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'Kangaroo Court'
QUARTERLY ESSAY 17

'Kangaroo Court'

Family law in Australia

John Hirst
 

Extract

I am writing to voice my disgust as to my treatment by your Kangaroo Court known as the Family Court. – Submission no. 68 to the 1992 Select Committee on the Family Law

THE CARING COURT

One of the gravest failings of the Family Court derives from the noble intentions of its founders.

The Family Law Act of 1975 which established the Court was a progressive social reform of the Whitlam Labor government. It was not an exclusively government measure; members on both sides were allowed a free vote and Liberals had been among those working for divorce law reform. The Act removed fault as a ground for divorce and replaced it with irretrievable breakdown, to be indicated by a one-year separation. The aim was to allow couples to part without the trauma and contrivance of one partner proving fault against the other. Marriages would be buried decently and humanely. The business of dividing property, arranging maintenance and determining custody of children would remain, but these were to be settled in a simple, flexible and inexpensive way. Litigation was to be discouraged and the Court was to be staffed by social workers and counsellors as well as judges. It was to be a court of an entirely new sort, a “caring court” or a “helping court”.

If proceedings were to be simple, flexible and cheap, why, say the wits, were lawyers put in charge of them? Proceedings quickly became complex, rule-bound and expensive – which was not entirely the fault of the lawyers because property settlements and custody cases can be very complex. But though the “caring court” looked more and more like an ordinary court, it hesitated to act like an ordinary court when its orders were disobeyed.

The disobeying of a court order is known as 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 their 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 had been equipped with these powers.

Within months of the Court opening, a Family Court judge used these powers to deal with a man who had defied a court order. His offence was indeed gross. His former wife had custody of their children and since he had been violent towards her, he had been put under a restraining order. One day he burst into her house unannounced, waving a gun, and threatened to kill his son if he did not come with him. The judge sent him to prison for twenty-eight days. From his prison cell, he appealed to the Full Family Court to release him.

The Full Court under the leadership of its first chief, Elizabeth Evatt, was embarrassed at their new “caring court” acting in this crude, old-fashioned way. It immediately set down for itself rules to limit the powers it had been given to punish contempt. An offender had to be properly tried for the contempt, and imprisonment was to be used only as a last resort; counselling, fines and recognisances should be considered first. In the case before them, the appeal judges were disturbed at the trial judge opting immediately for imprisonment, which seemed the more unnecessary since the offender was to face charges in a criminal court, which could well result in a gaol sentence. They released the man from gaol. (The trial judge had been well aware that the offender was facing criminal charges; he reasoned that since the man was still at large he needed to be taught a lesson immediately so that his former wife might feel safe.)

However, the Court quickly became much more hard-headed, as it regularly had to deal with cases of men abducting children from their mothers. The offenders were given gaol sentences. The Court declared that though it was a helping court, its orders had to be obeyed. “Others who may contemplate disobedience of the Court need to know that calculated and grave contempt of its orders will not be tolerated.”

One abduction case, G and G (1981), was of great significance. A father had abducted his son from the mother and lived with him for four years before they were discovered. The man was sent to gaol for two and a half years for defying the Court’s orders. His offence was that he had isolated his son from his mother, but was the Court now going to damage the boy further by depriving him of his father, with whom he got on well? The judge gave the matter earnest consideration because judges are charged under the Family Law Act to give paramount consideration to the welfare of the child. The judge decided that “in a contempt matter the welfare of the child is not the paramount consideration, though it is a matter that must be considered”. This approach was upheld by the Full Court when the father appealed against his imprisonment. Chief Judge Evatt, conceding that the imprisonment of the father may cause suffering to the child, nevertheless said: “If no punishment is imposed, or if lenience is shown, the court’s power to protect not only the individual child concerned, but also many other children, may be diminished.”

These hard-headed pronouncements were all made in cases where fathers did not have custody of their children and had taken matters into their own hands. When the Court came to consider breaches of orders by custodial parents (chiefly mothers), it returned to soft-headedness. The typical case was where a mother contrived to deny a father access to his children, even though he had court orders allowing access (usually it is for every second weekend and half the school holidays). In considering its response to such breaches, the Court declared that the paramount interests of this particular child must prevail. Since the Court could scarcely fine or imprison a custodial mother without having some effect on the child, these options were effectively abandoned. So the “caring court” re-emerged.

The Court was not impelled to this decision by the Family Law Act, which gave untrammelled power to punish for contempt, and in adopting it the Court ignored its own judgements in the abduction cases. Just as the Court had there imagined, leniency had disastrous consequences for children. Since access orders were defied with impunity, thousands of children were kept from their fathers, though the Court had ruled that their best interests required that they see them.

Mothers contrive to deny access to fathers by being away when the father calls, or claiming that the child is ill or does not want to go, or alleging that the father is mistreating the child – or simply moving to a new location. Mothers frequently have good reason to fear access: violent fathers use the contact to re-open old quarrels, to attack the mother and unsettle the children. The Court allows that the custodial parent can deny access with reasonable excuse. If the father is violent, the mother can ask the Court to vary its order and deny him access. If the Court allows access to continue, the pick-up point will be a supervised contact centre where the man will not see his ex-wife. But mothers are not simply keeping away unsatisfactory fathers; decent fathers are being denied access to their children. Mothers who have nothing more to fear from the Court than a slap on the wrist, can, if they wish, exclude fathers from their children’s lives.

The Court itself is not in any matter responsible for enforcing its orders. A father who is denied access must bring action in the Court and either bear the costs of a lawyer ($3000 a day minimum) or conduct the case himself. But even if he wins the case, the mother will not suffer a penalty that will deter her. When the next contact visit falls due, she may well behave in exactly the same way. The Court has made clear in its judgements that the custodial parent is not to be the judge of whether contact is beneficial. However, by making the best interests of the particular child the test when enforcement is being considered, the Court has given the custodial parent de facto control over access.

So the logic of the Family Court is as follows:

The best interests of the child require that they have contact with both parents.

However, if the custodial parent is determined to deny access to the other parent, then the best interests of the child require that the child have contact with only one parent.

Of course one would prefer that a custodial parent did not have to be coerced into providing access. But if the custodial parent is to determine the matter, why have a court at all? This is not to suggest that the best interests of the child should be overlooked in enforcement; rather that they should not be the paramount consideration – which is what the Court accepted in G and G. The paramount consideration when the Court has been deliberately and persistently defied must be the upholding of the authority of the Court.

The constant refrain of the recently retired Chief Justice of the Court, Alastair Nicholson, was that you cannot fine a custodial mother or put her in gaol. Other jurisdictions do not accept this limitation. A single mother has to pay fines for parking and traffic offences, and many women in gaol are mothers. A single mother who cheats the social security system may occasionally be put in gaol, a necessary act to preserve the integrity of the system. The Family Court has no understanding of system integrity.

But why the talk of gaol? You may think that milder penalties consistently enforced would prove effective. You may think this, but the Family Court, as we will see later, has not been interested in that approach either.

Family Court judges expatiate on the dilemma they face over enforcement since theirs is a “caring court”, which puts the interests of the child first. A caring court! It has not cared for the thousands of non-custodial parents who have wasted their spirit and resources, not in attempting to overturn a decision of the Court, but in a futile attempt to get the Court to enforce its own orders so that they might see their children. Thousands more, perhaps wisely, have decided not to make the attempt. In Middlemarch George Eliot writes that if we could hear the pain of the ordinary tragedies of human life in our midst, the sound would deafen us. When Family Court judges talk piously of the “caring court”, I wish they could hear the roar of pain that their piety has caused.

The man who called the Family Court a “kangaroo court” in his submission to the 1992 parliamentary enquiry claimed he had spent $15,000 in a futile attempt to get access to his children. His former wife simply refused to open the door when he called to collect them.

To my utter disgust and dismay the Family Court judge decided that while I had done all I could as a father, he was powerless to enforce access if she refused to open the door. He just laughed and said “SEND THEM A CHRISTMAS CARD AND SEE WHAT HAPPENS”.

Is this credible? A report of the Law Reform Commission does record this view of one judge: “I am very slow to attach any sanctions at all to breaches of access orders.”

The other systematic failure in enforcement was the Court’s inability to compel non-custodial parents (chiefly fathers) to pay maintenance for the support of their children. Only about 30 to 40 per cent did so. It was in this way that custodial mothers suffered from the laxity of the Court. The low rate of maintenance payment greatly concerned the Treasury because separated mothers were drawing heavily on social security for their support. Indeed, in the heady days when welfare flowed freely, the Court organised the payment of maintenance so that it would not reduce the entitlement of custodial parents to social security. The government called a halt to this in 1988 when it established the Child Support Agency. The Agency collected funds from non-custodial parents and passed them to custodial parents.

The Child Support Agency is not a caring agency. It is ruthless and relentless; it deducts payments from wages and sweeps bank accounts. Its reputation is so fierce that people making payments outside the system are more likely to maintain them for fear of falling into its clutches. Unlike the Family Court, which has abandoned moral judgement for “no-fault”, the Child Support Agency proclaims the moral principle that parents should pay for the upbringing of their children. In this way it has raised the rate of compliance to over 60 per cent.

The comparative success of the Agency means that many fathers who are not able to see their children are nevertheless paying to support them. Fathers’ groups have proposed that fathers denied access should not have to pay maintenance. Policy-makers have looked at this option not unsympathetically, but the decision always is that access and maintenance should not be linked. The argument is that it is not in the best interests of the child to punish mothers by reducing their income. This is typical of thinking in family law matters. Everywhere else carrots and sticks work to keep us in order, but in the semi-chaotic world of the family law they are not to be contemplated. The picture is of thousands of children suffering economic deprivation. No one considers that a mother, motivated by care for her children, might well rethink her position on access in order to retain the maintenance. And if she didn’t, the social security safety net does not allow anyone to fall into life-threatening hardship.

If maintenance and access were linked, there is a concern that fathers could avoid paying maintenance by abandoning their right of access. That could not be allowed. It would, however, be proper to say to a father that he would lose the right of access if maintenance were not paid.

The imbalance that has entered the system (as between enforcing maintenance and access) would be corrected if there were an Access Compliance Agency which would take responsibility for securing access where it had been unreasonably denied. This would remove from the access parent the cost and burden of running their own cases. Such a scheme has been proposed several times, but so far has not been implemented. In a 1998 study, the Family Law Council (a government-funded body established to research and report on the operation of family law) was surprised to find that in New Zealand if a custodial parent was refusing to grant access, a warrant was issued to take the child. Children were being forcibly removed! But it discovered further that once custodial parents received a warrant, nearly all of them voluntarily complied and allowed the child to go to the other parent. Since people knew that force would be used, force rarely had to be used. Such a beneficial calculus has not been allowed to operate under Australian family law. The Family Law Council thought something along New Zealand lines might be tried.

The establishment of the Child Support Agency and the proposal for an Access Compliance Agency are clear signs that the Family Court is a failing institution. Since it can’t or won’t do its job, it is being bypassed. In 1999 the government established the Federal Magistrates Court and gave it family law among its jurisdictions in the hope that some cases might be resolved simply and cheaply – which, of course, is what the Family Court was meant to do.

The Family Court has defended its poor record on enforcement by highlighting the difficulties it faces. Cases in other civil courts are settled by a single transaction. By contrast, a single order from the Family Court refers to innumerable transactions, for example a father is to have access to his children every second weekend. On each access visit there is occasion for a breach of the order, many of a trivial kind. The mother may not have the children ready at the appointed time; a father might bring the children back late. It would be a mistake to take all these alleged breaches seriously. Where parents are still at war or are mentally unstable, the whole business of contact is terribly fraught and is not likely to be solved by punishing one or other parent for breach of an order.

No one doubts the difficulties, but every enquiry into the Court’s record has found that the Court has not made a concerted attempt to solve them. From its inception there have been regular enquiries into the Court’s enforcement procedures. Parliamentary committees have reported in 1980, 1992 and 2003. There have been enquiries and critiques from the Law Council of Australia, the Police Commissioners of the states, the Australian Law Reform Commission and the Family Law Council. The following give the flavour of these reports:

1980 Law Council of Australia
Enforcement of contact orders is poor “not from lack of power under the Act, but rather from lack of implementation”.

 

1985 Law Reform Commission
The Family Court presents “a unique result within contempt law and practice: namely that a court is consciously shying away from imposing penal sanctions on those who deliberately refuse or fail to obey its order”.

 

1992 Parliamentary Committee
The Chief Justice should issue a directive to the judges informing them that (a) penalties for non-compliance of orders are contained in the Family Law Act (b) such penalties should be used in appropriate cases (c) such penalties should be consistently applied throughout the Family Court.

 

1998 Family Law Council
There is “a fairly widely held view in the community that the Family Court is reluctant to enforce its own orders”. Orders should carry a warning about the serious consequences of breaching an order. Judges should be directed in the Family Law Act that they must treat breaches of orders seriously.

None of these bodies was in favour of sharp punitive methods, that is, to lock up a few offenders in the hope that the rest would fall into line. They wanted the Court to use a range of remedies, but still keeping fines and imprisonment as the last resort. Above all they pleaded with the Court to take enforcement seriously; to be firm and consistent. None of them queried directly, as I have done here, the Court’s doctrine that the best interests of the particular child must be paramount in the imposition of penalty. While that remains in place, firm action will prove difficult.

However, even on its own test that the interests of the particular child are paramount in all circumstances, the Court could have been acting differently if it thought of long-term interests. By not pressuring a mother who is uncooperative about access, the Court has left large numbers of children without an effective father. We are now more aware of the need of children, especially of boys, for a male role model; we are talking of mentors where there could have been fathers.

Twice parliament has attempted to guide the Court on how to proceed on enforcement. It has added new punishments (like community service orders and periodic detention) and structured penalties in rising levels of severity. The Court has not accepted this guidance. Parliament’s last attempt was made in 2000. On that occasion Chief Justice Nicholson declared publicly that its measures would not work and accused the politicians of contributing to the problem by their criticisms of the Court: “the politicians who so readily attach themselves to concern about matters of compliance with orders.... might be well advised to reflect upon how their other comments and actions work against the adherence they purport to want to see.” Though critical of parliament’s measures he made no counter proposals, contenting himself with a rehearsal of all the difficulties the Court faced. He reiterated his view that fines and imprisonment were “inappropriate” or “useless”. So by signalling that the ultimate penalty was not to be invoked, the Chief Justice removed the inducement to take the lesser penalties seriously.

This is an amazing saga. For twenty-five years, the parliament and responsible public bodies have been concerned about the authority of the Court, and the Court itself has not. Everyone knows that Family Court orders are a joke, but the judges soberly continue to produce more of them. To all appearances, Chief Justice Nicholson was less interested in ensuring that the orders of his court were obeyed than in enhancing the status, salaries and accommodation of its judges.

The Family Court condemns itself. If its orders have been conscientiously framed to advance the best interests of children, then by its failure to enforce its orders it has been systematically damaging the children under its care.

CONTINUE READING

This is an extract from John Hirst's Quarterly Essay, 'Kangaroo Court': Family law in Australia. To read the full essay, subscribe or buy the book.


ABOUT THE AUTHOR

John Hirst is a widely respected historian and social commentator. A former reader in history at La Trobe University, he is a member of the Film Australia board and the National Museum council. He is the author of numerous books, including The Australians: Insiders and Outsiders on the National Character since 1770Freedom on the Fatal Shore: Australia’s First ColonySense and Nonsense in Australian HistoryThe Shortest History of EuropeAustralian History in 7 Questions.

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