On 7 December
2017 the Senate referred the Family Law Amendment (Parenting Management
Hearings) Bill 2017 (the bill) to the Legal and Constitutional Legislation
Committee (the committee) for inquiry and report by 26 March 2018.
Selection of Bills Committee recommended that the bill be referred for inquiry
for a number of reasons, including to:
Senators with an opportunity to consider what, in the family law setting, is an
innovative proposal tailored to the particular needs of self-represented
issues of concern to relevant stakeholders [that] require opportunity for
expert views on impacts and possible improvements;
concerns about the bill dramatically affecting the manner in which proceedings
are conducted; and
impacts on families experiencing family violence.
Background and purpose
of the bill
On 6 December
2017, the Assistant Minister to the Prime Minister, Senator the Hon James
McGrath introduced the bill into the Senate. In his second reading speech he
outlined the nature and purpose of a new pilot program to resolve family law
disputes, the Parenting Management Hearing Panel (PMH, or Panel). This bill, he
stated, would create:
statutory authority designed to offer self-represented litigants a more
flexible and inquisitorial alternative to the court process. During the pilot
phase, there will be no costs charged to families who choose to participate.
... A key
objective of the Panel is to give to parents who would otherwise be in a court
without legal representation the option to obtain a binding decision about
parenting arrangements in a quick, fair, just, informal and economical way, all
the time ensuring that decisions are made in the best interests of children and
that safety is prioritised.
Explanatory Memorandum notes the initiative's inclusion in the
2017–18 Commonwealth Budget, as well as the intent of the PMH, which is:
at transforming the family law system to support families to resolve their
family law disputes as quickly as possible, while adequately managing risks.
Explanatory Memorandum provides an outline of the general nature, purpose and
function of the PMH:
would be an independent statutory authority that would conduct hearings and
make binding administrative determinations in respect of parenting arrangements
for children—similar to 'parenting orders' made by a court under the Family
Law Act 1975 (the Act). The parenting management hearings model would
encourage and support families to resolve their parenting disputes in a prompt
and informal way, through a more user-friendly and less-adversarial forum than
the traditional court system.
management hearings will be a consent-based forum, and parties cannot be compelled
to participate. Families will still be required to try to resolve their
disputes themselves, where possible and appropriate, through family dispute
Explanatory Memorandum suggests that this initiative would benefit not only
separating couples who choose to resolve their disputes through the PMH, but
also their children:
has consistently shown that reduced parental conflict after separation and the
timely resolution of parenting disputes is beneficial for children and
families. Unlike the traditional adversarial system, where two opposing sides
present their case, those managing the hearings will undertake inquiries and
gather information to promote informed and safe outcomes for families.
Attorney-General's Department (AGD or department) noted that the PMH pilot would
complement the ongoing review of the entire family law system being undertaken
by the Australian Law Reform Commission (ALRC), which was commissioned by the
government in September 2017 and due to report in March 2019.
Key provisions and
The bill would
establish the PMH as a pilot program, initially in the Sydney suburb of Parramatta,
with second location to be announced in late 2018.
Memorandum states that the PMH would be underpinned by two key principles,
which are set out in the bill as Objects:
principle is that the hearings will be fair, just, economical, informal and
prompt. The second principle is that the best interests of the child will be
the paramount consideration. This second principle is consistent with the key
objective underpinning existing Part VII (Children) of the Act.
the Explanatory Memorandum states the PMH would have the capacity to recognise
and address family violence, as it is a common factor of family law cases. It outlines
a number of ways that the Principal and other Members of the PMH would be able
to recognise and consider such cases appropriately:
that family violence is a common experience among separated parents, with a
majority of parents reporting either emotional or, to a lesser extent, physical
abuse, it is critical that any forum established to resolve parenting disputes
is equipped to identify and respond safely and effectively to family violence.
Principal Member appointed to lead the Panel would be required to have
specialist knowledge of, and experience in, dealing with matters relating to
family violence. Further, the Bill would ensure that in each case that comes
before it, the Panel will give careful consideration to the family's individual
circumstances, and will make an assessment about the capacity of the Panel to
manage any safety risks for the family through the forum. The Panel will not be
empowered to deal with applications involving allegations of child sexual
more inquisitorial model, Panel members would have greater control over
hearings, directing lines of enquiry and the focus of the hearing; questions
will be asked by Panel members, avoiding the potential for cross-examination of
a victim by a perpetrator of family violence.
also provides for participants in hearings to be supported by other services,
such as counselling and family violence services, to 'minimise the intensity
and duration of conflict', including for children.
Explanatory Memorandum also outlines the key features of the bill as follows:
to provide a
forum for resolving less-complex family law disputes between self‑represented
matters in a fair, just, economical, informal, less-adversarial and prompt way;
to ensure the
best interests of the child is the paramount consideration;
parties are assisted by support services, integrated with the Panel, where
that the outcomes of the parenting management hearings will be binding on
parties and enforceable by a court.
would make consequential amendments to a number of other acts:
A New Tax
System (Family Assistance) Act 1999;
Citizenship Act 2007;
Passports Act 2005;
Court of Australia Act 1976;
Records Act 2012;
Disability Insurance Scheme Act 2013;
Security Act 1991;
Security (Administration) Act 1999.
Explanatory Memorandum is clear that the PMH has not been designed to replace
the Family Court system, but simply to:
to a different type of forum for parents in conflict and encourage a cultural
shift away from the courts as the default arbiter of last resort. While the
pilot may help to ease the caseload of the courts, it is not intended to
replace the courts or other important services that help parents to resolve
Provisions in greater detail
Management Hearings Panel
would establish the PMH Panel as a statutory authority under proposed section
11T. According to the Explanatory Memorandum, it would be able to:
and consider applications for parenting determinations (see new Subdivision A
of Division 2 of Part IIIAA);
pre-hearing conferences in relation to applications for parenting
determinations (see new section 11KD of Part IIIAA);
parenting management hearings to consider such applications (see new
Subdivision B of Division 2 of Part IIIAA), and
parenting determinations (under new section 11P).
section 11JG, the panel would be able to make decisions (including the
discharging, varying, suspending, or reviving of a determination by the panel)
on the following types of matters:
person or persons with whom a child is to live;
time a child is to spend with another person or other persons;
allocation of parental responsibility for a child;
- if 2
or more persons are to share parental responsibility for a child—the form of
consultations those persons are to have with one another about decisions to be
made in the exercise of that responsibility;
communication a child is to have with another person or other persons; and
aspect of the care, welfare or development of the child or any other aspect of
parental responsibility for a child.
subsection 11JG(3) of the bill prevents the panel from making parenting
determinations in relation to the provision of medical procedures for a child
or in relation to the parentage of a child.
procedure for the conduct of parenting management hearings provides that:
- the procedure of the Panel is within the discretion of
the Panel; and
- the Panel is not bound by the rules of evidence; and the
Panel may inform itself in any way it thinks fit; and
- the hearing is to be conducted with as little
technicality and formality, and as quickly and economically, as the
requirements of this Part and a proper consideration of the matters before the
Panel permit; and
- the Panel may give directions in relation to the conduct
of the hearing.
A party to a PMH
may appeal a decision or determination of a Panel, only on a question of law,
to the Federal Circuit Court (proposed section 11Q). The Explanatory Memorandum
clearly states that appeals can only be made on a question of law, rather than
review will not be available. This is intended to ensure there is an
appropriate level of finality following a parenting determination to promote
stability for children affected by a determination. This takes into account the
required consensual nature of the forum and the objective of the forum to be a
quicker and more informal way of obtaining a binding decision in respect of a
parenting dispute. The Bill also provides that a parenting determination may be
reconsidered by the Panel or a court, should there be a significant change in
circumstances in relation to the child who is the subject of the parenting
of the panel
Each PMH must
be heard by a Panel made up of a Principal Member and other Panel members, who
are appointed by the Governor-General (proposed sections 11U and 11UA(1)).
eligible for appointment as a Principal Member, the person must have been
enrolled as a legal practitioner for at least five years and have extensive
knowledge and skills including in the matters of family law and family violence
(proposed subsection 11UA(2).
legal practitioner may also be a Panel member provided they have been enrolled
as a legal practitioner for at least five years and have knowledge of and
experience in matters of family law (proposed subsection 11UA(3).
members, without a legal qualification, are required to have at least five
years' experience working with families or children, as well as having
specialist knowledge in one or more of the following areas: psychology;
counselling; social work; family dispute resolution; community work; family
violence; mental health; drug or alcohol addiction; child development; or any
other field relevant to the duties of a Panel member (proposed subsection
must consist of at least one legally qualified panel member (Including the
Principal Member) and at least one non-legally qualified panel member (proposed
qualifications and constitution of the panel, the AGD submitted:
multi-disciplinary nature of the appointment requirements reflects that many
families presenting to the family law system have multiple needs. Recent
research by the Australian Institute of Family Studies has found that for
families using the courts to resolve their family law disputes,
38.1% presented with four or more risk-related or complex issues (for
example, family violence, safety concerns, substance misuse, problematic social
media or pornography use, gambling). Families using the courts presented with
an average number of three risk-related or complex issues.
complex profile of families using the court system, in order to assess whether
a matter is appropriate for a PMH, the Panel must be skilled enough to identify
those complexities. While it is intended that the Panel deal with less complex
family law parenting disputes, this does not equate to cases absent all
qualification requirements set out in the Bill reflect the importance of having
highly-skilled experts in a range of disciplines on the Panel, who will be well
placed to identify risks and conduct proceedings in a way that is appropriate
to the circumstances of each individual matter.
to a parenting determination
provides that the following people would be able to apply to the Panel for a
parenting determination: a parent of a child; a child; a grandparent of a
child; or a person concerned with the 'care, welfare, or development of the
child' (proposed section 11K).
management hearing can only be conducted with the consent of each person with
parental responsibility of the child (proposed section 11KC). Where consent has
not been provided, the Panel would dismiss the application (proposed subsection
parties have consented to a determination without appearing before the Panel,
and if it appears to the Panel that the matter can be adequately determined
without the parties appearing before the Panel, the Panel may make a parenting
determination on the papers (proposed section 11LC).
circumstances a person can seek leave of the Panel for legal representation
when appearing before the Panel (proposed section 11LJ). This includes where
there are reasonable grounds to believe that there has been family violence, or
a risk of family violence to a party and the capacity of a party to effectively
participate in the hearing without legal representation.
appears to the Panel that a child's interest should be independently
represented by a lawyer, the Panel may direct that child's interest to be
represented by a lawyer (proposed section 11LK). The role of the
independent lawyer is to act impartially to the parties of the parenting
management hearing and to ensure that the views of the child are put before the
Panel (proposed subsection 11LL(5)).
of the Panel
lists the circumstances in which the Panel must dismiss an application for a
parenting determination (proposed section 11NA), including: where an
application is for the relocation of the child (proposed subsection 11NA(2));
when the application alleges child sexual abuse or risk of child sexual abuse
(proposed subsection 11NA(3)); or when relevant court proceedings are
instituted (proposed subsection 11NA(7)).
Additionally, the Panel has the flexibility and discretion to dismiss an
application for a parenting determination 'if the Panel is satisfied that it is
appropriate in all the circumstances to do so' (proposed subsection 11NB). This
decision may be based on:
complexity of the matters for consideration by the Panel;
capacity of the Panel to manage any risks relating to the safety of the parties
or the child;
capacity of the Panel to determine the matters for consideration in a manner
consistent with the objective of the Panel referred to in subsection 11TA(1);
capacity of a party to effectively participate in the parenting management
hearing, having regard to any power imbalances between the parties or any other
- if a
family violence order applies, or has applied, to the child or a member of the
child's family—any relevant inferences that can be drawn from the order;
other matter that the Panel considers relevant.
Panel suspects there has been abuse of, or risk of abuse of the child, or
family violence or a risk of family violence by of the parties, the Panel must
consider whether to dismiss an application for parenting determination
(proposed subsection 11NB(3)).
the Panel may dismiss an application for a parenting determination in the
if consent of
a party to the application was obtained by fraud, threat, duress or coercion
(proposed section 11NC);
if the Panel
is satisfied that the application was frivolous, vexatious, or an abuse of the
process of the panel (proposed section 11ND);
if there has
been a failure by a party to proceed with the application (proposed section
has been a written request by a party that the application be dismissed, and
where the Panel is satisfied that this is appropriate (proposed section 11NF).
At any stage
of a parenting management hearing, the Panel may direct the parties to the
hearing to attend counselling, attend family dispute resolution, or that one or
more parties attend an appropriate course, program or other service (proposed
of the best interest of the child
Part VII of
the Family Law Act 1975 (the Act), outlines the framework that courts
must apply when considering the best interest of the child. The Parenting
Management Explanatory Memorandum notes that the bill is consistent with
current family law provisions, as this part of the Act would continue to apply
to PMH processes.
The bill states that PMH considerations in relation to the best interests of
the child include:
Panel have regard to the kinship obligations and practices of the child's
Aboriginal or Torres Strait Islander culture (proposed section 11JA);
as a primary
consideration the panel should have regard to the benefit of the child in
having a meaningful relationship with both parents, and 'the need to protect
the child from physical or psychological harm', however, that greater weight
should be given to the latter (proposed section 11JB); and
considerations listed at proposed subsection 11JB(4), including the views
expressed by the child, and the nature of the relationship of the child with
each of the parents.
rules and directions
may, by legislative instrument, make rules relating to receiving referrals of
matters, the transfer of a matter to a relevant court, or the allowances or
fees to be paid by the Commonwealth or other persons to witnesses appearing at
a parenting management hearing (proposed subsection 11SB(2)). However, the
minister cannot make rules that:
- create an offence or civil penalty;
- provide powers of:
- arrest or detention; or
- entry, search or seizure;
- impose a tax;
an amount to be appropriated from the Consolidated 16 Revenue Fund under an
appropriation in this Act;
- directly amend the text of this Act.
Member is responsible 'for ensuring the effective, orderly and expeditious
discharge of the business of the Panel' (proposed section 11V). The Principal
Member may give directions 'in relation to the practice and procedure of the
Panel, and the conduct of parenting management hearings' (proposed subsection
11VA(1)). The Principal Member directions may deal with the following matters:
requirements for making applications to the Panel;
form and manner in which, and the time within which documents may or must be
given to the Panel;
- arrangements for assessing the suitability of, and risks associated with,
applications for parenting determinations;
- procedures for amending applications for parenting determinations;
- matters relating to pre-hearing conferences;
- management hearings;
arrangement of the business of the Panel;
Panel members who are to conduct parenting management hearings;
places at which the Panel may sit.
Member is also able to make decisions in cases where the panel is unable to
make a majority decision. The department stated:
provides that, in the case of the two-person composed panel, the presiding
member's decision would prevail. In the case of three, where there might be a
majority and someone in the minority, the majority decision would prevail.
Compatibility with human rights
the Explanatory Memorandum, the bill is compatible with the human rights and
freedoms recognised or declared in the international instruments listed in
section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The Explanatory Memorandum does note that a number of human rights
issues are engaged by the bill over several international agreements to which
Australia is a party. However, the Explanatory Memorandum concludes:
is compatible with human rights because it promotes the protection of human
rights, particularly the best interests of the child in the CRC. To the extent
that it may limit human rights, those limitations are reasonable, necessary and
proportionate to achieve the legitimate aims of the Bill and the Act. 
made by the Senate Scrutiny of Bills Committee
Scrutiny of Bills committee asked for the Attorney-General to provide more
information on the bill's inclusion of no-invalidity clauses and reversal of the
evidential burden of proof in some cases. More specifically, the committee
sought the Attorney-General's:
for including no-invalidity clauses in proposed subsections 11LG(8), 11PB(8)
and 11PC(7) of the bill, which mean 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
advice as to
why it is proposed to use offence-specific defences (which reverse the
evidential burden of proof) in some provisions of the bill, by reference to the
Guide to Framing Commonwealth Offences.
Committee reported on these matters on 21 March 2018.
Explanatory Memorandum states that the 2017–18 Budget allocated $12.7 million
over four years to implement this measure for trials of the PMH at two
locations, one in Parramatta and the other yet to be determined.
Conduct of the inquiry
This bill was
referred to the committee for inquiry at the same time as the Family Law
Amendment (Family Violence and Other Measures) Bill 2017 (Family Violence
bill). The committee is due to table its report into that bill on
20 April 2018.
these bills would both make amendments to Australia's family law framework, the
committee undertook separate inquiries to give each bill due consideration, and
is reporting on the bills separately. That said, it should be noted that
several submitters made a single submission to both inquiries, with the
committee's approval. The committee also undertook two hearings in Sydney and
Melbourne, at which some witnesses gave evidence on both bills.
and public hearings
the inquiry were advertised on the committee's website, including a call for
submissions to be received by 7 February 2018. The committee also wrote
directly to a number of relevant individuals and organisations inviting them to
received 32 submissions, which are listed at appendix 1 of this report. All
submissions are available in full on the committee's website, except two
submissions accepted in confidence.
held two public hearings on 21 February 2018 in Sydney and on 22 February 2018
Structure of this report
consists of two chapters:
This chapter sets
out a brief background and overview of the bill's intent and provisions, as
well as the administrative details of the inquiry.
outlines the provisions of the bill in more detail, discusses matters raised by
submitters and witnesses about the proposed amendments, and outlines the
thanks all organisations and individuals that made submissions to this inquiry,
as well as those that gave further evidence at public hearings.
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