A proposed new forum for resolving family law disputes relating to children. The parenting bill proposes to establish a new statutory authority to offer self-litigants (parents who do not have legal representation) an alternative to having their matters heard in the Family or Federal Circuit Courts (The Family Courts).
A vast majority of matters heard in the Family Courts involve unrepresented parties. They do not, in the main, have the knowledge or ability to fully understand the complexities of the Court process. The Courts do provide legal assistance to such parties and free advice can be provided on the law and conduct of their matters. The advice is provided by a “duty solicitor” stationed at the Court. There is no fee for self-litigants to obtain the assistance of the duty solicitor.
However, without proper legal representation and because of the lack of knowledge of the law and knowledge of the presentation on of their case, self-litigants prolong the hearings of the matters before the Judge of the Court. The Judges endeavour to assist them as much as possible, which further lengthens the time required to hear their matters. In many instances, their applications are faulty or not relevant and their matters are adjourned to a further hearing date to enable the parties to properly prepare their material, which again lengthens the court process.
The results, eventually achieved, may not be the most satisfactory outcome for such litigants and their children who are the subject of the proceedings.
As stated in the second reading speech when the parenting Bill was presented to Parliament, ‘self-litigants often face considerable challenges due to the complexity of the rules that apply and the adversarial nature of the system. Many are struggling, not only with the loss and pain of a family separation but with coexisting challenges, including housing and financial and social stress and mental health issues.’
AN EXPOSE OF THE PROPOSED NEW PARENTING LEGISLATION: THE FAMILY LAW AMENDMENT (PARENTING MANAGEMENT HEARINGS) BILL 2017
Because of the importance of this legislation, it has been displayed in full detail on our website.
So, what does this legislation propose to overcome these difficulties?
Its aim is to give, as stated in the second reading speech, ‘the parents that would otherwise be in Court without legal representation the option to obtain a binding decision about parenting arrangements in a quick, fair, just, informal and economical way, all the time ensuring that decisions are made in the best interests of the children and that safety is prioritised’.
These are lofty ambitions.
Needless to say, these are the ambitions of the Family Courts.
As stated in the second reading speech, the key feature of the Parenting Management Hearings parenting Bill model is its multi-disciplinary approach. The panel will be constituted by members with specialised skills and expertise in family law.
Hold on a minute…Don’t we already have this?
The Family Courts
The Family Courts not only provide litigants with the benefit of legal representation by family lawyers with an extensive knowledge and depth of family law but can direct the parties to professional assistance with psychologists and mental health specialists when required
The parties are required, and I emphasise this, to attend mediation, either with privately engaged mediators or mediation provided by skilled mediators at the many Family Relationships Centres established by the federal government for this purpose. There is no fee for such mediation at the centres.
Many matters resolve by this process.
Many parents are so entrenched in their conflict, so that no matter how much help was provided, they do not have the capacity or ability to overcome their conflict.
In the Court process and prior to the matter being heard by a Judge, the parties and the children (if the children are of an age to be involved in such process) are referred to a Family Consultant.
The Courts will not hear an application involving children unless the parties have attended on some form of mediation, being a mediation recognised by the Court.
Will the lofty ambitions of the new legislation overcome these difficulties?
We do not think so.
The Judges of Family Courts will not hear an application in regard to children, unless there is some urgency involved, until the parties have attended mediation. If the parties have attended mediation and have obtained an appropriate certificate stating that the mediation has taken place or for some reason has not been able to take place, the Judge will then refer the matter to a Family Consultant who is attached to the Court. There is no fee for the parties attending on a Family Consultant. A Family Consultant is highly qualified to provide assistance and advice to the parties to resolve their matter. The Family Consultant will submit a very detailed report to the Court on the issues involved in the conflict, on the children’s wishes, and on the party’s attitudes and abilities to resolve their matter.
After the parties have attended on the Family Consultant their matter will again come before the Judge of the Court on an adjourned hearing date. The Judge will have the benefit of the Family Consultant’s report when the matter comes before him.
If the parties have ongoing issues which are not resolved, the Judge has power to appoint an Independent Children’s Lawyer (ICL) to represent the children in the Court process to present the best interests of the children. The ICL has the ability to obtain medical, school and other reports relating to the children and family and also can appoint a further qualified professional to again consult the parties and the children and provide a detailed Family Report to the Court.
If the matter is not resolved, it will be again adjourned to a hearing before a Judge and a trial date will be appointed.
The only flaw with this system is the extreme number of applications before the Courts and the inability of the Judges to deal with the number of applications, which means lengthy delays in having the matters resolved?
Are there other means of dealing with children’s issues, maintaining the lofty ambitions as proposed to in the new legislation, which are also cost-effective and which would allow the matters to be determined in a timely manner?
Yes, there is.
Joint collaborative mediation
There is a detailed outline of this process on our website and I would encourage any parent with children’s issues to refer to this.
What is a joint collaborative mediation?
It is conducted by two highly trained professionals, a solicitor and psychologist, who have had extensive training in collaborative practice. They are a male-female combination to match the gender of the parties. This is initially a settling factor for the parties. The mediators are non- partisan. Their aim is to resolve the matter in a way which best achieves the best interests of the parties and the children involved with an endeavour to maintain a relationship between the parties which can best manage the children’s future needs. The meetings are normally conducted over a number of two hourly meetings. These meetings normally achieve an outcome for the parties. 80 to 90 percent of matters are normally resolved with the remaining number, if not fully resolved, having a foundation for their resolution.
Again, the parties can be referred to psychological and other professionals to provide assistance when required. Meetings can be arranged speedily.
Because the meetings are conducted over a very short timeframe, the cost for the parents is restricted.
I strongly recommend you read the article on joint collaborative mediation on our website.
What does the new legislation propose that is different to the processes outlined above?
A panel will be appointed to hear such matters.
The panel comprises:
- A legally trained principal member who is specialised and skilled in the matters of Family Law.
- Other panel members which can include legally trained professionals, psychologists, and mental health professionals.
‘ to manage the hearings, to undertake inquiries and gather information to promote informed and safe outcomes for families.’
Hold on. Does this not already apply? Of course, it does.
However, ‘it is anticipated that the parties will be able to speak freely to the panel members.’
Wait on. Does this not already apply? The parties can speak freely to the Court and other professionals appointed or engaged.
‘The approach will allow panel members to investigate and focus on the information and issues most pertinent to the dispute, whilst ensuring that the process is procedurally fair and vulnerable members get the support they need.’
Hold on. Does this not already apply? Of course, it does.
What’s new? It is the creation of another forum to hear the matters.
‘Families will still be required to resolve their disputes themselves where possible and appropriately, to attend family dispute resolution services, before making an application to the panel.’
Hold on. Does this not already apply? Of course, it does.
‘The forum is designed with self-represented litigants in mind. Legal representation may be allowed with leave of the panel to allow the parties to effectively participate in the hearings. This does not preclude parties seeking legal advice.’
Hold on. What’s new? Nothing.
Self-litigants in the Family Court are not legally represented. They are at liberty to seek legal advice if they wish to do so.
So, what’s new with the proposed legislation? Virtually nothing.
The Federal government has already spent $ 12.7 million to pilot a new forum. What will be the future expenses? Where will the panel sit for their hearings? What will be the cost of establishing and providing a venue for such hearings?
The panel comprises a number of professional people, again an added expense. The principles set out in the legislation, in many respects, are the principles of the present family law. The legislation is virtually a duplication of the present Court process.
So why can’t the Courts deal effectively with the present applications of self-litigants? The reasons are the sheer volume of applications presently before the Courts and the lack of Judges to hear such matters.
Cost-Effective Legal Solution
Wouldn’t it be more cost-effective in not spending extreme monies on establishing a new body to hear these applications of self-litigants, but to appoint more Judges and to review the present Court process in the Federal Circuit Court (a part of the Family Court) and allow the Federal Circuit Court Judges to have other professionals (suggested in the proposed legislation) such as psychologists, to sit with the Judge to provide assistance in other areas such as mental health and psychological issues.
Under the proposed legislation, the forum is to be reviewed and evaluated over a period of time.
The legislation also requires an independent review of the operation of the Family Law Act over a three-year period.
Other government initiatives proposed are:
- Funding of $468 million for family law services providing support to separating families;
- $10.7 million funding for the Family Courts to engage additional family consultants to assist with complex parenting matters; and
- Funding for family violence services.
The proposed legislation will endeavour to provide a holistic approach to parenting matters. It proposes a multidisciplinary panel with expertise in child development, psychology, family dispute resolution, social work and family violence.
Hold on. Doesn’t the present Family Court system provide this? Yes, it does.
Under the proposed legislation, the panel will be subject to judicial review in the Family Courts. This is already provided in the Family Court process.
The panel may request a report from a Family Consultant.
Hold on. Don’t the Family Courts already do this?
The panel can appoint an Independent Children’s Lawyer.
Hold on. Doesn’t this already exist?
The forum will deal with and make a determination on the person or persons with whom the child is to live, the time a child is to spend with another person or persons and the allocation of parental responsibility for the child.
Hold on. Aren’t these the functions of the Family Courts?
The forum must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibilities, which may be rebutted in certain circumstances.
Sometimes it is not appropriate for the child to spend equal time with a parent and the panel must consider substantial and significant time with a parent if it is in the child’s best interests and to make such a determination of time that is considered to be in the child’s best interest.
This legislation reflects the same provisions of the Family Law Act regarding children. Even the principles of Rice & Asplund ( a family law decision ) are to apply when revisiting any applications which have previously been dealt with by the forum.
Is it really necessary to establish another forum which will reflect legislation which already applies in the Family Courts, or would it be more cost effective to review the Family Court process, which I have suggested, to appoint other professionals to the Court to assist the Judges when making their decisions?
We leave it to you to decide.
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