FAMILY LAW, BREACHES OF CHILD CONTACT ORDERS, - A POLICE CONCERN

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1 FAMILY LAW, BREACHES OF CHILD CONTACT ORDERS, - A POLICE CONCERN 9/7/99 The views expressed in this paper are the personal views of the speaker and not necessarily those of the organisation for which she works. At this conference, the 1999 Second Australasian Women and Policing Conference, we have spoken about domestic violence of which 95% of the victims are women. We have also spoken about the need to improve women s access to justice, and how that access is vital to the successful prosecution of domestic violence offenders. Domestic violence is often heightened, and more likely to eventuate in death or serious injury, at the time the victim attempts to leave the home and after having left the home. Yet, a short time after surviving the gauntlet of leaving, the woman must seek a Child Contact Order in respect to her children and in some cases seek protection of her children, through the Family Court. In this civil arena she must face her perpetrator without the luxury of a public prosecutor and police, who play a vital role in regard to both the perpetrator and victim. For the women who have separated consequent to domestic violence, Family Services and Court Child Representatives do not expand the cavern, which she must cross to seek access to justice in the civil arena. Interviews with women in shelters who have left the home as a result of domestic violence very often say that the catalyst to leaving was the need to protect those who often witnessed the violence, their children, who got hurt intervening or who over time started to exhibit social and learning difficulties. Victims and survivors of domestic violence are not only applying for residence orders through the Family Court but are also seeking to have their children returned after breaches of Child Contact Orders. If they have concerns about the welfare of their children, the court is reliant on the applicant to face the perpetrator of past or current violence, threats and intimidation against her, and to report her concerns in order that an investigation can be done. Yet until that investigation is done the interim orders to allow access to the child remain and hand overs between the parents of the child are made more dangerous for her having reported her concern to the court. 1

2 If she can afford a lawyer and body guard or has a tremendous supportive network of family and friends, she may have more success as an applicant in the Family Court. Yet we know, from researchers who have presented papers at this conference, that in the criminal arena, most victims of domestic violence rely heavily on the presence and support of Police and domestic violence court advocates to apply for a protection order and to present themselves in court to prosecute any breach. When you here academics say 80% of domestic violence is not reported, the need to have the 20% of reported cases successfully prosecuted takes on particular importance. There is debate about a Marshall Service for the Family Court. It is unknown if women s access to justice in relation to Family Court issues will be improved because of the specialisation of such a Service. Any improvement on the current system would depend on the resourcing, role and powers given to such a Service. It would also depend on the Service s ability to access both Police and Family Court records and on the staff training afforded within such a Service. My paper titled, Family Law, Breaches of Child Contact Orders a Police Concern, is not about a Marshall Service but concerns the need to minimise the frequency by which Child Contact Orders are breached. These breaches destabilise the child, as well as the carer, who may well be a victim of domestic violence. These breaches highlight a group of people suffering repeat victimisation. As such they deserve attention by Police who subscribe that scientific use of resources requires problematic policing. I am advocating the need for research in regard to breaches of Child Contact Orders. Such research forms part of the bigger picture of domestic violence which has implications for Policing in the short and long term. The relevance of child contact, civil proceedings, to criminal crimes of violence against women, may not be apparent to some. The calling for research in this area may appalled those people who see a more urgent need for research about the central offences. However when dealing with a complex offence such as domestic violence I suggest the most effective minimisation strategies might well be developed from knowledge about the fringe manifestations of this crime. By the community, applying strategies which include support to the victim in gaining control of their life and that of their dependants, during and after Police intervention. 2

3 In suggesting that such research will have strategic implications for Police, I would like to mention the presentation by Ross HOMEL, Griffith University, during this conference. He indicated that 16% of children in Australia live in poverty. That as we experience an increase in inequity there will be more implications for Police. Can Police continue to have the major responsibility for crime and safety in society? Certainly, in respect to crime, no other group in society can replace the police function of coercion, however the community could become more involved in prevention of crime and in safety. Ross spoke about ways forward to meet tomorrow s demands, about strengthening communities, investing in families not prisons and reducing crime opportunities. He indicated that the crime police will be faced within 15 years will have a lot to do with the way we are currently looking after the physical and emotional safety of our children today and that includes the safety of their carers. He questions whether we will ever be clear on what the role of Police is and asks what part Police should play in regard to developmental prevention. Such research will also have tactical implications for Police. It will give an understanding of the environment, which will assist with allocation of resources, help improve intervention methods and community alliances. Breaches of Family Law, Child Contact Orders, usually result in the Family Law Court issuing a Child Recovery Order. Child Recovery Orders are made to the Australian Federal Police and all state police for execution. Such orders can sometimes consume enormous Police resources, as seen in the following examples. Last month in Brisbane the media reported three cases for which the AFP, Brisbane Family Law Squad were involved. Sean McMillan who, at the age of four, was reunited with his mother last month after the father failed to return Sean following a contact visit. It took AFP and Queensland Police two years to locate Sean and that involved some intensive searching, in the later part of the search, by Northern Territory Police. The mother reported that it would take her and Sean some time to get re-acquainted. She said in a court approved media interview, At first it was a bit of a shock to his system but he is getting better all the time.she also told reporters Sean was a bright boy but had missed a lot of schooling. The case of Mitchell Bellingham a boy suffering from cancer on palliative care. The father took him into hiding for a number of months. 3

4 That search was intensive because of the urgency of finding the boy to allow medication to be given. The boy was located following the media release however a short time later, on the 12 th June he died. The case of Shayne McNab a 3 year old girl taken by her father to avoid a looming custody battle. Shayne was found on the 26 th of June, after a 6 month separation from her mother. This search took police to a number of addresses and consumed considerable resources. Once again it was a media release, consequent to the mother obtaining permission from the court, which caused Shayne to be found. The mother had stated to the Courier Mail that the emotional reunion was one of the happiest moments of her life. The newspaper printed that the bubbly girl with rosey cheeks and a big smile hugged her mum continually. Such particular cases expend considerable Police resources. As well, these more intensive cases of Child Contact Order breaches, which lead to the issue of Recovery Orders, are evident of a high level of conflict between the separated parents. That conflict could well precipitate offences such as contempt of court, stalking, assault, murder, suicide and abduction. Beaches of Child Contact Orders are also evident of disruption in the child s life, as well as in the life of the child s carer and this is not conducive to the child s emotional health. I believe research about he circumstances in which people breach Child Contact Orders will assist policing. The research about Contact Order breaches may provide indicators or identify hot spots for related crime. These breaches are like broken windows, which need intervention before some of those who are breaching Child Contact Orders, to commit criminal offences or put their child s health at risk. Many parents in times of stress and the break down of their personal relationship will put personal agendas ahead of their responsibility to their child. Which brings about the question, can you enforce parents to act responsibly? The paper titled For the Sake of the Kids published by the Australian Law Reform Commission suggested (in 2.6) that litigation was unsuitable in contact disputes. Amongst the volume of breaches seen by the Family Court it might be fair to say that the adversarial system and litigation abuse, make it difficult to identify the cases involving genuine cases of past and current domestic violence or child abuse. Research about breaches of Child Contact Orders may identifying how such genuine cases can be identified earlier. 4

5 The Family Law Council published it s report Child Contact Orders: Enforcement and Penalties in June 1998 which indicates that many breaches often occur as a result of the refusal to deliver or make the child available for contact by the resident parent, who is usually the mother. The most frequent reason given for their action was the late return and pick up of the child by the contact parent and the poor quality of time the child had with the contact parent, who is usually the father. We know that both mothers and fathers are guilty of Child Contact breaches and that a heavy penalty or a jail term to deter this offence will effect many mothers who are often the main care givers and therefore such penalties would be detrimental to the child. Litigation statistics indicate the mothers tend to have mitigating reasons for their breaches more often than the fathers do. More fathers appear to be successfully prosecuted in respect to their contravention of the Order than are mothers. Civil prosecution of breaches is costly and the government has reduced the amount of legal aide funding to Family Law issues, hence fathers, who usually are in a better financial position to litigate against their spouses, are possibly more likely to initiate litigation in respect to breaches than mothers. These are simplifications of the situation in respect of breaches of Child Contact Orders but they do serve to show how complicated the problem is. Also, court statistics alone are a poor reflection as to the number of breaches actually occurring, let alone who is committing those breaches and why. Another complication is the Family Court s current reluctance to deny contact to a parent even though there may be demonstrated events where the parent has shown a definite lack of responsibility toward their child. The need for young children to maintain contact with both parents to ensure their long term sense of identity, appears to currently over shadow other considerations under S68E which must be considered before a Justice issues a Contact Order. Even in the face of allegations of abuse or welfare concerns directed at the contact parent, until properly heard in court, the interim orders continue to reflect this strong reluctance to deny contact. If a parent believes the welfare of their child will be at risk through contact with the other parent, as per a Contact Order issued under S64H of the Family Law Reform Act 1995, then they may well be prepared to breach a Contact Order, should other avenues fail them, such as timely investigation by Family Services etc. 5

6 It is noted that, at the same time in which very serious, genuine allegations of domestic violence or child abuse are made in the Family Court, when Justices are deciding whether to issue or amend a Child Contact Order, they are faced with a large number of false allegations being made by one or both parties to the case. Further complicating the matter of reducing the number of Contact Order breaches, is the cost to report the breach and have legal representation at the hearing. Summary hearings by the Judicial Registrar as opposed to the a Judge have been suggested as a means to address the impact of breaches early, close to the time of the breach and well before there is an increase in the frequency and seriousness of further breaches. The ability for complainants to complete a form similar to form 49 under the Family Law Rules Application for Contravention of child order, by which a breach can be reported without proceeding to litigation under S112 of the Family Law Act, might assist in minimising further breaches through prompt reporting. Data from such reports might prove useful to researchers however there may be a greater tendency for malicious reports to be made at the same time that a greater volume of genuine reports would be received. The adversarial system, the reliance on the affected party to pursue a wrong, the lack of in-depth explanation to the parents about their responsibilities in regard to court orders, abuse of litigation as a form of control or harassment, and the use of exparte hearings, also add to the problem of reducing Child Contact Order breaches. Often, when Police execute Child recovery orders they take an education role and inform people of the avenues they should consider when they are experiencing problems with access to their child. Parents are then aware of other options they can take, when they become frustrated with their situation, instead of deciding to just not complying with the order. Certainly this is preventative, however the Police need to be well trained in Family Court procedures and the legislation, which is not often the case when many Police become involved in Family Law issues on an infrequent basis. How far do Police give advice to such parents, puts Police in a difficult position as they must be careful not to be perceived as giving legal advise. Research may reveal that some people will put their own agendas in front of that of the child and will be defiant against the court no matter what counselling courses or legal advise they may receive. Some people may 6

7 have a disregard for the law, feel there is no deterrent to stop them from breaching, have false ideology about parental rights or may have a domestic violence history for which their breaches may be part of their continued efforts to exert power over their former partner. In respect to the later, domestic violence is suspected to be a major factor in a number of cases where there is a history of contravening Child Contact Orders. A Justice considers family violence among a number of considerations when making a Child Contact Order, however it relies on the parties to the application to truthfully inform the court of any such issues. The ability of a victim of domestic violence to relay her story in court is not easy with the perpetrator present. It relies on the quality of her legal representation and whether the representative is able to show past violence as being relevant when the parties no longer live under the same roof. Successful intervention strategies to minimise breaches of Child Contact Orders should result in a reduction of the number of Recovery Orders which the Family Court is compelled to issue. A reduction in the number of Recovery Orders issued would free police resources for other community work and would mean fewer children would be subjected to forcible removal by Police. So where are strategies, to minimise the frequency of Child Contact Order breaches, going to come from? Certainly if breaches of Child Contact Orders were criminal offences, police would be collecting intelligence about the offenders and analysing the statistics. Police would possibly identify common circumstances and determine indicators for the crime. Police would possibly make recommendations to the government about the frequency of the crime and about prevention strategies. If these breaches were criminal, Police would possibly assist community groups with awareness campaigns and be putting the knowledge they gain about dealing with such crime into their training packages. However the fact is that Police are expending resources, in respect to executing Child Recovery Orders, consequent to civil breaches of law and examination of non-criminal data to assist Policing has only recently been recognised by Police as a useful tool. Efforts made by the Family Law Council to discuss such breaches in their publication Child Contact Orders: Enforcement and Penalties in June 1998, and efforts by community groups particularly in the ACT, are going to give us some information, but not the comprehensive knowledge base we need to develop intervention strategies. As stipulated by Pamela 7

8 Kinnear from the Australian Institute of Criminology in her presentation at this conference, organisational data, for example litigation statistics and data from crime victim surveys or fathers rights lobby groups have a number of faults. She suggested that an Integrated Monitoring System would more accurately help us collect and analyse data about violence against women in the community. Such an information system would collect data from community groups about crime and associated activity which is not normally reported to Police. I believe the proposed research may reveal that women who have recently separated and are experiencing problems with child access may well be experiencing other problems, for example substance abuse, poverty, depression as well as being victims of assault, stalking, threats and intimidation. That the health and life style of these women is severely diminished and consequently so is that of their dependants. Often people with a history of domestic violence will have that violence accentuated at the time of and just after separation. I recommend that should this conference agree to a model by which violence against women is researched on a comprehensive and national level that the research include parallel analyse of persons experiencing breaches of Child Contact Orders. Research in the area of child contact order breaches may help police to be more pro-active in regard to related offences. A pure response reaction by Police, as a result of a parent taking illegal access of their child, has been said by some Police officers to make them feel they are merely a child pick up and deliver service. They feel frustrated by what they observe but can see little that is changing the situation of the people involved. A research model for women s experience of violence which incorporates parallel issues of separation such as child contact order breaches, will built on the big picture. This is so important because, no matter how skilfully and compassionately Police may execute each Child Recovery Order, it is of little consequence if nothing is being done to reduce the number of Recovery Orders they will be required to execute tomorrow and the next day after that. I ask the council to write to the National Crime Prevention, toward a safer Australia program within the Commonwealth s Attorney General Department and request research in the area of Child Contact Order breaches. This program already has a research and consultative agenda 8

9 titled Pathways to Prevention which includes, Development and Early Intervention Approaches to Crime and Youth Crime and Families. by Denice BIRD written for the Australasian Women and Policing Conference 9