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Family Law Amendment (Parenting Management Hearings) Bill 2017



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BILLS DIGEST NO.98, 2017-18 24 APRIL 2018

Family Law Amendment (Parenting Management Hearings) Bill 2017 Mary Anne Neilsen Law and Bills Digest Section

Contents

Purpose of the Bill ........................................................... 4

Structure of the Bill ......................................................... 4

Background ..................................................................... 4

The family courts and family violence ........................ 4

Parenting Management Hearings Pilot ....................... 6 Australian Law Reform Commission Review ............... 6 Other legislative reform and public consultation ....... 7 Committee consideration ................................................ 7

Senate Legal and Constitutional Affairs Legislation Committee ................................................ 7

Report ........................................................................ 7

Dissenting reports ..................................................... 7

Senate Standing Committee for the Scrutiny of Bills .............................................................................. 8

No-invalidity clause ................................................. 8

Reversal of evidential burden of proof ................... 8 Policy position of non-government parties/independents...................................................... 8

Labor .......................................................................... 8

Australian Greens ...................................................... 9

Position of major interest groups..................................... 9

Family Law Section of the Law Council of Australia .................................................................... 9

Patrick Parkinson and Brian Knox ........................... 10

Chief Justice of the Family Court of Australia ......... 10

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.

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Australian Human Rights Commission .................... 11 Women’s Legal Services Australia ........................... 12

Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd ...................................................... 12

Zoe Rathus ............................................................... 12

Victorian Family Law Bar Association ..................... 12 Relationships Australia Victoria .............................. 13

Attorney-General’s Department ............................. 13

Financial implications .................................................... 13

Statement of Compatibility with Human Rights.............. 13

Parliamentary Joint Committee on Human Rights ... 14 Key issues and provisions .............................................. 14

Part IIIAA—Parenting management hearings ................. 14

Outline of Part IIIAA .................................................. 14

Division 1: Introductory matters and definitions ...... 14 Objective of Part IIIAA ............................................. 14

Meaning of ‘parenting determinations’ .................. 15 Presumption of equal shared responsibility ........... 15 Best interests of the child ....................................... 15

Division 2: Parenting Management Hearings ........... 16 Applications for parenting determinations ............. 16 Comment ............................................................... 16

Consent of parties required .................................... 17

Comment ............................................................... 17

Prehearing conferences .......................................... 18

Procedures for panel hearings ................................ 18

Comment ............................................................... 19

Legal representation and assistance ....................... 19

Comment ............................................................... 19

Independent children’s lawyer ............................... 20

Comment ............................................................... 21

Division 3: Parenting Management Hearings Panel .......................................................................... 21

Powers of the Panel ................................................ 21

Allegations of child abuse and family violence ....... 22 Comment ............................................................... 22

Dismissing applications ........................................... 22

Mandatory dismissal of applications ...................... 22

Comment ............................................................... 23

Discretion to dismiss applications ........................... 23

Comment ............................................................... 24

Parenting determinations ....................................... 24

Appeals to the Federal Circuit Court ....................... 25

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Comment ............................................................... 26

Panel rules ............................................................... 26

Division 3: Parenting Management Hearings Panel .......................................................................... 26

Establishment and functions of the Panel .............. 26 Membership and organisation of the Panel ........... 27 Comment ............................................................... 27

Principal Member directions ................................... 29

Management of the Panel....................................... 29

Division 5: Review of Part IIIAA ................................. 30

Comment ............................................................... 30

Concluding comments ................................................... 31

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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

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.

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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

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.

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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

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.

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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

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.

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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:

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.

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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.

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.

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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

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.

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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.

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.

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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.

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.

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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

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.

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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

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.

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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

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(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

60. Explanatory Memorandum, Family Law Amendment (Parenting Management Hearings) Bill 2017, p. 47. 61. Z Rathus, Submission, op. cit., p. 4.

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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:

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.

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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

67. J Pascoe, Submission, op. cit., p. 4. 68. Explanatory Memorandum, Family Law Amendment (Parenting Management Hearings) Bill 2017, p. 51.

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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

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.

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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

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.

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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)

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.

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• 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

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

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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)).

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.

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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.

94. Ibid., p. 71. 95. FLS, Submission, op. cit., p. 10. 96. Ibid. 97. Ibid., pp.10-11.

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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.

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.

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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

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.

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• 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

107. Explanatory Memorandum, Family Law Amendment (Parenting Management Hearings) Bill 2017, p. 98.

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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

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.

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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

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.

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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

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.

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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.

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