Women’s Legal Services Australia (WLSA) has made a submission to the Senate Legal and Constitutional Affairs Committee in response to the Family Law Amendment (Parenting Management Hearings) Bill 2017. This Bill was introduced into the Senate on 6 December 2017 and was referred to the Senate Committee for inquiry and report. The Committee released its report on 26 March 2018. You can read the Committee’s report here.
The proposed Parent Management Hearings (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 PMH, we advocate any new model should be based on research and evidence and informed at every step by domestic violence experts. WLSA recommends the PMH model be referred to the Australian Law Reform Commission which is currently undertaking a comprehensive review into the family law system.
Parent Management Hearings (PMH) have been described as “a fast, informal, non-adversarial dispute resolution mechanism” to resolve less complex parenting matters.
The Bill proposes that PMHs will be determined by a multi-disciplinary Panel made up of legal and non-legal experts and is designed for unrepresented parties. The Bill proposes Panel members will have the power to fully displace the parental responsibility of one parent.
We note that matters in which family violence and some forms of child abuse are alleged are not automatically excluded from the PMH forum. It is our experience that such matters are generally complex.
While noting the PMH model does consider the issue of family violence, WLSA raises a number of concerns, including:
- The Explanatory Memorandum says there will be a comprehensive risk assessment. The Practice Directions relating to this are yet to be developed and it is not clear if risk assessment will be ongoing. Given risk in family violence is dynamic, ongoing risk assessment by suitably qualified professionals is important.
- The Principal Panel member is the only Panel member required to have expertise in matters relating to family violence. However, the Principal Panel member is not required to sit on each panel.
- All Panel Members and staff conducting risk assessments should be culturally competent with respect to working with Aboriginal and Torres Strait Islander families, culturally and linguistically diverse families and LGBTIQ+ families as well as disability aware and have ongoing training in cultural competency; disability awareness; family violence, child abuse and trauma informed practice; and working with vulnerable clients.
- Legal representation will only be allowed by leave of the Panel. While family violence and power imbalances are relevant factors in granting leave, no funding has been allocated for legal representation. This means that those who are granted leave may not practically be able to arrange representation.
- The Panel has the power to require the production of information and documents. It is not clear what procedures will be required to be followed, for example, regarding objections to providing such information and documents. There is a need for the development of guidelines about the use of sensitive records.
PMHs are proposed as a pilot in two sites – Parramatta and a second site yet to be confirmed.
On 27 September 2017, the former Commonwealth Attorney-General, Senator the Hon George Brandis QC, commissioned the Australian Law Reform Commission (ALRC) to undertake the most comprehensive review of the family law system in Australia that has ever been undertaken. The ALRC is currently accepting submissions in response to their Issues Paper by 7 May. In our view, it makes sense that the PMH be delayed and its implementation be specifically considered by the ALRC in their review before piloting such an untested model.
Our submission was endorsed by a number of sexual and domestic violence and women’s peak bodies and services.
You can read our submission here.
WLSA appeared before the Committee to give evidence. You can access the transcript here.