Barnett, Michael --- "For the Sake of the Kids" [1995] ALRCRefJl 11; (1995) 67 Australian Law Reform Commission Reform Journal 54

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FOR THE SAKE OF THE KIDS

Complex Contact Cases and the Family Court

On 20 June 1995 the Australian Law Reform Commission (ALRC) released a report, For the sake of the kids - Complex contact cases and the Family Court (ALRC 73).

Michael Barnett presents an overview of the report.

This report, which has attracted a lot of public interest, addresses one of the most difficult areas of family law reform - efforts to reduce the number and severity of complex contact cases in the Family Court. These are cases where separated parents are involved in protracted disputes, often involving repetitive applications, about the non custodial parent's contact with the children of the relationship. Under the current law they are known as access cases but if Parliament passes the the Family Law Reform Bill 1994 contact' will replace access'.

These complex cases often have very detrimental and sometimes tragic consequences for the children involved, their parents and other family members and friends. Parental violence, chronic conflict and protracted, expensive litigation jeopardise a child's best interests. Children will generally benefit when their separated parents achieve responsible and co-operative parenting. They will be happier, better adjusted and more likely to achieve their potential and become productive members of the community. Complex cases are also a drain on the limited resources of the Family Court and the legal aid commissions which often provide representation for children and parents in these cases.

Principles for decisions on contact

The ALRC has established a set of principles to guide the Court and the community in examining contact cases. The fundamental principle is that in any legal matter concerning a child the best interests of the child must be the paramount consideration. From that primary principle flow others:

• a child has a right to contact with both parents unless his or her best interests require otherwise
• a child has a right to be heard and to have his or her views taken into account
• parents should be encouraged and assisted to make appropriate arrangements for the care of and contact with their children and the Court should intervene as little as possible unless the best interests of the child require otherwise.

None of these principles is novel. They are consistent with the United Nations Convention on the Rights of the Child and with recent legal developments in Australia including significant decisions of the Family Court and the Family Law Reform Bill 1994. However the report's recommendations will make their application to contact cases more apparent and more consistent. This is very important in relation to case management.

Overview of the recommendations

The report recognises that no single response is likely to reduce significantly the number or severity of complex cases. This is particularly so for cases where the conflict is already entrenched and the subject of many applications. However, the recommendations in the report, when considered as a package, offer a systematic and coherent approach to complex and potentially complex cases.

The recommendations suggest improvements at each stage of the possible development of complex cases, including preventive measures before the matter comes before the Court, changes in approach to the making of orders for contact, case management by the Court once a dispute has developed and the more effective use of enforcement procedures. They focus on early identification and prevention through education, training and the use of appropriate and effective Alternative Dispute Resolution (ADR) measures or, where appropriate, fast tracking litigation.

The main recommendations

Scrutiny before making contact orders. The submissions and consultations indicate that orders for contact are being made in some cases where contact is inappropriate. The report recommends that the 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, particularly in cases involving violence, continuing severe conflict or where the child opposes contact.

Guidelines, information and training for Magistrates Courts and staff. Many complex contact cases begin in the Magistrates Courts. Those Courts lack guidelines in the use of orders (particularly ex parte orders), have insufficient access to sources and developments in family law (eg ADR) and inadequate training in issues such as gender and violence. The report recommends that Magistrates and Magistrates Court staff dealing with family law matters should receive training and education about the Family Law Act 1975 (FLA) and its procedures, including about domestic violence, the use of ex parte orders and the potential difficulties involved in consent orders for complex contact cases.

Contact centres. The report discusses the strong support for the greater use of contact centres to provide neutral supervision of contact handovers and visits. The report recommends that the Commonwealth should fund contact centres in an extensive pilot project external to the Family Court, to assist in providing appropriate contact in complex cases.

Case management. A key issue is the exploration by the Family Court of different strategies of identifying and managing complex cases. The report recommends a new approach that is more focused on early identification, individual case management by case teams or specially appointed individuals with continuity of supervision, and the timely and effective use of a greater range of options including ADR and fast tracking' in the litigation path. The new approach introduces greater flexibility to meet the needs of the particular case. Accordingly the report recommends that:

• the Family Court's case management guidelines for complex cases should be amended to make it clear that the designation includes potentially complex contact cases in addition to those that are already complex
• Family Court counsellors should have a greater role in identifying cases and should be able to indicate in a simple but formal way those cases they consider to be complex or potentially complex
• each complex contact case should be assigned to a judicial officer and counsellor as soon as possible after identification and there should be consistency in the Court personnel handling the case - the Court should make additional efforts to achieve this consistency including monitoring, training and instruction
• the Family Court should consider, and if appropriate trial at different registries, a case team approach' and a child interests co-ordinator approach' to managing complex contact cases
• there should be a range of options available in complex contact cases, including various methods of ADR, but any program should include appropriate guidelines for identifying and assessing cases where ADR is unsuitable because of violence, unequal bargaining power or a lack of capacity for rational decision making
• the federal Government should establish a body to advise on issues concerning ADR with a view to developing a high quality, accessible, integrated federal ADR system.

Enforcement. Enforcement procedures should be fairer and simpler for contact parents who have legitimate complaints about compliance with contact orders. However those who try to use the provisions primarily as a means to harass ex partners must be prevented from bringing vexatious proceedings. To achieve the appropriate balance between these two objectives the report recommends that:

• the FLA should be amended to provide for two alternative procedures for enforcement - one should be a simple procedure that focuses on achieving compliance with Court orders and so does not involve penalties; the other should be a stricter procedure with more punitive sanctions available and require the breach of an order to be proved beyond reasonable doubt
• the Court should be more robust in declaring a party in a complex contact case to be a vexatious litigant and in adhering to a declaration when a vexatious litigant seeks leave to commence proceedings, unless the best interests of the child require otherwise.

Information, education and training. Information, education and training for professionals working with complex contact cases and for the parents and their children is a key aspect of the early identification and prevention of difficulties. Currently there are diverse programs with different levels of funding. There is a need for a review of these programs with the purpose of establishing a co-ordinated and systematic approach, preferably on a national basis, including the following.

• Training for professionals should provide information, in particular, on the effects of violence and conflict on children. Training needs should be examined by the Court, perhaps in consultation with the Australian Institute of Judicial Administration and the Family Services Council.
• The Law Council of Australia and the legal professional associations should co-ordinate a review of education and training programs for lawyers. The aim of this would be to ensure information and assistance is available in dealing with complex contact cases in the Family Court.
• While the Family Court should have an important part in parent and child programs the focus should be on a national and community response and early prevention of difficulties outside the Court. Greater priority should be given to information, education and training programs immediately before and immediately after separation. In each of those cases services would be more appropriately provided by a body other than the Family Court.

Implementation

The government will consider this report and any comments the FLC makes. In the Justice Statement of 18 May 1995 the Prime Minister announced measures which reflected a number of the report's recommendations including the funding of a national pilot scheme of contact centres and greater funding of ADR, including counselling, therapy and mediation, particularly before disputes become entrenched. The report makes a number of recommendations on ADR's role in resolving contact disputes.

Media and public interest

The report has received considerable coverage in the electronic and print media. There have also been many requests from members of the public, some of whom are directly involved in contact disputes. This public coverage may be one of the most important aspects of this report because it helps to break down the assumption that parents have an automatic right of access to their child - focussing debate on the best interests of the child rather than on parental rights and demands.

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