Parents kept from children get new hopeSydney Morning Herald
May 30, 2008
PARENTS illegally kept away from their children by aggrieved former partners would have a new government agency to turn to for help under recommendations by the Family Law Council.
The council, the Federal Government's advisory body on family law matters, has called for the establishment of a Child Orders Enforcement Agency, along similar lines to the Child Support Agency.
The agency would respond to complaints from aggrieved parents denied court-ordered access to their children, determine whether the other parent had shown "serious disregard" for the court orders, and help institute legal action in the Family Court to ensure compliance.
The council's report, "Improving Post-Parenting Order Processes", was prepared in response to a reference from the former attorney-general, Philip Ruddock, but is now under consideration by the Labor Attorney-General, Robert McClelland. A committee of eminent judges, magistrates and legal academics wrote the report under Patrick Parkinson, professor of law at the University of Sydney, whose term as council chairman has since expired.
Breaches of court orders for contact between separated parents and their children - and the family law system's response to them - have been a source of complaint for many years, the report says.
Non-resident parents have complained about their former partners openly refusing to comply with a court order, moving residence to make contact difficult or impossible, and being absent when they call for their children.
Resident parents also report problems, including the failure of the other parent to collect or return the child on time, and failure to show up for visits.
About 2500 formal contravention applications - or complaints about breaches of parenting orders - are lodged annually with the Family Court and Federal Magistrates Court, but the report says this is an underrepresentation.
The council said litigants, who were frequently self-represented, were often left to "run the gauntlet of repeated applications" to the Family Court, and the cases took up a great deal of the court's time. "Experience has been that many litigants will drop out, which results in the particular children losing the benefit of the original orders and the recalcitrant party winning out in a war of attrition," the report says.
Serious and wilful disregard of parenting orders was a matter of public interest, it said. The child's best interest was at stake when a parent breached an order that a court had deemed beneficial to the child. As well, such breaches brought the court into disrepute.
The council said a "small, independent [enforcement] agency with offices in each capital city" would be the best way to respond to serious breaches. It would encourage parents to resolve disputes without litigation. But if this was not possible litigation would be instituted in the Family Court with the aggrieved parent able to instruct a lawyer provided by the agency.
Acknowledging the new agency would be expensive to set up, the council proposed providing extra funding to legal aid commissions to help parents fund enforcement matters before the family courts.
Secretary of the Shared Parenting Council saidThe issue of breeches to contact orders and failure to comply with orders giving adequate contact to separated parents by an aggrieved partner is only the tip of the iceberg.
The bigger issue is those parents just separated, separated a while without an agreement, or going through the court system. It is these parents who find themselves in an extraordinary position of not having any contact whatsoever for many months and sometimes years, when one parent, the parent who has the children, turns feral. Separation brings out the absolute worst in some and we see behaviours that would not even be tolerated in the animal kingdom.
We have had many calls particularly around Christmas and other important holiday times when the "holding parent" simply stops contact… because they think they can. We support any efforts by the Attorney General to resolve this issue of contact that causes great animosity, escalates and entrenches conflict and sets up children as pawns for the spoils of the battle that ensues.
Sourced from Sydney Morning Herald