Legislation for Family Law Parenting Management Hearings Introduced Into Senate

Monday 18 December 2017 @ 9.58 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

On Wednesday 6 December 2017 the Family Law Amendment (Parenting Management Hearings) Bill 2017 (Cth) (the Bill) was introduced into the Senate and progressed to second reading stage, where on 7 December 2017, it was then referred to the Senate Standing Committee on Legal and Constitutional Affairs. In broad terms the Bill proposes the establishment of a Parenting Management Hearings Panel (the Panel) to provide litigants who would be self-represented with ". . . a more flexible and inquisitorial alternative to the court process for resolving parenting disputes". 

Lead Up and Background

In a recent Media Release (6 December 2017) the Attorney General indicated this was one of two Bills intended to:

". . . ease the pressures on separating families, better protect vulnerable women and children and ensure family law matters can be dealt with swiftly and affordably, with children’s best interests prioritised".

The other Bill being the Family Law Amendment (Family Violence and Other Measures) Bill 2017 (Cth).

According to the AG the two Bills will eventually form part of ". . . a comprehensive suite of initiatives by the . . . Government to fundamentally reform the family law system". These measures are intended by the Government to supplement the already announced the ". . . first ever comprehensive review of the family law system since the Family Law Act commenced over 40 years ago".

The Bill - Overview and General Concepts

The proposed Panel would see the establishment of an independent statutory authority that would conduct hearings and make binding administrative determinations in respect of parenting arrangements for children - similar to the kind of "parenting orders" made by the Family court under the Family Law Act 1975 (Cth) (the Act). 

The proposed model of parenting management hearings would aim to "encourage and support families" to a resolution of their parenting disputes in what is described as "a prompt and informal way", through "a more user-friendly and less-adversarial forum than the traditional court system".

Hearings conducted under proposed model would be require the parties to consent to participation in the hearing - that is, the parties could not be forced or compelled to participate. Further, families would, still be required to try to resolve their disputes among themselves, where it is possible and appropriate, using family dispute resolution services where required.

The proposed model is said to follow what the research has shown, that reduced parental conflict after separation and the the timely resolution of parenting disputes is beneficial for children and families - this is seen as superior when compared to the  traditional adversarial system, which is based on conflict as two opposing sides present their case. Under the proposed model those managing the hearings will ". . . undertake inquiries and gather information to promote informed and safe outcomes for families.

The Panel hearings would be heard by an expert, multi-disciplinary Panel. The Bill requires the Panel members to have specialist skills and expertise in relevant fields which would include:

  • family law, 
  • family dispute resolution, 
  • family violence, psychology, 
  • mental health and 
  • child development.

The provision of experts from multiple disciplines is seen as assisting the Panel to ". . . better support families and to make decisions in the best interests of the children."

The explanatory material identifies "two key principles"  underpinning the operation of the proposed parenting management hearings:

  • First, is that the hearings will be fair, just, economical, informal and prompt. 
  • Second, is that the best interests of the child will be the paramount consideration. 

This second principle is consistent with the Part VII of the Act which deals with Children.

Another important aspect of the Bill is the recognition of the need for the Panel to be able to deal with family violence which is a common experience among separated parents. To this end the Principal Member appointed to lead the Panel would be required to have specialist knowledge of, and experience in, dealing with matters relating to family violence.

Further, the Bill ensures that  the Panel will give careful consideration to the family’s individual circumstances, and will make an assessment about the capacity of the Panel to manage any safety risks for the family through the forum - note, the Panel will " . . . not be empowered to deal with applications involving allegations of child sexual abuse."

Because the Panel will operate under a "more inquisitorial model", the Panel members will have greater control over the hearings, the direction of lines of inquiry and the focus of the hearing, questioning will be by Panel members which will avoid potential for cross-examination of victims by a possible perpetrator of family violence.

The Bill - Pilot Program

The Government is looking to implement the legislation by way of a pilot program which would follow the passage of the Bill, operating in one location initially, at Parramatta, and at a second location in late 2018. The pilot program would then be be independently reviewed and evaluated, with a reporting date of three years after its commencement.

The Bill - Specific Amendments

The key changes made by the Bill are:

  • parenting management hearings aimed at resolving disputes for self-represented litigants in a non-adversarial manner;
  • people would be able to apply directly to the Panel, or to be referred from a family law court, with the consent of the   parties;
  • the Governor-General must appoint a Principal Member and other Panel members with specialist expertise and skill;
  • the decision-making framework to be used by the Panel in making determinations would be consistent with that applied by the family law courts under Part VII of the Act;
  • determinations made by the Panel would be binding and enforceable through a court exercising jurisdiction under the Act;
  • Panel members would have discretion to control the hearings in a way that is most appropriate to the individual   circumstances of each application;
  • legal representation during the hearings would be allowed with the leave of the Panel, and subject to any directions of   the Panel;
  • judicial review would be available on a question of law, and
  • an independent statutory review of the pilot must be completed within three years of commencement.

Consequential amendments are made by the Bill to the Public Interest Disclosure Act 2013 (Cth) to ensure that information relating to parenting management hearings would not be able to be disclosed publicly under the public interest disclosure scheme. As well several other Commonwealth Acts are amended to include references to "parenting determinations" in addition to "parenting orders".

Next for the Bill

As already indicated above, the  Bill was on 7 December 2017 referred to the Senate Standing  Committee on Legal and Constitutional Affairs for inquiry and report by 26 March 2018. The deadline for submissions to the inquiry is 7 February 2018, details for how to make a submission are here

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