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A warrant for the arrest of a mother was recently issued by the Federal Circuit and Family Court of Australia under its powers to penalise parents who don’t comply with court orders.  Such an outcome is rare in the family courts, where enforcing compliance with parenting orders is typically aimed at achieving workable resolution of conflicts as far as possible before extreme penalties are considered and imposed.

But while it may appear on the face of it that the mother is being arrested in a punitive manner, in actual fact the court imposed the contravention penalty specifically in order to enable the court process to continue—as it is currently at a stalemate due to the mother’s refusal to follow orders.

Brief case background

In the matter pseudonymised as Ryland & Gunson, the parents are proceeding through parenting litigation.  The father, 26, hasn’t seen his baby since it was five days old, after which the mother refused to allow contact.  He then applied through the courts for parenting orders as he wants to be active in his child’s life, however for him, this is contingent on him being proved to be the child’s father, so he has requested DNA testing.

At her last appearance the mother was ordered to produce the child for DNA testing but failed to do so and has then failed to appear at various subsequent court hearings.

So the case is now at a stalemate, because the parenting proceedings can’t continue unless the father is proven to be the parent. And yet, with the toddler now 18 months old, the clock is ticking for the father to establish crucial early bonds, prompting a sense of urgency that caused the court to issue the arrest warrant.

Once located and arrested, the woman must appear before the court so the judge can ask her relevant questions around why she doesn’t want to produce the child for a the DNA test. The judge noted that if the mother had safety concerns she could ask the court to put security measures in place.

What are the penalties and what is their purpose?

If it’s proven that a breach of an order occurred without reasonable excuse, the courts will then determine whether a breach is “more serious” or “less serious” and this will impact on the potential consequences for the breaching party.

For “less serious” breaches, courts can order make-up time, allow parties to lodge an application to change orders, or require parties to enter into a bond.  Bond conditions might include orders for parents to attend family counselling, Family Dispute Resolution, or appointments with a family consultant.

For “more serious” breaches, courts can make orders for community service, bonds, fines of up to 60 penalty units, and in extreme cases, a term of imprisonment. It’s thanks to these powers that the family court is described as a quasi-criminal jurisdiction.

And yet the focus of contravention proceedings is not to criminalise parents who breach court orders: it’s simply to ensure parents comply with their obligations under orders in future.

Out of all parenting applications, only around 8% are contravention proceedings. And only around 5% of parenting litigation proceeds to a final hearing; most parents are able to work things out before that stage, through dispute resolution or simply between themselves. 

But whenever court-imposed orders or consent orders are in place, the risk exists that the orders will be breached—and there must be a way for the courts to enforce compliance with the orders, otherwise having orders becomes completely futile.

A two-year research project currently underway by ANROWS is taking an in-depth look at contravention issues and the first of four research reports was released in January this year. Entitled “Compliance with and enforcement of family law parenting orders: Views of professionals and judicial officers”, the research looks at factors influencing compliance with parenting orders, the impact of penalties, and the general operation of the contravention regime in Australia’s family law system.

Preliminary results of the ANROWS project show that family law professionals are acutely aware of the “tension” between punitive contravention penalties and child-focused decision making.  In other words, is sending Mum or Dad to prison or giving them a hefty fine for failing to comply with orders really going to be in the child’s best interests?

“Judges’ responses showed concern about children being drawn into the conflict by their parents, and the associated stress on the child of worrying about the potential outcome of the proceedings for a parent.”

However, the professionals surveyed also viewed penalties as “necessary for the subset of particularly difficult cases”.

In our next blog we will take a closer look at some of the ANROWS findings released in the first report and look at how the contravention regime in Australia might be improved through reform.

Need advice regarding contravention of parenting orders or help with filing an application in the National Contravention List? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

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