Overview and Assessment of
Approaches to Access Enforcement

2001-FCY-8E

• Previous Page |
• Table of Contents |
• Next Page

FOREIGN LEGAL MODELS AND COURT-BASED PROGRAMS (cont'd)

Australia

In 1995, the Australian Law Reform Commission called for early identification and intervention in "complex contact cases," noting that "cases that become locked in conflict harm the children and the parents and waste limited Court and other legal resources" (ALRC, 1995b: para. 3.2). The Commission considered various factors that could identify an access case as likely to give rise to ongoing conflict and problems and made the following recommendation:

There should not be a formal checklist of factors to be taken into account in identifying complex contact cases. Identification should involve an assessment of the case as a whole by the responsible officer of the Court. Officers should be aware, however, of four key indicators arising from the research into complex contact cases: continuing conflict between the parties; children under 2 years at the time of separation; allegations that the children refuse or oppose contact; restraining order application as part of the initiating application (ALRC, 1995b: recommendation 3.3).

The Commission also stressed that access should not be ordered unless it is in the best interests of the child, because failure to adhere to this standard violates the principles enshrined in the UN Convention on the Rights of the Child and Australia's legislation, and also adds to the number of complex contact cases (ALRC, 1995b: paras. 2.2 and 2.48). Among its many recommendations for dealing with complex contact cases, the Australian Law Reform Commission made the following:

The Family Court should be more robust in refusing to make contact orders where it is not in the best interests of the child to order contact.... [C]ontact may be particularly inappropriate where there is a history of violence in the parents' relationship, where there is continuing conflict between the parents or where the child opposes contact. In considering whether the child opposes contact the Court should consider, among other factors, the age and maturity of the child and any parental influence (ALRC, 1995b, recommendation 2.7).

This recommendation did not mean that access is never appropriate when there is a history of violence or continuing parental conflict or the child opposes access, only that one or more of these circumstances is likely to form the factual background of the cases in which access is not in the best interests of the child.

The Commission's 1995 report also noted that judges were reluctant to enforce access orders partly because exercise of the power to punish for contempt was inconsistent with a judge's role as protector of the best interests of the child:

The Family Court was consciously shying away from imposing sanctions on those who deliberately refuse or fail to obey its orders. This response reflected the court's fundamental dilemma. The Family Court is often described as a helping court in which conciliation is stressed. However it also has potentially draconian powers for contempt.… This dilemma is magnified by the court's overriding duty to take the interests of the children of a marriage as the paramount consideration. The merits of a case may point toward the imposition of a severe penalty but concern for the children suggests a more lenient approach (ALRC, 1995b: para. 4.56).

The Commission rejected transfer of custody as a method of access enforcement, concluding that "it would be very undesirable for the Court to threaten a person in an enforcement action with loss of custody. Applications for changes in custody should be considered on their own merits and after proper consideration of the best interests of the child" (ALRC, 1995b: para 5.27).

Subsequent to the Australian Law Reform Commission's report, Australia's Family Law Act 1975 was amended. Australia's Family Law Reform Act 1995, like the Children Act 1989 of England and Wales, abandoned the terms custody and access and adopted the terms residence and contact. While there may be one "residential" parent and one "contact" parent, both parents continue to have parental responsibility for their children after separation. The Act incorporates a statement of objects and principles drawn from the UN Convention on the Rights of the Child.

In Australia, marriage, divorce, custody and access are matters of federal legislative authority, and a single national court deals with family law matters. Australia's Family Court has counselling and mediation services connected to it, and judges emphasize these preventive and alternative measures. As well, the Attorney General's Department of Australia contracts community-based organizations to provide supervised contact services. There are 10 contact services funded across Australia. The services are conducted by a range of community-based organizations, including community legal services and family services organizations. The contact services provide supervised contact and transfers. An evaluation of the services, including research on the impact on children of supervised contact, was conducted and the first report published in 1998 (Australia, 1998b). The contact services are successful in some regards. Resources are a problem and many services are unable to help parents move to unsupervised contact.

The goal of keeping non-custodial fathers connected to their children after separation is reflect in the principles of the Family Law Act 1995, which are set out in section 60B.(2):

except when it is or would be contrary to a child's best interests:

1. children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
   
   
2. children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
   
   
3. parents share duties and responsibilities concerning the care, welfare and development of their children; and
   
   
4. parents should agree about the future parenting of their children.

Under section 68F(2) of the Act, when determining what is in the child's best interests, the Family Court must consider the following:

1. any wishes expressed by child and any other factors the Court thinks relevant to the importance given to child's wishes;
   
   
2. the nature of the relationship of the child with each parent and other people;
   
   
3. the likely effect of changes in the child's circumstances, including separation from either parent or any other person (adult or child);
   
   
4. the practical difficulty and expense of a child having contact with a parent and whether this will affect the child's right to maintain a relationship and contact with both parents;
   
   
5. the capacity of each parent or others to provide for the needs (including emotional and intellectual) of the child;
   
   
6. the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and tradition of Aboriginal people or Torres Strait Islanders) and any other characteristic considered relevant;
   
   
7. the need to protect the child from physical or psychological harm caused or potentially caused by: being subjected or exposed to abuse, ill-treatment, violence or other behaviour;
   
   
8. being present while another person is subjected or exposed to abuse, ill-treatment, violence or other behaviour;
   
   
9. the attitude demonstrated by each parent to the child and to responsibilities of parenting;
   
   
10. any family violence order which applies to child or member of child's family;
    
    
11. whether it would be preferable to make the order that would be least likely to lead to further proceedings in relation to child;
    
    
12. any other factor considered by court to be relevant.

Abuse and violence are included as factors to consider (factors g), h) and j)). However, inappropriate access orders and agreements in the context of domestic violence continue to be a problem in Australia, particularly since the Family Law Reform Act 1995 came into force. This is because the emphasis in the new legislation on continuing the parental relationship has made judges even more reluctant to deny access (Rhoades et al., 1999).

The child's wishes must be considered by the court when determining access under section 68F(2)(a) of the Family Law Act 1995. Under section 68G(2), the court may inform itself of the child's wishes by means of a report in which the child's wishes are set or by such other means as the court considers appropriate. Under section 68L, the court may order separate representation for the child, either on its own initiative or on application by the child, by an organization concerned with the welfare of children, or by any other person, when the court considers it appropriate. A child may apply for an access order under section 69C(2)(b).

Measures to enforce contact orders were included in subsections 112AA-112AP of the Family Law Act 1995. Concerns have been raised in Australia about the use of enforcement mechanisms by abusive non-custodial fathers to harass custodial mothers (Rhoades et al., 1999). TheFamily Law Amendment Bill 1999 came before the Parliament of the Commonwealth of Australia in 1999. This Bill was, in part, intended "to streamline and enhance the enforcement of parenting orders by the introduction of a new three-stage parenting compliance regime" (Australia, 1999: 1).

This regime comprised a prevention stage, a remedial stage and punitive sanctions, as recommended by the Family Law Council of Australia (Australia, 1998a). In the prevention stage, a lawyer or the court explains to each party the obligations created by a parenting order, the availability of programs to help people understand their parental responsibilities, the consequences of non-compliance with orders, and the availability and use of location and recovery orders to ensure that parenting orders are complied with.⁽²²²⁾

The remedial stage is intended to enable parents to resolve disputes and to help in negotiations about improved parenting. In the remedial stage, when a party disobeys an order without reasonable excuse, the court would be able to a) make an order requiring the person to participate in a parental education program, provided the program is within reasonable distance or b) order compensatory contact.⁽²²³⁾

The punitive stage is intended to be a last resort to ensure that a parent is punished for deliberate disregard of a court order. When parental education or compensatory contact has been ordered and the person afterwards contravenes an order without reasonable excuse, the court must impose one or more of a range of sanctions, including community service orders, fines, bonds, variation of a parenting order or imprisonment. These sanctions exist under the current law but are discretionary. The Bill removed this discretion.⁽²²⁴⁾

The general reaction to the Bill was that it is too severe and too rigid, although the Senate Committee comments that this may be because of "a failure to appreciate that a person can only be punished if he or she has no reasonable excuse for breach of a contact order" (Australia, 1999: 7). Rhoades, Graycar, and Harrison, who are conducting research on the impact of the Family Law Act 1995 (Rhoades et al., 1999), testified in front of the Senate Committee that the emphasis on improving enforcement of contact orders was inappropriate, given their findings that inappropriate contact orders are being made, particularly in situations of domestic violence (Australia, 1999: 8-9). The authors commented that the new enforcement provisions would become "another instrument of harassment, or for the assertion of rights to contact in inappropriate circumstances" (Australia, 1999: 10). Parkinson told the Senate Committee that the problem was the lack of public confidence in the courts to make just contact orders in the first place in cases with serious concerns about the safety of the children, that interim contact orders are made with minimal assessment, that many litigants represent themselves and do so with difficulty, and that these serious problems would "not necessarily be resolved by counselling" (Australia, 1999: 10). The Bill has gone back to the Attorney General for consideration of suggested amendments. As of May 18, 2000, the Attorney General had not yet come forward with an amended Bill.

Under section 67ZD of the current statute, courts are authorized to order that the passport of the child and of any other person concerned be delivered up to the court, when the court considers that there is a possibility or threat that a child may be removed from Australia. Such an order would help prevent international parental child abduction.

Australia has ratified the Hague Convention on the Civil Aspects of International Child Abduction and effectively implemented it. Most abductions that are governed by the Convention are by primary caregiver mothers, and most others by non-custodial fathers (in Australia, as in Canada, the U.S., and the U.K., most primary caregiver or custodial parents are mothers⁽²²⁵⁾) (Nygh, 2000). Australian courts have ruled that in cases of non-removal orders, agreements or laws, the non-custodial parent does have a right of custody within the meaning of the Convention (Nygh, 2000). Australia's Family Law Act expressly provides in section 111B that "each of the parents of a child should, subject to any order of a court for the time being in force, be regarded as having custody of the child," thereby allowing the non-custodial parent to apply for an order for return of the child when the custodial or primary caregiver parent removes the child without the other parent's consent or a court order.

Australia has also imposed a penalty of imprisonment for up to three years for removing a child from Australia when a contact order is in force, without either consent of the person in whose favour the access order was made or order of the court.⁽²²⁶⁾

When a child is in Australia, a person in whose favour a contact order was made may apply for a "location order," which requires a person or government department or agency to provide the Registrar of the court with information that the person has or obtains about a child's location.⁽²²⁷⁾As well, a non-custodial parent may apply for a "recovery order" that does the following:

• requires the return of a child to the non-custodial parent;
  
  
• authorizes or directs a person or persons, with such assistance as they require, and if necessary by force, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place, for the purpose of finding a child; and
  
  
• authorizes or directs a person or persons, with such assistance as he or she requires or they require, and if necessary by force, to recover a child.⁽²²⁸⁾ Interference with a recovery order without reasonable excuse is punishable by a fine of up to $1,000, imposition of a recognizance, or imprisonment for up to three months.⁽²²⁹⁾ Australia's statute states explicitly that the best interests of the child are the paramount consideration when determining whether to grant a location order or a recovery order.⁽²³⁰⁾

In Australia, a contact order imposes no legal obligation on the non-custodial parent to exercise access, only obligations on others not to "hinder or prevent a person and the child from having contact in accordance with the order" and not to "interfere with the contact that a person and the child are supposed to have with each other under the order."⁽²³¹⁾ The issue of failure to exercise access was raised before the Senate Committee on the Family Law Amendment Bill 1999. A custodial parent testified that "the consequences for the residence parent of a contact parent failing to turn up for access visits, giving late notice of an intention to do so, or giving notice after a failure to attend, include inconvenience, financial costs, emotional trauma for the children and a reduced ability to plan" (Australia, 1999: 12). The Domestic Violence Advocacy Service and the Women's Legal Resource Advocacy Centre also addressed the Senate Committee on this issue. As a result, the Attorney General's Department has undertaken to discuss the possibility of providing that a right to contact will lapse if not exercised over a reasonable period of time (Australia, 1999: 12).

---

• ²²² Family Law Amendment Bill 1999 (Cwth), No. , 1999, s.65DA.

• ²²³ Family Law Amendment Bill 1999 (Cwth), No. , 1999, ss.70NG, 70NH and 70NI.

• ²²⁴ Family Law Amendment Bill 1999 (Cwth), No. , 1999, s.70NJ.

• ²²⁵ In Australia, 19 percent of families with dependent children are one-parent families, and 87 percent of one-parent families are headed by mothers (ABS Australian Social Trends, 1997: 34).

• ²²⁶ Family Law Act 1975, CWTH, s. 65Y.

• ²²⁷ Family Law Act 1975, CWTH, ss. 67J and 67K (b).

• ²²⁸ Family Law Act 1975, CWTH, ss. 67Q (a)(i) and (ii), (b) and (c), and 67T (b).

• ²²⁹ Family Law Act 1975, CWTH, ss. 67X.

• ²³⁰ Family Law Act 1975, CWTH, ss. 67L and 67V.

• ²³¹ Family Law Act 1975, s. 65N.

• Previous Page |
• Table of Contents |
• Next Page