Issues and concerns
outlines the key issues raised in submissions received by the inquiry and by witnesses
giving evidence at hearings, and also sets out the committee's views and
Support for the bill
were favourable about the proposed PMH process, particularly in its efforts to
move resolution of parenting issues to an inquisitorial–rather than
adversarial–format. For example, Relationships Australia Victoria (RAV)
believes that the Parenting Management Hearings 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.
In particular, the alignment with the existing principles and Best Interests of
Children contained in the Family Law Act 1975, and the safety provisions
detailed in the Bill, could provide vulnerable parents and children with
determinations to support safety and well-being.
Domestic Violence Service (EDVOS) also noted the benefits of such a shift:
the adversarial system has not worked. Pitting
one parent against the other leads to greater
conflict between parents, creating a negative
and irreparable impact on their parenting
relationship and causes harm to their children. Moreover, we find that the
adversarial system is embraced by people
with high conflict
behaviours, in particular coercively
controlling fathers who thrive in it.
noted potentially positive effects of the PMH on the court system more
generally. For example, Ms Kylie Beckhouse, the Director of Family Law, Legal
Aid New South Wales (LA NSW), suggested that:
lawyers are well aware of the strains facing the family law system and the
delays being experienced by those seeking a court adjudication. The impact of
these delays on children we represent cannot be underestimated. We therefore
welcome any measure that will lead to a speedier, more cost effective and safe
resolution of family law disputes. We sincerely hope that some of the cohort of
families who are currently stuck in the family law court system will be
eligible for parenting management hearing processes so that some pressure is
taken off the existing system.
The AGD cited
a number of parliamentary reviews and other expert opinions that supported the
Commonwealth working towards a tribunal-based system, including for cases involving
Others endorsed the expertise and experience of
the Principal and other Members of Panels stipulated in the bill, to bring a
range of perspectives to the decision-making of panels.
For example, RAV
submitted that the Panel:
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. In particular, the alignment with the existing principles
and Best Interests of Children contained in the Family Law Act 1975, and
the safety provisions detailed in the Bill, could provide vulnerable parents
and children with determinations to support safety and well-being.
Commissioners for Children and Young People from Western Australia and South
Australia particularly noted support for the child's right to be heard in the
PMH process contained in the bill.
noted that the overwhelming majority of evidence received for this inquiry
supported broad reform of the family law system and consideration of
alternatives to the existing court processes. Some submitters and witnesses
supported a move to a less adversarial, consent-based model of dispute
resolution, even if they did not support the bill currently being considered.
A number of
concerns were raised by witnesses and submitters that will be discussed in
of the pilot program
On 27 September
2017 the former Attorney-General, Senator the Hon George Brandis QC,
commissioned the Australian Law Reform Commission (ALRC) to undertake a
comprehensive review of the family law system and report by 31 March 2019.
Some evidence received by the committee argued in favour of this review running
its course before the commencement of the pilot programs looking to improve
parts of the family law system.
For example, the Australian
Human Rights Commission (AHRC)
there have been a number of inquiries into family violence and family law over
the past decade, the Commission considers that the ALRC review provides a
unique opportunity to address a broad range of concerns about the
implementation of children's rights across the whole family law system...The operation of the Parent
Management Hearings may raise complex issues that will benefit from a
consideration by the ALRC in its review of the family law system.
the Family Law Section (FLS) of Law Council of Australia (Law Council) suggested
that the PMH initiative represented a 'radical departure' from the existing
family law system, and so argued:
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'.
addressed this issue in the Senate on the
day the bill was introduced to Parliament:
that we're undertaking such a comprehensive review must not arrest or abate
more immediate needs for law reform. There are two the government identified
and announced in the budget, one of which you have referred to-that is,
parenting managing conferences. This is a pilot program, and I'm at pains to
make that point. We are running two pilot programs. The first is to be
commenced in the Parramatta registry in the middle of next year, and the second
is to be commenced at a location yet to be announced at the end of next year.
We are piloting a new mode for the resolution of disputes over children. It is
paramount that the interests of children, when parents are separating, are
treated with all the seriousness, care and concern that they deserve to be
treated with. These are pilot programs. They don't detract from the more
The AGD also noted
the ALRC review would take time to complete and implement, and so it would not
be able to address the need for immediate reform of 'chronic and critical need'
in the family law system.
Additionally, the AGD stressed that the bill only proposed pilot PMH programs,
and that the outcomes of the trials would inform both the ALRC review and future
evaluation of the PMH pilot will be able to provide insights into the impact of
a less-adversarial approach to resolving parenting disputes between
unrepresented parties; as well as the effectiveness of the specific model
proposed for the pilot in this Bill.
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.
The AGD also
pointed out that these bills and the ALRC review are not the only efforts being
made by the Commonwealth to improve family law processes. It stated that other
dispute resolution trials are also being undertaken in 'a broader program of work which is
trying to better equip the sector to be able to support families and children'.
base and lack of consultation
questioned whether there was a robust evidence base for the PMH trials to be
For example, Ms Karen Willis, the Executive Officer of the Rape and Domestic
Violence Services Australia (R&DVSA), told the committee:
very concerned with the parent management program that was being proposed. In
the first instance, the evidence on which it was based, when we checked it,
really isn't terribly robust. The evidence was based on some work done where
basically six people, three judges and three magistrates, were interviewed.
Unfortunately, with people who are in positions of doing things like that,
often their view will be influenced by 'what is best for me and what I think'.
There weren't actually any clients of those courts involved in that review of
that particular model. And of course the model that was being reviewed and
evaluated, on which this is based—well, the recommendation here [in the bill]
is different. So we're a bit concerned about the evidence base and we do think
that, if we're going to be doing anything in the family law area, it needs to
be evidence based.
argued the government had not undertaken consultation in developing the PMH
For example, Ms Zoe Rathus AM submitted:
of this Bill is rather strange and does not assist to build confidence in
future consultation and review. The funding for the PMHP was allocated in the
federal budget in May 2017. On
the very evening the budget was brought down Professor Patrick Parkinson
presented an address in the Banco Court of the Supreme Court of Queensland in
which he described his vision for such a tribunal. At that stage there had been no
public consultation on his vision, but in his address he advised that in
January, 2017, Brian Cox SC, Dr Nicky McWilliam and he had provided a
'private paper for the Government' which had 'presented a comprehensive agenda
... for family law reform' and contained ideas he had canvassed that evening. So
it seems that the money was allocated before the family law community had been
given an opportunity to consider and comment on this extremely new, novel and
untested tribunal model.
Patrick Parkinson AM and Mr Brian Knox SC addressed these concerns in their
submission and appearance before the committee, referring not only to the
consultation and research that was undertaken in developing the proposal, but
also the consultation the Commonwealth undertook on an exposure draft of the
bill. In particular, they referred to the widespread calls for Australia's
family law system to trial a more inquisitorial process, the successes of the
Informal Domestic Relations Trial in Oregon, USA, and Australia's positive
experience with multi-disciplinary tribunals in a range of applications.
Ms Paula Piccinini,
the General Manager of Direct Services for EDVOS, also expressed positive views
on the consultation that preceded the bill's introduction to Parliament:
have some input because, when the Attorney-General's Department was drafting
the legislation, we were fortunate enough to receive a confidential draft and
to respond to questions. We put in a submission to the Attorney-General's
Department, and I spoke at length with some of the senior policy lawyers there
about the legislation.
above, the AGD stressed in its submission that the PMH initiative was for a
pilot program only, which would collect further evidence to inform future
department considers that 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.
of the pilot
and submitters noted the significant cost of the PMH pilots. For example, the
Hon Peter Rose AM QC, a former Judge of the Family Court of Australia, argued
the PMH would be costly to pilot and implement more broadly. He noted it would be
a 'multi-layered, cumbersome, lengthy and costly new structure' that
necessitated 'a substantive new legal system; establishment of new decision
making body; panel support staff including those with professional
qualifications; panel staff and, potentially, consultants'.
The AGD commented
that the Commonwealth funding commitment of $12.7 million was for two
fully-evaluated PMH trial sites over four years, as well as funding for support
services, Independent Children's Lawyers (ICL) and an evaluation of the pilot.
and expertise of the panel
submissions supported the stipulations outlined in the bill for the expertise
and experience of the principal and other members of Panels, others expressed
For example, Women's
Legal Services Australia (WLSA) stated that each PMH should include one member
with expertise in 'family violence, child abuse and trauma informed practice
from a victim's-survivor's perspective'.
A number of
bodies representing the legal profession raised questions about the capacity of
panels to determine cases fairly, ensure procedural fairness was applied, and
guarantee the independence of panel members.
Hunter Valley Family Law Practitioners Association (HVFLPA) noted that Panel members
would 'be drawn from no more than lawyers and social scientists, which will be
a lesser qualification than presiding judges that determine parenting cases
Similarly, the Victorian Family Law Bar Association (VFLBA) commented that the
stipulations for non-legally trained members were too vague. It commented that
panel members with extensive training and experience in the social sciences may
not be as effective as judges in adjudicating parenting cases and ensuring
seriously be contended that skill in the social science, or community or health
work areas in any way qualifies a person as an impartial adjudicator to
determine a dispute according to the law.
submitted that the unexplained, but central to the Panel concept, must be the
notion that the appointed social scientists, community and health workers will
somehow be better or more efficient adjudicators than Judges. There is simply
no evidence to support such a notion. Judges and Justices should be appointed
to deal with Family Law Act matters by reason of their experience, training and
matters, the AGD submitted:
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.
On the legal
expertise of the panel more specifically, the department stated:
adopts stricter, and arguably more onerous, qualification requirements for
legally qualified members than those which are applicable to Family Court and
the Federal Circuit Court judges. Legally qualified Panel Members must possess specialist
knowledge and skills relevant to the duties of a Panel member including
knowledge of and experience in matters of family law.
capacity to recognise and respond to family violence or child abuse
noted concerns in evidence that the parenting management hearings may not be
able to reliably assess and handle cases where there was family violence,
either disclosed or undisclosed, including ensuring parties' safety and access
to procedural fairness.
the Law Council argued that the proposal contained only a 'simplistic and
ineffective mechanism' for recognising and dealing with victims or potential
victims of family violence. It suggested existing system had several advantages
over the proposed PMH, including: the automatic right to legal representation;
access to relevant trained personnel to recognise and support family violence;
judicial officers who were able to best ensure the safety of parties; and a
court system that was adaptable to the needs of vulnerable parties and
witnesses. It expressed concern that:
model contemplates victims and perpetrators of family violence participating in
an informal adjudication process. Such a proposal is at odds with other reform
proposals in family law which seek to protect victims of family violence from
direct engagement with the alleged perpetrator in the court process (see for
instance, the reform proposals regarding direct cross examination of vulnerable
witnesses). It is the experience of [the Family Law Section of the Law Council]
that procedural fairness of victims (and alleged perpetrators) of family
violence is best achieved in formal legal settings.
perspective was shared by other witnesses and submitters, including some who
represented or worked with victims of family violence. For example, Ms Kajhal McIntyre, a
Legal Researcher and Project Worker with R&DVSA, said:
note, of course, that there are several protections in this bill for people
with family violence, but we suggest that they just don't go far enough...We
would say that what we've ended up with is an uncomfortable compromise where
there's a large amount of discretion in the panel as to whether or not they do
hear family violence matters. We've heard a lot about what a complex versus a
non-complex family violence matter looks like. We would say that almost all
family violence matters are incredibly complex and it's not clear from the bill
which matters are too complex for them to hear or how they'll be making that
determination, so that's of great concern to us.
Ms Rathus, a
law academic appearing in a private capacity, commented:
continue to know is that actually getting these cases right where there's been
severe family violence is extremely difficult, in a way no matter what model
you use. I'm not confident that the make-up of that panel, the two-hour hearing
and the lack of legal representation are going to mean that victims of family
violence can get their case across any better on the papers there quickly than
happens in other situations. And I'm very afraid that they won't but that what
will come out that is a binding order perhaps too quickly.
submissions were more favourable about the PMH being able to deal adequately
with family violence.
For example, EDVOS submitted:
Management Panels hearing matters involving allegations of family violence, a history of family
violence and intervention orders.
present adversarial system has failed to
keep people safe or
violence. Typically, only 5% of matters reach a final hearing. Parties do
not get in the witness stand and have their
evidence tested until the final hearing.
Due to the high
cost of court proceedings and long delays, the vast majority of matters settle at interim hearings where Judges make orders 'on the
papers' without listening to the parties' circumstances...
envisage that the inquisitorial system will address allegations of family violence from the outset. Panel members will be able to ask questions
and enter into
discussions with the parents from the first hearing. The Panel member with expertise in family
will be able to conduct a risk assessment by asking the parties questions and observing their behaviour. The member with expertise in child development will be able to assess the impact or likely impact of the violence on the children. Arrangements
can be put in place from the outset addressing the parties' risk, safety and wellbeing. We anticipate family violence victim survivors will be more protected in
the inquisitorial system.
The AGD acknowledged
that the prevalence of family violence made it critical for any forum resolving
family law disputes to be capable of identifying and responding effectively. It
submitted that the PMH could not compel victims of family violence to
participate in hearings, and that panels were bound to 'carefully consider each
family’s individual circumstances and make an assessment as to the
appropriateness of the PMH forum', both for resolving the dispute and in
managing the safety risks for all participants.
The AGD noted
that preliminary work that had considered a range of views regarding family
violence and parenting decisions, and that:
consider that the approach taken in the bill strikes an appropriate balance for
a pilot. The bill provides that in all cases where family violence presents as
an issue, the panel will be required to turn its mind to whether or not it is
appropriate for the panel to consider the matter. Supported by appropriately
trained staff, risk-screening procedures and powers to compel and obtain
information and with multi-disciplinary representation on the panel itself, the
department considers that the panel will be well placed to assess whether a
matter involves a level of complexity that renders it inappropriate for it to
The AGD also drew
the committee's attention to features of the PMH that would benefit victims of
inquisitorial model, which would allow the panel to ask questions directly to
parties, as well as to seek other information from relevant individuals and
organisations. This would avoid the need for direct cross-examination of
parties, including the examination of a victim by a perpetrator as can occur in
normal family court proceedings, which causes trauma and distress for victims;
multidisciplinary membership and qualifications of the panel required by the
bill would mean the PMH is able to make decisions in complex cases, including
family violence expertise being a mandated requirement for Principal Members of
of other services to participating parties through the PMH process, including
specialist family violence expertise, and other support including drug and
questioned the risk assessment process that would be used by the PMH, noting
that the bill and Explanatory Memorandum do not outline it fully.
For example, although WLSA commended the inclusion of risk assessment process
generally, it submitted that:
reference is made to developing a risk assessment framework [in the bill and
Explanatory Memorandum] it is not clear whether there will be ongoing risk
assessment or risk assessment will be limited to risk assessment at intake.
Risk in family violence matters is dynamic and may heighten or reduce over a
given period. It should be made clear that the risk assessment will be ongoing
whilst the parties are in the PMH process and that the person undertaking the
risk assessment has the required professional skills to undertake this
Matthews, Principal Lawyer and Director, Legal and Policy of WLS Victoria and
WLSA, expanded on this at a hearing:
we talk about risk assessment...that needs to be dynamic. We don't know what the
time frames are necessarily going to be in the parenting management hearings,
whether or not the intake happens and there is then a time lag between the
collection of the material that people might be required to get and then the
actual hearings. Situations can very much change as far as the family violence
risk over that period of time is concerned.
submission commented that, should the bill proceed, the government should
assurances are obtained about the need for ongoing risk assessment and that the
professional [intake officer] undertaking the risk assessment has the required
experience and expertise in family violence, child abuse and trauma informed
EDVOS, outlined the way panels would go about recognising family violence, and
ensuring appropriate risk assessment was undertaken:
there'll be a family violence risk assessment, but, on the panel, a professional
from the social sciences should know how to continuously assess risk and manage
risk. That's their expertise. I would be astonished if that's not the practice
and if that won't be the practice. It just has to be. It's common sense that it
will be, and it's good practice that it will be. In the mediation sphere, the
family dispute resolution centres and the legislation that goes with those
centres, it's actually legislated that a mediator must continuously assess
risk. So it just makes sense that, on the panel, the social scientist will
continuously assess risk, and they'll do that by asking the parents: 'How safe
do you feel? What's happened recently? How were the children? Were they
present? What was your observation of the children when that happened?' They
have an understanding of the nature of family violence. Essentially, coercive
controlling violence is the violence that kills. That's the really dangerous
violence. They will be able to form an assessment as to whether or not that
behaviour is escalating, and, if so, what needs to be put in place to keep this
family safe and allow that child to thrive—and they'll do it continuously.
department pointed to the ability of the Principal Member of the PMH to
determine processes for managing risk:
preferable that the details about how, and at what stages of the process, a
risk assessment is to be conducted and revisited, and which identification and
assessment tools should be used, are left to the Principal Member to determine,
rather than expressly set out in the legislation. This provides the necessary
flexibility within the pilot to make sensible adjustments to operational
specification of operational processes for the Panel, though rules and other
directions issued by the Principal Member, is an approach that is consistent
with the case-management processes currently employed in the family law courts.
A number of submissions outlined the potential dangers of having panels
that were not sufficiently trained to support families from diverse
backgrounds, particularly for Aboriginal and Torres Strait Islander clients.
For example, the Aboriginal
and Torres Strait Islander Legal Service (Qld) Limited (ATSILS (Qld))
noted the significant barriers that Aboriginal and Torres Strait Islander
communities have in participating in the court or panel-based resolution
forums, and commented that the bill was largely silent on these issues. It
questioned whether panels would be able to adequately understand and address
and potential cultural obstacles, behavioural difficulties and their own
unwitting cultural biases.
People with Disabilities Australia (PWDA) stressed the need for the PMH
to have appropriate training, awareness or experience in working with people
that all panel members should have cultural competency and ongoing training
opportunities for working with a number of communities:
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.
addressed these comments in its submission:
agrees that cultural competency and diversity awareness is an important feature
in providing family law services. The department expects that Panel members
would have ongoing training and support to assist them in dealing with a range
of issues including identifying and responding to family violence and child
specifically provides that the Panel must have regard to any kinship
obligations, and child-rearing practices, of the child’s Aboriginal or Torres
Strait Islander culture (section 11JA) and that if the child is an Aboriginal
child or a Torres Strait Islander child, then the child’s right to enjoy his or
her culture, and the likely impact any proposed parenting determination will
have on that right, is one of the mandatory additional considerations the Panel
must consider in determining the child’s best interests (paragraph 11JB(4)(i)).
will be entitled to have a support person with them in the hearing (section
11LJ). This provision will allow the Panel to accommodate the needs of
applicants with disabilities who may require physical assistance when appearing
before the Panel, or the needs of people from culturally and linguistically
diverse backgrounds who, for example, may require an interpreter.
will be multi-disciplinary, with Panel members with a range of qualifications
appointed on both a full-time and part-time basis. This approach will allow the
Principal Member to ensure the constitution of the Panel is appropriate for the
particular case, taking into account the particular needs and issues of the
requires the positive written consent of both parties to submit their case for
decision. A number of concerns regarding this were raised, including:
The Law Council's
concern that the panel has the discretion–rather than the obligation–to dismiss
cases where consent is obtained by fraud, threat, duress or coercion;
Council and Victorian Family Law Bar's concerns that parties could manipulate
the system by withdrawing their consent at 'a time of perceived disadvantage in
the Panel system'.
to the former concern, the AGD noted that the bill was consistent with the
approach taken in the Family Law Act, citing the court's power to alter decisions
in cases of fraud, duress or false evidence, including rescinding a divorce
order under section 58, or varying a property order under section 79A.
the concerns of the VFLBA, the department noted that the decision to
discontinue an application was contingent on this being requested by both
parties. On potential manipulation, it commented:
that the requirement for consent may allow parties to manipulate the system—for
instance, by consenting to the hearing and then alleging a matter that would
require the Panel to dismiss the application (by for example, alleging child
sexual abuse or seeking a relocation order). While this is a possibility, the
department considers that the risk is low, given the serious nature of such
allegations/orders which would require dismissal. Evidence of this kind of
manipulation would be sought and assessed through the evaluation of the pilot.
A number of
concerns were raised about the way PMH proceedings would be conducted,
including that the bill:
include an explicit provision for the Panel to provide affected children with
an opportunity to provide their views, with some submissions arguing that an
Independent Children's Lawyer (ICL) should be provided in every case;
a Panel under section 11R to require a person provides specified information or
documents, and that failure to do so would be an offence, which would
impermissibly allow the Panel to exercise judicial power;
sufficiently protect sensitive information, including counselling records, and would
fail to encourage the 'the
need for family law professionals to commit to adopting victim-survivor centric
practices which should include guidelines for seeking least intrusive forms of
opportunities for children to express their views, the National Children's
Commissioner of the AHRC, Ms Meghan Mitchell, told the committee:
amendments do not give children who are affected by a parenting matter that is
before the proposed panel sufficient opportunity to express their views, in
accordance with article 12 of the United Nations Convention on the Rights of
the Child. Notably, the bill does not require the panel to provide an
opportunity for a child to express their views but to consider any views that
may be expressed through a family consultant or an independent children's
lawyer. The commission is concerned that, without a requirement to seek the
views of children, panel members, as with judges, will be hesitant to seek out
the views of children using mechanisms available to them. Studies consistently
show that children want to have more of a say in legal decisions affecting
department submitted that the approach taken was to give discretion to the
panel, and was consistent with the processes used by family courts. More
specifically, it commented:
ensures the right of the child to be heard by requiring the Panel to consider
the child’s views in determining the best interests of the child to the extent
that these views are available (paragraph 11JB(4)(a)). The Panel can seek the
child’s view in a number of ways, including by requesting a family consultant
to ascertain the child’s views or appointing a lawyer to independently
represent the child’s interests (section 11LK). The Panel retains flexibility
to give weight to a child’s views in accordance with the age and maturity of
be at the Panel’s discretion to determine when it would be appropriate [an ICL
to be appointed]. The department does not anticipate that an ICL would be
appointed in simple matters, or where the Panel determines that a child is able
to communicate their views via another means. Where that is the case, the
Panel could ascertain the views of the child in the manner provided for in the
Panel rules (paragraph 11JC(2)(c)).
On the risk
of the PMH exercising judicial powers, the AGD commented that any offences
would be prosecuted by courts, rather than the Panel itself, consistent with
the practice of other Commonwealth bodies.
department commented that the Panel's handling of sensitive information would
be addressed by Principal Member's Directions and general guidelines that will
'take into account these concerns, particularly in...the PMH's general approach
to dealing appropriately with matters involving family violence'.
advice before and during PMH processes
received some evidence arguing that parties to PMH arbitration should clearly
understand the legal issues affecting their case, and have full knowledge that
decisions made by the Panel are final and only subject to limited legal review.
For example, Ms Matthews, WLSA, stated:
there needs to be opportunity for the potential participant in the panel to be
able to explore what their legal issues are. If people were to self assess
whether their matter was a simple matter or a complex matter—because they'll
probably have confidence that their view on how it should turn out is pretty
much the right view—they may not recognise the complexity of the issues that
they would be bringing before the panel. I would also be concerned if people
were offered, 'You could go to court and wait 2½ years for a final
determination in your matter or you could go to court and have a few hours
before a panel' They really need to have a bit more information before them
about that, where the adviser has the opportunity to learn more about the
potential participant situation.
submission's outlined these concerns in greater detail:
legal advice and representation will be vitally important to ensure vulnerable
or disadvantaged parties (including women experiencing violence) understand
their legal options in order In the case of PMHs, it is important that parties
understand the process, consider whether it is an appropriate forum in their
circumstances and understand the consequence of a binding parenting
determination prior to making or consenting to a parenting determination
application. It will be important that parties referred to the PMH forum are
also referred for legal advice.
acknowledge 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.
recommended that, given these concerns, parties be able to access legal
assistance before entering into a PMH process; that leave for legal
representation is granted by the PMH when requested where any of the mandatory
considerations are met; and that this legal assistance is funded, particularly
in cases involving family violence or child abuse, including for a range of
specialist legal services.
included divergent views on the bill's provision that legal representation
would only be allowed with leave of the Panel, and subject to Panel directions.
Some evidence supported this, as it indicated a new non-adversarial approach,
whereas others suggested this may disadvantage some parties.
Council stated that it:
the implementation of any system, be it a Panel or otherwise, that excludes the
parties from the right to independent legal representation before it (see new s11LJ).
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 (s11LJ(3)) which may constrain the ability of a legal practitioner
to discharge their professional and ethical duties and obligations to their
that access to good legal representation was paramount for the safety of many
participants in family law cases.
submissions noted that the Panel could approve legal representation in
hearings, and recommended the bill provide that when one party is permitted
representation, then this right should also be extended to the other party. For
example, Professor Parkinson and Mr Knox recommended that in the interests of procedural
fairness, 'If leave to have legal representation is given to one party, the
other must automatically have a right to legal representation as well'.
department made the following points on legal advice and representation:
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, or
connection with, their parenting matter. Seeking and obtaining such advice
prior to making, or consenting to, an application to the Panel will be
approach taken in the Bill in relation to legal representation is not unique.
Requiring permission to be legally represented is a feature of other
is a consent based forum; it is open to parties to choose to use the family law
courts if they wish to be legally represented in the hearing stage of their
family law parenting matter.
AGD also commented:
is bound by the principal of procedural fairness. A party would be entitled to
seek judicial review of a Panel decision on the basis that procedural fairness
has not been observed.
approach taken to the issue of legal representation is intended to strike the
appropriate balance between preserving the benefits of an inquisitorial system
designed primarily for self-represented litigants, and allowing for legal
representation in the hearing when necessary, including where it would promote
the safety of families utilising the Panel.
provides that, where an application is for the relocation of the child, the
application must be dismissed (proposed subsection 11NA(2). Some evidence supported the PMH being
empowered to make decisions in relocation matters, whereas other perspectives
suggested decision making should remain with family courts.
For example, RAV suggested that PMH
proceedings should be able to consider relocation matters, given they were not
grounds for exclusion in family dispute resolution processes.
And Professor Parkinson and Mr Knox suggested a test could be considered
for inclusion in the bill, where a move of less than 100 km could be considered
by the PMH, provided this move was not interstate.
responded to these suggestions in its submission:
matters have been excluded from the jurisdiction of the Panel on the basis of
advice from the family law courts 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.
Commencement of determinations
Professor Parkinson and Mr Knox recommended that the bill specify that
determinations made by a Panel commence on the day of determination, unless
another day is specified. They justified this as follows:
Section 11PD provides that the determination does not come
into effect until a day specified in the determination. This is an example of a
level of detail which could cause difficulties without any great benefits. It
requires the Panel to remember to put in a commencement date for every
determination. By way of contrast, court orders take effect from the time they
are made unless specified otherwise.
of PMH decisions
A number of
concerns were raised to the committee about the right of review of the PMH
process, including that Panel decisions can be appealed in the Federal Circuit
Court only on a point of law, rather than merits.
submissions noted that the right of appeal afforded by the bill would be, in
effect, much more limited than appeal of court decisions.
Moreover, it was also noted that the Federal Circuit Court is only able to set
aside a PMH decision and refer the matter back to the Panel to be terminated or
re-decided–rather than being able to make its own decision.
The AGD noted
that, despite some limited similarities between family courts and the PMH in
exercising Part VII of the Family Law Act, there were significant differences:
determinations will be made by an expert, multi-disciplinary Panel who will be
well qualified to make determinations in the best interests of the child.
Unlike the courts, the forum is consent-based, and parties cannot be compelled
to participate. Appeal on a question of law only is consistent with the
approach to arbitration under the Family Law Act (section 13J)—which is another
consent-based mechanism for resolving family law disputes.
11Q(5) enables the Federal Circuit Court to make findings of fact by providing
it can only do so if they are not inconsistent with those made by the Panel.
The Court can, however, make findings of fact overriding those of the Panel
where the Panel’s findings are the result of an error of law–for example, where
the Panel did not make any findings in relation to relevant facts. In doing so,
it would be appropriate for the Court to receive evidence.
department considers it appropriate that the court be required to remit a
decision back to the Panel if it sets aside a decision of the Panel. The
intention is not for the Federal Circuit Court to be used as a forum to
re-litigate the issues of the case. As such, the court is limited to hearing
appeals on matters of law and limited findings of fact. In remitting a matter
back to the Panel, it will be open to the court to issue directions to the Panel
that it must adhere to in re-determining the matter.
allows for a parenting determination to be reconsidered by the Panel
(subsection 11NA(6)), or a court (section 65DABA), if there has been a
significant change in circumstances in relation to the child.
provides that a party may request written reasons for a parenting determination
within 28 days, when the Panel has only provided reasons orally. WLSA
recommended that the Panel be given discretion to provide written reasons
beyond this 28-day limit.
The AGD commented that this provision is consistent with other administrative
tribunal practice, and designed to ensure the efficient resolution of disputes.
Interaction with court or family violence orders
raised concerns about the way PMH decisions would interact with prior court
orders on parenting decisions, or family violence orders issued subsequently to
Society's submission was concerned that the Panel would be able to 'vary or
discharge orders made by a court in certain circumstances', and argued that
this would be tantamount to the PMH having the power to review a judicial
conceded that the PMH would usually be required to dismiss applications where a
court had already made a parenting order, unless there has been a 'significant
change in circumstances in relation to the child'. The department expanded on
this as follows:
intended to be consistent with the common law test applied by the family law
courts when considering whether to change an existing parenting order. In Rice
and Asplund, the court set out that a parenting order should only be varied
if there is some changed circumstance sufficient to justify such a serious step
or a new factor has arisen.
intention is that families are not precluded from accessing the Panel, which
may provide them with a quicker, cheaper and inquisitorial forum for resolving
disputes, simply because they have an earlier parenting order in place. Parenting
arrangements may need to be reconsidered and re-determined as the child gets
older and circumstances change, and parents may prefer to seek an outcome
through the Panel rather than a court. The consent-based nature of the PMH
forum is also relevant.
department further noted that this accords with the existing approach that
families should be encouraged to seek to vary parenting orders by agreement,
rather than through the courts, where possible. Moreover, it drew the
committees' attention to existing safeguards in section 64D(2) of the Act,
the court to, in exceptional circumstances, provide that an order of the court
can only be varied by a subsequent order of the court (and not by a parenting
plan) –thereby excluding this option. As noted in the relevant explanatory
memorandum, this approach might be adopted by the court if the court has
concerns that a later parenting plan would not be made in the best interests of
safeguard has been included in the Bill in relation to the ability of the Panel
to deal with an application if a parenting order is already in force in
relation to the child. Subsection 11NA(11) provides that the Panel must dismiss
the application if the relevant parenting order contained a provision that the
order must not be varied by a parenting determination. The Bill expressly
empowers the court to include such a restriction in a parenting order (new
The Explanatory Memorandum outlines that proposed section 11PY of the
...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.
Some evidence argued that this may place children in unsafe situations,
where a family violence order against one parent was lodged following a PMH
Regarding this, the Law Council submitted that it was:
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.
Henson, Chief Magistrate of the Local Court of New South Wales, suggested that
primacy must be given to the findings of courts that are issued subsequent to
essential that the proposed amendments to section 68R accompany the insertion
of section llPY to ensure a State court is not bound by the Panel's
determinations when making family violence orders which post-date such determinations. There must be enough
flexibility in the proposed interaction of these two areas to ensure that a
State court is able make orders for the adequate protection of those persons
who are the subject of a determination.
provided further detail about this in a submission:
provides state and territory courts with power to vary, suspend, or discharge a
parenting determination when the state or territory court has evidence that was
not before the Panel. That is, in being given the power to change pre-existing
parenting determinations, the state and territory courts will be able to ensure
that parenting determinations and family violence orders in respect of the same
family are consistent (see amended section 68R).
consistent with the current approach for parenting orders made by the court,
and ensures that the safety of parties will always be paramount.
further clarified this issue at a public hearing:
bill, the parenting management hearings panel will not be able to make a
determination that is inconsistent with a court order, including a state or
territory family violence order. The bill also sets out that a state or
territory court can't make a family violence order that is inconsistent with a
parenting determination. However, it's important that this provision is read
together with the power of the state and territory court to alter the parenting
determination. So for the latter example, we are getting at ensuring that we
don't have inconsistent arrangements in place.
take you through an example. There is a parenting determination in place made
by a parenting management hearing, and there's a subsequent family violence
incident responded to by the state or territory police. It lands in a state or
territory court, and it's necessary, for example, to restrict access or contact
between the two parents. What the state or territory court could do in making
the family violence order, for example, would be to adjust the parenting
determination to provide that changeover for the children is to occur in a
particular contact centre or a police station and not person to person, which
might have been what was provided for in the order before. So that's the way
that those orders are to work together.
department also informed the committee that the Commonwealth was developing new
programs of family law training for state and territory judicial officers, to
assist them exercising family law jurisdiction.
Society expressed some concerns with the enforcement of panel decisions,
That a party
who alleges a breach would be required to file an application in the Federal
Circuit Court, and file evidence in accordance with the Rules of Court, which
could lead to long delays in decisions; and
would be no additional funding for courts to undertake this enforcement
these concerns, the department stated that all PMH determinations would be
enforceable in the same way as court parenting orders, consistent with
decisions of other Commonwealth administrative bodies. On individuals filing
breaches, the department noted that '
system used by the court is well established, and that issues related to
enforcement of parenting determinations made in the pilot phase will be
monitored and evaluated'.
the AGD stated that it did not expect PMH processes to significantly increase
the workload for the court system.
questioned what recourses would be available to parties following the dismissal
of an application, should the PMH find it was not suitable for Panel
determination, noting that the bill contains 'no apparent rights or recourses
to be transferred to the more appropriate venue of a family court'.
department agreed that in these cases, there would be a need for support for
other forms of resolution. In particular, it stressed that this would be dealt
with administratively, rather than through a legislative transfer mechanism.
The department stressed that the pilot site in Parramatta would be co‑located
with family law courts, and so have a range of free-to-access support services
that would ensure dismissed families would be adequately supported. These would
include Commonwealth-funded legal services staffed by specialists in family
violence support services for both women and men. The department also stressed
that the second trial site would also be chosen with regard to the availability
of similar co-located support services.
submissions questioned the PMH's powers to dismiss an application if fees
required by regulation have not been paid within the prescribed period
(proposed subsection 11NA(15)). It was suggested that there could be waivers
for certain types of participants, or discretion for a Panel not to dismiss
applications in some cases where fees had not been paid, including due to
hardship or other extenuating circumstances.
department noted that no fees would be charged in the pilot program. Moreover,
it also noted that the bill amends the Family Law Act to allow for particular
exemptions of fees to be made.
suggested that transcripts of hearings should be free or low cost.
The department noted that transcripts would be available through services
linked to a particular court or tribunal, and that the bill did not provide for
the cost of this service, consistent with standard administrative tribunal
Court of Australia submitted that there was insufficient information in the
bill about the process and criteria of the PMH evaluation. This submission
advised that the bill could include details of evaluation, and pointed to the
model provided by the Exposure Draft of the Family Law Amendment (Family
Violence and Cross-Examination of Parties) Bill 2017.
Council of Single Mothers and their Children Inc. and The Council of Single
Mothers and their Children (Victoria) Inc. recommended that the evaluation
should include the experiences of litigants and children, and seek to include
those participants 'who were least likely to volunteer their views'.
A number of
submissions suggested that the Commonwealth should make the evaluation of the
pilot program public, to ensure transparency and accountability in both the
pilot and future rollout, should this occur.
On this, the
AGD submitted that the evaluation of the PMH would commence with the launch of
the pilots, and so early findings could inform the ongoing ALRC review.
Regarding the findings, the department stated that any public release of the
evaluation would be a matter for government.
Hosting by the Federal
questioned why the Federal Court was hosting the PMH, rather than the Family or
Federal Circuit Court.
pointed out that the Courts Administration Legislation Amendment Act 2016
had created a 'single federal court administrative entity', of which the PMH
would be a part. The AGD stated that the Federal Court was merely providing
funding and administrative arrangements for the pilots and:
Panel itself would not form part of the court. Decisions and parenting
determinations made by Panel members would be administrative in nature (that
is, these will not be an exercise of judicial power).
and resourcing for courts and legal services
Some submissions and witnesses argued that there should be an increase
in Commonwealth funding to the legal aid sector and/or to the courts, to drive
efficiency and enhance the assistance made available to parties in parenting
In addition, some evidence pointed to potential diversion of scant funds for
the sector into the Panel process, which could deplete courts and support
services of badly needed funds.
noted the power of the Minister to make rules about Panel practice and
procedure, which could represent a departure from the principle of separation
of powers between the executive and judiciary.
department observed that the bill contains only a standard legislative
instrument making provision, which is a general feature across Commonwealth
legislation. It further notes that more detailed procedures for the Panel to
follow would be included in Principal Member Directions made under 11VA of the
Committee view and
Evidence received by the committee on this bill broadly agreed that
Australia's family law system is in need of radical and comprehensive reform. The
committee notes the ALRC is working on a review to inform broad Commonwealth
systemic reform, to be handed to government in March 2019.
A number of witnesses and submitters noted that any systemic reform
should include consideration of a shift away from the adversarial model that
typifies many family court cases, toward models that encourage inquisitorial
decision making or arbitration.
The committee understands that the effect of this bill will represent a
significant shift in how disputes in parenting matters following separation are
resolved, toward a more inquisitorial model that would assist many cases being
decided without going to court. The department has made it clear that the
findings of these pilots will inform not only the potential broader rollout of
the PMH program, should it prove to be successful, but also the ongoing review
of the family law system being undertaken by the ALRC and other future reform
decisions made by the Commonwealth.
evidence recommending a delay in the trial of the program until after the
ALRC's work is finished, the committee makes two comments. First, comprehensive
reform of legal systems is a slow process, and it is important to look at ways
the system can be improved for participants, their children, and wider families
as soon as possible. Second, it is the government's intention that early
findings of the PMH pilot will inform the ALRC's evidence base and deliberations,
which will in turn assist the long-term goal of holistic reform of the entire family
expressed to the committee questioned the evidence base and consultation that underpinned
the PMH pilots. However, the committee also heard that the model proposed in
the bill has been successfully tested, not only through the inquisitorial-based
model in Oregon, but also a wide range of multi-disciplinary tribunals used in
Australia, and consultation undertaken by the department.
Some evidence questioned whether the Panel would be able to assess determine
cases fairly, ensure procedural fairness and maintain independence in decision
making, particularly in complex cases involving family violence. The committee
heard and agrees that a multidisciplinary PMH would be more effective,
efficient and procedurally fair in many cases that currently go to court, and
that the proposal has sufficient safeguards to recognise and deal with cases of
family violence that come before the Panel. This includes the flexibility for
Panels to refer matters on to courts should they judge it necessary, including
complex cases involving family violence.
Success will hinge on the PMH having a rigorous and well-defined risk
management process, particularly around family violence issues, and the
Principal and other Members having the experience and skills to manage risk
appropriately for the safety of all parties to a hearing. The AGD submitted
that the Principal Member would have some discretion in managing risk
assessment appropriately for different cases, and that the multi-disciplinary
nature of PMH would ensure the available skills and awareness of family
violence were adequate.
Similarly, the committee considers that the expertise on Panels will
enable effective recognition of cases where one party has been coerced into
participation, allowing the Panel to refer the case on for resolution in court
the committee sees some merit in the argument made by some submitters, that
risk assessment is not a 'one-off' activity undertaken at the beginning of a
particular case being considered by a PMH, but an ongoing process that is
continued and revisited until a decision is made. This could be done either by
the Attorney-General issuing practice directions or by regulation.
considers that the multidisciplinary nature of the Panel would ensure the
process is able to support a diverse range of parties, including Aboriginal and
Torres Strait Islanders, people with a disability, and applicants with
culturally and linguistically diverse backgrounds. Additionally, the committee
is satisfied that the views of children will be sought and represented
appropriately and sensitively in cases being decided by the PMH.
On the processes of the PMH, the committee strongly supports the contention
put by a number of submitters that all participants in PMH processes should be
made fully aware of the legal ramifications of engaging in the PMH process,
including that all decisions made by the Panel are final and only subject to
limited legal review, before agreeing to proceed. The committee recommends that
practices and procedures be put in place to ensure this happens.
The committee also supports the recommendation made in evidence that,
should one party be granted leave for legal representation, the other party
should have that right extended to them, and recommends accordingly.
The committee sees merit in further considering the recommendation that
the Panel be given the authority to determine some relocation matters, where the
distance is less than 100 km, and recommends accordingly.
Similarly, an amendment specifying that determinations come into effect
on the day they are made, unless another date is specified by the Panel, is
needed. The committee recommends that either amendment to the bill, or to the
relevant regulations, be implemented to address this matter.
notes the concerns raised in evidence about the interplay of court and family
violence orders and decisions of the PMH, and strongly agrees that the safety
of parties to PMH and their families should be paramount. The committee accepts
the evidence provided by the AGD that these concerns have been appropriately
considered and accounted for in the bill, and that the regime being proposed is
consistent with other current practice.
On the rule making power of the Minister, the right of review of decisions,
and the cost and availability of transcripts, the committee understands from
the department that these provisions are in line with the standard practices of
other Australian tribunals. The committee recommends that appropriate
guidelines be developed around the use of sensitive records and evidence by a
public release of evaluation of the pilot program, the committee sees merit in
the proposal that the Commonwealth should publically release the findings of
the evaluation. This would ensure that any rollout of the program would be
transparent and accountable. The committee recommends accordingly.
considers that the trials proposed by the bill represent a positive step
forward for affected parties, and that the PMH trials will provide valuable
experience and knowledge in the reform of the family law system in the future.
committee notes that the jurisdiction of the Panel to hear any matter requires
the consent of all parties. Failing that consent, the existing system will
apply, but the committee also notes that there is universal concern at some
aspects of the current arrangements dealing with children and believes that the
proposal in the bill is a positive step forward if it is taken with the necessary
The committee recommends that practices and procedures be put in place
to ensure that all parties to Parenting Management Hearings are made fully
aware of the legal ramifications of engaging in the process.
The committee recommends that should one party be granted leave for
legal representation, the other party should also be granted leave.
The committee recommends that the government consider giving the Panel
authority to determine relocation matters where the distance of the relocation
is less than 100 kilometres.
The committee recommends that amendments be made to either the bill, or
to the relevant regulations, to ensure that Panel determinations come into
effect on the day they are made, unless another date is specified by the Panel.
The committee recommends that appropriate guidelines be developed to
govern the use and storage of sensitive records and evidence by a Parenting
recommends that the government publicly release the evaluation of the Parenting
Management Hearing pilot program.
On the basis that the government will seriously consider and, where
appropriate, action the recommendations made, the committee recommends that the
bill be passed.
Senator the Hon Ian Macdonald
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