Compliance with and enforcement of family law parenting orders
In Australia and overseas, there has been longstanding controversy about the enforcement of family law parenting orders.
As the evidence base on families who use the system has expanded, greater focus has been placed on the complex dynamics that affect the small minority of families who use courts to make parenting orders.
This project has built understanding about why people fail to comply with parenting orders and the way in which these orders are enforced.
This project addressed the gap in empirical research by developing a greater understanding of the enforcement regime contained in the Family Law Act 1975 (Cth) and the factors that do or do not support compliance with parenting orders. During the course of this research, a new court structure took effect, replacing two separate courts with the Federal Circuit and Family Court of Australia. A new National Contravention List designed to triage and assess contravention matters was also introduced. Should further reform of the enforcement regime be implemented, this project provides baseline evidence against which the impact of any reforms could be measured.
This project used mixed methods to examine compliance with parenting orders and the operation of the enforcement regime. The research generated empirical evidence about the following key issues:
- the factors associated with non-compliance with parenting orders
- the circumstances in which the contravention regime is applied and the patterns in court outcomes when it is applied
- the extent to which penalties are effective at reducing non-compliance and whether, where there are ongoing concerns about family violence, they deter protective non-compliance or inhibit parties in seeking court protection.
The project employed the following methods:
- Contravention matter court file analysis:
collection and analysis of data from a sample of court files and published and unpublished judgements involving contravention applications in selected registries of the Family Court of Australia and the Federal Circuit Court of Australia.
- Online survey of separated parents with parenting orders:
collection and analysis of data about parents’ views and experiences through an online survey of separated parents who had obtained parentings orders (either by judicial determination or by consent) in the five years preceding the survey.
- Online survey of professionals and interviews with judicial officers:
collection and analysis of data from a range of family law system professionals to assess the influence of professional practices and examine systemic and legislative factors that influence the operation of the enforcement regime.
- Analysis of international approaches:
a desktop review of enforcement approaches in three international jurisdictions to consider the legislative and systemic approaches to enforcement and how professional practices do or do not support effective implementation of these approaches.
There is no recent Australian research on contravention applications and the operation of the enforcement regime in the Family Law Act 1975 (Cth) (FLA). The legislative context for making parenting orders has also changed significantly over the past 15 years, with the implementation of the 2006 shared parenting reforms and the 2012 family violence amendments to the FLA. In its recent review of the Australian family law system, the Australian Law Reform Commission documented a range of persistent concerns about compliance with parenting orders in general, and the operation of the legislative framework where contravention occurs in particular (ALRC, 2019). This project has addressed this gap in the evidence base and supported greater understanding of the enforcement regime and the factors that do or do not support compliance with parenting orders. As noted above, should any additional reform of the enforcement regime be implemented, this research would also provide baseline evidence against which the impact of any reforms could be measured.
Dr Rae Kaspiew, Australian Institute of Family Studies
Dr Rachel Carson, Australian Institute of Family Studies
Dr Lixia Qu, Australian Institute of Family Studies
John De Maio, Australian Institute of Family Studies
Dr Briony Horsfall, Australian Institute of Family Studies
Emily Stevens, Australian Institute of Family Studies
Professor Helen Rhoades, consultant
Louise Press, Australian Institute of Family Studies
Dr Georgina Dimopoulos, Swinburne Law School
The AIFS team engaged stakeholder consultation throughout the project and at each key phase. Stakeholders included Commonwealth and jurisdictional representatives from government departments, courts and support agencies. The Family Court of Australia, the Federal Circuit Court of Australia and the Family Court of Western Australia have been integral to the implementation of this research program.
Family law parenting orders, breaches and their impact on children
The webinar launched the second and final report within the ANROWS-funded project, “Compliance with and enforcement of family law parenting orders”.
This webinar features a panel discussion among the report’s researchers and family law practitioners. It focuses upon the impact of breaches of parenting orders upon children and explores how the research findings might shape future reforms to achieve better outcomes for families with complex needs and long litigation histories.
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$977,493 (excl. GST)