up the list- and no-one wants to listen because they are a private entity. So there is no-one to complain to.
… The supervised service needs to be regulated under the government. They need to have their standards. I should be able to go [to] the ombudsman and complain.
This submitter also noted that the private CCSs are expensive and expressed her view that as her ex-partner pays for the service, 'all the control is on him.'
Another individual submitter recommended that:
… additional resources should be placed into providing resolutions to family dispute such as more Children's Contact Services - for assessment and support of relationships between children and their parents and the provision of safety for women and children.
The concerns raised by individual submitters are also reflected by organisations. For example, AWAVA referred to Domestic Violence Victoria's submission to the ALRC's recent family law review in which Domestic Violence Victoria:
… raises concerns in relations to the quality, accessibility and availability of contact centres for supervised contact. In their submission they state that their clients 'experience prolonged waiting times for contact services of five months or more, and that the expense of private contact centres make them inaccessible.' This may result in further risks for the safety of mothers and children when they have to arrange contact with fathers outside of contact services, especially when they have parenting orders requiring that contact.
A specific example of wait times for CCSs was provided by Conciliate SA:
For supervised contact, Relationships Australia CCS at Campbelltown and Hindmarsh has a wait time of 12 weeks, and Elizabeth has a wait list of 4-5 months following intake and receipt of forms for both parties. For changeovers, at Campbelltown, Hindmarsh & Elizabeth, there is a 4-6 week wait time on top of the 3-4 week processing and intake time.
Similarly, Ms Patricia Occelli, Chief Executive Officer, Interrelate Limited, advised the committee that for the six CCSs that Interrelate run, the average wait times is approximately six months, with an average of about 30 families on waitlists at each centre. She further expressed concern about the limited funding provided:
The children's contact services is a very small funding bucket. To give you a sense of what it funds, it would fund about one day of contact on a Saturday for a number of families, so we're able to deliver a Saturday service; we can't afford to deliver any Sunday services. For parents who work during the week, the only option we can offer them is a Saturday service, and the maximum we would be delivering would be one or two afternoons a week of a couple of hours. That's the maximum that that funding buys. And they're very intensive in terms of services because you need to have sites—you need to have a location for that to happen—and you need to have high security arrangements, so they're very costly to set up.
Relationships Australia advised that government-funded CCSs are underfunded and are unable to meet current demand, either in terms of existing locations or in emerging locations with a need for a CCS. They suggested that this prevents these CCSs from 'realising their full potential as enablers of healthy and resilient parenting'. Relationships Australia stated that:
CCSs could provide greater value by assisting families to build capacity, rather than acting narrowly as monitors or supervisors of contact. For example, CCSs could – with adequate funding – be re-positioned to offer more interactive opportunities for parents to learn and enhance parenting skills, as well as offering warm referrals to other specialist services. There are already CCSs that seek to do this, and have had success in moving families from 'high vigilance needs' to 'low vigilance needs' through, for example, facilitating Supportive Parenting Groups.
Relationships Australia acknowledged that such a shift would involve considerable expenditure but observed that:
… the current pattern of spending money on short-term supports for fragile families in crisis only guarantees an ongoing need for recurrent spend into the next generation. It does not enable the community to reap the benefits of healthy families (separated or intact) or enjoy the downstream savings delivered by lower expenditure on health and intergenerational social welfare dependency.
Relationships Australia also expressed concern about the lack of regulation of privately run CCSs:
Regardless of whether a facility is government or privately funded, all facilities operating as a CCS must be required to meet certain regulatory standards, to safeguard children. We are deeply concerned by waiting times for CCS appointments, which can exacerbate the difficulties of already fragile and vulnerable families. We know that these waiting lists have led to the establishment of private facilities offering these services. Such facilities are under no obligation to comply with good practice or safety requirements. Relationships Australia strongly supports the imposition of high – and uniform – standards for CCSs, which serve some of Australia's most fragile and complex families. Children's Contact Services should be subject to an accreditation process, which would include a requirement that all staff:
hold valid Working with Children Checks,
hold qualifications such as a Certificate IV in Community Services or a Diploma of Community Services, and
be equipped to provide referrals to other specialist services. These would include, for example, services offering coaching in relationship enhancement between parent and child, and training to manage co‑parenting and parallel parenting.
The Australian Children's Contact Services Association (ACCSA) also suggested that a national CCS accreditation system for all CCSs is required, noting that there are currently no requirements whatsoever to operate a private or full fee paying service in Australia. The ACCSA expressed concern that '[t]his total lack of oversight is having negative effects on vulnerable children and family members who are accessing some of these services'.
Mr Iain Anderson, Deputy Secretary, AGD advised the committee that CCSs is 'one area that does need to be looked at carefully', noting that there is a real question as to whether private sector centres should be regulated in some way. He advised that this issue was being considered as part of the Government's potential response to the ALRC 2019 Report.
In that report, the ALRC recommended that the Family Law Act be amended to require any organisation offering a CCS to be accredited and that a criminal offence of providing a CCS without accreditation be created, to ensure public confidence in the ability of all CCSs to provide safe and high quality services. The ALRC suggested that AGD may be the appropriate body to manage the accreditation of CCSs and noted that an appropriate body would also need to be identified for handing complaints relating to accredited CCSs. The ALRC suggested that DSS or ACCSA could manage complaints for private CCSs.
The issues impacting grandparents in the family law system were raised by a smaller number of submitters to the committee, but these submissions raised a number of important and diverse issues. The committee heard from a range of organisations, as well as from grandparents who were primary carers for their grandchildren, grandparents explaining the impact of the family law system on their grandchildren and grandparents who had not seen their grandchildren in a considerable period of time.
One submitter, a former grandparent-carer, informed the committee about the difficulties faced when grandparents end up caring for children:
In our situation, we raised our grandson from the age of nine years with no financial support from either parent, and then he was taken away from us. Yet we have no rights, really, in relation to that child. We had to fight for the right to now see the child we raised for nine years every third weekend. We don't get to see him at Christmas. We don't get to see him on birthdays.
This submitter informed the committee that the grandchild 'didn't go to school for two years' after being placed with their father, which the grandparent described as 'another fault that needs to be identified'. There were further issues of non-compliance with court orders by the care-giving parent:
Part of the court orders in our situation was that the father was supposed to report all medical and all educational requirements back to us, which he never did. And when we pursued it, back through our solicitor, one case in the past three years has come forward where information was given.
Another grandparent carer spoke about a lack of support and guidance for people in this role:
We felt that there was a lack of support and guidance from the court system, particularly in respect to our situation. My husband and I had never been in trouble with the law ever before, and we were made to feel like we were guilty people and were having to prove ourselves over and over again in respect to being responsible caregivers for our granddaughter.
The submitter further described to the committee the financial difficulty of being in this situation in their mid-fifties:
… we were becoming full-time carers for a one-year-old child. Our whole financial system changed almost overnight because we were then raising another child. So any plans that we had for retirement were then having to be put on hold because we were taking a whole different avenue.
This grandparent suggested there should be more support persons to assist people who are navigating the family law system, including grandparents:
I think that there should be support for people who are entering into the court system in any arrangement, whether they're grandparents, parents or anything else.
These experiences were similar to those identified by Lone Fathers in their submission, in which they advised the committee that they:
… firmly believe that often grandparents are a significant contributor to the resolution process and unfortunately are too often ignored and we have reports that they are often banned from proceedings. Often Grandparents have been the primary or the joint carers. They have great potential to offer supervisory role until parents develop a post separation parenting skill and agreement. They are often overlooked. Many grandparents report that they are treated disrespectfully by the Family Law Professionals.
The Family Law Act currently recognises the importance of grandparents in the lives of their grandchildren through a number of provisions. For example, 'grandparents are included as a category of person with whom, as a general principle, children have the right to spend time, and communicate on a regular basis'. When determining the best interests of a child, the court must consider the nature of the child's relationships with other persons, including grandparents, and the likely effect of separation from other persons, such as grandparents, with whom they have been living. The Family Law Act also provides standing for grandparents to apply for parenting orders.
The Australian Bar Association proffered that it is it is difficult to conceive of what further, if anything could be done in the legislation to provide for grandparents. This position is supported by the AFCC, who advised that it:
… does not consider that there are any further issues arising for grandparent carers beyond what is ordinarily required to be considered in any parenting matter, all of which is based on ensuring that the best interests of the child are met.
However, the Law Council noted the support of one of its constituent bodies, the Law Society of New South Wales (NSW), for recommendation of the 2019 ALRC report—that the factors to be taken into account when determining the best interests of a child should be simplified so that they refer more generally to the child's 'carers', including grandparents.
This was a position also advocated for by Relationship Matters in their submission to the committee:
It is important for children to maintain extended family relationships, particularly with grandparents, as in times of family crisis it is often the grandparents who can support their adult children, and meet the safety and development needs of their grandchildren. Strong community and extended family connections are, in our experience, important protective factors for children and parents when their immediate family is in crisis or is fracturing. The Family Law System needs to recognise a family in the broadest sense, when considering the best interests of the child.
The Law Society of NSW and Victoria Legal Aid also welcomed the ALRC 2019 Report recommendation that the Family Law Act provide a definition of 'member of the family' that is inclusive of any Aboriginal or Torres Strait Islander concept of family, including grandparents.
Lone Fathers went further in their submission making a specific recommendation about grandparents:
The Family Court and [Federal Circuit Court] should give more weight to Affidavits and evidence from Grandparents. If the grandparents have a significant role with the grandchild/children, they should be actively encouraged to participate in the solution and parenting plan.