The Government’s proposed family law initiative, the new Parenting Management Hearings scheme, has been heavily criticised right from its announcement in last year’s Budget, and it has now come under fire once more, this time by the Law Council of Australia.
At a parliamentary hearing last week, the Law Council advised its position was that the Parenting Management Hearings scheme should be abolished, with the funding going instead towards resourcing existing struggling family court systems. The Family Law Amendment (Parenting Management Hearings) Bill 2017 is before the Senate at the moment.
Currently funded to the tune of $12.7 million over four years, the Parenting Management Hearings scheme was revealed by the former attorney-general George Brandis last year “without consultation with the legal profession” provoking criticism that the Government had outsourced policy-making and not enabled adequate consultation with stakeholders.
The hearings are being promoted by the Government as a way of allowing self-represented litigants a “fast, informal way to resolve disputes outside the adversarial court system”. In a Parenting Management Hearing, self-represented parties would have their matters heard by “specialist multi-disciplinary panels” comprising practitioners from the fields of family law, family dispute resolution, family violence, psychology and child development. The pilot program is to begin in Parramatta this year.
On face value, anything that directs families towards alternate dispute resolution processes and alleviates the pressure on the family court system would surely be a good thing. But these quasi-judicial hearings are widely regarded as being ill-conceived.
Morry Bailes, the President of the Law Council has now told the parliamentary hearing that the scheme is a “radical departure” from existing family law procedures and only adds “another layer of complexity in what is already a complex system”. He said the danger is that it could increase the risk to families instead of reducing it. For example, the interests of family violence victims could be endangered, as parties would not have legal representation.
Instead, the funding should be directed towards areas of the court system that were in desperate need of resources, such as “counselling and support services, such as contact centres” and funding for the recruitment of more registrars.
“Funding of this magnitude could make a significant improvement to the capacity of the Family Court and the Federal Circuit Court to triage and hear cases more quickly,” Mr Bailes said.
Last year, the then-Chief Justice of the Family Court, Diana Bryant, criticised the scheme too, “stating they were effectively a tribunal with a panel of decision makers. She asks, ‘Why do we need a tribunal rather than a judge? A tribunal is a very different creature indeed from a judge hearing out as a less adversarial way. One of the hallmarks of our [court] system is transparency, and part of that comes with open courts so that anyone can attend and listen to a hearing. Will there be an equally open hearing with a tribunal?’”
Mr Bailes last week said that decisions “about matters such as where a child lives, with whom a child spends time, and how a child communicates with a parent, let alone questions of parental responsibility, are matters that are, and should remain, within the remit of judicial decision-making power of judges”.
But The Australian quotes a response from law professor Patrick Parkinson, one of the architects of the scheme:
“The idea that a recently appointed judge with a background in commercial law is better at deciding parenting cases than a multidisciplinary panel consisting of a very experienced family lawyer and psychologists, psychiatrists or others with years of experience in the field needs to be challenged,” Professor Parkinson said. Parenting cases actually involved very little law, so it was “odd” to insist lawyers be the only ones deciding cases.
The notion that parenting disputes in family law “actually involve very little law” may be disputed by family law practitioners, who likely understand it to be a complex field of law.
And why shouldn’t the judiciary be “deciding cases”? Isn’t that their specific job, that they are highly trained to do? This appears to be another dig at the value of the Australian judiciary who are often singularly blamed for unsatisfactory situations in the family court system.
What’s more, according to The Australian, “Only one member of the panel will usually decide each case”. If this is true, it could be the family lawyer on the panel deciding the case anyway. So, a family lawyer (let alone a counsellor) is more qualified to decide a parenting outcome than a family court judge?
Do you need assistance with a parenting matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law, on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.