RESEARCH REPORT Compliance with and enforcement of family law parenting orders: Views of professionals and judicial officers
The current regime for responding to breaches of family law parenting orders is contained in Division 13A of Part VII of the Family Law Act (1975) (Cth). Contravention orders are not particularly common, reflecting about 8 per cent of applications for final orders in parenting matters each year. However a series of inquiries, including one by the Australian Law Reform Commission in 2019 and one by the Joint Select Committee on Australia’s Family Law System in 2021, suggested a need for a raft of changes to the family law system. These changes included parenting matters generally and contravention matters particularly.
This project has been designed to examine the drivers of non-compliance with parenting orders and the operation of the parenting order enforcement regime in Australia. This report sets out preliminary insights from one part of a four-part research program. The other three parts of the research program are based on data from family court files involving contravention applications, an online survey of parents and carers with family law parenting orders and an analysis of the approaches applied to contravention in three international jurisdictions.
This report summarises the views of 343 professionals who work with separated parents and chose to complete an online survey, and 11 judicial officers who exercise family law jurisdiction and participated in one-on-one interviews. The survey instrument was designed to elicit views on a range of issues that potentially underlie non-compliance with parenting orders, including issues related to entrenched conflict and perverse behaviour, safety concerns, child-related issues and systems abuse.
The research found that for both judicial officers and professionals, a tension can arise between the punitive aims of the contravention regime and child-focused decision making. It demonstrates that the drivers of non-compliance with parenting orders are complex. Systemic issues contribute, including shortcomings in the responses to family violence and safety concerns and limitations in the way the family law system supports the participation of children and young people. There are also a small subset of cases that for various reasons, including mental health issues and systems abuse, are intractable.
While some professionals viewed penalties as necessary for the subset of particularly difficult cases, this research found that the inclusion of punitive response options in the compliance regime may have unintended consequences. Several aspects of the way the contravention regime operates are seen as inconsistent with client needs: it is viewed as slow, costly, technical, potentially traumatic, and potentially open to misuse. The findings also highlighted a need for the process of developing parenting orders to be attentive to the needs and wishes of children and young people in order to reduce non-compliance that is driven by children and young people themselves.
Publication details
This work is part of the ANROWS Research reports series. ANROWS Research reports are in-depth reports on empirical research produced under ANROWS’s research program.
Authors
DR RAE KASPIEW
Senior Research Fellow, Australian Institute of Family Studies
DR RACHEL CARSON
Senior Research Fellow, Australian Institute of Family Studies
PROFESSOR HELEN RHOADES
Law School, University of Melbourne
DR LIXIA QU
Senior Research Fellow, Australian Institute of Family Studies
JOHN DE MAIO
Research Fellow, Australian Institute of Family Studies
DR BRIONY HORSFALL
Senior Research Officer, Australian Institute of Family Studies
EMILY STEVENS
Research Officer, Australian Institute of Family Studies
ISBN: 978-1-922645-13-5 (paperback) | 978-1-922645-14-2 (PDF)
108 pp.
Suggested citation
Kaspiew, R., Carson, R., Rhoades, H., Qu, L., De Maio, J., Horsfall, B., & Stevens, E. (2022). Compliance with and enforcement of family law parenting orders: Views of professionals and judicial officers (Research report, 01/2022). ANROWS.