Parenting Management Hearings

Budget Review 2017–18 Index

Lydia Campbell

As part of a suite of measures aimed at improving efficiency of the family law courts,[1] the Government has announced funding of $12.7 million over four years from 2017–18 to establish Parenting Management Hearings (PMHs).[2] PMHs will offer an alternative to traditional court hearings as a means of resolving family law disputes between self-represented litigants. The scheme is proposed to be a ‘fast, informal, non-adversarial dispute resolution mechanism’.[3]

Media reports suggest that the PMH proposal may have its genesis in a private submission to the Government in January 2017 by Sydney University law professor Patrick Parkinson, and lawyers Brian Knox and Dr Nicky McWilliam.[4] Professor Parkinson argues that the complexity of the law and procedures governing parenting disputes justifies the introduction of more inquisitorial ‘parenting tribunals’.[5] An apparently similar tribunal was proposed by the House of Representatives Standing Committee on Family and Community Affairs in its 2003 report on child custody arrangements in the event of family separation.[6] The Howard Government did not accept the Committee’s recommendation, as it considered that parenting arrangements outside the court system could be better facilitated by its new Family Relationship Centres.[7]   

The introduction of PMH also follows calls from legal professionals and clients for further funding of family law courts in order to yield more efficient outcomes.[8]  The Attorney-General, George Brandis, has noted that many family law matters are not resolved at the earliest possible point in time.[9] 

While detail of the scheme is yet to be announced, it has been reported that the scheme will involve the appointment of a panel of family lawyers, psychologists, social workers and child development experts to assist parents in resolving disputes relating to the care of their children.[10] The budget papers state that the PMHs ‘will be given powers to make binding determinations on simple family law matters, which would otherwise require consideration by the family law courts’.[11]

A pilot of PMHs will commence in Parramatta, with a second location to be identified in consultation with stakeholders.[12]

Proposed funding arrangements

Total proposed expenditure across the Attorney-General’s Department and the Federal Court of Australia across the four year period is outlined below in Table 1.[13]

Table 1: Parenting Management Hearings – establishment

Expense ($m)          
  2016–17
Budget
2017–18
Budget
2018–19
Budget
2019–20
Budget
2020–21
Budget
Attorney–General’s Department ­– 0.5 0.3 0.3 0.5
Federal Court of Australia 0.5 3.1 3.6 3.6
Total ­– Expense 1.0 3.4 3.9 4.1
Related capital ($m) Federal Court of Australia 0.3

Source: Australian Government, Portfolio budget statements 2017–18: budget related paper no. 1.2: Attorney-General's Portfolio, p. 15.

The Attorney-General’s Department will receive a total of $1.6 million over the four year period, including approximately $1.18 million in administered expenses and $0.47 in departmental expenses.[14] The Federal Court of Australia will receive a total of $10.8 million in departmental funding across the same period, in addition to $0.3 million in related capital.[15]

The budget papers indicate that additional resources will be provided for ‘legal aid associated with the PMH scheme’.[16] However, no details have been provided on the role that legal aid may play or the quantum of associated funding.  The situation is further complicated by reports that the PMH scheme will apply only to self-represented litigants.[17]

Stakeholder reaction

Stakeholder reaction to the announcement of the PMHs has been mixed. The Law Council of Australia was of the view that the funding allocated for this program would have been put to better use by the courts.[18] While stating that it will wait for further details on the operation of the scheme, the Law Council considered that the scheme ‘appears to raise significant constitutional and other issues’.[19]

The Law Society of New South Wales noted that it was reviewing the proposal to establish PMHs,[20] while Victoria Legal Aid stated it looked forward to the results of the Parramatta pilot of the PMHs.[21]

The proposed PMH scheme would require legislative authorisation, given that it would impact the legal rights and liabilities of parties and would appear to involve the conferral of a review-based jurisdiction on a court. However, in the absence of detailed information about the proposed scheme, it is unclear whether such authorisation may already be provided in the provisions of the Family Law Act 1975 with respect to non-court family services, including arbitration. To the extent that the proposal may not be fully supported by existing legislation, amendments may be required. In that case, the current level of concern expressed by the Opposition suggests that support for legislative change could not be guaranteed. [22]

Family law system review

As part of the Budget, the Government also announced that it will engage the Australian Law Reform Commission (ALRC) to conduct a review of not only the Family Law Act, but the family law system in its entirety.[23] The Government will ask the ALRC to report to it with recommendations by the end of 2018.[24]

 


[1].          G Brandis (Attorney-General), Transforming the family law system, media release, 9 May 2017.

[2].          Australian Government, Budget measures: budget paper no. 2: 2017–18, p. 69.

[3].          Ibid.

[4].          J Taylor, ‘How an academic once paid by the ACL got a $12.7m parental dispute policy in the budget’, Crikey, 12 May 2017.

[5].          Ibid. For further detail on Mr Parkinson’s proposal, see P Parkison, ‘Can there ever be affordable family law?’, Paper presented to the Current Legal Issues Seminar, Supreme Court of Queensland, Brisbane, 9 May 2017, pp. 25–27.

[6].          House of Representatives Standing Committee on Family and Community Affairs, Every picture tells a story. Report on the Inquiry into child custody arrangements in the event of family separation, House of Representatives, Canberra, 29 December 2003, recommendation 12, p. xxiv and Chapter 4. 

[7].          Australian Government,  A new family law system : Government response to 'Every picture tells a story' : response to the report of the House of Representatives Standing Committee on Family and Community Affairs inquiry into child-custody arrangements in the event of family separation, June 2005, pp. 11–12. See also Family Relationships Online (FRO), ‘About Family Relationship Centres’, FRO Online.

[8].          R Powell, ‘Family Court underfunded, letting people down Chief Justice says’, ABC News, 1 May 2017.

[9].          G Brandis, ‘Answer to Questions without notice: family law’, [Questioner: J Hume], Senate, Debates, (proof), 10 May 2017, p. 47.

[10].       N Bita, ‘Cavalry call for custody clashes’, The Daily Telegraph, 11 May 2017, p. 9.

[11].       Australian Government, Budget measures: budget paper no. 2: 2017–18, p. 69.

[12].       Brandis, Transforming the family law system, op. cit.

[13].       Australian Government, Budget measures: budget paper no. 2: 2017–18, p. 69.

[14].       Australian Government, Portfolio budget statements 2017–18: budget related paper no. 1.2: Attorney-General's Portfolio, p. 15.

[15].       Ibid., p. 204.

[16].       Australian Government, Budget measures: budget paper no. 2: 2017–18, p. 69.

[17].       Bita, ‘Cavalry call for custody clashes’, op. cit.

[18].       Law Council of Australia, Budget shows Gov listening to legal profession, but more work needed to end justice funding crisis, media release, 9 May 2017.

[19].       Ibid.

[20].       Law Society of New South Wales, Initial reaction: Family law system on the verge of breaking, 9 May 2017.

[21].       Victoria Legal Aid, We welcome the government’s investment in and reform of family courts, 10 May 2017.

[22].       M Dreyfus (Shadow Attorney-General), Brandis is no saviour of the family courts, media release, 11 May 2017.

[23].       Brandis, ‘Answer to Questions without notice: family law’, op. cit.

[24].       Ibid.

 

All online articles accessed May 2017. 

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