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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