Bills Digest No. 98, 2017–18
PDF version [444KB]
Mary Anne Neilsen
Law and Bills Digest Section
24
April 2018
Contents
Purpose of the Bill
Structure of the Bill
Background
The family courts and family violence
Parenting Management
Hearings Pilot
Australian Law Reform Commission
Review
Other legislative reform and public
consultation
Committee consideration
Senate Legal and
Constitutional Affairs Legislation Committee
Report
Dissenting reports
Senate Standing Committee for the
Scrutiny of Bills
No-invalidity clause
Reversal of evidential burden of
proof
Policy position of non-government
parties/independents
Labor
Australian Greens
Position of major interest groups
Family Law Section of the Law Council
of Australia
Patrick Parkinson and Brian Knox
Chief Justice of the Family Court of
Australia
Australian Human Rights Commission
Women’s Legal Services Australia
Aboriginal and Torres Strait Islander
Legal Service (Qld) Ltd
Zoe Rathus
Victorian Family Law Bar Association
Relationships Australia Victoria
Attorney-General’s Department
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Part IIIAA—Parenting management
hearings
Outline of Part IIIAA
Division 1: Introductory matters and
definitions
Objective of Part IIIAA
Meaning of ‘parenting determinations’
Presumption of equal shared
responsibility
Best interests of the child
Division 2: Parenting Management
Hearings
Applications for parenting
determinations
Comment
Consent of parties required
Comment
Prehearing conferences
Procedures for panel hearings
Comment
Legal representation and assistance
Comment
Independent children’s lawyer
Comment
Division 3: Parenting Management
Hearings Panel
Powers of the Panel
Allegations of child abuse and family
violence
Comment
Dismissing applications
Mandatory dismissal of applications
Comment
Discretion to dismiss applications
Comment
Parenting determinations
Appeals to the Federal Circuit Court
Comment
Panel rules
Division 3: Parenting Management
Hearings Panel
Establishment and functions of the
Panel
Membership and organisation of the
Panel
Comment
Principal Member directions
Management of the Panel
Division 5: Review of Part IIIAA
Comment
Concluding comments
Date introduced: 6
December 2017
House: Senate
Portfolio: Attorney-General
Commencement: Schedule 1 commences six months after the day of Royal Assent
or earlier by Proclamation. Schedule 2 commences on various dates,
contingent on the passage of other legislation.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at April 2018.
Purpose
of the Bill
The purpose of the Family Law Amendment (Parenting
Management Hearings) Bill 2017 (the Bill) is to amend the Family Law Act 1975
(the Act) in order to establish a Parenting Management Hearings Panel (the Panel)
as an independent statutory authority to provide self-represented
litigants with an alternative to the court process for resolving parenting
disputes.
Structure of the Bill
The Bill consists of two Schedules.
Schedule 1 relates to the Panel and is divided into three
Parts:
- Part
1 amends the Act to establish the Panel and the rules around its operation
- Part
2 contains consequential amendments to 11 other pieces of legislation
- Part
3 contains application provisions.
Schedule 2 contains amendments, contingent on
the commencement of the Civil Law and Justice
Legislation Amendment Act 2017, Family
Assistance and Child Support Legislation Amendment (Protecting Children) Act
2017 and the Family Law Amendment
(Family Violence and Other Measures) Act 2017.
At the outset, it is important to note that the Bill is
lengthy, some 120 pages. It includes duplication of large sections of Part VII
of the Act dealing with children, as well as other sections of the Act to do
with counselling and mediation. For this reason, the Bills Digest focuses only
on Schedule 1 Part 1 and particularly on issues addressed by key stakeholders.
The reader is referred to the Explanatory Memorandum for a description of other
parts of the Bill.
Background
The
family courts and family violence
The recent history of the family courts has been marked by
controversy with much of the criticism focused on their handling of the complex
problems of family violence.[1]
As various studies have indicated, families
with complex needs, including those related to violence, are the predominant clients
of the family law system.[2]
It is often suggested that the family law system is in
crisis. Professor Patrick Parkinson has described the courts as ‘almost
dysfunctional’, noting that lack of resources and federal funding, plus
their exponentially increasing workload, has led to unacceptably long delays.[3] The courts have also angered father’s advocacy groups
for a perceived bias against shared parenting.[4] Criticism has also come from women’s
legal services who argue the courts are failing to protect women and children
seeking protection from family violence. As
Women’s Legal Services Australia acknowledges ‘there are lengthy delays in the
courts hearing matters; there are significant numbers of self-represented
litigants many of whom cannot afford legal representation and are traumatised
as a result of family violence and the abuse of children and find it
challenging to navigate the family law system; there is an urgent need for
early risk assessment and response to family violence and child abuse upon
filing applications; and the fear of direct cross-examination by an alleged
abuser is leading women to settle on terms that are often not in the best
interests of the child and do not prioritise the safety of their children and
themselves’.[5]
In the weeks before the 2016 federal election Rosemary
Batty, former Australian of the Year, addressed the issue of violence and
family law with the major political parties. In conjunction with Women’s Legal
Services Australia she presented a petition calling for reform and urging the
political leaders to adopt the following five step plan to prioritise safety in
the family law system:
- develop
a specialist pathway for cases involving family violence
- reduce
trauma and support victims, including legislative protections that prevent
victims from being directly cross-examined by their abuser
- intervene
early and provide legal help for the most disadvantaged
- support
victims to recover financially and
- strengthen
the understanding of all family law professionals on family violence.[6]
More recently the Family Court has received renewed
publicity. Pauline Hanson and the One Nation party platform propose that the
Family Court be abolished and replaced with a family tribunal made up of people
from ‘mainstream Australia’. Respected members of local community, social and
health groups would be invited to participate.[7]
The former Chief Justice Diana Bryant, before her recent
retirement was also drawn into this debate. While she could see some value in
putting minor matters before a tribunal, the Chief Justice argued that the One
Nation policy is simplistic. As she said, abolishing the court would raise
constitutional issues. In a speech given in 2015 the Chief Justice articulated
clearly the needs of the courts. On the subject of resourcing she commended the
Government’s $100 million Women's safety package aimed at addressing family
violence but expressed concern that the crucial role of the courts (and the
corresponding necessity of resourcing them properly) has not to date been
recognised as part of addressing family violence.[8]
In an interview in the days immediately before her
retirement the Chief Justice reiterated her call for more resources. In the
context of commenting on the fact that in 2016, 85 percent of cases did not go
to judgement, the Chief Justice was reported as saying that what the court
really needs is more family consultants and registrars to help settle cases
earlier, before the parties go to trial or see a judge.[9]
The whole system suffers from a lack of resources to get
through the work in a satisfactory way.
We have an enormous number of cases and we know that most of
them will settle, [yet] they stay in this court without being resolved.[10]
Parenting Management Hearings Pilot
It was against this background the the
Government in the 2016–17 Budget announced funding of $12.7 million over four
years from 2017–18 to establish Parenting Management Hearings (PMH).[11] These hearings would
offer an alternative to traditional court hearings as a means of resolving simpler
family law disputes between self-represented litigants. The scheme was proposed
to be a ‘fast, informal, non-adversarial dispute resolution mechanism’.[12]
The scheme would operate as a pilot in two locations (Parramatta, and a second
site to be determined in consultation with stakeholders). The Government has
since indicated ‘the expansion of the PMH scheme will be informed by the
results of the comprehensive independent evaluation which will consider,
amongst other things, whether the Panel is meeting its stated objectives’.[13]
Although not explicitly explained by the Government, it
appears the PMH proposal is based on a model proposed in a private submission
to the Government in January 2017 by Sydney University Professor Parkinson and others which draws in part on the Informal Domestic Relations
Trial (‘IDRT’) in Oregon, USA.[14]
The IDRT adopts an inquisitorial approach where rules of evidence do not apply
and even if a party is legally represented only the judge can ask the parties
questions. The information brochure about IDRT suggests choosing this option
when ‘your case is relatively simple’ and ‘you are comfortable explaining your
circumstances and the facts to the judge’.[15]
The Government’s rationale for the trial is stated to be a
response to the longstanding recognition about the limitations of the adversarial
court system for resolving parenting matters.[16]
The Commonwealth Attorney-General’s Department (AGD) in
its submission to the Senate Committee inquiry into the Bill states that the
PMH pilot is ‘an important opportunity to gather evidence, through a carefully
designed evaluation methodology, about the operation of an inquisitorial and
more informal model for resolving family law parenting disputes’. The
submission continues:
The pilot model has been designed to better support families
who would otherwise be appearing before the family law courts without legal
representation. The PMH is a consent based model; parties are not required to
utilise the forum.[17]
The Bill proposes the legislative amendments necessary to
implement the PMH pilot.
Australian
Law Reform Commission Review
As part of the Budget announcement on 9 May 2017, the
Government also announced its intention to direct the Australian Law Reform Commission
(ALRC) to conduct the first comprehensive review into the family law system
since the commencement of the Family Law Act in 1976, with a view to
making necessary reforms to ensure the family law system meets the contemporary
needs of families and effectively addresses family violence and child abuse.[18]
On 27 September 2017, the Government provided Terms of
Reference to the ALRC for the Review and also announced the appointment of Professor
Helen Rhoades as full-time Commissioner to lead the Review.[19]
The Review commenced on 1 October 2017
and will report by 31 March 2019.[20]
Other
legislative reform and public consultation
The Government is also progressing other legislative
changes affecting family law, with the introduction of the Family Law Amendment
(Family Violence and Other Measures) Bill 2017 into Parliament in December
2017, and the proposed introduction of the Family Law Amendment (Family
Violence and Cross-examination of Parties) Bill in the 2018 Autumn sittings.[21]
Exposure drafts of these two Bills were released for
public consultation during 2017. In contrast, while a draft of the existing
Bill was produced, it was not released for public comment but rather circulated
only amongst selected stakeholders.[22]
As noted below, various other stakeholders including the Law Council have
criticised this lack of public consultation.
Committee consideration
Senate Legal and Constitutional Affairs
Legislation Committee
The Bill was referred to the Senate Legal
and Constitutional Affairs Legislation Committee for inquiry and reported
on 26 March 2018 (Senate Committee inquiry). Details of the inquiry are at the
Committee homepage.[23]
Report
The Committee recommended that the Bill be passed, subject
to the Government seriously considering and where appropriate taking action in
relation to a number of Committee recommendations.[24]
Dissenting
reports
In a dissenting report, Labor Senators on the Committee
opposed the Bill raising a number of concerns identified by key stakeholder.
They belief that ‘such a radical change would be better considered by the ALRC
in their review before being implemented’.[25]
The Australian Greens
Senators on the Committee also tabled a dissenting report which also
recommended that the Bill not proceed.[26]
Senate Standing Committee for the Scrutiny of Bills
The Senate Scrutiny of Bills Committee (Scrutiny Committee)
raised two issues with the Bill. One concerns the use of no-invalidity clauses
and the other, the use of the reversal of evidential burden of proof in
exceptions to some offence provisions.
No-invalidity
clause
A no-invalidity clause refers to a provision which indicates
that an act done or decision made in breach of a particular statutory
requirement does not result in the invalidity of that act or decision.[27]
The Scrutiny Committee identified three no-invalidity
provisions of concern (proposed subsections 11LG(8), 11PB(8) and 11PC(7)).
These provisions are described in detail later in the Bills Digest but in
short, their effect would be that a failure to inform the Panel of relevant
matters, or a failure by the Panel to provide reasons for, or explain the
consequences of, making a parenting determination, will not invalidate a
parenting determination.
The Explanatory
Memorandum states that the inclusion of these no-invalidity clauses is
appropriate to ‘prevent technical defects after the Panel has already
considered the matter.’[28]
However, in the Committee’s view it is not apparent that a failure to comply
with proposed section 11LG or 11PB or 11PC can aptly be described as merely
technical in nature. The Committee therefore seeks the Attorney-General's
detailed justification for the inclusion of these provisions.[29]
Reversal
of evidential burden of proof
The Scrutiny Committee identified a number of offence
provisions which provide exceptions (offence-specific defences) to these
offences.[30]
A defendant wishing to rely on these exceptions would bear an evidential
burden.[31]
For example proposed subsections 11PPA(2) and 11PQA(2) create offences
relating to retaining a child outside Australia. Proposed subsections
11PPA(3) and 11PQA(3) provide exceptions (offence-specific defences) to
those offences, providing that the offences do not apply where the person
reasonably believes that to retain a child outside Australia is necessary to
prevent family violence. The defendant would bear an evidential burden in
relying on this defence.
The Committee is of the view that the explanatory
materials do not address, or do not adequately address the matter of the
reverse of the evidential burden of proof in these offence provisions. It
therefore requests the Attorney-General's advice as to ‘why it is proposed to
use offence-specific defences (which reverse the evidential burden of proof) in
these instances’.[32]
Policy position of non-government parties/independents
Labor
At the time of the Budget announcement in May 2017, Shadow
Attorney-General, Mark Dreyfus expressed a number of concerns noting amongst
other things that the PMH pilot was not an answer to the problems of the family
courts.[33]
The Shadow Attorney also criticised the lack of detail and
consultation by Government stating:
Labor is particularly concerned that no consultation appears
to have been done ahead of this announcement. You cannot “test” something on
distressed families and parents in the midst of custody battles to see if it
works. These are people’s lives – you must make sure it is a good idea first.[34]
A media report at this time also quoted the Shadow
Attorney-General as describing the PMH proposal as ‘an extraordinary
outsourcing of government policy’ to Professor Patrick Parkinson.[35]
As noted above, Labor Senators on the Senate inquiry into
the Bill opposed the Bill.
Australian
Greens
As noted above, Greens Senators on the Senate inquiry into
the Bill opposed the Bill.
Position
of major interest groups
The Senate Committee inquiring into the Bill received 32
submissions from a range of different stakeholders including the courts,
professional family law bodies, women’s legal services, relationship services,
academics and various advocates of children’s and women’s rights. While a few
submitters supported the Bill, the majority raised concerns about it—a
recurring theme questions the rationale for moving ahead with an expensive and
radical PMH pilot while the ALRC review is still underway. The Commonwealth
Attorney-General’s Department (AGD) prepared a late submission in response to
stakeholder concerns.
A selection of submitters’ views are set out here and the Keys
issues and provisions section below provides further commentary from
submissions on the more specific amendments.
Family
Law Section of the Law Council of Australia
The Family Law Section of the Law Council of Australia (FLS)
with assistance from the various state law societies presented a submission to
the Committee inquiry which is strongly opposed to many features of the Bill.
In the FLS’s view, the Bill proposes a radical departure
from the established position under Australian law. It strongly opposes the
purported investiture of judicial power in the PMH and queries the ability to
do so as proposed in the Bill:
To describe the Panel as an administrative body operating in
the manner in many respects of other Tribunals, does not in the view of FLS
necessarily remedy these deficiencies.[36]
Furthermore, the FLS argues that the Bill must be viewed
with even greater concern in the context of the ongoing ALRC Review. The
submission states:
The FLS finds it difficult to understand why the Government
might choose to embark now, with limited review or research about changes of
this magnitude, when the ALRC has been tasked with undertaking a ‘broad and far
reaching’ review focusing on ‘key areas of importance to Australian families’.[37]
The submission also notes that the Bill and the Panel it
seeks to introduce is based on a model implemented in Oregon, USA. It is not
aware of any significant research evaluating this scheme, noting also that the
Government has chosen not to rely on advice of informed bodies such as the
Family Law Council and the Law Council.
The FLS is critical of the cost of the new scheme ($12.7
million over the next four years) and is of the view that funding of this
magnitude could have more usefully been spent improving resourcing of the
existing court system, as well as counselling and support services such as
contact centres.[38]
Further comment by the FLS on specific provisions in the
Bill is included in the Key issues and provisions section below.
Patrick
Parkinson and Brian Knox
Professor Patrick Parkinson and Brian Knox (Parkinson and
Knox) are pleased to support the Bill noting that they had been involved in
consultations over the draft legislation with selected stakeholders and judges.[39]
They confirm that the PMH initiative arose from their
submission to Government in early 2017 and that the proposal combines features
of the Children’s Cases Program (trialled in NSW in the mid-2000’s) and the
Informal Domestic Relations Trial in Oregon.
Parkinson and Knox submit that there are three reasons for
trialling this new approach.
First, as is now widely accepted, the adversarial system of
justice is usually not appropriate for parents who need to continue to
cooperate after the litigation is over. Secondly, it is not well-suited to the
needs of self-represented litigants. They must endeavour to present their case
to judges who are sometimes described as sphinxes in that they are
traditionally mute and seen as being impassive and reactive. For many people
unused to the legal system and what can appear to be a bewildering array of
procedures, this can lead to situation of either alienation or an inability to
articulate their views and grievances. Thirdly, parenting cases, particularly
those involving allegations of domestic violence, child abuse, mental illness
and drug and alcohol addiction, are particularly well-suited to a
multi-disciplinary approach.[40]
In their view the proposed system which offers
multi-disciplinary panels with relevant expertise in determining parenting
cases ‘can only improve the quality of decision-making’.[41]
Chief
Justice of the Family Court of Australia
The Chief Justice of the Family Court of Australia (FCA),
John Pascoe, in his submission states that he and other members of the Court
have a number of concerns with the Bill.
His Honour notes that under the original proposal it was
intended that the Panel would only hear matters of the kind that normally would
not get to the courts but are resolved beforehand by negotiation, by family
relationship centres and the private profession. However, the Bill as drafted
would allow the Panel to hear matters that are ‘plainly complex’ and thus ‘not
the kind of ‘non-forensic’ matters that is was envisaged a Panel could appropriately
hear’.[42]
The submission continues:
I instance matters involving allegations of family violence,
both physical and psychological, matters where the issue is with whom a child
should live, matters involving the care, welfare and development of a child,
and matters involving third parties including grandparents, as matters that
involve a forensic determination. The history of cases dealt with by the Courts
provides a strong evidence base demonstrating that matters involving these
issues are highly complex, rendering them unable to be dealt with in a
simplified and straightforward manner.[43]
The Chief Justice raises other concerns including issues
of transparency, the qualifications and experience of the Panel, a possible
lack of procedural fairness, and the potential conflict between parenting determinations
and parenting orders.
The Chief Justice argues that in light of these concerns
the Court ‘has consistently recommended that the Panel only be able to hear
matters that are referred to it by a Court with the consent of both parties.’[44]
He states:
I reiterate the logic of that approach. It would also avoid inappropriate
matters being commenced for Panel determination, and subsequently needing to be
dismissed due to complexity, adding additional expense and time for the
parties, the Panel, and the Court that will need to ultimately deal with the
matter.[45]
The Chief Justice also raises issues of a technical
nature. Noting that the PMH is to be a pilot, His Honour queries the logic of
amending the Act rather than introducing a separate piece of legislation. In
his view the ‘Act will be become far more unwieldly than it already is, and
importantly, far more confusing than it already is for parties without legal
representation’.[46]
Australian
Human Rights Commission
The Australian Human Rights Commission (AHRC) is broadly
supportive of the aim of the Bill to provide self-represented litigants with a
more flexible and inquisitorial alternative to the court process for resolving
parenting disputes. However, the Commission has some concerns relating to
children’s rights.[47]
In summary, the AHRC argues:
The amendments do not give children who are affected by a
parenting matter before the Panel sufficient opportunity to express their views
in accordance with article 12 of the United Nations Convention on the Rights
of the Child (CRC).
The Commission also notes that while the Bill proposes that
the main Panel Member must have family violence expertise, this may not include
knowledge of child development, the impacts of violence on children or
childhood trauma.
The Commission considers that it is vital that judicial
decision-makers have a comprehensive understanding of family violence, and
specifically about the impact of family violence and child abuse on children,
including the impacts on children of being exposed to family violence.
While the Commission supports the view that matters involving
child sexual abuse can be complex and serious, it is certainly the case that
other forms of child abuse can also be complex and involve allegations of a
very serious nature. The Family Court’s Magellan Program is designed to deal
with both serious physical and sexual child abuse cases. This initiative is equipped with a multidisciplinary team and
resources to address the complexity of concerns raised in these types of cases.[48]
Specific recommendations of the AHRC are considered below
in the Key issues and provisions section.
Women’s
Legal Services Australia
Women’s Legal Services Australia (WLSA) does not support
the Bill in its current form and recommends that the PMH scheme be referred to
the ALRC for specific consideration in their current review of the family law
system. WLSA is concerned about the model and in particular the potential
impacts on the safety of victims-survivors of domestic and family violence and
child abuse.[49]
The submission states:
The proposed PMH model is a large shift away from any current
approach in Australia for resolving family law disputes. Innovative practice,
new ideas and a culture of continuous improvement should be encouraged in any
court system. However, when the outcomes of untried and untested processes can
have enormous ramifications on the safety of women and children, such as the
introduction of PMHs, we advocate any new model should be based on research and
evidence and informed at every step by domestic and family violence experts.[50]
Aboriginal
and Torres Strait Islander Legal Service (Qld) Ltd
The Aboriginal and Torres Strait Islander Legal Service
(ATSILS) in its submission refer to the numerous reports identifying the
problems that ATSI people have in accessing family law services. ATSILS concern
is that the Bill is ‘virtually silent’ on those reports and how they may intersect
with the proposed amendments. They raise specific questions regarding the lack
of legal representation for applicants to the Panel; the lack of culturally
competent support or assistance for unrepresented ATSI Parties and whether the
Panels would have the necessary experience and cultural competence to decide
the matters.[51]
Zoe
Rathus
Zoe Rathus, a legal academic from Griffith University,
recommends that consideration of the Bill and the ideas contained in it should be
rolled into the current ALRC Review.[52]
Ms Rathus also submits that it is of significant concern
that the law to be applied by the Panel is the existing complex Part VII of the
Act. She states:
Although this is to be expected, there is significant
research to suggest that the provisions in this Part are complex, often
misunderstood by the community and difficult to navigate. Obviously SRLs
[self-represented litigants] are already dealing with this legislation in the
family courts but, given the impending review of the family law system, it seems
unnecessary to burden a new and different aspect of the system with this
legislation at a time when change may occur. It is particularly frustrating to
see what is really an entire piece of legislation inserted into the already
complex FLA as a never-ending section 11 followed by an eye-watering range of capital
letters.[53]
Victorian
Family Law Bar Association
The Victorian Family Law Bar Association opposes the Bill
and requests that it not proceed. It raises a number of concerns with specific
provisions and concludes more generally stating:
The interest of the Government in the area of Family Law is
welcomed and the recognition of the desperate need to deal with unacceptable
delay in our existing Family Law Courts is also welcomed.
However, it is respectfully submitted that another Court or
tier of adjudication, presided over by persons who are not expert in
determining disputes in accordance with the law will only make things worse and
divert resources from an already strained family law system. The nettle of
seriously considering the need for more Judicial resources and support
including expert evidence of social scientists must be grasped instead.[54]
Relationships
Australia Victoria
Relationships Australia Victoria supports the Bill and is
of the view that the Panel, staffed by members with expertise in family law and
co-occurring complex issues, is a constructive and viable option for less
adversarial resolution of disputes relating to children. The submission
continues:
In particular, the alignment with the existing principles and
Best Interests of Children contained in the Act, and the safety provisions
detailed in the Bill, could provide vulnerable parents and children with
determinations to support safety and well-being.[55]
Attorney-General’s
Department
The AGD prepared a lengthy submission responding to the
concerns raised by numerous submitters to the Committee inquiry. Some of the
AGD responses are considered below in the Key issues and provisions
section.
AGD justifies the progressing of this Bill at the same
time as the ALRC review arguing:
[...] a small pilot of this nature is an important step in
building an evidence base about whether an inquisitorial and multidisciplinary
approach to resolving parenting disputes is able to provide improved outcomes for
families, whilst ensuring safety is prioritised.
The pilot provides an opportunity to test the recommendations
made by various reports and experienced practitioners about the merits of a
less adversarial approach.
[...]
Any recommendations made by the ALRC relevant to PMH policy
would be able to be taken into account when assessing whether the pilot should
continue, be modified or terminated.
Delaying the commencement of the pilot until after the
conclusion of the ALRC review (31 March 2019) would significantly, and
unnecessarily, defer the gathering of the empirical evidence necessary to
support future decisions about the appropriateness, or otherwise, of an
inquisitorial model for resolving parenting disputes.[56]
Financial implications
An allocation of Commonwealth
expenditure of $12.7 million over four years was approved in the 2017–18 Budget
to implement this measure.[57]
Statement of Compatibility
with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[58]
Parliamentary Joint Committee
on Human Rights
The Parliamentary Joint Committee on Human Rights has
reported that it considers the Bill does not raise human rights concerns.[59]
Key issues and provisions
Part IIIAA—Parenting management hearings
Item 22, the central amendment in the Bill, would
insert a new Part IIIAA entitled Parenting management hearings into the Act. Part IIIAA would provide for the
establishment, operation, functions and powers of the new Parenting Management Hearings
Panel (the Panel).
Outline of Part IIIAA
Given the length and complexity
of proposed Part IIIA, the following outline of its structure is
provided.
The new Part IIIAA consists of
five Divisions:
- Division 1—Introductory matters
- Division 2—Parenting
management hearings consisting of eight subdivisions dealing with:
-
Applications for parenting
determinations
- Procedures for parenting
management hearings
- Powers of the Panel
- Dismissing applications
- Parenting determinations
- Appeals to the Federal Circuit
Court
- Offences
- Other matters
- Division 3—Parenting Management Hearings Panel consisting of
five subdivisions dealing with:
- Establishment and functions
- Panel members
- Organisation of the Panel
- Management of the Panel
- Other matters
- Division 4: Extension, application and additional operation
of Part IIIAA
- Division 5: Review of Part IIIAA.
The Bills Digest is selective in
describing these Divisions.
Division 1: Introductory matters
and definitions
Division 1 (proposed sections 11J to 11JH)
sets out and defines the underlying concepts and principles that provide the
basis for the Part IIIA provisions.
Objective of Part IIIAA
Proposed section 11J is an objects clause. It
provides that the object of Part IIIAA is to facilitate the resolution of
parenting disputes in a fair, just, economical, informal and prompt way, and
has the best interests of the child as the paramount consideration. A further
object of Part IIIAA is to give effect to the Convention on the Rights of the
Child (1989). Proposed subsection 11J(3) provides that new Part IIIAA
achieves these objects by providing for parenting management hearings (hearings)
and creating the Panel to conduct the hearings.
Meaning of ‘parenting
determinations’
Parenting determinations, defined in proposed section
11JG are determination made by the Panel dealing with any of the following
matters:
- the
person or persons a child is to live with
- the
time a child spends with another person
- the
allocation of parental responsibility for a child
- the
communication a child is to have with another person and
- any
aspect of the care, welfare or development of the child or any other aspect of
parental responsibility for a child.
Determinations cannot deal with medical procedures for a
child or with the issue of parentage of the child (proposed subsection 11JG(6)).
Parenting determinations may be expressed as interim or final parenting
determinations (proposed subsection 11JG(2)).
Parenting determinations in relation to a child may be
made in favour of a parent of the child or some other person (proposed
section 11JH).
This provision broadly replicates section 64B, that sets
out the meaning of parenting orders.
Presumption
of equal shared responsibility
As with parenting orders, proposed section 11JE creates
a presumption of equal shared parental responsibility in relation to making
parenting determinations. It provides that the Panel, when making a parenting
determination in relation to a child must apply a presumption that it is in the
best interests of the child for the child’s parents to have equal shared
parental responsibility for the child. The presumption does not apply if there
are reasonable grounds to believe a parent of the child or a person who lives
with a parent of the child, has engaged in family violence or abuse of the
child (or another child who is a member of the parent’s family) (proposed
subsection 11JE(2)). The presumption may be rebutted by evidence that
satisfies the court that it is not in the best interests of the child for the
parents to have equal shared parental responsibility (proposed subsection
11JE(4)). The note to section 11JE is intended to clarify that the
presumption relates solely to the allocation of parental responsibility and
does not deal with the amount of time spent with the child.
The presumption also applies in relation to interim
determinations unless the Panel considers it inappropriate (proposed
subsection 11JE(3)). However in making final parenting determination the
Panel must disregard the allocation of parental responsibility made in the
interim order (proposed section 11JF).
Best interests of the child
An underlying principle of Part VII of the Act dealing with
children is a requirement that family courts regard the best interests of the
child as the paramount consideration when making parenting orders and in other
provisions involving court proceedings. Likewise, the Panel when making
determinations in relation to a child must consider the matters set out in proposed
subsections 11JB(2) and (4). The checklist for determining the best
interests of the child is divided into two tiers: primary considerations (proposed
subsection 11JB(2)) and additional considerations (proposed subsection
11JB(4)).
Proposed subsection 11JB(2) provides that the primary
considerations are:
(a) the benefit to the child of having a meaningful
relationship with both parents, and
(b) the need to protect the child from physical or
psychological harm from being subjected to, or exposed to, abuse, neglect or
family violence.
The Panel would be required, when determining what is in a
child’s best interests, if there is any inconsistency in applying these two
primary considerations, to give greater weight to the primary consideration
that protects the child from harm (proposed subsection 11J(3)).
The Panel must consider other relevant factors—these factors
are identical to the additional fourteen considerations set out in current
subsection 60CC(3) of the Act, including the extent to which each of the
child's parents has taken the opportunity to participate in making decisions
about major long-term issues in relation to the child,
the capacity of each of the child's parents to provide
for the needs of the child, including emotional and intellectual needs, and any
family violence involving the child or a member of the child's family.
Division 2: Parenting Management Hearings
Applications for parenting determinations
Proposed sections 11K to 11KD
set out how applications for parenting determinations are to be made.
Proposed section 11K
provides that a child’s parent, child’s grandparent, the child or any other
person concerned with the care, welfare or development of the child may apply
for a parenting determination in relation to the child.
Applications must be made in
accordance with the Principal Panel Member directions (proposed section 11KA).
Proposed section 11KB
sets out the requirements in relation to applications
for parenting determinations. Amongst other things, proposed
subsection 11KB(2) provides that an application for a parenting
determination must include a certificate issued by a family dispute resolution practitioner
in relation to their attendance (or non-attendance) at family dispute
resolution (FDR). The effect is that prior to making an application for a
parenting management hearing, parties must have attempted to resolve their
parenting matter through FDR and have received a certificate from a FDR
practitioner. Proposed subsection 11KB(3) prescribes circumstances where
a certificate is not required, including where there has been family violence,
there is a risk of family violence, when one party is unable to participate
effectively in FDR due to an incapacity of some kind, or where there has been
abuse of a child or risk of abuse.
Proposed subsection 11KB(4) would provide that the
validity of a parenting determination would not be affected by a failure to
comply with the requirement to attend FDR. According to the Explanatory
Memorandum, this will prevent technical defects in parenting determinations
after the Panel has already considered the matter. This is appropriate if
parties have already taken the time and effort to have a matter determined by
the Panel.[60]
Comment
Zoe Rathus comments on this provision and the requirement
to produce certificates showing attendance at FDR. She states that this usually
means that the parties have attempted dispute resolution and failed to reach
agreement, that they have been excluded from this process as inappropriate, or
that one party has refused to attend. These are the same people who are entitled
to commence litigation in the family courts.[61]
In Ms Rathus’ view it is unrealistic to suggest that the
cases that come before the Panel are likely to be simple cases that can be dealt
with promptly. She continues:
The elusive ‘simple’ separations involve parents who do not
require any formal assistance or who settle their difficulties with the
assistance of lawyers, counsellors or family dispute resolution practitioners.
The standard clients of the PNHP are likely to be parents where there is a
history of family violence or other abuse, substance misuse, mental health
concerns or disabilities. They will be vulnerable persons who may be poorly
educated and have little access to financial or intellectual resources.[62]
National Legal Aid also suggested that parenting disputes
which meet the criteria for an exemption from a FDR practitioner certificate
should be dealt with by the court.[63]
Consent of parties required
Proposed section 11KC requires all relevant parties
to consent before a hearing can be conducted by the Panel in relation to an
application for a parenting determination. Without consent, the Panel would be
required to dismiss the application under subsection 11NA(1). The relevant
parties are:
- each
person with parental responsibility for the child
- if
there is a parenting determination or parenting order in force in relation to
the child, any person in whose favour the determination or order is made.
Comment
The Explanatory
Memorandum explains the importance of this provision stating:
Unlike court proceedings, the Panel is a consent‑based
forum. Parties cannot be compelled to have their matter resolved through the
Panel in the absence of consent. The Panel offers an alternative dispute
resolution forum; it is still open for parties to resolve their family law
dispute in the most appropriate way for them, including through the court
system. [64]
The Victorian Family Law Bar Association is critical of this
provision. It notes that the choice of Court or adjudicator and management of a
parties’ participation in the resolution of conflict about children with a
former partner is a complex matter. The submission continues:
It is axiomatic, and should be unquestioned, that any consent
involved in any part of any legal process should be real consent and informed
consent. The simple conundrum or internal contradiction is that very few
unrepresented litigants will be in a position to properly weigh up the
advantages and disadvantages of the Panel and make an informed consent. The
promise, or hope, of an earlier final hearing will be a powerful motivator in
many cases. In most cases “consent” will be a mirage and a consent in form
only.[65]
The submission also raises other questions with this
provision including: once consent is given, can the parties withdraw their
consent and if so at what point in the process; and does the consent apply ‘to
the applications’ (as drafted) or is it consent to the jurisdiction?[66]
In the Bar Association’s view the provision needs re-drafting.
Similar concerns are raised by the Chief Justice of the
FCA. His Honour states that the Bill should require the consent of the parties
to be obtained prior to the application being made. He argues:
Omitting such a requirement will not only create unnecessary
work for the Panel and the staff of the Panel, but will result in the applicant
having wasted his or her time and effort, given that if the consent is not
obtained, the application must be dismissed. On the basis that a key principle
underpinning the process is resolving matters in an economical and expeditious way,
I consider that it is counter-productive to allow a party to file an application
prior to the consent of the other party having been obtained. Further, the
party who commenced the proceedings would then have to commence those
proceedings in a Court.
This issue also highlights once again the appropriateness of
the Court’s submission that matters should only come to the Panel by referral
from the Courts.[67]
Prehearing conferences
Proposed section 11KD
provides that prehearing conferences may be held by the Principal Member of the
Panel for the purposes of dealing with matters preliminary to conducting a
hearing in relation to an application for a parenting determination. The
parties involved in the prehearing conference would be: the persons who made
the application; those whose consent is required; and any other person
the Panel considers appropriate.
Procedures
for panel hearings
Proposed sections 11L to 11LN
deal with the Panel procedures for making parenting determinations.
Proposed section 11LD provides that in a hearing, the
procedure of the Panel is within the discretion of the Panel. The rules of
evidence will not apply and the Panel may inform itself in any way it thinks
fit. The hearing is to be conducted with as little technicality and formality,
and as quickly and economically, as the requirements of Part IIIAA and proper
consideration of the matters before the Panel permit. The Panel may also give
directions in relation to the conduct of the hearing. The procedures of the
Panel and the conduct of the hearing are subject to the Panel rules, the
Principal Member directions and the rules of natural justice.
Parenting determinations may be made without the presence
of the parties where the Panel thinks the matters can be adequately determined
without their presence, and with the consent of the parties (proposed
section 11LC).
The principles to be applied by the Panel when conducting
hearings are set out in proposed section 11LE. They include amongst
others that the Panel is to:
- consider
the needs of the child and the impact that the conduct of the hearing may have
on the child
- actively
direct, control and manage the hearing
- conduct
the hearing in a way to safeguard the child and the parties against family
violence
- conduct
the hearing in a way that will promote cooperative and child‑focused
parenting by the parties.
In relation to the third principle, the Explanatory
Memorandum states that it is envisaged that a comprehensive intake and risk
assessment process would be completed for all applications to the Panel, during
which the intake officer would assess whether the parties were able to
participate safely in the proceedings, and whether any protections or procedures
needed to be put in place.[68]
Proposed section 11LG requires parties to a hearing
to inform the Panel of particular matters relating to family violence orders,
child care arrangements under child welfare laws, notices, investigations and
reports. Persons who are not parties to a hearing may also inform the Panel of
those matters. However, proposed subsection 11LG(8) provides that a
failure to inform the Panel of a matter covered by section 11LG does not affect
the validity of any determination made by the Panel.[69]
Comment
The Chief Justice of the FCA questions proposed section
11LD and in particular the ability of the Panel to ‘inform itself in any
way it thinks fit’ when conducting a hearing. The Court has consistently
expressed concern that this ‘departs significantly from the principle of
procedural fairness’, noting also that this ‘is perplexing, given that a lack
of procedural fairness is a prime circumstance allowing for an appeal to the
Federal Circuit Court of Australia.’[70]
Legal representation and assistance
Proposed section 11LJ provides that a party to a
hearing may be legally represented when appearing before the Panel only
with the leave of the Panel. When deciding whether to grant leave the Panel
must consider:
- whether
there has been or is a risk of family violence and
- the
capacity of a party to participate effectively in the hearing without legal
representation, having regard to any power imbalances between the parties or
any other relevant factor.
Consideration of these factors is considered important to ‘ensure
victims of family violence are not re-traumatised by the parent management
hearing process, and to achieve a fair hearing’.[71]
Where leave to have legal representation has been granted,
the Panel may give directions in relation to the role of that legal
representative (proposed subsection 11LJ(3)).
Proposed subsection 11LJ(4) would entitle a party
to have an assistant (or support person) with them when appearing before the
Panel. The assistant would not be able to address the Panel, unless requested
by the Panel, in exceptional circumstances (proposed subsection 11LJ(5)).
Proposed subsection 11LJ(6) states that section
11LJ does not affect any entitlement to legal representation that a person
otherwise has. That is, while it is envisaged that parties will be
unrepresented in the oral hearing stage of the Panel process (unless the Panel
gives leave), section 11LJ does not preclude a party from seeking and obtaining
advice in relation to their parenting matter. Seeking and obtaining such advice
prior to making, or consenting to, an application to the Panel will be
recommended.[72]
Comment
The Explanatory
Memorandum states that this provision reflects the intention that the Panel
is to be primarily available to parties who would otherwise appear before the
family law courts without legal representation. However, the inclusion of this
provision recognises that there may be circumstances in which it is necessary
for a party to be legally represented within a hearing to ensure the fair and
equal participation of all parties.[73]
There is a mixed reaction to this provision from
submitters to the Committee inquiry.
WLSA states that whilst acknowledging that many people
already navigate the family law system unrepresented, WLSA has significant
concerns that matters involving complex factors, including family violence and
some forms of child abuse, will be dealt with in a forum designed for
self-represented litigants, where lawyers are not permitted except with leave.[74]
WLSA recommends that leave be granted for legal
representation where any of the mandatory considerations in such an application
are met (that is, where the Panel has found concerns of possible family
violence or power imbalance).[75]
Parkinson and Knox note that this provision which allows
legal representation with leave is a departure from the idea that hearings are
intended for self-represented litigants, although their submission concedes
that it is clear from the Explanatory Memorandum and the second Reading Speech
that the hearings are intended for self-represented people, and so having legal
representation is an exception.[76]
Parkinson and Knox are of the view that should one party
be allowed legal representation then leave should also be granted to the other
party.
If the Government does want to allow legal representation
with leave, then fairness dictates that if leave is granted to one, it must
automatically be granted to the other – should he or she so wish it. There must
be a level playing field.[77]
The Government defends this provision stating:
Allowing one party legal representation but not the other may
give rise to concerns that there is inequality between the parties. However
this potential limitation on a right to a fair hearing is reasonable, necessary
and proportionate to the legitimate aim of accommodating the particular
vulnerabilities of a party. For example, allowing legal representation where
one party has a disability or has been the subject of family violence by the
other party would alleviate any disadvantage resulting from a power imbalance
or intimidation they may otherwise experience during the oral hearing stage.
The Panel has the discretion to make directions in relation to the role of that
legal representative, for example, the Panel might limit the role of a legal
representative to delivering only an opening and closing argument (not
questioning parties).[78]
The FLS is critical of this provision, stating that it
opposes the implementation of any system, be it a Panel or otherwise, that
excludes the parties from the right to independent legal representation before
it. It notes:
While a discretion rests in the Panel to permit a party to
have legal representation, the Panel may also give directions limiting the role
of the legal practitioner in the proceedings (s 11LJ(3)) which may constrain
the ability of a legal practitioner to discharge their professional and ethical
duties and obligations to their client.[79]
Independent children’s lawyer
Proposed section 11LK
allows the Panel to appoint an independent children’s
lawyer (ICL) in cases where it appears to the Panel that a child’s interests in
a hearing ought to be independently represented by a lawyer. Proposed
section 11LL sets out the general nature of the role of an ICL and
notes particularly that these lawyers must act impartially in dealings with the
parties to the hearing. The section is consistent with the role of ICLs
appointed under section 68L in relation to children’s proceedings under Part
VII of the Act.[80]
Comment
Submitters expressed a range of views about the role of the
ICL.
The FLS noted that the use of a children’s lawyer will
exacerbate problems regarding no legal representation. Proposed section 11LK
will see a situation where a lawyer will be involved in the process, but in
circumstances where obviously they cannot provide legal advice to any party to
the proceedings. Furthermore:
The appointment of an ICL usually occurs in parenting matters
of some complexity - again, this power sits oddly with the stated expectation
that the matters proceeding before the Panel would be ‘less complex’.
This power to appoint an ICL also raises further questions
about resourcing to follow in the wake of the creation of the Panel –
potentially creating further demand upon the resources of legal assistance
providers (such as Legal Aid Commissions), with no apparent allocation of
additional funding.[81]
The National Legal Aid submission states that Legal Aid
Commissions support the extension of the ICL role in Panel hearings in
principle but have concerns about the impact of this development in the context
of current funding and resources. As the submission states, ICLs are currently
ordered by the family law courts in only the most serious of matters.[82]
In the view of the Legal Aid Commissions quoted in this submission, the Bill
does not make clear the circumstances in which an ICL would be appointed, the
scope of the role or the process of appointment.[83]
The AGD submission in
response, states that the funding of $12.7 million includes funding for support
services, ICLs and an evaluation of the pilot.[84] AGD notes also that the concerns raised in submissions
‘underscore the importance of ensuring that those family consultants and ICLs
employed by the PMH Panel are adequately trained and supported to perform their
role to a high standard’. AGD anticipates that this would include ‘training in
cultural competency, and understanding the dynamics of family violence and
assessing risk’.[85]
Division 3: Parenting Management
Hearings Panel
Powers of the Panel
Proposed sections 11MK to
sections 11NG deal with the powers of the
Panel. Some of these provisions correspond to equivalent provisions in Part
VII. For example the Panel may:
- direct parties to attend or arrange for a child to attend,
appointments with a family consultant (proposed section 11M)
- request reports and other services from family consultants (proposed
section 11MB)
- refer parties to family counselling, FDR and other family services
(proposed section 11MC)
- obtain by written notice information or documents likely to
assist the Panel (proposed section 11ME).
Allegations of child abuse and family violence
Proposed sections 11MF, 11MG, 11
MH and 11MJ deal with Panel responsibilities
in cases of allegations of child abuse and family violence. Proposed
section 11MF would put an obligation on parties to set out allegations of
child abuse in a form approved by the Principal Member, which would then
trigger an obligation on the Principal Member to notify a child welfare authority
about the allegations (proposed subsection 11MF(3)). Proposed
section 11MJ would create similar obligations in relation to
allegations of family violence. If, during any stage of the hearings process,
a Panel or staff member reasonably suspects child abuse or risk of child abuse,
the person would be obliged to notify a child welfare authority (proposed
section 11MG).
Comment
The FLS submits that the
inclusion of these powers goes against the suggestion that the matters before
the Panel will only be those ‘less complex’ family law disputes and will be
determined absent legal representation.[86]
Dismissing applications
Proposed sections 11NA, 11NB to 11NF deal with the
Panel’s obligations and powers in relation to dismissing applications.
Applications can be dismissed at any time after receipt. Such applications are
of two types: applications that a Panel must dismiss and applications
that the Panel has discretion to dismiss.
Mandatory dismissal of applications
Proposed section 11NA provides for circumstances in
which the Panel must dismiss an application for a parenting determination.
These circumstances include:
- when
relevant consent requirements provided for in section 11KC have not been met (proposed
subsection 11NA(1))
- when
an application is for the relocation of a child (proposed subsection 11NA(2))
- when
an application alleges child sexual abuse or risk of child sexual abuse (proposed
subsection 11NA(3))
- where
an application is in relation to a child under the care of a person under a
child welfare law (proposed subsection 11NA(4))
- when
a parenting determination or parenting order is in force (proposed
subsection 11NA(5) and (9)) (with exceptions)[87]
- when
relevant court proceedings have been instituted (proposed subsection 11NA(7))
- when
there is a registered parenting plan or registered overseas child order in
force in relation to the child (proposed subsection 11NA(12) and (13))
- when
all parties request the application be dismissed (proposed subsection
11NA(14)) and
- when
the parenting management hearing fee has not been paid (if such a fee has been
prescribed) (proposed subsection 11NA(15)).[88]
Comment
A number of submitters commented on various aspects of the
Panel’s obligations to dismiss applications.
Parkinson and Knox submit that in their view, the Government
has achieved an appropriate balance between competing considerations in setting
these limits. Their one reservation about this part of the Bill is in relation
to the wording of subsection 11NA(2) dealing with relocation of a child.
The Explanatory
Memorandum justifies the mandatory exclusion of orders for re-location of a
child stating that these matters are typically complex in nature as a change in
where the child lives may substantially affect the child’s ability to live with
or spend time with a parent or other person who is significant to the child’s
care, welfare and development.[89]
Parkinson and Knox argue that the provision should be
amended so that it only applies to relocation disputes involving a move of more
than 100 kilometres from the home of the other parent, or a move to another
State or Territory, and the move is opposed by the other parent.[90]
The third circumstance, under proposed section 11NA(3)
provides that the Panel must dismiss an application for a parenting determination
when the application alleges child sexual abuse or a risk of child sexual
abuse. The rationale for this is that matters involving child sexual abuse
involve allegations of a very serious nature, are typically complex and are
more appropriate for court resolution.[91]
The AHRC while supporting the view that matters involving
child sexual abuse can be complex and serious, states that it is certainly the
case that other forms of child abuse can also be complex and involve
allegations of a very serious nature.
While the Panel has the power, under section 11NB(3), to
dismiss an application if there has been abuse or risk of abuse of the child by
one of the parties, the Commission considers that there is benefit in expanding
the matters that must be dismissed under 11NA during the pilot to include all serious
physical and sexual child abuse.[92]
The fourth circumstance is when an application relates to a
child who is under the care of a person under a child welfare law (proposed
subsection 11NA(4)). As the Explanatory
Memorandum explains, these matters typically have a complex history, cross
jurisdictional boundaries and generally require lengthier proceedings to
resolve the dispute.[93]
The WLSA supports these circumstances.
Discretion to dismiss applications
Proposed sections 11NB—11NF provide for the
circumstances when the Panel has the discretion to dismiss an application.
Proposed section 11NB enables the Panel to dismiss an
application for a parenting determination if it is satisfied ‘that it is
appropriate in all the circumstances to do so’. In deciding whether or not to
dismiss such an application the Panel must consider if the Panel has
reasonable grounds for suspecting child abuse (other than sexual abuse) or
family violence or the risk of child abuse or family violence (proposed subsection
11NB(3)).
The Panel may also consider: the complexity of the matter;
the capacity of the Panel to manage any risks relating to the safety of the
child or parties; the capacity of the Panel to determine matters for
consideration consistent with the objective of the Panel; the capacity of
parties to effectively participate; and if family violence orders apply, the
inferences that may be drawn from the order (proposed subsection 11NB(2)).
The Panel also has discretion to dismiss an application for
a parenting determination if it is satisfied the application was obtained ‘by
fraud, threat, duress or coercion’ (proposed section 11NC). The
rationale given for this provision is that victims-survivors may agree to
participate in the Panel forum ‘because they are intimidated by or fearful of
the perpetrator’.[94]
Comment
The FLS notes that the grounds for discretionary dismissal
of an application are broad and may require nuanced consideration of complex
considerations.[95]
The FLS submits that it is discretionary assessments of this
nature which are best undertaken by experienced judges with a thorough
understanding of the principles of natural justice and procedural fairness.[96]
The FLS notes with concern the allocation of discretion in
circumstances relating to fraud, threat, duress and coercion stating:
It is accordingly contemplated in this Bill, that a
(nominally) less complex parenting dispute, where the consent of a party has
been obtained by fraud, might still proceed in that forum. The FLS suggests that
the existence of fraud in relation to the consent of a party must at all times
be an indicator of ‘complexity’ and an absolute bar to the continuation of the
application before the Panel.[97]
Parenting determinations
As noted above, proposed section 11P empowers the
Panel to make a parenting determination in relation to a child. The Panel would
be able to make any parenting determination it thinks proper, subject to the
presumption of equal shared parental responsibility as set out in section 11JE
and having regard to the best interests of the child as the paramount
consideration. When considering what determination to make the Panel is
required to ensure that the determination does not expose a person to an
unacceptable risk of family violence (proposed section 11PA). The Panel
may include in the determination any safeguards that it considers necessary for
the safety of those affected by the determination (proposed subsection
11PA(2)). Under proposed section 11PH the Panel would be restricted
from making a parenting determination that is inconsistent with an existing
family violence order.
Proposed section 11PB deals with how parenting
determinations are made and provided to the parties. A determination may be
made orally or in writing. A written copy of the determination must generally
be given to each party within 28 days after the determination is made. The
Panel must give reasons for a parenting determination, either orally or in
writing. Parties generally have 28 days from the time of receiving the written
determination to request written reasons for the determination.
Proposed section 11PC requires the Panel to explain
the obligations and consequences of a parenting determination to affected
parties.
Proposed subsections 11PB(8) and 11PC(7) provide
that a failure to comply with the requirements of proposed sections 11PB and
11PC does not affect the validity of a parenting determination. As noted above,
the Scrutiny Committee raised questions about the reason for these no-invalidity
clauses.
There are also provisions dealing
with interaction between parenting determinations and child welfare laws (proposed
section 11PG), parenting determinations and existing family violence orders
(proposed section 11PH), parenting determinations and parenting plans (proposed
section 11PM), and provisions that further define how parental
responsibility determinations are to be made. Many of these are consistent with
equivalent provisions to do with parenting orders found in Chapter VII of the Act.
The reader is referred to the Explanatory Memorandum for further explanation.
Proposed section 11PN
deals with the obligations created by parenting determinations. Proposed
section 11PO provides that the Court may issue a warrant for the arrest of
an alleged offender who has prevented or hindered the carrying out of the
determination. As explained by the AGD, the Panel is an administrative body,
and as such, it will not have the power to enforce the parenting determination
it makes.
Parenting determinations will be enforceable by a court
exercising jurisdiction under the Family Law Act in the same way as a
parenting order made by a court. The Bill provides for this through the
amendments to Division 13A of Part VII of the Family Law Act.[98]
Proposed section 11PY
would clarify that where there is an existing parenting determination, and a
state or territory court makes a subsequent family violence order, the family
violence order would be invalid to the extent of any inconsistency with the
parenting determination.
The FLS is concerned as to the appropriateness of giving
paramountcy to a determination by a Panel over a later family violence order
made by a Magistrate of a State/Territory court and is of the opinion that it
undermines safety considerations.[99]
The Explanatory
Memorandum states the approach adopted in the Bill
is consistent with the current approach in the Act in relation to inconsistency
between parenting orders and family violence orders.[100] It explains that section 68R of the Act currently
provides a mechanism for state and territory courts to amend the parenting
order to remove the inconsistency and ensure that the person is protected from
violence. Item 49 would amend section 68R
to ensure that ‘the current mechanism for state and territory courts to
amend a parenting order to remove the inconsistency applies also to parenting
determinations made by the Panel’.[101]
Appeals to the Federal Circuit
Court
Proposed section 11Q
provides that a party to a hearing may appeal to the Federal Circuit Court on a
question of law from a parenting determination. As the Explanatory Memorandum
notes, unlike similar bodies the Panel would not be able to refer questions of
law to the Court on its own initiative. There is also no provision for merits
review. On hearing and determining the appeal, the Court may make either an
order affirming the decision or determination, or an order setting aside the
decision or determination and remitting the matter to be decided or determined
again by the Panel in accordance with the directions of the Court.
The Court may make findings of
fact in certain circumstances (proposed subsection 11Q(5)).For these
purposes the Court may receive evidence and have regard to statements and
information given to the Panel during the hearing (proposed subsection 11Q(6)).
Comment
The FLS notes that ‘this is a
more limited right of appeal than lies from a decision of a judicial registrar
or senior registrar of the Family Court or on appeal from a parenting
decision by a single judge of either the Federal Circuit Court or Family Court
to the appeal division of the Family Court’. The submission states:
The FLS does not understand the basis upon which it could be
maintained that there should be a more difficult test to succeed on an appeal
from a parenting determination from a Panel, than on an appeal from a judicial
decision of a judge of a Chapter III court.[102]
The Victorian Family Law Bar Association also has concerns
with this appeal provision, observing contradictions in the drafting. It
questions how the Court may make findings of fact in circumstances where cross
examination is to be the exception. Further an appeal as to law only, appears
to be contrary to subsection 11Q(6) which provides that the Court may generally
receive evidence.[103]
Panel rules
Proposed section 11SB
allows the Minister (that is the Attorney-General) by legislative instrument to
make Panel rules necessary or convenient for carrying out or giving effect to
this Part of the Act.[104]
The FLS states that this ‘represents
a significant departure from the separation of powers in the determination of
family law disputes, and gives the Executive arm of government an unprecedented
level of control compared to the existing system of Judges making rules about
the rules and procedures in family law cases’.[105]
The AGD submission in response, argues that this rule
making power is a standard legislative instrument-making provision across Commonwealth
legislation. Furthermore, matters of detailed practice and procedure would not
be included in the Panel rules but would be included in the Principal Member
directions.[106]
Division 3: Parenting Management
Hearings Panel
Establishment and functions of the Panel
Proposed section 11T would establish the
Parenting Management Hearings Panel as a statutory authority. Proposed section 11TA
sets out the objectives and functions of the Panel. The objective of the Panel
would be to facilitate the resolution of parenting matters in a fair, just,
economical, informal and prompt way, and in a way that reflects that the best
interest of the child is the paramount consideration. The functions of the
Panel would be to:
- receive
and consider applications for parenting determinations
- conduct
pre-hearing conferences in relation to applications for parenting
determinations
- conduct
parenting management hearings to consider such applications and
- make
parenting determinations.
The Panel also has any other function conferred by or
under this Act or the Panel rules.
Membership
and organisation of the Panel
Proposed sections 11U to 11UJ deal with issues
relating to membership of the Panel, including appointments, resignation,
termination, remuneration, leave and other terms and condition of appointment.
The Panel would consist of a Principal Member and some other
Panel members as appointed under proposed section 11UA by the
Governor-General by written instrument (proposed section 11U).
The Principal (Panel) Member is required to be enrolled as
a legal practitioner for at least five years and have ‘extensive specialist
knowledge and skills’ including ‘knowledge and experience’ in family law and in
dealing with ‘matters relating to family violence’ (proposed subsection
11UA(2)).
Other Panel members are either:
- legal
practitioners with expertise in family law (proposed subsection 11UA(3))
or
- non-legal
practitioners who have ‘at least 5 years’ experience working with families or
children’ and expertise in one or more fields such as psychology, counselling,
social work, family dispute resolution, community work, family violence, mental
health, drug or alcohol addiction or child development (proposed subsection
11UA(4)).
Proposed section 11V provides for the
arrangement of business of the Panel. The Principal Member is responsible for
ensuring the effective, orderly and expeditious discharge of the business of
the Panel and may take any measures that he or she believes are reasonably
necessary to maintain public confidence in the Panel.
Proposed subsection 11VB(1) provides that each
Panel should be made up of at least two Panel members, one of whom must be a
qualified legal practitioner and one of whom is not a qualified practitioner. This
would ensure, and recognise the importance of, having a multi-disciplinary
Panel to hear each application (for example, a Panel with a legally qualified
Panel Member and a professional with child development expertise).[107]
Proposed subsection 11VB(2) provides that the Principal Member may
give written directions in relation to the Panel member or members who will
constitute a Panel for the purposes of a hearing, and the Panel member who will
preside over the Panel. Proposed subsection 11VB(3) states that
nothing in section 11VB would prevent a single Panel member from exercising the
powers of the Panel in relation to matters of procedure.
Comment
The Explanatory
Memorandum defends the concept of a multi-disciplinary Panel stating:
Providing for the appointment of experts from a range of
disciplines as Panel members recognises that many families engaged in the
family law system, and particularly the family law courts, have complex needs
associated with family violence, drug and alcohol use, gambling and mental ill
health. A multi-disciplinary Panel with a wide range of expertise and
experience will be well placed to understand the complexities parties may be
experiencing, to refer parties to appropriate support services, and to make
decisions about parenting arrangements that are in the best interests of
children and provide families with safe, sound and workable outcomes.[108]
A number of submitters commented on the provisions relating
to the composition and organisation of the Panel.
WLSA supports the Panel being constituted with
multidisciplinary expertise and commends the requirement that the Principal
Member has specialist knowledge skills and experience relating to family law and
family violence. Family violence is widely under reported but an extremely
common dynamic in families that utilise family law processes.[109]
However WLSA also notes that there is no requirement that the Principal Member
sits on all Panels which may mean that a Panel is constituted without family
violence expertise. This is of concern given it is possible that family
violence is not identified during early risk assessment and prior to the
constitution of a Panel for a particular matter.[110]
Should the Bill proceed, WLSA recommends:
- at
least one Panel Member on each Panel should have extensive knowledge and
experience in family violence, child abuse and trauma informed practice from a
victim’s-survivor’s perspective.
- all
Panel members and staff conducting risk assessments should be culturally
competent, disability aware and have ongoing training in cultural competency;
disability awareness; family violence, child abuse and trauma informed
practice; and working with vulnerable clients.
- there
be ongoing training for Panel members and other staff associated with the PMH
process in cultural competency, disability awareness, family violence, child
abuse and trauma informed practice and working with vulnerable clients.
- that
there is diversity in the composition of Panels.[111]
Zoe Rathus presents a different view raising concerns
regarding the ‘inexperience in Australia with a hybrid system which involves
lawyers and social scientists directly in the decision-making processing family
law’. Her research into the intersection of social science research and the
family law system suggests that practitioners and professionals from both
disciplines should exercise great caution when engaging with the other
discipline.[112]
The Chief Justice of the Family Court also has concerns
that the expertise of Panel members may give raise to significant issues of
transparency. His Honour states:
What social science views for example will be applied by
Panel members to the cases before them? Will they be acknowledged and how could
they be challenged?
[...]
The Bill allows for Panel members to comprise persons who are
not legally trained, including psychologists and social workers. With respect,
those Panel members will not have the knowledge or the expertise to determine
these matters in the way that is consistent with established jurisprudence.
That is important because the Panel will operate side by side with the Family Law
Courts, and it would not only be confusing to the public, but frankly
indefensible, if parenting determinations made by the Panel are not consistent
with orders made by the Family Law Courts.[113]
Principal
Member directions
Under proposed section 11VA the Principal
Member would have the power to give written directions in relation to the
practice and procedures of the Panel, and the conduct of hearings. Among other
things, the directions may deal with the following:
a) the
requirements for making applications to the Panel
b) the
form and manner in which, and the time within which, documents may or must be
given to the Panel
c) the
arrangements for assessing the suitability of, and risks associated with,
applications for parenting determinations
d) procedures
for amending applications
e) the
arrangement of business of the Panel
f) the
Panel members who are to conduct parenting management hearings, and
g) the
places at which the Panel may sit.
A failure by the Panel to comply with a direction does not
invalidate anything done by the Panel (proposed subsection 11VA(3)).
In considering whether a matter is suitable for Panel
determination, it is intended the Panel will be informed by a risk assessment
to be conducted by appropriately trained Panel staff (proposed
subsection 11VA(2)(c)). The Explanatory Memorandum further explains
this provision stating:
It is intended that a comprehensive risk assessment form part
of the intake process for all applications, using an evidence-based risk
assessment tool and being conducted by qualified Panel staff employed for this
purpose. The detail of these arrangements is appropriately dealt with in
written directions and the Principal Member will be well placed to develop such
arrangements – under subsection 11UA(2), the Principal Member is required to
have ‘knowledge of, and experience in dealing with matters relating to family
violence.’[114]
The FLS however, is critical of this provision stating
that it is ‘a simplistic and ineffective mechanism for identifying people who
have been victims of family violence or at risk of being a victim of family
violence’. The submission continues:
These mechanisms are also in conflict with the assumption
that matters before the Panel will be ‘less complex’. The existence of a family
violence order, for example, is an unreliable indicator of risk, and the Bill
and EM provide relatively modest information about the investment that is to be
made in risk assessments. The supposed jurisdictional boundaries in the Bill
work on the hypotheses that family law disputes can be divided into ‘simple’
and ‘complex’ – they cannot; and that the issues in dispute in family law
litigation remain static during the process – they do not.[115]
Management of the Panel
Proposed section 11W provides that the Principal
Member is responsible for managing the administrative affairs of the Panel.
However, the Principal Member is not responsible for matters relating to the
Panel under the Public Governance, Performance and Accountability Act 2013
or the Public Service Act 1999. The Explanatory
Memorandum states that ‘this is because the Federal Court Chief Executive
Officer would be responsible for matters relating to the Panel under those two
Acts, including the management of staff assisting the Panel who would be
employed under the Public Service Act 1999, and as the accountable
authority under the finance law’.[116]
Proposed section 11WA provides that the
Federal Court Chief Executive Officer is to assist the Principal Member in
managing the administrative affairs of the Panel in accordance with section 11W.
This may include acting for the Principal Member in relation to performing the
administrative affairs of the Panel, which would require complying with any
written directions of the Principal Member.
Proposed section 11WB provides authority for
the Principal Member to delegate his or her functions or powers under the Act
to one or more Panel members. A Panel member who is delegated functions or
powers, must comply with any written directions of the Principal Member (proposed
subsection 11WB(2)).
The Explanatory
Memorandum states that this power of delegation to other Panel members
would be appropriate as Panel members would have qualifications, skills and
experience suitable to perform these functions.[117]
FLS considers this is a very broad delegation of powers, the validity of which
may be open to question.[118]
Proposed section 11WC would provide authority
for the Federal Court Chief Executive Officer to, by written instrument,
delegate his or her powers under this Division to a member of the staff
assisting the Panel who is an SES employee or acting SES employee. ‘This is
consistent with the powers of delegation for this position of office in the Federal Court
of Australia Act 1976’.[119]
Proposed section 11WD provides that staff
assisting the Panel, are to be engaged under the Public Service Act 1999
and be made available by the Federal Court Chief Executive Officer. Proposed
section 11WE provides authority for the Principal Member with the
Federal Court Chief Executive Officer to arrange for consultants to be engaged
to assist the Panel.
Division 5: Review of Part IIIAA
Proposed section 11Z
provides that there must be an independent review of the operation of Part
IIIAA of the Act and that a written report setting out the findings of the review
must be provided to the Minister (that is the Attorney-General) as soon as
practicable three years after this section commences.
Comment
Some submitters argue that the role of this review needs to
be more clearly articulated. The AHRC recommends that in order to evaluate the
effectiveness of the pilot, the review should be required to consider the views
of children affected by decisions of the Panel, and should also be required to
consider whether the Panel as a whole has sufficient expertise on issues
related to child abuse and child development to perform its functions
effectively.[120]
The Chief Justice of the FCA suggests that the Bill should include provisions
prescribing the evaluation process and evaluation criteria to be used in the
review.[121]
Concluding comments
The Bill proposes the necessary legislation to establish a
three-year $12.7 million pilot setting up a Parenting Management Hearings
Panel. The Panel, to be trialed in two locations, would offer ‘fast, informal
and non-adversarial hearings’ as an alternative to traditional
court hearings as a means of resolving simpler family law disputes between
self-represented litigants. The Government argues the pilot provides an
opportunity to test the recommendations made by various reports about the
merits of a less adversarial approach.
The Bill has received mixed reviews amongst
those who made submissions to the Senate Committee inquiry into the Bill.
While all acknowledge the need for new solutions to the serious problems
besetting the family law system, significant concerns have been raised
including: the composition and competence of the Panel and its ability to deal
with complex family violence matters in a ‘fast and informal setting’; concerns
about applicants’ lack of legal representation; and issues of transparency and
procedural fairness. A number of submitters argue that such a radical new and
expensive proposal needs further research and consultation and that while
promoted as a trial, it will have a serious and long lasting impact on the
lives of those affected by the Panel decisions.
Parliament now has the challenging task of
deciding whether to go ahead with this pilot in an attempt to find new
solutions to a family law system in crisis; postpone until after the completion
of the ALRC Review as a number of submitters have argued; or significantly
amend the Bill so that, for example, the more complex matters involving family
violence are removed from the Panel’s jurisdiction.
[1]. Family
courts, in this Bills Digest, generally refer to the Family Court of Australia
and the Federal Circuit Court of Australia. Family violence, the term used
throughout the Bill is defined by section 4AB of the Family Law Act to
be ‘violent, threatening or other behaviour by a person that coerces or
controls a member of the person’s family (the family member), or causes the
family member to be fearful,’ which includes a sexual assault or other sexually
abusive behaviour.
[2]. M Neilsen, Family Law Legislation Amendment (Family Violence and Other
Measures) Bill 2011, Bills digest, 126,
2010–11, Parliamentary Library, Canberra, 2011, p. 7.
[3]. M
Perkins, ‘Scrap Family Court? Please explain ...’,
The Age, 22 July 2016. Quoted in: M Neilsen, ‘Family
law reform and family violence’, Briefing book: key issues for the 45th Parliament,
Parliamentary Library, Canberra, 2016, p. 194.
[4]. Lone Fathers Association Australia, President’s report, The Noos,
January 2014; M Neilsen, Family Law Legislation Amendment (Family Violence and Other
Measures) Bill 2011, op. cit., p. 10.
[5]. Women’s
Legal Services Australia (WLSA), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Family Law
Amendment (Parenting Management Hearings) Bill 2017, 7 February 2018, p. 7.
[6]. WLSA,
Federal Government
legislation putting the safety of women and children experiencing family
violence at risk, Safety First in Family Law website. Quoted in M Neilsen, ‘Family
law reform and family violence’, Briefing book, op. cit., p. 194.
[7]. One
Nation, Family law courts: child support scheme,
One Nation website, 1 August 2016. Quoted in M Neilsen, ‘Family
law reform and family violence’, Briefing book, op. cit., p. 194.
[8]. D
Bryant, The family courts and family violence, speech presented by the Hon
Chief Justice Diana Bryant AO to the Judicial Conference of Australia
Colloquium, 10 October 2015. Quoted in: M Neilsen, ‘Family
law reform and family violence’, Briefing book, op. cit., p. 194.
[9]. K
Walsh, Family Court Chief Justice wants cases settled earlier, The
Australian Financial Review, 6 October 2017.
[10]. Ibid.
[11]. Australian Government, Budget measures: budget paper no. 2: 2017–18, p. 69.
[12]. Ibid.
[13]. Australian
Government, Attorney-General’s Department, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 2.
[14]. The
Explanatory
Memorandum, Family Law Amendment (Parenting Management Hearings) Bill 2017
makes only one reference to the Oregon model at page 50 in relation to proposed
paragraph 11LD(1)(b) which provides that the Panel would not be bound by the
formal rules of evidence in conducting a hearing. It states: ‘In the Oregon
Informal Domestic Relations Trial (of which aspects of new Part IIIAA are
based) the rules of evidence are also not applied.’ A footnote further
explains: The Informal Domestic Relations Trial is available as an option for
resolving matters relating to divorce, separation, and parenting arrangements
in Oregon in the United States of America. More information about the IDRT is
available here.
[15]. Oregon
Judicial Branch, Informal
domestic relations trial: is it the right choice for your case?,
Statewide brochure, Oregon Judicial Branch website.
[16]. Australian
Government, Attorney-General’s Department (AGD), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 3.
[17]. Ibid.
[18]. Australian
Law Reform Commission, (ALRC), Review of the family
law system, ALRC website, last modified 14 November 2017.
[19]. G
Brandis (Attorney-General), First
comprehensive review of the Family Law Act, media release, 27 September
2017.
[20]. Ibid.
[21]. For
further information see: M Neilsen, Family Law Legislation Amendment (Family Violence and Other
Measures) Bill 2017, Bills digest, 66, 2017–18,
Parliamentary Library, Canberra; Department of Prime Minister and
Cabinet (PM&C), Legislation
proposed for introduction in the 2018 Autumn sittings, PM&C website, 2
February 2018.
[22]. P
Parkinson and B Knox, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 1.
[23]. Parliament
of Australia, ‘Family
Law Amendment (Parenting Management Hearings) Bill 2017’, Inquiry homepage,
Australian Parliament website.
[24]. Senate
Legal and Constitutional Affairs Legislation Committee, Family
Law Amendment (Parenting Management Hearings) Bill 2017, The Senate,
Canberra, March 2018.
[25]. Ibid.,
p. 43.
[26]. Ibid.,
p. 50.
[27]. Senate Scrutiny of Bills Committee, Scrutiny
digest, 1, 2018, The Senate, 7 February 2018, p. 59.
[28]. For example: Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 47.
[29]. Senate
Scrutiny of Bills Committee, Scrutiny
digest, op. cit., p. 59.
[30]. Ibid.,
pp. 60–1.
[31]. Subsection
13.3(3) of the Criminal Code Act 1995 provides that a defendant who
wishes to rely on any exception, excuse, qualification or justification bears
an evidential burden in relation to that matter. An evidential burden requires
the defendant to raise evidence about the matter. A legal burden requires the
defendant to positively prove the matter.
[32]. Senate
Scrutiny of Bills Committee, Scrutiny
digest, op. cit., p. 62.
[33]. M Dreyfus (Shadow Attorney-General), Brandis is no saviour of the family courts,
media release, 11 May 2017.
[34]. Ibid.
[35]. H
Davidson, ‘Government
accused of “outsourcing” family law policy to Safe School critic’, The
Guardian, 12 May 2017.
[36]. Family
Law Section of the Law Council of Australia (FLS), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Family Law
Amendment (Parenting Management Hearings) Bill 2017, 7 February 2018, p. 5.
[37]. Ibid.
[38]. Ibid.,
p. 7.
[39]. Parkinson
and Knox, Submission,
op. cit., p. 1.
[40]. Ibid.,
p. 2.
[41]. Ibid.,
p. 5.
[42]. J
Pascoe (Chief Justice of the Family Court of Australia), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Family Law
Amendment (Parenting Management Hearings) Bill 2017, 7 February 2018, p. 2.
[43]. Ibid.
[44]. Ibid.,
p. 3.
[45]. Ibid.
[46]. Ibid.,
p. 4.
[47]. Australian
Human Rights Commission, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Family Law
Amendment (Parenting Management Hearings) Bill 2017, 7 February 2018, p. 3.
[48]. Ibid.
[49]. WLSA,
Submission,
op. cit., p. 5.
[50]. Ibid.
[51]. Aboriginal
and Torres Strait Islander Legal Service, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Family Law
Amendment (Parenting Management Hearings) Bill 2017, 7 February 2018, p. 3.
[52]. Z
Rathus, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Family Law
Amendment (Parenting Management Hearings) Bill 2017, 7 February 2018, p. 2.
[53]. Ibid.,
p. 5.
[54]. Victorian
Family Law Bar Association, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 13.
[55]. Relationships Australia Victoria, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Family Law
Amendment (Parenting Management Hearings) Bill 2017, 7 February 2018, p.
3.
[56]. AGD,
Submission,
op. cit., p. 3.
[57]. Explanatory Memorandum, Family Law Amendment
(Parenting Management Hearings) Bill 2017, p. 3.
[58]. The
Statement of Compatibility with Human Rights can be found at pages 4–30 of the Explanatory
Memorandum to the Bill.
[59]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 1, 6 February 2018, p. 78.
[60]. Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 47.
[61]. Z
Rathus, Submission,
op. cit., p. 4.
[62]. Ibid.,
pp. 4–5.
[63]. National
Legal Aid, Submission,
op. cit., p. 4.
[64]. Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 4.
[65]. Victorian
Family Law Bar Association, Submission,
op. cit., p. 9.
[66]. Ibid.,
pp. 9–10.
[67]. J
Pascoe, Submission,
op. cit., p. 4.
[68]. Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 51.
[69]. The
Scrutiny Committee question the use of this no-invalidity clause. See above at
p. 7.
[70]. J
Pascoe, Submission,
op. cit., p. 3.
[71]. Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 54.
[72]. Ibid.
[73]. Ibid.
[74]. WLSA,
Submission,
op. cit., p. 10.
[75]. Ibid.
[76]. Parkinson
and Knox, Submission,
op. cit., p. 9.
[77]. Ibid.
[78]. Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 9.
[79]. FLS,
Submission,
op. cit., p. 17.
[80]. Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 57.
[81]. FLS,
Submission, op. cit., p. 18.
[82]. ICLs
are appointed on the basis of the Re K (1994) FLC 92-461 factors. These factors
are set out in: National Legal Aid, Submission,
op. cit., Attachment B.
[83]. National
Legal Aid, Submission,
op. cit., p. 6.
[84]. AGD,
Submission,
op cit., p. 2.
[85]. Ibid.,
p. 16.
[86]. Ibid.,
p. 12.
[87]. The
exceptions being where the Panel is satisfied there has been a significant
change of circumstances relating to the child. This exception would not apply
in the case of a parenting order, where the order specifies that it cannot be
altered by a parenting determination.
[88]. The
final circumstance set out in section 11NA for when the Panel must dismiss an
application is when a fee has not been paid in respect of the parenting
management hearing within the period required if a fee has been prescribed by
the regulations. The Explanatory Memorandum states: ‘However, for the purposes
of the parenting management hearings pilot, there is no intention for a fee to
be charged. The amendment proposed in item 111 would prevent any fee from
being prescribed in the regulations until on or after 1 July 2021 which is when
the pilot phase concludes.’ Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 69.
[89]. Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 69.
[90]. Parkinson
and Knox, Submission,
op. cit., p. 10.
[91]. Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 67.
[92] AHRC,
Submission,
op. cit., p. 8.
[93]. Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 67.
[94]. Ibid.,
p. 71.
[95]. FLS,
Submission,
op. cit., p. 10.
[96]. Ibid.
[97]. Ibid.,
pp.10–11.
[98]. AGD,
Submission,
op. cit., p. 22.
[99]. FLS,
Submission,
op. cit., p. 12.
[100]. Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 84.
[101]. Ibid.
[102]. FLS,
Submission,
op. cit., p.19.
[103]. Victorian
Family Law Bar Association, Submission,
op. cit., p. 9.
[104]. It
is intended that the term ‘Minister’ would take its meaning from section 19 of
the Acts Interpretation Act 1901 and, at the time of writing, means the
Attorney-General. Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 92.
[105]. FLS,
Submission,
op. cit., p. 9.
[106]. AGD,
Submission,
op. cit., p. 23. See proposed section 11VA
below for Principal Member directions.
[107]. Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 98.
[108]. Ibid., p. 94.
[109]. WLSA,
Submission,
op. cit., p. 12.
[110]. Ibid.
[111]. Ibid.,
pp. 12–13.
[112]. Z
Rathus, Submission,
op. cit., p. 6. The attachment to the submission contains a forthcoming journal
article by Zoe Rathus on this subject.
[113]. J
Pascoe, Submission,
op. cit., pp. 2–3.
[114]. Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 97.
[115]. FLS,
Submission,
op. cit., p. 12.
[116]. Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 100.
[117]. Ibid.
[118]. FLS,
Submission,
op. cit., p. 5. In support of this statement, the submission relies on Harris
v Caladine [1991] HCA 9; Lane v Morrison [2009] HCA 29.
[119]. Explanatory Memorandum, Family Law
Amendment (Parenting Management Hearings) Bill 2017, p. 100.
[120]. AHRC,
Submission,
op. cit., p. 6.
[121]. J
Pascoe, Submission,
op. cit., p. 5.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Enquiry Point for referral.