It is not my intention to reply in detail to the polemic written by John Hirst on the Family Court of Australia. It is so riddled with factual inaccuracies, misunderstandings of the law and the Australian court system, and so affected by actual bias and prejudice, that it is not worthy of a detailed reply to the whole of it.
It is also a debate upon grounds chosen by himself, in relation to which he appears to have made little attempt to check the accuracy of his assertions. I am quite happy to let my record as Chief Justice of the Family Court of Australia speak for itself without seeking to defend it from an attack such as this.
I do however propose to take up several matters that he raised which are of public interest and have a particular bearing on the Court’s handling of issues that affect children.
The enforcement of contact orders
I think it important to discuss the enforcement of contact orders, if only to clarify and highlight some of the difficulties that do arise in the enforcement of contact orders, not only in this country but in all countries where a family jurisdiction exists, difficulties which have largely escaped Hirst.
Hirst asserts that the “disobeying of a court order is known as a contempt of court and is the offence that threatens the foundations of our society. We are governed by the rule of law and once courts have settled the law, it has to be obeyed by governments and citizens alike. To ensure that these orders are obeyed, courts have large, discretionary powers to fine and imprison those who defy them. Though it was to be a court of a new sort, the Family Court has been equipped with these powers.”
This passage confuses two concepts, namely the role of courts in stating the law and their role in making orders. It also elevates court orders to a position that they have never occupied by suggesting that a breach of them threatens the foundations of our society. Many court orders, including most Family Court orders, are made by consent in terms drafted by the parties or their lawyers. Very often they contain unenforceable sections or their application covers situations that the parties never envisaged. In many cases circumstances have radically changed between the time of the making of the order and its proposed enforcement. To ascribe to them the force and status that Hirst seeks to do is misleading and wrong.
The fact is that the courts have and must have powers to enforce their orders. However this has always been a discretionary power that the court is not obliged to enforce if it considers that the particular circumstances do not require it. It also has a further discretion as to the type of enforcement or sanction, if any, that will be applied.
The Family Court, like all other courts, routinely does make orders for enforcement of orders. For example, orders for the payment of money, the transfer of property or directing that a child reside with a particular person are frequently made and where necessary enforced, usually without difficulty. Similarly, injunctions restraining a person from doing a certain act or more rarely requiring that something positive be done are frequently made and enforced. The situation in these cases is not very different from other civil courts. Like all other civil courts the Court does not of its own initiative enforce orders and enforcement only occurs at the instance of the person seeking to enforce the order.
The position of contact orders is somewhat different. Of course most people do comply with these orders and the more sensible agree to de facto modifications as time goes by to suit changing circumstances. The Court when called upon to do so enforces these orders also, but often that process is not as simple as Hirst attempts to portray.
An ordinary court order made by a civil court such as a Supreme Court usually arises out of a finding of a court as to the commission of a wrongful act by the defendant which the order seeks to redress. It is normally directed against a person who has been directly involved in the commission of the wrongful act or who has received property as a result of it. Often the order is made by default, but it may also follow the court having made a final adjudication as to the dispute, which is embodied in the order.
By contrast, a Family Court order for contact is not the result of the commission of a civil wrong. The parents of the child or children concerned have simply separated, and where they are unable to agree the Court is called upon to adjudicate as to the parent with whom the child should reside (if that is in dispute) and more commonly the amount and nature of the contact that should take place between the non-resident parent and the child. Before the Court is called upon to make that decision, there will have been an exhaustive attempt to mediate the dispute, which usually results in the making of consent orders.
A very distinctive feature of contact orders is that their primary effect is upon a person who is not only not party to the dispute, but has no voice in its resolution, namely the child (or children) concerned.
The orders, as Hirst concedes, are intended to operate over a lengthy period. This in itself gives rise to particular problems. Even if the initial arrangement between the parents is satisfactory to themselves and the child, other factors may quickly intervene such as re-partnering by one or both parents, often to partners who have their own children, and geographical and employment changes. The needs and requirements of children change as they grow older and circumstances change and these are often not envisaged by the order.
Even in the absence of such factors, it must be remembered that the contact order by its very nature imposes very significant obligations, not only upon the resident parent but upon the child. By contrast, no obligation whatever is imposed upon the non-resident parent. They can choose to avail themselves of the order or not as they see fit. They are free to move away, even to another country, and they can arrive to exercise their rights of contact when it suits them. There is usually no obligation upon them even to be punctual.
The extent of interference with the lifestyle of the resident parent is not often appreciated. Effectively they are required to remain in the one place and to produce the child when required by the order. Further, they must do this regardless of the wishes of the child.
That approach may be defensible in relation to very young children, but as children become older they very often develop strong views as to whether they wish contact to proceed or not. They may have good reason for this. There may be difficult relationships with the non-resident parent’s new partner or siblings. They may have developed interests and activities that are seriously disrupted by the effect of the contact order. They may develop a very difficult relationship with the non-resident parent. The non-resident parent may be using contact entitlements as a means of controlling or punishing the resident parent. In worst-case scenarios, the non-resident parent may be physically, sexually or psychologically abusing one or more of the children.
It follows that the automatic enforcement of orders of this nature, as envisaged by Hirst, would be potentially disastrous. There are many instances where the making of the enforcement application highlights the unsuitability of the original order and the need to change it. Enforcement applications are frequently made for purely tactical reasons or with the intention to harass the other partner and put them to expense.
None of this means that contact orders need not be enforced in appropriate cases, but it does mean that the sort of simplistic approach advocated by Hirst concerning the enforcement of court orders is quite inappropriate. The child may be endangered by the enforcement of the orders, and the imprisonment or other punishment of the resident parent may not only be unjust but entirely counter-productive to the preservation of the relationship between the child and the non-resident parent.
The issue of enforcement of this type of order must be approached in the sensitive manner that I believe the Court has done.
In his essay, Hirst is highly critical of the Court for finding that as a matter of law, the right to contact is one of the child and not of the parent. That happens to represent the law as stated in the Family Law Act, but the reality is that he is tilting at a straw man in any case. The overall approach of the Court from its inception has favoured the preservation of contact with both parents and it is only in the rarest of cases that an order refusing contact is made. Indeed I think that a respectable argument could be mounted that the Court has been over-zealous in requiring contact, particularly in cases where there are serious allegations of violence or child abuse.
Hirst also suggests that despite the government’s legislation providing for a three-stage enforcement regime, the Court somehow refused to comply with it. If he had done his homework, which he failed to do in so many areas, he would have found that the Court welcomed this legislation but complained bitterly to government that it had introduced this legislation but had failed to fund the organisations designated to provide services under it. It seems that only now has the government belatedly recognised this problem in the context of the 2005 Budget. Following the introduction of this legislation, I received many complaints from judges and had the experience myself of being unable to find any organisation able or willing to provide the services envisaged by it, simply because they had not been funded by the government to do so.
The one area that does cause me concern in relation to enforcement is the matter of how to deal with cases where there is a persistent and unjustified defiance of court orders for contact. These cases are very few but are troublesome. As Hirst correctly points out, the responsibility for bringing enforcement proceedings lies with the person seeking to enforce the order. Given the legal aid policies of this and previous governments, this can impose an impossible financial burden upon some people. Hirst is critical of the Court for requiring strict proof of breach of orders, but in this regard it is simply following the practice of other courts and in my view rightly so, given that the penalties for breach can include imprisonment. However it does mean that when people attempt to enforce orders without legal advice, there are often technical deficiencies in their applications.
The Court has been aware of this problem for some time, as is evidenced by the fact that in its 1991 submissions to the McKiernan Committee it urged that the Director of Public Prosecutions or some other Commonwealth agency accept responsibility for the enforcement of persistent breach of court orders. Similar suggestions have been made since, without result. As I see it, this is the only solution to this problem. It would be contrary to the principles of independence of courts for it to act as a prosecutor, and it therefore seems that this represents the only real alternative, other than a significant relaxation of legal aid guidelines.
Allegations of child sexual abuse
A further area that is worthy of comment is the issue of handling allegations of child sexual abuse. Hirst demonstrates a considerable ignorance of the law and practice in this area and the effect of the decided cases. Much of his criticism of the Family Court in this area relates to the decision of the High Court of Australia in M and M, for which the Family Court bears no responsibility and the principles of which bind its decisions in this area. He suggests that the proper test should be that the Court should be satisfied that abuse has occurred before taking it into account as a factor in determining contact and residence issues.
Such a test would in my view provide a charter for the abuse of children and particularly the very young. While I took a slightly more restrictive view than that taken by the High Court in M and M, it is obvious that a court exercising family jurisdiction bears a heavy responsibility to protect children. In many cases, the age of the child and the circumstances alleged make it impossible for the court to make a definite finding that abuse has occurred. It is for this reason that there are very few successful prosecutions of abusers of very young children. On the other hand, the court may be left with a very firm view that it would be unsafe to leave the child in the care of the alleged abuser. In my view it would be unthinkable to do so in such circumstances. The detrimental effects of child sexual abuse on children are well documented and no child should be left at risk of being subjected to this treatment.
Hirst is correct in his assertion that the Court’s task in this area is rendered more difficult by the unsatisfactory nature of the investigations carried out by state and territory child welfare departments in relation to children who are the subject of family law proceedings. In effect it has been the approach of such departments to abandon the investigation to the Family Court, usually because of insufficient funding. At the same time the Court does not have an investigative arm. This is an unsatisfactory situation for both children and those accused of abusing them.
However it is also fair to say that the Court has been active in its attempts to overcome this problem, as the Magellan Project indicates. Its success has been very dependent upon the Court receiving the co-operation of the respective state and territory departments, which in the case of Victoria was forthcoming and very much contributed to the success of the project. Incidentally, like most of Hirst’s work, his account of the naming of the Magellan Project is mythical.
As Hirst points out, the Family Law Council has proposed the setting up of a federal agency to investigate these allegations. I should have thought that a better solution would be for the federal government to properly fund the relevant state and territory departments to carry out these functions.
In my view, however, contrary to the view expressed by Hirst, these difficulties have led the court to adopt what some might regard as an overly restrictive approach to child sexual abuse allegations, as is evidenced by the decisions of the Full Court of the Family Court in N and S and the Separate Representative (1996) FLC 92-655, Re W (2004) FLC 93-192 (which was an appeal from one of my own decisions at first instance) and V and V (unreported delivered 25 November 2004). These decisions suggest that the Court has (probably impermissibly) adopted a much more restrictive approach than that prescribed by the High Court in M and M.
I consider that far from making biased decisions against fathers accused of abuse, a case could be made that the Family Court has not been protective enough of children in these cases.
It is nonsense to suggest, as Hirst does, that the mere making of an allegation of sexual abuse leads to an assumption by the Court that it is correct. It is true that the Court Rules prescribe that where such an allegation is made that notice of it be given to the Court and to the other party. This is no more than the provision of procedural fairness and also enables the Court to discharge the mandatory statutory requirement on it to notify relevant state and territory departments of allegations of child abuse.
However, beyond this the Court takes no action on such allegations unless an application is made supported by evidence on oath to restrict or end contact. When that happens and the allegations are serious, the Court has little choice but to either suspend contact or provide that it be strictly supervised until the allegations can be properly tested. To do otherwise would be to place the children in question at serious risk.
It is here that the Magellan Project has proved its worth, for it involves the case being promptly referred to a judge who will co-ordinate appropriate investigations by the state or territory department or other experts and ensure that the allegations are dealt with speedily. It was found that this led to much earlier determination of these cases and fewer of them going to court. When they do go to trial, the allegations are fully tested.
At trial, the judge is of course bound to apply the principles set out by the High Court in M and M as further expounded by the Full Court in subsequent cases. If a change in the law is considered appropriate, the Australian Parliament has had every opportunity to make it since 1988 and has not done so.
However, I think that there are grave dangers to children in making the test more restrictive as Hirst urges.
In conclusion, I consider that Hirst does a grave disservice to Australians and particularly to Australian women and children. The attacks made are emotional, far from child-focused and contain a surprising degree of misogyny. It is more than time that the family law debate was returned to objective ground where arguments are based upon evidence rather than myth.
One would expect, at least, that any critique purporting to be academically founded, like Hirst’s, should emanate from someone whose research track record has at least touched upon the topic of family law in the past.
Alastair Nicholson was chief justice of the Family Court of Australia from 1988 to 2004. He has been also a judge of the Supreme Court of Victoria and the Federal Court.
This correspondence featured in Quarterly Essay 18, The Worried Well.
ALSO FROM QUARTERLY ESSAY