EL PATRIMONIO SINDICAL EL PATRIMONIO SINDICAL

FLC review of penalties

5.19 In April 1995 the FLC will commence a project to collect and monitor Family Court data on penalties and to establish a database for the information collected. The purpose of the project is to consider the level and consistency of treatment and sanctions imposed throughout Australia. The project will include information about results of enforcement actions commenced in the Family Court for a period of one year. The Commission regards the collection and analysis of this data as significant in any examination of enforcement actions particularly in respect of penalties. It therefore makes recommendations in this report only on a small number of issues raised in the submissions and consultations that should be addressed more urgently.

General principles

5.20 Best interests of the child. The best interests of the child should be the paramount consideration in all matters affecting children. This is the fundamental principle and standard for any provision or procedure under the Act, including litigation to enforce contact orders.336 The Court must continue to judge the appropriateness of sanctions and their quantum in a particular case by that standard.

5.21 Submissions and consultations. Some submissions argued that the Court should take a tougher stand against those breaching contact orders and that, while gaol may only be a proper penalty in the most extraordinary cases, fines and orders for costs should be more seriously considered. Sanctions may not change attitudes but they can change behaviour.337 A major problem arises in cases where the access parent misses out on the odd day but spends thousands of dollars to obtain compensation.338 Other submissions considered that while the threat of sanctions has to be available their actual usefulness is limited especially as the paramount concern has to be the interests of the child in the particular case.339A few submissions argued that the Court has to consider the possible greater use of periodic detention, community service orders and compensatory contact.

5.22 Issue of deterrence. One of the Family Court judges at the Parramatta registry described two major views on deterrence in these cases. One is that if the Court made an example of a few recalcitrant custodial parents this would significantly deter others. The other view is that there is no evidence that this would indeed happen and that the real problem with using 'examples' is that the children in those particular cases may well be very badly affected by a severe penalty on the custodial parent. It would be difficult to justify disadvantaging these children so that their cases would serve as a general deterrent. Some Court personnel argued that the current penalties may be effective in a number of cases. They referred to anecdotal evidence that parents given a recognisance, which was a typical result, take the penalty seriously and their matters do not tend to come back to Court. However, it cannot be assumed that enforcement action has been successful in securing compliance simply because a case does not come back before the Court. The contact parent may not pursue non-compliance further because of financial difficulties, lack of legal aid or a belief that further action is ineffective. It is also possible that enforcement ensures compliance only at a cost to the children involved because of the bitterness and conflict between the parents. The FLC project on penalties may shed some light on these issues.

5.23 The Commission's view. The FLA should continue to provide that imprisonment is only a last resort because clearly the imprisonment of a custodial parent may have serious consequences for a child. These consequences are not only psychological harm but practical issues of who could and would provide the child with suitable care and protection while the parent is in prison. Imprisonment or the threat of imprisonment may also be ineffective. It may not deter some parents who are deeply committed to acting in a particular way and who believe that their actions are for the good of their children. Severe fines on a parent may also harm the child by affecting material comfort and standard of living. Heavy penalties generally may only place greater burdens on children and destroy forever any possibility of shared parenting. The Court's discretion as to penalty now available to it under the FLA should be maintained to ensure that the best interests of the child are protected in each case. The Court should be encouraged to make use of this wide discretion. The Commission also supports the current provision that requires the Court before imposing penalties to ensure that the parties have attended counselling.340 Finally the Commission recommends efforts

by the Court to encourage greater consistency in the application of penalties. The development of informal guidelines on sentencing would be a valuable initiative.

Recommendation 5.4

The best interests of the child should be the paramount consideration in any decision made in the course of any litigation regarding contact, including enforcement proceedings. Counselling and diversion from litigation should be encouraged by the Court and by legal practitioners. The Court's discretion as to the appropriate penalty should be maintained but the Court should give greater consideration to the circumstances where community service orders and periodic detention may be appropriate. Imprisonment should continue to be a sanction of last resort only. The Family Court judiciary and its judicial registrars should consider developing informal guidelines on the imposition and quantum of sanctions, perhaps in the manner of a tariff, and in particular should consider those circumstances where fines, periodic detention and community service orders would be appropriate.

NSW to have full range of penalty options

5.24 During consultations, judges and registrars, at the Parramatta registry in particular, stressed the need for the Family Court when sitting in New South Wales to have available to it the full range of sentencing options available in other States and the Territories. This would include periodic detention and community service orders now currently unavailable to the Court in that State because the Commonwealth and New South Wales have not entered an arrangement for the provision of those remedies. There appears to be no justification whatever for these options not being available in that State. They should be available as soon as possible to ensure some national consistency of treatment in the Court.

Recommendation 5.5

The Commonwealth and New South Wales as a matter of urgency should enter an arrangement so that the Family Court when sitting in New South Wales can impose the sanctions available in the other States and the Territories such as periodic detention and community service orders.

Recovery of losses incurred

5.25 The Issues Paper asked whether there should be a statutory right for custodial and contact parents to recover any loss incurred due to non-compliance by the other party, for example, travel costs, child care and loss of income. Most of the submissions that mentioned this issue supported this right.341 However, one submission cautioned that it should only arise where there is a proven unreasonable failure to comply.342 The FLC should consider this issue in its review of penalties under Part XIIIA. On the principle that the Court should have the broadest range of appropriate penalties available to it this proposal would seem to have merit.

Recommendation 5.6

The FLC, as part of its project on penalties, should consider whether the FLA should be amended to provide a statutory right for both custodial and contact parents to recover their costs incurred due to unreasonable non-compliance by the other party, for example, travel costs, child care and loss of income. In deciding whether to make an order for compensation and as to its terms the Court should have as its paramount consideration the best interests of the child.

Reversal of custody

5.26 A possible sanction? A number of submissions argued that in the case of serious breach of contact orders the Court should seriously consider and, where warranted, order a change in custody from the parent in breach to the other parent. They said that the mere threat of a change in custody may be sufficient to change behaviour.343 These submissions considered that the Court is overburdened with the immediate welfare of children rather than their long term good and that in some cases a long term view would justify a change of custody.344

5.27 JSC and Commission views. The JSC considered that reversal of custody would be inappropriate as a specific penalty for breach of contact orders.345 It found the penalties already available under s 112AD sufficient to provide a range of appropriate sanctions. Indeed reversal of custody may not be a real sanction in any case. Often the contact parent will not want custody or will not be in a position to have it. If repeated breach of a contact order raises questions about the appropriateness of custody arrangements the contact parent can apply for reversal of custody. It would then be a matter for a judge to determine in accordance with the bests interests of the child. The Commission agrees with these views. It would be very undesirable for the Court to threaten a person in an enforcement action with loss of custody. Applications for changes in custody should be considered on their merits and after proper consideration of the best interests of the child.