The contents of submissions to the JSC were, therefore, of particular relevance to the Council in gaining an initial appreciation of the types of problems which the users of the system were saying that they were experiencing.

Tables 1, 2 and 3 below provide data extracted from published submissions to the JSC. The information obtained by the JSC is largely from contact parents and does not give a useful indication of the problems experienced by residence parents. Council had to obtain that information from other sources.

* One other submission related solely to enforcement of property orders.

Council also received submissions, letters and telephone calls from both residence and contact parents, and a number of organisations, which enabled it to identify a range of problems under the present system. As a result Council summarised the problems being experienced by parents in relation to child contact orders as follows:

Contact parents suggest that various methods were used by residence parents to deny them contact with their children. Problems with the current system were also mentioned. In the main the problems of contact parents included:

Council has been made aware of a number of problems being experienced by residence parents mainly through data collected following the release of its interim report Penalties and Enforcement (March 1998). Those problems include:

The survey suggests that enforcement applications mainly relate to alleged breaches of child contact orders with 384 (64%) of the 600 applications in the survey being described as relating to access/contact. A further 158 (26.3%) of applications were said to be "contempt" applications. Contempt applications were examined and all but a few were also in relation to alleged breaches of access/contact orders of the court. Overall an estimated 85-90% of the applications covered by the survey were child contact matters.

The majority of applications for enforcement orders were made by men (75.8%). Women made 19.2% of applications. In 5% of cases the sex of the applicant was not shown on the return.

In its survey the Council had to rely on the court’s cooperation and the spread of the sample was not something over which the Council had full control. Although the volume of returns from NSW and Queensland were in proportion to their general populations, this did not apply to all States. The volume of returns from Victoria and WA were below expectations and in the other two States (SA and Tasmania) the sample was above the numbers which might have been expected from a representative sample. There were no returns from the NT or the ACT.

Further details are set out in Tables 4, 4A, 5, 6, 7 and 8 below.

* Precise details cannot be extracted from the data sheets, but an examination of the data indicates that most of these cases involved breaches of contact orders.

Out of the 600 enforcement applications, the court convicted 222 (37%) respondents; 40% of applications were dismissed and 16.8% were withdrawn.

How do you decide whether this is a "reasonable" response to enforcement applications? This is an important question because the Joint Select Committee on Family Law which reported in 1992 said:

Comparable data is not readily available from other courts. However, the results in the Family Court do not appear to vary greatly from the results of similar applications made in the Magistrates Courts in Victoria, where 33.3% of enforcement applications led to convictions. Council also compared the Family Court results with the results of applications to the AAT and the Commonwealth Ombudsman’s. In both of those cases the number of successful applications was around one-third, slightly lower than the number of enforcement applications before the Family Court. There are obviously issues relating to the comparability of the data concerned, but in the absence of evidence to the contrary the comparison suggests that the results of applications to the Family Court are not unreasonable and the statement of the JSC is not justifiable on these figures.

See Tables 9, 10 and 11 below for further details.

(a) It would appear that a conviction was not recorded in 11.6% of cases where there was a guilty plea.

A few submissions received by Council suggested that the survey results showed that there was a bias in the Family Court against men. I analysed the figures on convictions (see Table 12 below) to test this hypothesis.

There were 600 applications for contact enforcement included in the survey. Of these 30 did not shown the sex of the applicant on the statistical return. Of the remaining 570 applications, 455 were from men and 115 were from women. Assuming that the sex of the alleged offender was the opposite of the applicant³ , this data indicate that applications alleged offences by women in 75.8% of cases and by men in 19.2% of cases.

There were 222 convictions recorded by the court. Of these 12 did not show the sex of the applicant on the data sheet. Of the remaining 210 convictions, 153 (68.9% of all cases) were in relation to women offenders and 57 (25.7% of all cases) were in relation to men offenders. Again, it is assumed that the offender is the opposite sex of the applicant.

In relation to penalties imposed, the situation is set out below. The data sheets did not show the sex of the applicant in a small number of cases.

The figures in relation to imprisonment might suggest to some that men are more likely to be imprisoned than women for a breach of a contact order. However, the number of cases involved is so small that such a conclusion is not considered to be valid.⁴ There is simply not enough evidence from such a small sample to support such a conclusion.

There is no strong evidence from the survey which would suggest that the court’s decisions in relation to breaches of child contact orders show any preference for particular types of punishment based on the gender of the offender.

More data is provided in Tables 12 and 12A below.

(a) Ten of these cases involved multiple penalties. In 7 cases compensatory contact was ordered and in 3 cases costs were awarded.

(b) These included 4 cases where the imposition of a penalty was adjourned, 2 awards of costs, 1 order to resume contact, 1 community service order, 1 order to repay, 1 reprimand and 1 order to attend parenting tuition.

(a) 1 subject matter unknown (1 F); 1 sex of offender unknown.

(b) 2 property matters (1 M, 1 F); 2 contempt (2 F); 1 breach of psychological assessment order (1 F).

(c) 1 property matter (1 M).

(d) type of matter unclear ( 1 M, 1 F).

(e) 2 property matters (1 M, 1 F), 1 residence breach ( 1 M) and 1 breach of a recovery order (1 F).

(f) 2 property matters (2 M).

Council’s survey provided some interesting information on legal representation in family law matters. In 13.2% of cases in the survey, none of the parties, or any children, involved had any legal representation. Only one party was legally represented in 35.4% of cases. Both parties were represented in 43.8% of cases. Children had separate legal representation in 4.8% of cases.

Full details on legal representation are given in Table 13 below.

Of the 600 applications covered in the survey, counselling was used in 19.3% of cases (see Table 14 for details).

It is interesting to compare the use of counselling on a State-by-State basis. This is done in Table 16 below. Council examined more closely the reasons for the wide differences in the use of counselling among the States (varies from 69.2% in WA down to 7.5% in Tasmania).

Section 112AD(5) of the Family Law Act 1975 requires the court to use counselling in these cases unless the court is satisfied that counselling is not necessary. Section 112AD(5) says that:

Some judges interpret this provision as requiring a contravention to be shown before counselling is required. Others consider it is appropriate to order counselling if an application alleging a contravention of an order is made. Council noted this apparent ambiguity and has recommended to Government that the legislation be clarified.

* As data collection extended from the beginning of 1996 to the end of 1997, some of the sections of the Act listed were operating prior to the Family Law Reform Act and some were operating after that Act. Hence the reference in this table to some sections which do not now provide for counselling.

The court’s Case Management Guidelines provide that contact enforcement applications are to be dealt with within 2 weeks.⁵ Council’s survey indicated that just under 29 per cent of applications were finalised within one month of the application being made. The majority of applications (71.3 per cent) were finalised within 3 months, but slightly more than one quarter took more than 3 months to resolve.

The results of the survey of cases undertaken by Council suggest that the existing system is only capable of finalising a little more than one in four enforcement applications within one month, with fewer applications being completed within the prescribed period of 14 days.

Council did not investigate the reasons why the court is not able to meet the standard set in its Case Management Guidelines. However, it understands that the court considers it does not have the resources to process these matters more quickly. It is also understood that in some cases the applicants themselves are not ready to present their case within 14 days.

* The first return date is the date set for the first hearing of the matter by the court.

¹ The JSC (1992) received and published a number of submissions made to it. This was considered by Council to be a valuable source of information and accordingly the 943 published submissions were examined and those which dealt with enforcement problems and issues were analysed. Of the 943 published submissions, 359 referred to problems with enforcement of child contact orders. The bulk of the submissions were from individual members of the public, but a significant proportion (about 18%) were from organisations.

² Australian Parliament, 1992, Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, The Family Law Act 1975 - Aspects of its Operation and Interpretation, para 7.121, pages 194-195.

³ This is considered to be a reasonable assumption, but it should be pointed out that it would be possible for a grand parent, for instance, to be the applicant and it would not necessarily be correct to assume in such cases that the alleged offender was a person of the opposite sex.

⁴ From reading the submissions I have little doubt that some of the groups will not be put off drawing this conclusion from the data nevertheless.

⁵ Family Court of Australia, 1997, Case Management Guidelines, Practice Direction No 1 of 1997, para 15.3. See also Family Law Rules, Order 35, Rule 11.