If you have parenting orders in place – whether consent orders or orders imposed by a court – you have most likely already been made well aware that you need to follow them. Although contravention applications only make up a small percentage of parenting applications in the family courts, the threat of being taken to court for breaching orders still looms large for parents with parenting orders. As such, the contravention regime in Australia has been one of the central concerns of the various family law inquiries and reviews of recent years.
How the contravention regime currently works
In response to the widespread concerns over the operation of the contravention regime, in September 2021 the Federal Circuit and Family Court of Australia introduced the National Contravention List to improve how breaches of orders are dealt with. The aim of setting up the new List is to produce faster results in a more cost-effective and safe way.
Applications to the National Contravention List are given a first return date within 14 days of filing. The List also enables the courts to triage matters to dispute resolution wherever possible, and steer families away from litigation.
Criticisms of the current regime
Despite the new operation of the National Contravention List, the contravention regime in Australia is still subject to criticism and calls for reform. Current research by ANROWS into compliance and contravention shows that major concerns remain over shortcomings in the responses to family violence and safety concerns, limitations in how the system supports the participation of children, and tension between punitive responses and children’s best interests. Further, traversing the court system is typically slow, costly, complex and technical, traumatic and open to systems abuse.
What are the reasons behind non-compliance?
The ANROWS research intends to drill down into the reasons why parents sometimes breach orders. In the first tranche of its research, it noted numerous potential reasons:
- Misunderstanding orders
- Accidental non-compliance
- Non-compliance due to the orders not catering for children’s changing needs and circumstances
- Child refusal
- Due to unsafe orders (whether from newly arisen risks, unresolved underlying risks, or escalation of risk)
- Due to an alleging party being difficult or vindictive, or a contravening party being abusive or controlling
How can the system be improved?
There are a number of ways to reform the regime, for instance as noted in the first part of the ANROWS research:
- Improving the wording of orders so they are clearer to parents;
- Ensuring orders accommodate changes for children over time;
- Ensuring obligations under orders are properly communicated to parents;
- Improving case management from the start of litigation;
- Increasing post-order support;
- Improving forensic approaches to identifying risk-related issues;
- Increasing the participation of children/incorporating children’s views into the hearing process /generally more attention given to children’s interests;
- Making safer and more appropriate parenting orders;
- Triaging cases of non-compliance, identifying the underlying reasons for non-compliance and addressing those reasons; and
- Better resourcing for the family law system.
The first research report released by ANROWS focuses on the views of family law professionals, while the next three parts of the research will look at data from family court files, parent and carer views, and a comparative analysis of three international jurisdictions’ contravention regimes. It will be interesting to see what the results are of the next three phases of the research project.
In the meantime, if you have any queries relating to contravention of parenting orders, or you need advice regarding parenting arrangements, 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.
