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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAMILY LAW AMENDMENT (PARENTING MANAGEMENT
HEARINGS) BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
Family Law Amendment (Parenting Management Hearings) Bill 2017 ................................... 1
General outline ........................................................................................................................... 1
Financial Impact Statement........................................................................................................ 3
Statement of Compatibility with Human Rights ........................................................................ 4
Notes on Clauses ...................................................................................................................... 31
Clause 1--Short title .................................................................................................... 31
Clause 2--Commencement ......................................................................................... 31
Clause 3--Schedules ................................................................................................... 31
Schedule 1--Amendments....................................................................................................... 32
Part 1 Main Amendments ................................................................................................ 32
Family Law Act 1975 ...................................................................................................... 32
Item 1--Subsection 4(1) (before paragraph (a) of the definition of child).................. 32
Item 2--Subsection 4(1) .............................................................................................. 32
Item 3--Subsection 4(1) (definition of interests) ........................................................ 32
Item 4--Subsection 4(1) .............................................................................................. 32
Item 5--Subsection 4(1) (definition of parent) ........................................................... 33
Item 6--Subsection 4(1) (definition of parental responsibility) ................................. 33
Item 7--Subsection 4(1) .............................................................................................. 33
Item 8--Subsection 4(1) (at the end of the definition of primary order) .................... 33
Item 9--Subsection 4(1) .............................................................................................. 34
Item 10--After paragraph 4(1AB)(aa) ........................................................................ 34
Item 11--At the end of subsection 10D(4) .................................................................. 34
Item 12--At the end of subsection 10E(1) .................................................................. 35
Item 13--At the end of subsection 10E(2) .................................................................. 35
Item 14--At the end of subsection 10H(4)(e) ............................................................. 35
Item 15--Subsection 10H(6) ....................................................................................... 35
Item 16--At the end of subsection 10J(1) ................................................................... 36
Item 17--After subsection 10J(2)................................................................................ 36
Item 18--Subsection 10J(3) ........................................................................................ 36
Item 19--Section 11A ................................................................................................. 37
Item 20--At the end of section 11A ............................................................................ 37
Item 21--After paragraph 11B(a) ................................................................................ 37
Item 22--After Part III ................................................................................................ 37
Division 1--Introduction ......................................................................................... 37
Division 2--Parenting management hearings ......................................................... 44
Division 3--Parenting Management Hearings Panel .............................................. 93
Division 4--Extension, application and additional operation of Part ................... 102
Division 5--Review of Part ................................................................................... 103
Items 23 and 24--Subsection 12B(1); After paragraph 12B(2)(d) ........................... 103
Items 25 and 26--After paragraph 13A(1)(c); At the end of section 13A ................ 103
Item 27-- At the end of Part IIIB .............................................................................. 104
Division 5--Court's role in relation to parenting management hearings .............. 104
Item 28--After paragraph 26B(1A)(c) ...................................................................... 105
Item 29--Section 38BA ............................................................................................. 105
Item 30 and 31--Section 60C (cell at table item 11, column headed "Divisions and
coverage"); Section 60C (cell at table item 13A, column headed "Divisions and
coverage", after paragraph (b) (second occurring)) ................................................... 105
Item 32--Subsection 60G(2) ..................................................................................... 105
Item 33--After paragraph 60I(9)(c) .......................................................................... 106
Item 34--Section 61B................................................................................................ 106
Item 35--Section 61C (heading) ............................................................................... 106
Item 36--Subsection 61C(1) (notes 1 and 2) ............................................................ 106
Item 37--At the end of section 61C .......................................................................... 107
Item 38--Subsection 64D(2) ..................................................................................... 107
Item 39--At the end of Division 5 of Part VII .......................................................... 107
Item 40--Subsections 65D(1) and (2) ....................................................................... 108
Item 41--After section 65DAB ................................................................................. 108
Item 42--Paragraph 65R(a) ....................................................................................... 109
Item 43--Paragraphs 67K(1)(a) to (caa) ................................................................... 109
Item 44--Subparagraphs 67Q(1)(a)(ii) to (iv) ........................................................... 109
Item 45--Paragraphs 67T(a) to (caa) ........................................................................ 109
Item 46--Paragraphs 68M(3)(b), (c) and (d) ............................................................. 110
Item 47-- Subparagraph 68N(a)(ii) ........................................................................... 110
Item 48--Paragraph 68N(aa) ..................................................................................... 110
Item 49--Section 68R (heading) ............................................................................... 110
Item 50--Before paragraph 68R(1)(a)....................................................................... 110
Item 51--After paragraph 68R(3)(a) ......................................................................... 111
Item 52--Subsections 68R(4) and (6) ....................................................................... 111
Item 53--At the end of section 68R .......................................................................... 111
Item 55--After section 70L ....................................................................................... 112
Item 56--Subdivision D of Division 13 (heading) .................................................... 112
Item 57--Section 70M (heading) .............................................................................. 112
Item 58--After section 70M ...................................................................................... 112
Item 59--After paragraph 70N(1)(a) ......................................................................... 113
Item 60--At the end of section 70NAA .................................................................... 113
Item 61--After section 70NAB ................................................................................. 113
Item 62--Section 70NAC (note) ............................................................................... 114
Item 63--Section 70NAC (note) ............................................................................... 114
Item 64--After section 70NAC ................................................................................. 114
Item 65--After section 70NAD ................................................................................. 114
Item 66--Section 70NAE (heading) .......................................................................... 115
Item 67--Subsection 70NAE(1) ................................................................................ 115
Item 68--Subsection 70NAE(1) ................................................................................ 115
Item 69--After subsection 70NAE(2) ....................................................................... 115
Item 70--Subsection 70NAE(3) ................................................................................ 116
Item 71--Subsection 70NAE(3) ................................................................................ 116
Item 72--At the end of subsection 70NAE(3) .......................................................... 116
Item 73--Subsection 70NAE(4) ................................................................................ 116
Item 74--Subsection 70NAE(4) ................................................................................ 116
Item 75--Subsection 70NAE(5) ................................................................................ 116
Item 76--Subsection 70NAE(5) ................................................................................ 117
Item 77--Subsection 70NAE(6) ................................................................................ 117
Item 78--Subsection 70NAE(6) ................................................................................ 117
Item 79--At the end of section 70 NAE .................................................................... 117
Item 80--after subsection 70NAF(2) ........................................................................ 117
Item 81--Subdivision B of Division 13A of Part VII (heading) ............................... 118
Item 82--Section 70NBA (heading) ......................................................................... 118
Item 83--Before subsection 70NBA(1) .................................................................... 118
Item 84--After section 70NBA ................................................................................. 118
Item 85--Section 70NBB (heading) .......................................................................... 119
Item 86--After section 70NBB ................................................................................. 119
Item 87--Subparagraph 70NCB(2)(b)(ii).................................................................. 120
Item 88--Paragraph 70NDB(1)(a) ............................................................................ 120
Item 89--Paragraph 70NDB(1)(c) ............................................................................ 121
Item 90--Subsection 70NDB(1) (note) ..................................................................... 121
Item 91--Subparagraph 70NDC(2)(b)(ii) ................................................................. 121
Item 92--After paragraph 70NEB(1)(b) ................................................................... 122
Item 93--After paragraph 70NEB(1)(e) .................................................................... 122
Item 94--After subsection 70NEB(4) ....................................................................... 122
Item 95--After subsection 70NEB(6) ....................................................................... 123
Item 96--Subparagraph 70NEB(7)(b)(ii) .................................................................. 123
Item 97--At the end of subsection 70NEF(1) ........................................................... 123
Item 99--After paragraph 70NFB(2)(c) .................................................................... 124
Item 100--Subparagraph 70NFB(2)(f)(i) .................................................................. 124
Item 101--After subsection 70NFH(1) ..................................................................... 125
Item 102--At the end of subsection 94AAA(1) ........................................................ 125
Item 103--Subsection 94AAA(4) ............................................................................. 125
Item 104--After subsection 94AAA(10)................................................................... 125
Item 105--Subsection 94AAA(13) ........................................................................... 126
Item 106--After paragraph 109A(1)(b)..................................................................... 126
Item 107--After paragraph 117A(1)(a) ..................................................................... 126
Item 108--Paragraph 117A(1)(b) .............................................................................. 126
Item 109--After paragraph 123(1)(sg) ...................................................................... 127
Item 110--Paragraph 125(1)(ca) ............................................................................... 127
Item 111--After paragraph 125(1)(e) ........................................................................ 127
Part 2--Consequential Amendments ............................................................................. 127
A New Tax System (Family Assistance) Act 1999 ....................................................... 128
Item 112--Subsection 3(1) (paragraph (c) of the definition of care arrangement) .. 128
Item 113--Subsection 3(1) (after subparagraph (c)(i) of the definition of care
arrangement).............................................................................................................. 128
Item 114--Subsection 3(1) (after paragraph (b) of the definition of family law order)
.................................................................................................................................... 128
Australian Citizenship Act 2007 .................................................................................... 128
Items 115 and 116--Paragraph 6(1)(a) and Paragraphs 6(1)(b) and (c) ................... 128
Australian Passports Act 2005 ....................................................................................... 128
Item 117--At the end of subsection 11(1) ................................................................. 128
Item 118--Subparagraph 11(5)(a)(ii) ........................................................................ 129
Item 119--Paragraph 11(5)(b) ................................................................................... 129
Federal Circuit Court of Australia 1999 ........................................................................ 129
Federal Court of Australia Act 1976 .............................................................................. 129
Item 121--Subparagraph 18ZB(a)(xiii) .................................................................... 129
Item 122--At the end of paragraph 18ZB(a) ............................................................. 129
Item 123--After subparagraph 18ZB(e)(ii) ............................................................... 129
Item 124--Subparagraph 18ZE(2)(b)(ii) ................................................................... 130
Item 125--At the end of subsection 18ZI(1) ............................................................. 130
Migration Act 1958 ........................................................................................................ 130
Item 126 --Subsection 192(8) ................................................................................... 130
My Health Records Act 2012 ........................................................................................ 130
Item 127 --Section 5 (subparagraph (a)(ii) of the definition of parental responsibility)
and Item 128 --Section 5 (subparagraph (b) of the definition of parental
responsibility) ............................................................................................................ 130
National Disability Insurance Scheme Act 2013 ........................................................... 131
Item 129 --Paragraph 75(1)(a) and Item 130 -- Paragraph 75(1)(b) ....................... 131
Item 131 -- At the end of section 75 ......................................................................... 131
Public Interest Disclosure Act 2013 .............................................................................. 131
Item 132 --Section 8 (before paragraph (a) of the definition of designated publication
restriction) .................................................................................................................. 131
Social Security Act 1991 ............................................................................................... 131
Item 133 -- Subsection 23(1) (after paragraph (b) of the definition of family law
order) and Item 134 -- Subsection 23(1) .................................................................. 131
Item 135 -- Paragraph 197F(3)(a) ............................................................................. 132
Social Security (Administration) Act 1999.................................................................... 132
Item 136 -- Section 123TC (after paragraph (b) of the definition of family law order)
.................................................................................................................................... 132
Part 3 -- Application provisions.................................................................................... 132
Item 137 -- Application of amendments ................................................................... 132
Schedule 2 - Contingent amendments ........................................................................... 134
Part 1 - Amendments contingent on the Civil Law and Justice Legislation Amendment
Act 2017 ......................................................................................................................... 134
Family Law Act 1975 .................................................................................................... 134
Item 1 - Paragraph 10B(c) ......................................................................................... 134
Item 2 - Subparagraph 10F(a)(ii) .............................................................................. 134
Item 3 - Subsection 11LN(3) ..................................................................................... 135
Item 4 - Application of amendment .......................................................................... 136
Item 5 - Section 11PP (heading) ............................................................................... 136
Item 6 - At the end of section 11PP .......................................................................... 136
Item 7 - After section 11PP ....................................................................................... 137
Item 8 - Section 11PQ (heading) ............................................................................... 137
Item 9 - At the end of section 11PQ .......................................................................... 138
Item 10 - After section 11PQ .................................................................................... 138
Items 11 and 12 - Paragraph 11PU(a) and Paragraph 11PU(b) ................................ 139
Item 13 - After section 11PU .................................................................................... 139
Item 14 - Paragraph 117A(1)(b) ................................................................................ 140
Item 15- Application of amendments ........................................................................ 140
Marriage Act 1961 ......................................................................................................... 140
Items 16 - 20--Schedule 1 ........................................................................................ 140
Part 2 - Amendments contingent on the Family Assistance and Child Support
Legislation Amendment (Protecting Children) Act 2017 .............................................. 141
A New Tax System (Family Assistance) Act 1999 ....................................................... 141
Item 21 -- Subsection 3(1) (after paragraph (a) of the definition of maximum interim
period) ........................................................................................................................ 141
Item 22 -- Subsection 3(1) ........................................................................................ 142
Item 23 -- Subsection 35FA(1) (table item 1, column headed "If the following
conditions are met", paragraph (a)) ........................................................................... 142
Item 24 -- Subsection 35FA(1) (table item 1, column headed "If the following
conditions are met", paragraph (c)) ........................................................................... 142
Item 25 -- Subsection 35FA(1) (table item 2, column headed "If the following
conditions are met", paragraph (a)) ........................................................................... 142
Child Support (Assessment) Act 1989 ........................................................................... 142
Item 26-- Subsection 5(1) (after paragraph (a) of the definition of maximum interim
period) ........................................................................................................................ 142
Item 27 -- Subsection 5(1) ........................................................................................ 143
Item 28 -- Subsection 53A(1) (table item 1, column headed "If the following
conditions are met", paragraph (a)) ........................................................................... 143
Item 29 -- Subsection 53A(1) (table item 1, column headed "If the following
conditions are met", paragraph (c)) ........................................................................... 143
Item 30 -- Subsection 53A(1) (table item 2, column headed "If the following
conditions are met", paragraph (a)) ........................................................................... 143
Part 3 - Amendments contingent on the Family Law Amendment (Family Violence and
Other Measures) Act 2017 ............................................................................................. 143
Family Law Act 1975 .................................................................................................... 144
Item 31--Paragraph 68T(1)(c) .................................................................................. 144
FAMILY LAW AMENDMENT (PARENTING MANAGEMENT HEARINGS) BILL 2017
GENERAL OUTLINE
1. The Family Law Amendment (Parenting Management Hearings) Bill 2017 (the Bill)
would establish the Parenting Management Hearings Panel to provide self-represented
litigants with a more flexible and inquisitorial alternative to the court process for resolving
parenting disputes. This would implement one of the package of 2017-18 Budget measures,
announced by the Australian Government, aimed at transforming the family law system to
support families to resolve their family law disputes as quickly as possible, while adequately
managing risks.
2. The Panel would be an independent statutory authority that would conduct hearings
and make binding administrative determinations in respect of parenting arrangements for
children--similar to 'parenting orders' made by a court under the Family Law Act 1975
(the Act). The parenting management hearings model would encourage and support families
to resolve their parenting disputes in a prompt and informal way, through a more
user-friendly and less-adversarial forum than the traditional court system.
3. Parenting management hearings will be a consent-based forum, and parties cannot be
compelled to participate. Families will still be required to try to resolve their disputes
themselves, where possible and appropriate, through family dispute resolution services.
4. Research has consistently shown that reduced parental conflict after separation and
the timely resolution of parenting disputes is beneficial for children and families. Unlike the
traditional adversarial system, where two opposing sides present their case, those managing
the hearings will undertake inquiries and gather information to promote informed and safe
outcomes for families.
5. Hearings would be heard by an expert, multi-disciplinary Panel, with the Bill
requiring Panel members to have specialist skills and expertise in relevant fields including
family law, family dispute resolution, family violence, psychology, mental health and child
development. Providing for experts from multiple disciplines will assist the Panel to better
support families and to make decisions in the best interests of the children.
6. Two key principles would underpin the operation of the parenting management
hearings--these are set out in the Bill as Objects. The first principle is that the hearings will
be fair, just, economical, informal and prompt. The second principle is that the best interests
of the child will be the paramount consideration. This second principle is consistent with the
key objective underpinning existing Part VII (Children) of the Act.
7. Recognising that family violence is a common experience among separated parents,
with a majority of parents reporting either emotional or, to a lesser extent, physical abuse, it
is critical that any forum established to resolve parenting disputes is equipped to identify and
respond safely and effectively to family violence.
8. 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 would ensure that in each case that comes before it, 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.
The Panel will not be empowered to deal with applications involving allegations of child
sexual abuse.
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9. Under a more inquisitorial model, Panel members would have greater control over
hearings, directing lines of enquiry and the focus of the hearing; questions will be asked by
Panel members, avoiding the potential for cross-examination of a victim by a perpetrator of
family violence.
10. As part of the parenting management hearings model, families would be linked to
other support services, such as counselling and family violence services, to minimise the
intensity and duration of conflict, and to ensure that families and children are better
supported.
11. Following the passage of this Bill, the parenting management hearings would be
established as a pilot program operating in one location initially (Parramatta), and at a second
location in late 2018. The pilot would be independently reviewed and evaluated, with a
reporting date of three years post-commencement.
12. In the pilot locations, parenting management hearings would provide access to a
different type of forum for parents in conflict and encourage a cultural shift away from the
courts as the default arbiter of last resort. While the pilot may help to ease the caseload of the
courts, it is not intended to replace the courts or other important services that help parents to
resolve their disputes.
13. The key features of the Bill are:
parenting management hearings would be 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.
14. The Bill would make consequential amendments to the Public Interest Disclosure
Act 2013 to ensure that information relating to parenting management hearings would not be
able to be disclosed publicly under the public interest disclosure scheme.
15. The Bill would also make consequential amendments to the following Acts to include
references to 'parenting determinations' in addition to 'parenting orders' as appropriate:
A New Tax System (Family Assistance) Act 1999
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Australian Citizenship Act 2007
Australian Passports Act 2005
Federal Court of Australia Act 1976
Migration Act 1958
My Health Records Act 2012
National Disability Insurance Scheme Act 2013
Social Security Act 1991, and
Social Security (Administration) Act 1999.
FINANCIAL IMPACT STATEMENT
16. An allocation of Commonwealth expenditure of $12.7 million over four years was
approved in the 2017-18 Budget to implement this measure.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Family Law Amendment (Parenting Management Hearings) Bill 2017
1. This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
2. The Family Law Act 1975 (the Act) sets out the rules for dealing with various aspects
of relationship breakdown, including making arrangements for the future parenting of
children and for the resolution of property disputes. Since 2006, it has, in most cases, been
compulsory for separating couples to attempt to reach an agreement between themselves, out
of court, about the future parenting arrangements for their children through family dispute
resolution. However, not all families will be able to resolve their differences through dispute
resolution and dispute resolution may not always be appropriate. Currently, where a case is
unable to be resolved through dispute resolution, families may apply for parenting orders
from the family law courts.
3. The Bill would amend the Act to establish a new forum for resolving less complex
family law disputes--the Parenting Management Hearings Panel. The Panel will provide
self-represented litigants with an alternative means for having their parenting matter heard
and resolved in a less formal, more inquisitorial, timely, fair and cost effective way.
4. The key principles which underpin the parenting management hearings are:
to provide a forum for resolving less-complex family law disputes between
self-represented parties
to resolve matters in a fair, just, economical, informal, less-adversarial and
prompt way
to ensure the best interests of the child is the paramount consideration
to ensure parties are assisted by support services, integrated with the Panel, where
appropriate, and
to ensure that the outcomes of the parenting management hearings will be binding
on parties and enforceable by a court.
5. A parent of the child, the child, a grandparent of the child or any other person
concerned with the care, welfare or development of the child may apply to the Panel for a
parenting determination. The Panel is a consent-based forum. Parties cannot be compelled to
have their matter resolved through the Panel. 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.
4
6. The Panel will apply the same legislative framework as currently exists in Part VII of
the Act for determining the best interests of the child. The best interests of the child remains
the paramount consideration.
7. The Bill provides for the structure, jurisdiction, practice and procedure of the Panel.
The objective of the Panel, as set out in proposed section 11TA of the Bill, is to facilitate the
resolution of matters in a 'fair, just, economical and prompt way'. Proposed section 11LD
requires a parenting management hearing to be conducted 'with as little technicality and
formality, and as quickly and economically, as the requirements of the Part and a proper
consideration of the matters before the Panel permit'. As an administrative, rather than
judicial, body the Panel may inform itself in any way it thinks fit in conducting a parenting
management hearing. This provides the Panel with the ability to gather the information
relevant to the parenting dispute.
8. The principle of procedural fairness will be an important feature of the parenting
management hearings. The procedure of the Panel must be consistent with the rules of
natural justice (proposed section 11LD). The Panel will not be able to make a parenting
determination without conducting a parenting management hearing (proposed section 11L),
and each party will have the right to appear before the Panel and to make oral submissions to
the Panel (proposed section 11LB).
9. The Bill provides a range of powers for Panel members to issue directions and
notices. These powers are intended to equip the Panel with the means to gather all necessary
information and take certain actions to determine disputes as fairly and quickly as possible.
10. The Panel will have the flexibility to dismiss an application in a range of
circumstances. This will enable the Panel to manage its workload and facilitate the resolution
of matters in an economical and prompt way, consistent with its key objectives. The Panel
may dismiss an application (under proposed section 11NB) taking into account factors
including the complexity of a matter; the capacity of the Panel to manage any risks relating
to the safety of the parties or the child to whom an application relates; the capacity of the
Panel to determine the matters for consideration in a manner consistent with the objective of
the Panel; the capacity of a party to effectively participate in the parenting management
hearing, having regard to any power imbalances between the parties or any other relevant
factor; if a family violence order applies, or has applied, to the child or a member of the
child's family--any relevant inferences that can be drawn from the order; and any other
matter that the Panel considers relevant.
11. The Bill sets out the obligations created by parenting determinations (proposed
section 11PN). For example, it sets out that if a parenting determination deals with whom the
child is to live, a parent must not act contrary to the determination by refusing to return the
child to the other parent.
12. A number of powers and offences are included in the Bill, which are aimed at
ensuring that parties comply with an obligation, a direction or determination of the Panel, or
5
an order of a court in relation to a parenting determination. Non-compliance with an
obligation, direction, determination or court order is a major source of conflict and distress to
parties. The provisions seek to ensure that the objectives of the hearings are fulfilled, and the
child's best interests are of paramount consideration.
13. Consistent with the principles of administrative law, parenting determinations of the
Panel will be subject to judicial review. A party may appeal to the Federal Circuit Court on a
question of law from any decision or determination of the Panel (proposed section 11Q).
Appeals from decisions of the Federal Circuit Court will be heard by the Family Court of
Australia. Merits review will not be available. This is intended to ensure there is an
appropriate level of finality following a parenting determination to promote stability for
children affected by a determination. This takes into account the required consensual nature
of the forum and the objective of the forum to be a quicker and more informal way of
obtaining a binding decision in respect of a parenting dispute. The Bill also provides that a
parenting determination may be reconsidered by the Panel or a court, should there be a
significant change in circumstances in relation to the child who is the subject of the
parenting determination.
Human rights implications
14. The Bill engages the following human rights:
right to a fair and public hearing: Article 14(1) of the International Covenant on
Civil and political Rights (ICCPR)
best interests of the child: Article 3(1) of the Convention on the Rights of the
Child (CRC)
right of child to be heard: Article 12 of the CRC
right to freedom from interference with the family and protection of the family:
Articles 17 and 23 of the ICCPR and Article 10(1) of the International Covenant
on Economic, Social and Cultural Rights (ICESCR)
right to protection from exploitation, violence and abuse: Article 20(2) of the
ICCPR; in relation to children, Article 19(1) of the CRC and Article 24(1) of the
ICCPR; and in relation to persons with disabilities, Article 16(1) of the
Convention on the Rights of Persons with Disabilities (CRPD)
illicit transfer of children: Article 11 of the CRC
right to privacy: Article 17 of the ICCPR
right to freedom of opinion and expression: Article 19 of the ICCPR
right to access to justice for people with disabilities: Article 13 of the CRPD
presumption of innocence: Article 14(2) of the ICCPR
minimum guarantees in criminal proceedings: Article 14(3) of the ICCPR (to be
free from self-incrimination), and
the right to security of the person: Article 9 of the ICCPR.
6
The right to a fair and public hearing: Article 14(1) of the ICCPR
15. Article 14(1) of the ICCPR requires all persons to be equal before the courts and
tribunals. It further provides that everyone is entitled, in the determination of 'rights and
obligations in a suit at law', to a 'fair and public hearing by a competent, independent and
impartial tribunal established by law'. The right to a fair hearing applies in both criminal and
civil proceedings, including whenever rights and obligations are to be determined.
Equality
16. A fair hearing requires recognition of the interests of all parties. The procedures
followed in a hearing should respect the principle of 'equality of arms' which requires that
all parties to a proceeding must have a reasonable opportunity of presenting their case under
conditions that do not disadvantage them as against other parties to the proceeding.
17. The Parenting Management Hearings Panel is an independent panel, which will
exercise its powers in a fair and just manner. The Panel has discretion as to how it will
conduct the hearings, but it is subject to the usual principles of procedural fairness.
18. The Bill provides for fair processes for the Panel to determine parenting matters. The
procedure of the Panel must be consistent with the principles of procedural fairness
(proposed section 11LD). The initial application to the Panel must be consented to by each
person with parental responsibility for the child and other persons with a parenting
determination or a parenting order made in their favour (proposed section 11KC). Once the
Panel has accepted the application, a hearing must be conducted. Parties have the right to
appear and to make oral submissions (proposed section 11LB). The Panel may give
directions prohibiting or restricting the disclosure of certain information, including to some
or all of the parties, that relates to a parenting management hearing, including information
that comprises oral submissions (see proposed subsections 11LF(4) and (5)).
19. These provisions may limit the opportunity for parties to challenge allegations put
forward by the other party. However, this limitation is balanced by the requirement in
proposed subsection 11LF(6) which directs the Panel to take as the basis of its consideration
the principle that it is desirable that oral submissions made to the Panel and the contents of
documents received by the Panel should be made available to all the parties. This is
consistent with the principles of procedural fairness. Proposed subsection 11LF(7) requires
the Panel to pay due regard to any reasons in favour of giving a direction under
subsection (4) or (5), including the confidential nature of the information and the safety of
any person.
20. The aim of establishing the Panel is to provide an alternative forum where parenting
matters can be resolved more quickly and in a way that will promote cooperative and
child-focused parenting by the parties in cases, where appropriate, and where compulsory
family dispute resolution has not succeeded or is not appropriate. The Bill provides that
hearings are to be conducted quickly, with as little technicality and formality as possible,
7
while still ensuring proper consideration by the Panel of the matters before it. Thus, there are
some departures from the formal rules that are part of court processes. The Panel may inform
itself in any way it thinks fit, subject to the rules of natural justice, including by directing a
party to give relevant information or documents and requesting reports from family
consultants. The Panel has power to obtain information or documents where the Panel is
satisfied that the information would assist the resolution or the expeditious and efficient
conduct of a hearing (proposed section 11ME).
21. The Panel is not bound by the rules of evidence in conducting the hearing (proposed
section 11LD). By not requiring the Panel to adhere to the technical and formal rules of
evidence, parties will be allowed to speak freely to Panel members. In considering
information that might not otherwise be admissible through the rules of evidence, the Panel
will have regard to the appropriate weight to give information.
22. The standard rules of evidence aim to ensure that the trial process is fair for the
parties. However, a departure from these rules in the context of the resolution of parenting
disputes supports the legitimate objective of assisting families to resolve their disputes in a
less-adversarial way, with a view to promoting cooperative and child-focused parenting.
Research has consistently shown that reduced parental conflict after separation and the
timely resolution of parenting disputes is beneficial for children and families. A 2017 study
by Australia's National Research Organisation for Women's Safety (ANROWS) into
domestic and family violence and parenting, examined the effect of inter parental conflict
and childhood development, and concluded that inter parental conflicts pose a developmental
threat across childhood to early adolescence.1
23. The Honourable Diana Bryant AO, former Chief Justice of the Family Court of
Australia, states in the Less Adversarial Trial Handbook (2009) that, 'ongoing parental
conflict has been shown to have serious, long-term developmental impacts. Social scientists
have found a correlation between it and the increased risk of poor psychological, social,
health and academic outcomes in children. We know that adversarial legal processes play a
part in exacerbating parental conflict and inhibiting the development of parenting capacity.'2
24. The Family Law Council, in its final report on Families with Complex Needs and the
Intersection of the Family Law and Child Protection Systems (2016), also noted 'the
growing recognition within the judiciary of the limitations of the adversarial method for
resolving family disputes.'3
1
Kaspiew, R., Horsfall, B., Qu, L., Nicholson, J. M., Humphreys, C., Diemer, K., ... Dunstan, J. (2017). Domestic and
family violence and parenting: Mixed method insights into impact and support needs: Final report (ANROWS Horizons
04/2017). Sydney: ANROWS.
2
The Less Adversarial Handbook, Family Court of Australia, 2009 at p7, citing the following research: RE Emery, L
Laumann-Billings, M Waldron, DA Sbarra & P Dillon, 'Child custody mediation and litigation: custody, contact, and co-
parenting 12 years after initial dispute resolution', Journal of Consulting and Clinical Psychology, vol. 69, 2001, pp. 323-
332. J Wallerstein, JM Lewis & S Blakeslee, The unexpected legacy of divorce, New York, Hyperion, 2000. AJ Cherlin, PL
Chase-Landsdale & C McRae, 'Effects of parental divorce on mental health throughout the life course', American
Sociological Review, vol. 63, 1998, pp. 239-249. P R Amato and A Booth, A generation at risk, Cambridge, MA, Harvard
University Press, 1997.
3
Family Law Council Report to the Attorney-General on Families with Complex Needs and the Intersection of the Family
Law and Child Protection Systems: Final Report - June 2016, p 22.
8
25. In the family law context, some elements of a less adversarial approach are already
used. Division 12A of Part VII of the Family Law Act sets out procedures for conducting
child-related proceedings. The intention in introducing Division 12A of Part VII in 2006 was
'to provide legislative support for a less adversarial approach to be adopted in all
child-related proceedings under the Act'. The Panel's procedures are, in part, modelled on
these provisions.
26. A party to a parenting management hearing may appeal to the Federal Circuit Court,
on a question of law (including a breach of procedural fairness) from any decision or
determination of the Panel in that hearing (proposed section 11Q). This acts as a safeguard of
the parties' rights. Merits review will not be available. This takes into account the objective
of the forum to be a quicker and more informal way of obtaining a binding decision in
respect of a parenting dispute, and the consensual nature of the forum. A party can also
request that the application for a hearing be dismissed, and the Panel may dismiss if it is
satisfied it is appropriate in the circumstances. The Panel must dismiss an application if all of
the parties request, in writing, that the application be dismissed.
27. The Bill makes provision for the determination of matters by a hearing conducted on
the papers. However, this is intended to only to be exercised in very limited circumstances
where it appears clear to the Panel that the matters for determination can be adequately
determined without the parties appearing. All parties must also consent to a hearing being
conducted on the papers.
28. The Panel will have the discretion to allow (by leave) legal representation in a hearing
(proposed section 11LJ). 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).
29. The Panel may also make a direction for independent representation of a child's
interests (proposed section 11LK). Proposed section 11LL sets out the general nature of the
role of an independent children's lawyer and notes particularly that these lawyers must act
impartially in dealings with the parties to the parenting management hearing. This provision
is in line with providing equality for each party to a hearing.
The right to a hearing in public
30. The right to a public hearing incorporates the principle that justice should not only be
done, but be seen to be done, by subjecting legal proceedings to public scrutiny. The
9
requirement in Article 14(1) of the ICCPR that decisions be made public is based on the
principle that legal proceedings be subject to public scrutiny.
31. The Bill requires that the parenting management hearings are generally to be
conducted in public (proposed section 11LF). However, there are some limitations to this.
The Panel may direct that all or part of the hearing be held in private if it is desirable to do so
because of the confidential nature of any evidence, or for any other reason. This limitation is
proportionate and reasonable given the particular sensitivities of the cases being heard and
the need to protect children in certain circumstances.
32. Some methods whereby parties give evidence, for example by video link, may raise
issues regarding limiting the right to a public hearing. The Bill permits the presiding Panel
member to allow a person to participate in a hearing by video link, audio link or other
appropriate means (proposed section 11LH). Again, as the Panel may determine applications
that involve allegations of family violence, this limitation is reasonable, necessary and
proportionate to the aim of allowing vulnerable parties to present their case as clearly,
effectively and safely as possible.
33. The Panel is empowered to make parenting determinations either orally or in writing
after the conclusion of the hearing. Oral determinations must be reduced to writing within 28
days after the conclusion of the hearing or within such a longer period as the
Principal Member allows. A party may request a statement of reasons for the determination
which must be provided within 28 days, or at a time within the discretion of the Principal
Member (proposed section 11PB). Under proposed section 11PV, the Panel may publish
parenting determinations and the reasons for them (subject to proposed section 11RA).
These provisions ensure that the decisions made by the Panel are open and transparent.
Competent, independent and impartial
34. The right to a public hearing states that everyone is entitled to a 'fair and public
hearing by a competent, independent and impartial tribunal established by law'. The
Parenting Management Hearings Panel is a separate administrative body established by law.
Members will be appointed by the Governor-General once the Minister is satisfied they have
appropriate qualifications, knowledge and skills. For a Principal Member, this means being
enrolled as a legal practitioner and having extensive specialist knowledge and skills,
including knowledge and experience in matters of family law and family violence. For Panel
members, they may either be enrolled as a legal practitioner or be a person with experience
working with families and children, and have specialist skills or knowledge including in
family law, family dispute resolution, psychology, social work or child development. Having
a well-qualified, multi-disciplinary panel will ensure that the parties' issues are resolved
quickly and efficiently, and in the best interests of the child/children involved.
35. Panel members are appointed for a period of up to 5 years. Having the security of a
prescribed term in office is an important part of ensuring independence. During this time,
they can only be removed from office for specific reasons. These reasons include
10
misbehaviour, failing to disclose a conflict of interest, becoming bankrupt or no longer being
able to perform the duties of the office because of physical or mental incapacity. Allowing
removal from office for these reasons fulfils the legitimate objective of preserving the
competency of the Panel and public confidence in its operation.
Best interests of the child: Article 3(1) of the CRC and Article 7(2) of the CRPD
36. Article 3(1) of the CRC provides that in all actions concerning children, including by
courts, the best interests of the child shall be a primary consideration. Article 7(2) of
the CRPD provides for this right in relation to children with disabilities. The principle
applies to all actions concerning children and requires active measures to protect their rights
and promote their survival, growth, and wellbeing; as well as measures to support and assist
parents and others who have day-to-day responsibility for ensuring recognition of children's
rights. It requires all legislative, administrative and judicial bodies and institutions to
systematically consider how children's rights and interests are or will be affected directly or
indirectly by their decisions and actions.
37. The parenting management hearings will operate under new Part IIIAA of the
Family Law Act--using a set of rules based on Part VII of that Act. Part VII is based on the
CRC's obligation to have regard to the best interests of the child as a primary consideration
in decision-making, although the best interests of the child are elevated to 'paramount' status
in several provisions. It has been a long-standing principle (in existence since the
commencement of the Family Law Act in 1975), that a child's welfare is to be the paramount
consideration in relation to any decisions affecting the child. References to the 'best interests
of the child' were incorporated into Part VII of the Act by the Family Law Reform Act 1995
and were made in the context of Australia's obligations under the CRC. An amendment in
2011, made by the Family Law Legislation Amendment (Family Violence and Other
Measures) Act 2011 provided that a further object of Part VII is to give effect to the CRC.
The objects clause for the parenting management hearings will similarly emphasise the 'best
interests of the child' as the primary consideration and include a specific reference to the
CRC. The purpose of this object is to confirm, in cases of ambiguity, the obligation on
decision-makers to interpret Part IIIAA of the Act, to the extent its language permits,
consistently with Australia's obligations under the Convention. The Convention may be
considered as an interpretive aid to Part IIIAA of the Act. To the extent that the Act departs
from the Convention, the Act would prevail.
38. The Bill also includes a range of safeguards to ensure that the best interests of the
child continue to be adequately protected, again based on existing Part VII. The
jurisprudence that has developed around these provisions will be relevant for the new body.
Consistent with the current framework in the Act, the Panel will be required to make orders
that are in the best interests of the child by considering the primary considerations based on
subsection 60CC(2) of the Act, namely:
the benefit to the child of having a meaningful relationship with both parents, and
11
the need to protect the child from physical or psychological harm from being
subjected to, or exposed to, abuse, neglect or family violence.
39. The Bill expressly provides that in applying these considerations, the Panel is required
to give greater weight to protecting the child from harm (proposed subsection 11JB(3)). The
Bill also provides (proposed subsection 11JB(4)) that the Panel must consider other relevant
factors - these factors are 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).
40. The Panel may request a report from a family consultant (proposed section 11MB)
who must then ascertain the child's views in relation to the matter and include those views in
addition to any other matters that relate to the care, welfare or development of the child. This
will assist the Panel to determine the child's best interests.
41. If it appears to the Panel that the child's interests in a parenting management hearing
ought to be independently represented by a lawyer, the Panel may direct that the child's
interests in the hearing are to be represented by a lawyer (proposed section 11LK). The Panel
may direct that the children's lawyer seek the child's views on certain matters to which the
hearing relates. However a child will not be required to express his or her views (this is
consistent with the position in section 60CE of the Act).
42. This provision will provide the Panel with the flexibility to appoint an independent
children's lawyer if appropriate based on the circumstances of a particular application.
43. Proposed section 11LL sets out the role of an independent children's lawyer where
one is appointed by the Panel (this mirrors section 68LA of the Act). The independent
children's lawyer must form an independent view of what is in the best interests of the child
and inform the Panel of that view. The independent children's lawyer must also act in
relation to the hearing in what they believe to be the best interests of the child; and must
make a submission to the Panel advocating a particular course of action, if they are satisfied
this would be in the best interests of the child.
44. Once a parenting determination has been made, proposed section 11PN sets out the
obligations which it creates. Proposed section 11PO empowers the court to issue a warrant
for the arrest of an alleged offender who has prevented or hindered the carrying out of a
parenting determination. As the Panel's determination will have been made with the best
interests of the child as the paramount consideration, it is important that parents are
encouraged to implement the determination made by the Panel and do not intentionally
disregard it.
12
45. The Bill therefore advances the right to have regard to the best interests of the child as
the primary consideration in making decisions relating to that child.
Right of children to be heard: Article 12 of the CRC
46. Under Article 12 of the CRC, children who are capable of forming their own views
have the right to express those views freely, and those views are to be given due weight in
accordance with the age and maturity of the child. This right includes the opportunity to be
heard in any judicial and administrative proceedings affecting the child, either directly, or
through a representative or an appropriate body.
47. The Bill advances the right of the affected child to be heard in the following ways:
requiring the Panel to consider any views expressed by the child in determining
what is in the child's best interests (proposed section 11JB(4)(a))
allowing the Panel to request a report from a family consultant who must
ascertain the views of the child in relation to the matter (without requiring a child
to express his or views) unless that would be inappropriate because of the child's
age or maturity or some other special circumstance (proposed
subsections 11MB(3) and (4)),
allowing the Panel to appoint, if appropriate, an independent children's lawyer to
represent the child's interests and to give a direction to the lawyer to find out
what the child's views are on the matters to which the hearing relates (proposed
section 11LK), and
providing that an independent children's lawyer must ensure that any views
expressed by the child are fully put before the Panel (proposed
subsection 11LL(5).
48. Proposed subsection 11JC(3) stipulates that nothing permits the Panel or any other
person to require the child to express his or her views in relation to any matter.
49. Proposed section 11JB(4) requires the Panel to consider the child's views in
determining the best interests of the child to the extent that these views are available.
Proposed section 11JC deals with how the Panel may inform itself of views expressed by a
child, including by having regard to a report given to the Panel by a family consultant under
proposed section 11MB, or through a direction for the child's best interests to be
independently represented by a lawyer (proposed section 11LK). Proposed
section 11JB(4)(a) gives flexibility to the Panel to give weight to a child's views in
accordance with the age and maturity of the child, which is consistent with Article 12.
50. The Bill therefore advances the right of children to be heard in any judicial or
administrative proceedings affecting them.
13
Right to freedom from interference with the family and protection of the family: Articles 17
and 23 of the ICCPR, Article 10 of the ICESCR
51. Article 17(1) of the ICCPR states that 'no one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or correspondence, nor to unlawful
attacks on his honour and reputation'. Article 23(1) states that 'the family is the natural and
fundamental group unit of society and is entitled to protection by society and the State'. The
UN Human Rights Committee has considered the protection of the family to be closely
related to the prohibition under Article 17 on unlawful or arbitrary interference with family.
It has stated that the term family in Article 23 should have the same meaning as under
Article 17, in that it should be given a broad interpretation to include all those persons
comprising the family as understood in the society of each country. Article 10(1) of the
ICESCR also provides that the 'widest possible protection and assistance should be accorded
to the family, which is the natural and fundamental group unit of society, particularly for its
establishment and while it is responsible for the care and education of dependent children.'
52. Article 5 of the CRC says that States Parties shall respect the responsibilities, rights
and duties of parents to provide appropriate direction and guidance to children. Article 9 of
the CRC recognises the right of children not to be separated from their parents against their
will except if it is in their best interests. Article 18 of the CRC recognises the principle that
both parents have common responsibilities for the upbringing and development of the child.
53. In making parenting determinations, the Panel will operate within principles already
established under the Act which focus on the rights of children and the responsibilities that
each parent has towards their children, rather than on parental rights, in accordance with the
rights listed under the CRC. While many separating families are able to resolve their
disputes with minimal assistance, the family law system plays an important role in
supporting families to reach agreement over arrangements for children after separation in a
manner which does not separate children from their parents against their will except if in
their best interests. The family law system recognises the principle that both parents have
common responsibilities for the upbringing and development of the child.
54. Of particular relevance for the parenting management hearings is Article 23(4) of the
ICCPR which states that 'States Parties ... shall take appropriate steps to ensure equality of
rights and responsibilities of spouses as to marriage, during marriage and at its dissolution.
In the case of dissolution, provision shall be made for the necessary protection of any
children'.
55. Consistent with the current framework in the Act, under proposed section 11JB, the
Panel will be required to make parenting determinations that are in the best interests of the
child by considering the following matters:
the benefit to the child of having a meaningful relationship with both parents, and
14
the need to protect the child from physical or psychological harm from being
subjected to, or exposed to, abuse, neglect or family violence.
56. The emphasis on the need to consider the benefit to the child of having a meaningful
relationship with both parents (subject to the need to protect the child) supports the
obligation to provide equality of treatment to both parties on the dissolution of a marriage as
stated in Article 23(4). With these considerations in mind, the Panel can then make
determinations under proposed section 11JG dealing with matters including:
The person or persons with whom a child is to live
the time a child is to spend with another person or persons, and
the allocation of parental responsibility for a child. This may include allocating,
to one person, responsibility for making decisions about some major long-term
issues in relation to the child.
57. The Panel 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 (proposed section 11JE). The
presumption does not apply or may be rebutted in certain circumstances. Where the
presumption is applied, the Panel must then consider making a determination for equal time
or for substantial and significant time if it is in the child's best interests to do so, and to make
such determinations about time that it considers to be in the best interests of the child
(proposed section 11PL).
58. By operating within this framework when making parenting determinations, the Panel
will avoid discriminatory treatment against the parties to a marriage in regard to the grounds
and procedures for separation or divorce, child custody, visiting rights or the loss or recovery
of parental authority as required by Article 23(4) (see UNHCR General Comment 19).
Parenting determinations by their very nature will restrict access to a child at certain times
(thus limiting the right to privacy of the home and family, and protection of families and
children) however this limitation is necessary, reasonable and proportionate to the legitimate
objective of providing children with a safe and secure home life that is free of conflict.
59. Article 9 of the CRC requires States Parties to ensure that a child is not separated
from his or her parents against their will, except when authorities determine in accordance
with applicable law and procedures, that such separation is necessary for the best interests of
the child. This includes determinations about the child's place of residence where the parents
are living separately.
60. The Bill promotes the right to freedom from interference with the family, as set out in
Article 17 of the ICCPR, by providing a way for a family to resolve issues and have a
determination made about parenting matters, in a forum of their choosing, and with the
ability to access relevant support services. Requiring each party with parental responsibility
to consent to an application for a Panel determination (proposed section 11KC) reflects the
view that if all parties are voluntarily seeking a parenting determination of the Panel they are
15
more likely to participate fully and openly in the process, leading to more efficient
decision-making and a greater likelihood of an effective outcome for families.
61. The parenting determination made by the Panel will be binding on parties and
enforceable by a court, providing a degree of certainty for parties in respect of the resolution
of their parenting issues.
62. In relation to Aboriginal or Torres Strait Islander children, it is important that 'family'
is understood to include kinship structures, which encompass an extended family system
often including distant relatives. Proposed section 11JA sets out that the Panel must have
regard to any kinship obligations, and child-rearing practices, of the child's Aboriginal or
Torres Strait Islander culture. Proposed paragraph 11JB(4)(i) also specifies that if the child is
an Aboriginal child or a Torres Strait Islander child, then the child's right to enjoy his or her
culture, and the likely impact any proposed parenting determination will have on that right,
is one of the mandatory additional considerations the Panel must consider in determining the
child's best interests.
63. It is important that children are able to enjoy relationships with others who are not
necessarily their parents, but may be part of their family (such as a grandparent) or other
person who is concerned with the care, welfare or development of the child. Accordingly,
proposed section 11K sets out the parties who may apply for a parenting determination. This
is intended to enable grandparents, siblings, aunts, uncles and/or any other person concerned
with the care, welfare and development of the child, to apply for a parenting determination in
relation to the child. By enabling third parties to apply to the Panel, the Bill promotes the
child's right to freedom from interference with the family and protection of the family.
64. This is supported by the considerations that the Panel must consider in determining
what is in the child's best interests under proposed section 11JB. These considerations
include the nature of the relationship of the child with other persons; the likely effect of any
changes in the child's circumstances, including if the child was to be separated from any
other child or other person; and the capacity of any other person to care for the child.
65. The Bill thus promotes the right to freedom from interference with the family and
protection of the family. Any limitations are reasonable, necessary and proportionate with
the legitimate aim of settling family disputes with the best interests of the child as the
paramount consideration.
Protection from exploitation, violence and abuse: Article 20(2) of the ICCPR; in relation to
children Article 19(1) of the CRC, and Article 24(1) of the ICCPR and in relation to persons
with disabilities Article 16(1) of the CRPD
66. The right to protection from exploitation, violence and abuse is contained in
Article 20(2) of the ICCPR, Articles 19(1) and 24(1) of the CRC and Article 16(1) of the
CRPD. The Bill supports children's right to protection from exploitation, violence and abuse
as contained in Article 24(1) of the ICCPR, Article 19(1) of the CRC and Article 16(1) of the
16
CRPD. Article 24(1) of the ICCPR provides for protection of the child as required by his/her
status as a minor. Article 19(1) of the CRC requires States to 'take all appropriate legislative,
administrative, social and educational measures to protect the child or people from all forms
of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment
or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or
any other person'.
67. Some applications made to the Panel may involve allegations of family violence or
child abuse. Unfortunately family violence is a common experience among separated
parents, with a majority of parents reporting either emotional or, to a lesser extent, physical
abuse. However, there are many safeguards included in the Bill which will support women
and children's right to protection from exploitation, violence and abuse during the parenting
management hearings application and determination process.
68. The Panel's membership will be multidisciplinary to better assist families that have multiple
issues. The qualification requirements for Panel members include a requirement that the
legally-trained Principal Member must also have experience in dealing with matters relating
to family violence (proposed subsection 11UA(2)). A qualified legal practitioner must be
enrolled as a legal practitioner of the High Court or the Supreme Court of a state or territory
and have been enrolled for at least 5 years. In addition, the Minister must be satisfied that the
person has specialist knowledge and skills relevant to the duties of a Panel member,
including knowledge of, and experience in, matters of family law. These requirements will
ensure that legally qualified Panel members have substantial family law experience. Other
Panel members must have specialist knowledge and skills in one or more fields, which are
expressly specified to include psychology, family violence, mental health and child
development (proposed subsection 11UA(4)).
69. A number of provisions are included in the Bill to ensure the Panel is fully informed
of any safety issues or risks and is able to take steps to protect parties and their children.
Parties will be required to inform the Panel of any family violence order, care arrangements
under a child welfare law, or any notification/investigation of child abuse (proposed
section 11LG).
70. The issue of whether a matter involving family violence is appropriate for the Panel to
hear and determine will rely on the self-assessment of all parties about the appropriateness of
the Panel as a forum for their dispute (as consent of all parties is required for a Panel
application to proceed--see proposed section 11KC), and also the Panel's own assessment
of the particular facts and circumstances. Proposed section 11NC states that the Panel may
dismiss an application if it is satisfied that the consent of a party to the applications was
obtained by fraud, threat, duress or coercion.
71. Proposed subsection 11NB(3) provides that the Panel must consider whether to
dismiss an application for a parenting determination if it has reasonable grounds for
suspecting that there has been abuse or risk of abuse of the child or that there has been
family violence or risk of family violence by one of the parties to the hearing.
17
72. Proposed subsection 11NB(2) sets out factors that the Panel may have regard to in
exercising its discretion to dismiss a matter. These factors include: the complexity of the
matters for consideration; the capacity of the Panel to manage any risks relating to the safety
of parties or the child; the capacity of the Panel to determine the matters in a manner
consistent with the objective of the Panel (set out in proposed subsection 11TA(1)); the
capacity of a party to participate effectively in the hearing (having regard to any power
imbalances between the parties or any other relevant factor); any relevant inferences that can
be drawn from the application of a family violence order to the child or a member of the
child's family; and any other matter that the Panel considers relevant.
73. 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)).
74. Consistent with existing subparagraphs 60I(9)(b)(iii) and (iv) of the Act, the Bill
provides exemptions to the requirement for applicants to attempt family dispute resolution
before submitting an application for a parenting determination in circumstances where there
has been family violence, or a risk of family violence, by one of the parties to the
proceedings.
75. If the Panel determines a matter involving family violence, it will be well equipped to
support the parties. Support services for families will be integrated with the hearing process
as appropriate, and this may include for example, referring parties to specialist family
violence services, or drug and alcohol services (proposed section 11MC).
76. Once the application is accepted and proceeds to the hearing stage, the ability of the
Panel to actively control the conduct of the proceedings as it sees fit (proposed
sections 11LD and 11LE(3)) will allow issues relating to family violence and the potential
power imbalance between the parties to be taken into account. For example, as an
inquisitorial body, it is intended that questions will primarily be put by Panel members,
avoiding the need for cross-examination. Direct cross-examination potentially exposes
victims to re-traumatisation and can affect their ability to give clear evidence. It can also be
problematic for victims to directly cross-examine their alleged perpetrator if they (the
victim) have no legal representation. As the parenting management hearings model is
designed for self-represented parties, avoiding the need for cross-examination will support
the right to protection from exploitation, violence and abuse.
77. Under proposed paragraph 11LJ(2)(a), in deciding whether to give leave for legal
representation, the Panel must have regard to whether there are reasonable grounds to
believe that there has been family violence, or a risk of family violence, by a party to the
hearing; and the capacity of a party to effectively participate in the hearing without legal
representation, having regard to any power imbalances between the parties or any other
relevant factor. The Panel also has the discretion to allow a person to participate in a hearing
by video link, audio link or other appropriate means (proposed section 11LH).
18
78. The right of children to be protected from violence, abuse and neglect as required by
Article 19(1) of the CRC is also supported through the parenting management hearings
process through several mechanisms. The family violence and child abuse reporting
obligation provisions of the Family Law Act have been adopted in the Bill (proposed
sections 11MF, 11MG, 11MH, 11MJ). This is to ensure that issues of family violence and
child abuse are brought to the attention of the relevant state or territory child welfare
authority and the Panel. This includes information in relation to allegations or findings
related to physical and mental violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual abuse, which occurs in the care of parents,
legal guardians or other persons responsible for the care of the child.
79. The Bill also provides that an application which includes an allegation that a child has
been sexually abused, or is at risk of being sexually abused, must be dismissed by the Panel
(proposed subsection 11NA(3)) on the basis that parenting disputes involving allegations of
child sexual abuse are more appropriately dealt with by a court. The Panel must also dismiss
any application if the child is under the care of a person under a child welfare law (proposed
subsection 11NA(4)). Importantly, in these circumstances the reporting obligations would
ensure that any risks to children are notified to relevant child welfare authorities, and Panel
staff would be able to refer parties to relevant services to assist them to make an application
to a family law court.
80. In combination, the procedural safeguards and other measures included in the Bill
support the right to protection from exploitation, violence and abuse.
Illicit transfer of children: Article 11 of the CRC
81. Article 11 of the CRC requires States to take measures to combat the illicit transfer
and non-return of children abroad. The travaux préparatoires indicate that this Article of the
CRC is particularly concerned with international parental child abduction.
82. The Bill creates four offences in relation to removing a child from Australia. These
offences are set out in the following sections:
proposed section 11PP (obligations if certain parenting determinations have been
made)
proposed section 11PQ (obligations if application for parenting determination has
been made etc)
proposed section 11PR (obligations of owners etc. of aircraft and vessels if
certain parenting determinations made), and
proposed section 11PS (obligations of owners etc. of aircraft and vessels if
application for parenting determination has been made etc).
83. Under proposed sections 11PP and 11PQ where the Panel has made parenting
determinations, or where proceedings for such a determination is on foot, it will be a
criminal offence for a parent to remove the child from Australia (offences carry a maximum
penalty of three years imprisonment). These offences are consistent with offences already in
19
the Act for parenting orders and therefore complement those existing provisions that make it
an offence to remove a child from Australia. These provisions are measures that will assist
with combating the illicit transfer of children.
84. The Bill also amends certain provisions (sections 67K, 67Q and 67T) in
Subdivision C of the Act which deal with the location and recovery of children. The court
may order a recovery order (authorising or directing an appropriate authority to take action
to find, recover and deliver a child to a person with parental responsibility for him or her) or
a location order (a person can be required to provide information to the court about a child's
location). These remedies are often used to prevent apprehended incidents of international
parental child abduction from Australia. These remedies will also be available where a
parenting determination has been made as part of ensuring they are enforced.
85. By introducing offences relating to removing a child from Australia and ensuring
parenting determinations are covered within the existing recovery and location order
provisions of the Act, the Bill assists with fulfilling responsibilities in accordance with
Article 11 of the CRC.
Access to justice for people with disability: Article 13(1) of the CRPD
86. Article 13(1) of the CRPD requires State parties to ensure effective access to justice
for people with disabilities on an equal basis with others, including through providing
procedural accommodations in order to facilitate their effective role as participants in all
legal proceedings.
87. The capacity of a party to effectively participate in a hearing without legal
representation will be one of the factors the Panel considers in deciding whether to allow a
party to have legal representation (proposed paragraph 11LJ(2)(b)).
88. Parties will be entitled to have a support person with them in the hearing (proposed
subsection 11LJ(3)). This provision will allow the Panel to accommodate the needs of
applicants with disabilities who may require physical assistance when appearing before the
Panel. Under proposed subsection 11LJ(4), the Panel will also be able to allow the support
person to address the Panel because of exception circumstances. This will include if the
parent has a disability and requires assistance in presenting their information.
89. The Bill supports the requirement to ensure access to justice for people with
disabilities.
Right to freedom from arbitrary and unlawful interferences with privacy: Article 17 of the
ICCPR
90. Under Article 17 of the ICCPR, an interference with an individual's privacy must
have a lawful basis and must not be arbitrary. The right to protection against arbitrary and
unlawful interference protects personal information.
20
91. The Bill contains a number of provisions which deal with non-disclosure of
confidential information which supports the right to privacy of the parties involved in a
parenting management hearing. The Panel may give directions under proposed
subsections 11LF(4) and (5) to prevent the publication or disclosure of information that
might tend to identify a party, witness or other associated person, or information that
comprises oral submissions or information lodged with the Panel.
92. Proposed section 11X of the Bill deals with the circumstances where confidential
information is not to be disclosed. Section 11X protects against the disclosure of confidential
documents and information to a court, tribunal or other authority or person with the power to
compel information. It ensures that a person who is, or has been, a Panel member, a staff
member of the Panel or a person otherwise engaged to provide services for the purpose of a
parenting management hearing, is not required to produce a document or disclose
information obtained in the course of their duties, except so far as is necessary for the
purposes of carrying into effect the provisions of this Act (for example, transmission of
documents for the purpose of an appeal under section 11QB). This provision is intended to
protect information that is provided as part of a parenting management hearing, to encourage
parties to be open and frank with the Panel and to provide all relevant information and
documents that may assist the Panel in considering their parenting matter. This provision
supports the parties' right to privacy.
93. Proposed section 11RA further deals with the restriction on the publication of certain
information relating to a parenting management hearing and is modelled on existing
section 121 of the Act. The restriction on the publication of court proceedings is an
important aspect of affording dignity and privacy to separating families. Proposed
section 11RA inserts two new offences relating to the publication of parenting management
hearings. A person commits an offence if:
that person publishes or otherwise disseminates to the public, or a section of the
public, by any means any account of a parenting management hearing, and
the account identifies a party to the hearing, or a person who is related to, or
associated with, a party the hearing or is, or is alleged to be, in any other way
concerned in the matter to which the hearing relates, or a witness to the hearing.
94. The penalty for this offence of 12 months imprisonment or 60 penalty units or both
reflects the importance of protecting the identity of persons involved in parenting
management hearings, and the children of parents participating in the hearings, to avoid
causing undue distress or embarrassment and to protect the safety of all persons. This
provision is an important part of securing the right to privacy for parties involved in a
parenting management hearing.
95. Proposed subsection 11RA(2) expands on proposed subsection 11RA(1) by outlining
the types of things that would identify a person in an account of the hearing. This would
include for example:
21
giving particulars such as the alias of the person, the physical description or style
of dress of the person, or the recreational interests of the person if those
particulars are sufficient to identify that person to a member of the public or to a
member of a section of the public to which the account is disseminated
including a picture of the person, or
using a voice in giving the account that is sufficient to identify that person to the
public or to a member of the section of the public to which the account is
disseminated, as the case requires.
96. In considering whether an account of a hearing is taken to have identified a person,
the list of items provided in subsection 11RA(2) is not exhaustive. An account of a hearing
may identify a person through other particulars or means. This broad approach would afford
a high level of protection against others revealing the identity of persons, and their children,
who participate in a parenting management hearing.
97. Proposed subsection 11RA(3) would provide that a person commits an offence if the
person publishes or disseminates a list of parenting management hearings and the hearings
are identified by reference to the names of the parties to the hearing.
98. Proposed subsection 11RA(4) lists the defences where some sharing of information
would be permissible, and not subject to the offence provisions. These defences constitute a
limitation on the parties' right to privacy. In order for an interference with the right to
privacy not to be arbitrary, the interference must be for a reason consistent with the
provisions, aims and objectives of the ICCPR and be reasonable in the particular
circumstances. The United Nations Human Rights Committee (the HRC) has interpreted
'reasonableness' in this context to mean that 'any interference with privacy must be
proportional to the end sought and be necessary in the circumstances of any given case'.
99. The circumstances where communication of information is permitted are:
the communication, to persons concerned with a parenting management hearing
of any document for use in connection with that hearing
the communication of any document to authorities of states and territories that
have responsibilities relating to the welfare of children and are prescribed by the
Panel rules for the purposes of this paragraph
the communication of any document to:
- a body that is responsible for disciplining members of the legal profession
in a state or territory; or
- persons concerned in disciplinary proceedings against a member of the
legal profession of a state or territory, being proceedings before a body that
is responsible for disciplining members of the legal profession in that state
or territory
the communication, to a body that grants assistance by way of legal aid, of any
document for the purpose of facilitating the making of a decision as to whether
22
assistance by way of legal aid should be granted, continued or provided in a
particular case
the publishing of a notice or report in accordance with the direction of the Panel
the publication by the Panel of lists of parenting management hearings under this
Part, identified by reference to the names of the parties, that are to be dealt with
by the Panel
the publishing of any publication of a technical character bona fide intended
primarily for use by the members of a profession, or
the publication of accounts of parenting management hearings, where those
accounts have been approved by the Panel.
100. The information that will be shared under these provisions will include personal
information relating to parties to proceedings under the parenting management hearings,
including children. The sharing of information envisaged by these provisions engages and
limits the right to privacy. However, the sharing of such information in each of these
circumstances is reasonable, necessary and proportionate. For example, sharing information
with the state and territory authorities that have responsibilities relating to the welfare of
children is done so for the specific purpose of protecting the welfare of children, which is an
important and legitimate public purpose. This is a necessary measure to protect children
from harm. The limitation is reasonable in that it only permits the sharing of information to
those agencies which are the primary authorities for ensuring the protection of children in
each state and territory in Australia and have expertise in dealing with such matters. The
sharing of such information is proportionate as the information will be used, handled and
stored by these authorities consistently with the way they handle other similar information.
On this basis, this limitation is reasonable, necessary and proportionate to achieving a
legitimate objective, being the protection of children, and is consistent with the provisions,
aims and objectives of the ICCPR.
101. The Bill thus supports the right to privacy. Any limitations are reasonable, necessary
and proportionate to the aim of protecting the particular vulnerabilities of children.
Right to freedom of opinion and expression: Article 19 of the ICCPR
102. Article 19 of the ICCPR provides that everyone shall have the right to freedom of
expression. This right shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice.
103. The exercise of the right to freedom of expression carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall only be
such as are provided by law and are necessary for respect of the rights or reputations of
others, or for the protection of national security or of public order, or of public health or
morals.
23
104. As outlined above, the Bill contains a number of provisions which restrict the
disclosure of certain information relating to parenting management hearings. In particular,
proposed sections 11RA and 11X both restrict the disclosure of certain information relating
to parenting management hearings. These provisions engage and limit the right to freedom of
expression. However, the limitations are reasonable, necessary and proportionate to
achieving the legitimate objective of protecting the privacy and safety of the parties to
hearings.
105. The Panel's discretion to make non-disclosure orders is governed by proposed
subsections 11LF(4) and (5) which require the Panel to balance the importance of documents
being made available to all the parties, with any reasons in favour of confidentiality. This
limitation ensures that the Panel's exercise of its non-disclosure powers is proportionate, and
only exercised where necessary to support the confidential nature of the information and the
safety of any person.
106. In the case of proposed section 11RA, while a person would be subject to a criminal
offence for disclosing such information, the provisions are sufficiently precise regarding the
kinds of information the disclosure of which is prohibited and there are a number of
exemptions which apply for legitimate disclosures of information. These include:
communications to state and territory authorities that have responsibility for the
welfare of children and are prescribed by the Panel rules
the publication by the Panel of a list of parenting management hearings with the
names of parties, to be dealt with by the Panel, and
publishing accounts of hearings, where those accounts have been approved by the
Panel.
107. Proposed section 11RA reflects existing section 121 of the Act. Section 121 of
the Act restricts the publication of court proceedings where such publication would identify
a party to the proceedings or a person associated with the proceedings including a witness.
This is due to the sensitive nature of many family law proceedings. It is therefore appropriate
to similarly protect aspects of parenting management hearings. There has been some
jurisprudence in relation to section 121, which will also be relevant to the operation of
section 11RA. In the case of Re Edelsten; Ex parte Donnelly (1988) 18 FCR 434 at 436
Morling J held that:
In the context of s121 'disseminates to the public' should be taken as a reference to
widespread communication with the aim of reaching a wide audience. It cannot have
been intended by the legislature that the restriction on dissemination should apply, for
example, to conversations between a party to Family Court proceedings and a close
personal friend.
108. That decision was upheld by the Honourable Justice Kenny in the matter of
Hinchcliffe v Commissioner of Australian Federal Police [2001] FCA 1747. Justice Kenny
noted that the nature of discussions between friends and family is not public as 'the
communication [is] essentially personal, that is, as being made ... in a private way'.
24
109. In the case of proposed section 11X, while a court must not require a person to
produce certain information, the disclosure of information necessary to carry out
requirements under the Act is still permitted.
110. The Bill thus supports the right to freedom of expression with any limitations being
necessary, reasonable and proportionate to the legitimate aim of protecting particularly
sensitive information and the safety of the parties.
The presumption of innocence: Article 14(2) of the ICCPR
111. Article 14(2) of the ICCPR provides that everyone charged with a criminal offence
shall have the right to be presumed innocent until proven guilty according to law. The
presumption of innocence is also a fundamental principle of the common law.
112. This Bill engages and limits the presumption of innocence as it contains several
sections which reverse the evidential burden of proof. A number of offences are included in
the Bill which are aimed at ensuring parties comply with an obligation, a direction or
determination of the Panel, or an order of a court in relation to a parenting determination.
Non-compliance with an obligation, direction, determination or court order is a major source
of conflict and distress to parties. Encouraging compliance with parenting determinations
and obligations is in the best interests of the child involved.
113. The following proposed sections in the Bill include a note stating that a defendant
bears an evidential burden in relation to the matters in this subsection as per the principle
codified in subsection 13.3(3) of the Criminal Code Act 1995 (Cth) ('the Criminal Code'):
section 11PP (obligations if certain parenting determinations have been made)
section 11PQ (obligations if application for parenting determination has been
made etc)
section 11PR (obligations of owners etc. of aircraft and vessels if certain
parenting determinations made)
section 11PS (obligations of owners etc. of aircraft and vessels if application for
parenting determination has been made etc)
section 11R (failure to comply with notice to give information or produce
documents)
section 11RA (restriction on publication of parenting management hearing)
114. The first four sections listed deal with consequences if children are removed from
Australia. The last two sections deal with consequences for failing to comply with a notice to
give information or produce documents or breaching restrictions on the publication of
information relating to a parenting management hearing. Within the sections, there are
various exceptions or defences to the offences created. Under the principles codified in
subsection 13.3(3) of the Criminal Code, a defendant who wishes to rely on any exception,
exemption, excuse, qualification or justification provided by the law creating an offence
bears an evidential burden in relation to that matter. 'Evidential burden' means the burden of
25
adducing or pointing to evidence that suggests a reasonable possibility that the matter exists
or does not exist. An evidential burden is easier for a defendant to discharge than a legal
burden, and does not completely displace the prosecutor's burden (only defers that burden).
115. It is reasonable and appropriate for the evidential burden to be placed on the person
claiming the exception or defence in the cases listed above. In all of these situations, a
defendant will be in a better position to point to evidence establishing the exception or
defence. For example, in relation to showing that the child involved had been removed from
Australia with the other party's written consent (see proposed subsections 11PP(3) and
11PQ(3)) the defendant will be a position to produce evidence of this written consent.
Equally, establishing why a person has published an identifying account of a hearing, would
be peculiarly within the knowledge of that person, for example, to show that they were
directed by the Panel to do so (see proposed subsection 11RA(4)(e)). This approach is
consistent with the Commonwealth Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers which refers to the settled principle that it is
appropriate to cast a matter as an evidential burden defence where a matter is peculiarly
within a defendant's knowledge and not necessarily known to the prosecution.
116. The Bill is thus consistent with the principle relating to the presumption of innocence,
with the limitations relating to reversing the evidential burden reasonable, necessary and
proportionate to the aim of establishing the relevant exception or defence.
Minimum guarantees in criminal proceedings: Article 14(3) of the ICCPR (to be free from
self-incrimination)
117. Specific guarantees of the right to a fair trial in the determination of a criminal charge,
guaranteed by Article 14 of the ICCPR include the right not to incriminate oneself
(Article 14(3)(g)). The privilege against self-incrimination allows a person to refuse to
answer any question, or produce any document or thing, if doing so would tend to expose the
person to conviction for a crime. Removing the privilege against self-incrimination
represents a significant loss of personal liberty for an individual who is forced to give
evidence that would tend to incriminate him or herself.
118. The right not to incriminate oneself may be subject to permissible limitations where
the limitation pursues a legitimate objective, is rationally connected to that objective and is a
proportionate way of achieving that objective.
119. Proposed section 11ME would provide the Panel with powers to obtain information or
documents. Under subsection11ME(1), the Panel must be satisfied that a person has
information or documents that are likely to assist in:
the resolution of a matter before the Panel; or
the expeditious and efficient conduct of a parenting management hearing.
120. The Panel may request this information or documents by written notice to the person
under proposed subsection 11ME(2). Proposed subsection 11ME(5) abrogates the privilege
26
against self-incrimination. A person is not excused from providing the information or
document requested by the Panel under subsection (2) on the basis that the information or
document might tend to incriminate that person or expose them to a penalty.
121. This limitation on the right not to incriminate oneself is reasonable, necessary and
proportionate to the aim of ensuring that the Panel has all the information before it that
would be necessary to make an appropriate determination in the best interests of the child. It
is critical that the Panel has all relevant information before it to enable it to make decisions
that are in the best interests of the child and which adequately provide for the child's safety.
122. Proposed subsection 11ME(6) provides a safeguard in the form of a derivate use
immunity to afford protection to persons who provide information or documents. The
information or documents given by a person, or any information, document or thing obtained
as a consequence of giving that information or documents, are not admissible in evidence
against that person in any criminal or civil proceedings other than proceedings under
sections 137.1 and 137.2 of the Criminal Code (which relate to giving false or misleading
information).
123. This safeguard ensures that the limitation on the right not to incriminate oneself is
reasonable and proportionate to the legitimate objective of ensuring the Panel has all relevant
information before it in making its determinations which will lead to better outcomes for the
child involved.
Right to security of the person and freedom from arbitrary detention: Article 9 of the ICCPR
124. Article 9 of the ICCPR provides that everyone has the right to liberty and security of
the person and that no one shall be subjected to arbitrary arrest or detention. It also provides
for further protections in the course of arrest, including to be informed of the reason for
arrest, to be brought promptly before a judge, to habeas corpus, and to take proceedings
before a court.
125. A number of powers and offences are included in the Bill which are aimed at ensuring
parties comply with an obligation, a direction or determination of the Panel, or an order of a
court in relation to a parenting determination.
126. These provisions include:
a power for a court to issue a warrant for the arrest of a person contravening the
obligations under a parenting determination etc (proposed section 11PO)
offences for taking a child outside Australia when not permitted (proposed
sections 11PP and 11PQ)
offences for owner etc of aircraft or vessel for taking a child outside Australia
when not permitted (proposed sections 11PR and 11PS)
provisions that state or territory laws (including offences) apply in relation to
taking a child outside Australia (proposed section 11PU)
27
an offence for failure to comply with a notice to give information or produce
documents (proposed section 11R)
an offence for publishing identifying information (proposed section 11RA)
an offence for breaching a non-disclosure direction (proposed section 11RB), and
an offence for contempt of the Panel (proposed section 11RC).
127. The penalties for committing an offence are consistent with the penalties for
comparable offences already prescribed in the Act in relation to breaches of parenting orders.
Non-compliance with an obligation, direction, determination or court order is a major source
of conflict and distress to parties. The provisions seek to ensure that the objectives of the
hearings are fulfilled and the child's best interests are of paramount consideration.
128. Proposed section 11PO would empower the court to issue a warrant for the arrest of
an alleged offender who has prevented or hindered the carrying out of a parenting
determination. This section is consistent with section 65Q of the Act which empowers the
court to issue a warrant for the arrest of an alleged offender who has prevented or hindered
the carrying out of a parenting order. This requires the court to be satisfied that there are
reasonable grounds for believing that the alleged offender has contravened proposed
section 11PN by failing to meet their obligations in relation to complying with a
determination that provides for whom the child is to live with, spend time with, or
communicate with.
129. An application to have the alleged offender dealt with under the enforcement
provisions in Division 13A of Part VII must be before the court; and the court must be
satisfied that the issuing of a warrant is necessary to ensure the alleged offender attends court
for the alleged contravention. Proposed subsection 11PO(3) would provide that a warrant
issued under this section would cease to be in force on the day specified in the warrant,
providing it is no longer than 6 months after the issue, or alternatively 6 months after the
date of issue. Again, these guarantees and safeguards are consistent with the obligations
under Article 9 of the ICCPR concerning arbitrary arrest and detention.
130. Proposed section 11SB allows the Minister, by legislative instrument, to make rules
prescribing certain matters under the Act. Proposed paragraph 11SB(3)(b) makes it clear that
these rules may not provide powers of arrest or detention, or entry, search or seizure. It is
appropriate that any such powers are clearly set out in the principal Act.
131. Thus, the provisions in the Bill that permit the arrest of offenders for various offences,
including the use of reasonable force as necessary, are no broader than required to achieve
the legitimate aim of ensuring that an arrestee can be arrested and brought before a court for
the administration of justice. The Bill is consistent with the protections provided under
Article 9 of the ICCPR in relation to not being subjected to arbitrary arrest and detention or
deprived of liberty except as provided by law and appearing promptly before the court.
28
Conclusion
132. The Bill is compatible with human rights because it promotes the protection of human
rights, particularly the best interests of the child in the CRC. To the extent that it may limit
human rights, those limitations are reasonable, necessary and proportionate to achieve the
legitimate aims of the Bill and the Act.
29
30
NOTES ON CLAUSES
Clause 1--Short title
17. Clause 1 would provide that this Act is the Family Law Amendment (Parenting
Management Hearings) Act 2017.
Clause 2--Commencement
18. Clause 2 would provide for the commencement of each provision of the Bill.
19. Item 1 of the table would provide that sections 1 to 3 and anything in this Act not
elsewhere covered by the table commence on the day this Act receives the Royal Assent.
20. Item 2 of the table would provide that Schedule 1 commences on a single day to be
fixed by Proclamation. However, if the provisions do not commence within the period of 6
months beginning on the day this Act receives the Royal Assent, they commence on the day
after the end of that period. This commencement date will allow for the Principal Member
and Panel members to be appointed, and for the rules and procedures and practices of the
Panel to be developed, prior to commencement of the first pilot location.
21. Items 3--7 of the table would provide for the commencement of a number of
consequential amendments that are contingent on the passage or commencement of other
legislation as follows:
items 1 to 4 of Schedule 2 would commence at the later of the commencement of
Part 1 of Schedule 6 to the Civil Law and Justice Legislation Amendment Act
2017, and the commencement of the provisions covered by table item 2. Both of
these events must occur for the items to commence.
items 5 to 15 of Schedule 2 would commence at the later of the commencement
of Part 2 of Schedule 6 to the Civil Law and Justice Legislation Amendment Act
2017, and the commencement of the provisions covered by table item 2. Both of
these events must occur for the items to commence.
items 16 to 20 of Schedule 2 would commence at the later of the commencement
of Schedule 9 to the Civil Law and Justice Legislation Amendment Act 2017, and
after the commencement of the provisions covered by table item 2. Both of these
events must occur for the items to commence.
Schedule 2, Part 2 would commence at the later of the commencement of
Division 1 of Part 2 to Schedule 1 of the Family Assistance and Child Support
Legislation Amendment (Protecting Children) Act 2017, and after the
commencement of the provisions covered by table item 2. Both of these events
must occur for the items to commence.
Schedule 2, Part 3 would commence at the later of the commencement of Part 1
of Schedule 1 to the Family Law Amendment (Family Violence and Other
Measures) Act 2017, and after the commencement of the provisions covered by
table item 2. Both of these events must occur for the items to commence.
Clause 3--Schedules
22. Clause 3 would provide that any legislation specified in a Schedule to this Act is
amended or repealed as set out in the Schedule concerned and any other item in a Schedule to
this Act has effect according to its terms.
Notes on clauses
31
SCHEDULE 1--AMENDMENTS
Part 1 Main Amendments
Family Law Act 1975
Item 1--Subsection 4(1) (before paragraph (a) of the definition of child)
23. Subsection 4(1) of the Act provides a list of definitions to be used for interpreting the
Act, the standard Rules of Court and the related Federal Circuit Court Rules.
24. Item 1 would insert paragraph (aa) to the definition of child to ensure that under the
new Part IIIAA, this term includes an adopted child.
Item 2--Subsection 4(1)
25. Item 2 would insert three new definitions into subsection 4(1) of the Act. Inserting
these definitions would assist the user to understand the meaning of certain terms. They
provide short-hand references that would otherwise need to be expanded each time the term is
used throughout the Act. The definitions are:
child sexual abuse--this definition refers readers to subsection 11NA(16) and
would be used in determining when the Panel must dismiss an application for a
parenting determination under section 11NA. It draws from the existing definition
of 'abuse' in relation to a child in subsection 4(1) of the Act.
contravened--this term would be used in reference to a contravention of a
parenting determination in Division 13A of Part VII, and has the meaning given
by new section 70NACA.
Federal Court Chief Executive Officer--this term would provide a short-hand
reference to the Chief Executive Officer and Principal Registrar of the Federal
Court of Australia.
Item 3--Subsection 4(1) (definition of interests)
26. The term interests is in the list of definitions in subsection 4(1) of the Act and is
defined to include matters related to the care, welfare or development of the child, when used
in Part VII of the Act in relation to the child.
27. Item 3 would omit "Part" from the definition of interests and replace it with "Parts
IIIAA and". This amendment would apply the definition of interests to references to that term
throughout the new Part IIIAA and to Part VII of the Act.
Item 4--Subsection 4(1)
28. Item 4 would insert five new definitions into subsection 4(1) of the Act. Inserting
these definitions would assist the user to understand the meaning of certain terms. They
provide short-hand references that would otherwise need to be expanded each time the term is
used throughout the Act. The definitions are:
made in favour--this term would be used in relation to a parenting
determination, and has the meaning given by subsection 11JG(7). This meaning is
equivalent to the same term defined in subsection 4(1) of the Act in relation to a
parenting order (other than a child maintenance order) with the meaning given by
subsection 64B(6) of the Act.
paid work--this term would mean work for financial gain or reward (whether as
an employee, a self-employed person or otherwise).
32
Panel--this term would provide a short-hand reference to the Parenting
Management Hearings Panel which is established by new section 11T.
Panel member--this term would provide a short-hand reference to a member of
the Parenting Management Hearings Panel appointed under section 11UA, and
includes the Principal Member.
Panel rules--this term would provide a short-hand reference to the rules made by
the Minister under new section 11SB.
Item 5--Subsection 4(1) (definition of parent)
29. The term parent is in the list of definitions in subsection 4(1) of the Act and is defined
to mean an adoptive parent of the child, when used in Part VII of the Act in relation to a child
who has been adopted.
30. Item 5 would omit "Part" from the definition of parent and replace it with "Parts
IIIAA and". This amendment would apply the definition of parent to references to that term
throughout the new Part IIIAA and to Part VII of the Act.
Item 6--Subsection 4(1) (definition of parental responsibility)
31. The term parental responsibility is in the list of definitions in subsection 4(1) of the
Act and is defined to have the meaning given by section 61B of the Act, when used in
Part VII of the Act.
32. Item 6 would omit "Part" from the definition of parental responsibility and replace it
with "Parts IIIAA and". This amendment would apply the definition of parental
responsibility to references to that term throughout the new Part IIIAA and to Part VII of the
Act.
Item 7--Subsection 4(1)
33. Item 7 would insert two new definitions into subsection 4(1) of the Act. Inserting
these definitions would assist the user to understand the meaning of certain terms. They
provide short-hand references that would otherwise need to be expanded each time the term is
used throughout the Act. The definitions are:
parenting determination--this term would have the meaning given by new
section 11JG of the Act.
parenting management hearing--this term would mean a hearing conducted by
the Panel in relation to an application for a parenting determination.
Item 8--Subsection 4(1) (at the end of the definition of primary order)
34. Item 8 would insert a note under the definition of primary order in subsection 4(1) of
the Act. The note would state that in Division 13A of Part VII, primary order has a meaning
affected by section 70NABA. Section 70NABA would be inserted by the Bill and extends the
meaning of primary order so that a reference to a primary order includes a reference to a
parenting determination, including such a determination as varied in this Division
(Division 13A) other than in section 70NBA. This would have the effect that parenting
determinations would be captured by Division 13A which deals with the powers that a court
with jurisdiction under the Act has to make orders to enforce compliance with orders under
the Act affecting children.
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Item 9--Subsection 4(1)
35. Item 9 would insert three new definitions into subsection 4(1) of the Act. Inserting
these definitions would assist the user to understand the meaning of certain terms. They
provide short-hand references that would otherwise need to be expanded each time the term is
used throughout the Act. The definitions are:
Principal Member--this term would mean the Principal Member of the Parenting
Management Hearings Panel as appointed under section 11UA.
Principal Member directions--this term would mean the directions given under
section 11VA. These directions may be made by the Principal Member in relation
to matters such as the operations, procedures and arrangements of the Panel.
reasonable excuse for contravening--this term would refer to a reasonable
excuse for contravening a parenting determination and would include the
meanings given by section 70NAE of the Act. Section 70NAE of Division 13A of
the Act provides for the meaning of reasonable excuse for contravening an order
under the Act affecting children. This amendment (and items 66--79 of
Schedule 1 of the Bill) would extend that meaning to apply to parenting
determinations. For example, a person would be taken to have had a reasonable
excuse for contravening a parenting determination, if they did not allow the child
to spend time with the other parent for a certain period of time on the basis they
believed it necessary to protect the health and safety of a person, such as the
child.
Item 10--After paragraph 4(1AB)(aa)
36. Section 4(1AB) of the Act defines when a person is taken to be a member of the
family of another person for the purposes of certain provisions.
37. Item 10 would expand the list of provisions that the definition applies to, to include
new sections 11JB and 11LG. New section 11JB provides how the Panel should determine
what is in the child's best interests. New section 11LG provides an obligation for persons to
inform the Panel of a family violence order, care arrangements, or a notification to, or
investigation by, prescribed State or Territory agencies in relation to a child or a member of
the child's family.
38. This amendment will provide clarity about who would be taken to be a member of the
child's family for the purpose of these sections.
Item 11--At the end of subsection 10D(4)
39. Section 11 of the Act provides a duty of confidentiality for family counsellors and sets
out the circumstances when they may or must disclose a communication made during family
counselling.
40. Subsection 10D(4) provides that a family counsellor may disclose a communication if
the counsellor reasonably believes that the disclosure is necessary in certain circumstances
(as listed).
41. Item 11 would insert new paragraph (g) to provide an additional circumstance for
when a counsellor may disclose a communication under subsection 10D(4)--they may do so
if they reasonably believe the disclosure is necessary for the purpose of assisting a lawyer
independently representing a child's interests in a Parenting Management Hearing (on
direction from the Panel under new section 11LK) to do so properly.
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Item 12--At the end of subsection 10E(1)
42. Item 12 would add the words "; or (e) in a parenting management hearing" at the end
of subsection 10E(1).
43. Section 10E of the Act provides that evidence of anything said, or of any admission
made, by a person in family counselling is not admissible in a court or any proceedings
before a person authorised by a law of the Commonwealth or of a State or of a Territory, or
by the consent of the parties, to hear evidence.
44. The amendment would extend the operation of this provision to parenting
management hearings to ensure that such evidence may not be relied on by the Panel in
making a parenting determination. This is to clarify the position in respect of parenting
management hearings (which are not required to apply the rules of evidence--section 11LD)
and to ensure consistency with other types of proceedings.
Item 13--At the end of subsection 10E(2)
45. Item 13 would insert a new subsection (2A) after subsection 10E(2).
46. Current subsection 10E(1) provides that evidence of anything said, or any admission
made, by a person in family counselling is not admissible in any court, or any proceedings.
However, subsection 10E(2) provides that evidence in the form of an adult's admission of
abuse or risk of abuse to a child under 18 years, or a disclosure by a child that he or she has
been abused or is at risk of abuse, is not excluded by operation of subsection 10E(1).
47. Item 12 (above) clarifies that subsection 10E(1) operates in respect of parenting
management hearings. Item 13 would insert a new subsection 10E(2A) which largely
replicates subsection 10E(2) to provide that evidence in the form of an adult's admission of
abuse or risk of abuse to a child under 18 years, or a disclosure by a child that he or she has
been abused or is at risk of abuse may be relied on by the Panel in making a parenting
determination despite the operation of subsection 10E(1). This ensures consistency with other
types of proceedings.
Item 14--At the end of subsection 10H(4)(e)
48. Section 10H of the Act provides a duty of confidentiality for family dispute resolution
practitioners and sets out the circumstances when they may or must disclose a
communication made during family dispute resolution.
49. Subsection 10H(4) provides that a family dispute resolution practitioner may disclose
a communication if the practitioner reasonably believes that the disclosure is necessary in
certain circumstances (as listed).
50. Item 14 would insert new paragraph (ea) to provide an additional circumstance for
when a practitioner may disclose a communication under subsection 10H(4) - they may do so
if they reasonably believe the disclosure is necessary for the purpose of assisting a lawyer
independently representing a child's interests in a parenting management hearing (on
direction from a Panel under new section 11LK) to do so properly.
Item 15--Subsection 10H(6)
51. Subsection 10H(6) of the Act provides that a family dispute resolution practitioner
may disclose information necessary for the practitioner to give a certificate under
subsection 60I(8) of the Act.
52. Item 15 would amend subsection 10H(6) of the Act to insert "11KB(2) or" after the
word "subsection". This would enable a practitioner to disclose information necessary in
35
order to give a certificate under either existing subsection 60I(8) of the Act or new
subsection 11KB(2).
53. Subject to certain exceptions, new subsection 11KB(2) provides that an application
for a parenting determination must include a certificate issued by a family dispute resolution
practitioner, of the type set out in that provision. These types of certificates mirror those
available under subsection 60I(8) of the Act.
Item 16--At the end of subsection 10J(1)
54. Item 16 would add the words "; or (e) in a parenting management hearing" at the end
of subsection 10J(1).
55. Section 10J of the Act provides that evidence of anything said, or of any admission
made, by a person in family dispute resolution is not admissible in a court or any proceedings
before a person authorised by a law of the Commonwealth or of a State or of a Territory, or
by the consent of the parties, to hear evidence.
56. The amendment would extend the operation of this provision to parenting
management hearings to ensure that such evidence may not be relied on by the Panel in
making a parenting determination. This is to clarify the position in respect of parenting
management hearings (which are not required to apply the rules of evidence--section 11LD)
and to ensure consistency with other types of proceedings.
Item 17--After subsection 10J(2)
57. Item 17 would insert a new subsection (2A) after subsection 10J(2).
58. Current subsection 10J(1) provides that evidence of anything said, or any admission
made, by a person in family dispute resolution is not admissible in any court, or any
proceedings. However, subsection 10J(2) provides that evidence in the form of an adult's
admission of abuse or risk of abuse to a child under 18 years, or a disclosure by a child that
he or she has been abused or is at risk of abuse, is not excluded by operation of
subsection 10J(1).
59. Item 16 (above) clarifies that subsection 10J(1) operates in respect of parenting
management hearings. Item 16 would insert a new subsection 10J(2A) which largely
replicates subsection 10J(2) to provide that evidence in the form of an adult's admission of
abuse or risk of abuse to a child under 18 years, or a disclosure by a child that he or she has
been abused or is at risk of abuse may be relied on by the Panel in making a parenting
determination despite the operation of subsection 10J(1). This ensures consistency with other
types of proceedings.
Item 18--Subsection 10J(3)
60. Subsection 10J provides that communications made in family dispute resolution or
during the referral of a person by a family dispute resolution practitioner to another
professional, are not admissible, unless it relates to the abuse of a child.
61. Subsection 10J(3) of the Act provides that this does not apply to information
necessary for the practitioner to give a certificate under subsection 60I(8).
62. Item 18 would insert reference to new subsection 11KB(2) within subsection 10J(3) to
extend to certificates issued by a practitioner and provided with an application for a parenting
management hearing.
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Item 19--Section 11A
63. Item 19 would insert "(1)" before the text of the section starts. This is necessary
because item 20 inserts new subsection (2).
Item 20--At the end of section 11A
64. Section 11A of the Act sets out the functions of family consultants in providing
services in relation to proceedings under the Act.
65. Item 20 would insert new subsection (2) to section 11A to include an additional
function for family consultants. This function would be to provide services in relation to
parenting management hearings, including assisting and advising the Panel and parties to
parenting management hearings, and reporting to, or undertaking an investigation for, the
Panel as directed under new section 11MB. It is intended that communications with family
consultants are able to be relied upon by the Panel in relation to parenting management
hearings.
Item 21--After paragraph 11B(a)
66. Paragraph 11B(a) of the Act provides a definition of a family consultant to be a
person who is appointed as a family consultant under section 18ZH of the Federal Court of
Australia Act 1976.
67. Item 21 would insert a new paragraph (b) to section 11B to include family consultants
engaged under new section 11WD (which provides for the engagement of staff of the Panel).
This is necessary so as to include those who have been engaged as family consultants for the
purposes of parenting management hearings. Under paragraph 11B(c), a person can also be
appointed as a family consultant under the regulations.
Item 22--After Part III
68. Item 22 would insert a new Part IIIAA after Part III of the Act. This new Part would
be titled Part IIIAA--Parenting management hearings, and would provide for the
establishment, operation and powers of the new Parenting management hearings Panel.
Division 1--Introduction
Section 11J--Objects of this Part
69. New section 11J would provide for the object of the parenting management hearings.
70. 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. The 'best interests of the child' object is consistent with
section 60B of Part VII of the Act.
71. A further object of Part IIIAA is to give effect to the Convention on the Rights of the
Child (1989). The purpose of this object is to confirm, in cases of ambiguity, the obligation
on decision-makers to interpret new Part IIIAA, to the extent its language permits,
consistently with Australia's obligations under the Convention. The Convention may be
considered as an interpretive aid to Part IIIAA of the Act. To the extent that Part IIIAA
departs from the Convention, Part IIIAA would prevail. This provision is not equivalent to
incorporating the Convention into domestic law.
72. Australia ratified the Convention in 1990 and, in doing so, committed to protecting
and ensuring children's rights. The Convention contains the full range of human rights-civil,
cultural, economic, political and social rights. These rights can be broadly grouped as
37
protection rights, participation rights and survival and development rights. One of the main
principles on which the Convention is based is the obligation to have regard to the best
interests of the child as a primary consideration in decision-making. New Part IIIAA is based
on this same principle; although the best interests of the child are elevated to 'paramount'
status in several provisions. The reference to the Convention in section 11J does not
adversely affect these provisions in Part IIIAA or dilute the meaning of 'paramount
consideration'. Nothing in the Convention prevents Australia enacting stronger protections
for the rights of the child than the Convention itself prescribes. The note provides the reader
with a reference for accessing the Convention in accordance with current drafting practice.
73. Subsection 11J(3) provides that new Part IIIAA achieves these objects by providing
for parenting management hearings and creating the Parenting Management Hearings Panel
to conduct the hearings. Parenting management hearings would provide an alternative to
court for families who cannot resolve their family law matters through family dispute
resolution. The forum is designed for self-represented litigants, as an alternative means for
having their parenting matter heard and resolved in a less formal, more inquisitorial, timely
and cost effective way.
Section 11JA--Application to Aboriginal or Torres Strait Islander children
74. New section 11JA would provide for the application of new Part IIIAA to Aboriginal
or Torres Strait Islander children and those who may exercise parental responsibility for such
a child. The new section would create an obligation for the Panel to have regard to any
kinship obligations, and child-rearing practices of the child's Aboriginal or Torres Strait
Islander culture. This is consistent with section 61F of the Act.
Section 11JB--Determining child's best interests
75. New section 11JB would set out how the Panel is to determine the child's best
interests. This section is to be used in applying subsection 11P(3) which provides that when
making a parenting determination, the Panel must have regard to the best interests of the child
as the paramount consideration. Section 11JB sets out the primary and additional
considerations that the Panel must consider in determining a child's best interests.
76. This section is consistent with the existing section 60CC of the Act. As such, the
Panel will apply substantially the same decision-making framework when determining a
child's best interests as courts apply when making a parenting order under the Act.
Subsections 11JB(2) and (3)--Primary considerations
77. Consistent with subsection 60CC(2) of the Act, the primary considerations that the
Panel must use when determining what is in the child's best interests are contained in the new
subsection 11JB(2). They are:
the benefit to the child of having a meaningful relationship with both parents and
the protection of the child from physical, and
psychological harm from being subjected to, or exposed to, abuse, neglect or
family violence.
78. Consistent with the protections inserted into the Act by the Family Law Legislation
(Family Violence and Other Measures) Act 2011, new subsection 11JB(3) provides that when
determining what is in a child's best interests, the Panel is to give greater weight to the
primary consideration that protects the child from harm. As such, in cases where there is
inconsistency in applying the primary considerations, the consideration in
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paragraph 11JB(2)(b) will prevail. Where child safety is a concern, this provision will
provide the Panel with clear legislative guidance that protecting the child from harm is the
priority consideration.
Subsections 11JB(4)--Additional considerations
79. New subsection 11JB(4) replicates the additional considerations in section 60CC(3) of
the Act. Consistent with the decision of the Family Court of Australia in Banks & Banks
[2015] FamCAFC 26, subsection 11JB(4) provides that the Panel need only consider the
factors relevant to the particular parenting management hearing. This wording would clarify
that the Panel is not required to consider irrelevant factors or address them in their statements
of reasons for a determination. This will ensure that the Panel can operate as efficiently as
possible.
Paragraph 11JB(4)(a)
80. Paragraph 11JB(4)(a) provides that in determining what is in a child's best interests
the Panel must consider, amongst other factors, any views expressed by the child and any
other factors that the Panel thinks are relevant to the weight it should give to the child's
views.
81. This paragraph recognises that a child may not necessarily want to express a 'wish'
about which of his or her parents the child will live with or spend time with. It is intended
that 'views' will capture a child's perceptions and feelings, and will allow for any decision to
be made in consultation with the child without the child having to make a decision or express
a wish as to which parent he or she is to live with or spend time with. It is intended that
references to a child's views will not exclude a child expressing his or her wishes.
Paragraph 11JB(4)(b)
82. Paragraph 11JB(4)(b) provides that where the Panel is determining the best interests
of the child, it must consider the nature of the relationship with each of the child's parents
and with other persons, including grandparents or other relatives of the child. This ensures
that the Panel recognises the importance of the relationships that the child has with their
wider family, in particular grandparents.
Paragraphs 11JB(4)(c) and (d)
83. Proposed paragraph 11JB(4)(c) will require the Panel to consider the extent to which
each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a
parent. This will include the extent to which each parent has taken, or failed to take, the
opportunity to spend time with the child, communicate with the child, and participate in
decision-making about major long-term issues in relation to the child.
84. Proposed paragraph 11JB(4)(d) will require the Panel to consider the extent to which
each parent has fulfilled, or failed to fulfil, his or her obligation to maintain the child.
85. These paragraphs seek to ensure that when determining the best interests of the child
the Panel is able to take into account whether a person has failed to fulfil their obligations in
the past. Thus the Panel would take into account the fact a person has failed to pay child
support or has consistently broken contact arrangements in the past without regard to the best
interests of their child. This is appropriate as the failure of a parent to fulfil their obligations
to maintain the child can have a significant impact on the child and is relevant to any
determination of the child's best interests.
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86. Like other provisions setting out factors that the Panel must take into account in
determining a child's best interests, it is not expected that the Panel would take into account
trivial or inconsequential matters in determining whether this factor is relevant to the decision
of what is in the best interests of the child.
Paragraph 11JB(4)(e)
87. Paragraph 11JB(4)(e) provides that, in determining what is in the best interests of a
child, the Panel should consider the likely effect of any change of the child's circumstances
particularly in relation to separation from his or her parents and other persons with whom the
child has been living.
Paragraph 11JB(4)(f)
88. Paragraph 11JB(4)(e) requires the Panel, when determining a child's best interests, to
consider the practical difficulty and expense of a child spending time with and
communicating with a parent and whether this will affect the child's right to maintain
personal relations and direct contact with both parents on a regular basis.
Paragraph 11JB(4)(g)
89. Paragraph 11JB(4)(g) provides that in determining the best interests of the child, the
Panel should consider the capacity of the parent or of any other person to provide for the
needs of the child, including emotional and intellectual needs. This paragraph recognises the
importance of the relationships that the child has with wider family, in particular
grandparents, in addition to their relationship with their parents.
Paragraph 11JB(4)(h)
90. Paragraph 11JB(4)(h) provides that the Panel must consider the maturity, sex, lifestyle
and background of the child, and either of the child's parents, as well as any other
characteristics of the child that the Panel thinks are relevant. The lifestyle, culture and
traditions of a parent or child are relevant to a consideration of their background.
Paragraph 11JB(4)(i)
91. Paragraph 11JB(4)(i) provides that the Panel must take into account the right of an
Aboriginal or Torres Strait Islander child to enjoy his or her culture, and the likely impact
that any proposed parenting determination will have on that right. This paragraph is
consistent with paragraph 60CC(3)(h) of the Act.
Paragraph 11JB(4)(j)
92. Paragraph 11JB(4)(j) provides that in determining the best interests of the child, the
Panel must consider the parents' attitude to the child and to the responsibilities of parenthood.
Paragraph 11JB(4)(k)
93. Paragraph 11JB(4)(k) directs the Panel to consider any family violence involving the
child or a member of the child's family. The Panel will take this into account giving such
weight as is appropriate to the evidence before it. Family violence is defined in section 4AB
of the Act as meaning 'violent, threatening or other behaviour by a person that coerces or
control a member of the person's family, or causes the family member to be fearful'.
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Paragraph 11JB(4)(l)
94. Paragraph 11JB(4)(l) directs the Panel to consider any family violence order that
applies to the child or a member of the child's family. This consideration extends to any
family violence order, including interim, non-contested and police issued orders. The Panel
may consider the nature of the order in determining what inferences can be drawn from it,
and what weight should be placed on those inferences.
Paragraphs 11JB(4)(m) and (n)
95. Paragraphs 11JB(4)(m) and (n) direct the Panel to consider whether it would be
preferable to make the order that would be least likely to lead to the institution of further
proceedings in relation to the child and any other fact or circumstances that the Panel thinks
is relevant.
Subsection 11JB(5) --Right to enjoy Aboriginal or Torres Strait Islander
culture
96. For the purpose of new subparagraph 11JB(4)(i), new subsection 11JB(5) clarifies the
meaning of an Aboriginal or a Torres Strait Islander child's right to enjoy his or her culture.
The provision reflects the importance of Aboriginal and Torres Strait Islander children being
able to maintain a connection with their culture and to have the support, opportunity and
encouragement necessary to develop a positive appreciation of that culture and to explore the
full extent of that culture, consistent with the child's age and developmental level and the
child's views. This subsection is consistent with subsection 60CC(6) of the Act which was
introduced as a result of recommendation 4 in the Family Law Council's December 2004
Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing
Practices: Response to Recommendation 22: Pathways Report, Out of the Maze.
Section 11JC--How the views of a child are expressed
97. New section 11JC is consistent with existing sections 60CD and 60CE of the Act.
Subsection 11JC(2) would provide that the Panel may inform itself of the views expressed by
a child by having regard to a report prepared by a family consultant, by directing an
independent children's lawyer to represent the child's interests, or by having regard to any
other matter prescribed by the Panel rules.
98. Consistently with existing section 60CE, subsection 11JC(3) would provide that
nobody can require a child to express her or his views in relation to the any issue.
Section 11JD--Parenting determinations and parental responsibility
99. New section 11JD is consistent with existing section 61D of the Act. It would provide
that a parenting determination does not affect another person's parental responsibility for the
child unless it does so expressly or unless it is necessary to do so to give effect to the
determination.
Section 11JE--Presumption of equal share parental responsibility when
making parenting determinations
100. New section 11JE is consistent with existing section 61DA. The new section would
provide a presumption that must be applied by the Panel when making a parenting
determination. The presumption is that it is in the best interests of the child that the parents
share equally the parental responsibility for the child. The provision is intended to promote
decision-making about major long-term issues by both parents, for the benefit of the child.
41
101. The note after subsection 11JE(1) aims to assist readers and, in particular,
self-represented litigants, by highlighting that the presumption of equal shared parental
responsibility relates solely to the decision-making responsibilities of both parents and does
not relate to the amount of time the child spends with each parent.
102. New subsection 11JE(2) states that the presumption will not apply if the Panel
reasonably believes that a parent of a child, or a person who lives with a parent of the child,
has engaged in abuse of the child (or another child who is a member of the parent's family) or
in family violence. The extension of this provision to a person who lives with a parent is
intended to address concerns about the impact that violence and abuse in the home of either
parent can have on the child and on the ability to exercise the joint decision-making
requirement of equal shared parental responsibility.
103. New subsection 11JE(3) provides that the presumption of equal shared parental
responsibility will apply when the Panel is making an interim parenting determination, unless
the Panel considers that it is inappropriate for the presumption to apply. This discretion is
appropriate given the more limited evidence that may be available to the Panel when making
interim determinations.
104. Given the objectives of the Panel to provide prompt and efficient resolution of
disputes, the Panel may make interim parenting determinations infrequently. However, it is
desirable that the Panel has the flexibility to do so in appropriate cases.
105. New subsection 11JE(4) provides that the presumption will be able to be rebutted
where its application would not be in the best interests of the child. For example, where there
are no issues of violence or abuse but a parent is unable to make decisions for the benefit of
the child due to mental ill-health. This is appropriate as under subsection 11P(3) the Panel
must regard the best interests of the child as the paramount consideration in deciding whether
to make a particular determination order in relation to a child.
Section 11JF--Application of presumption of equal shared parental
responsibility after interim parenting determination made
106. New section 11JF provides that, when making a final parenting determination, the
Panel must disregard the allocation of parental responsibility made in any interim
determination. The purpose of this provision is to ensure that the Panel does not face
difficulty in displacing the status quo relating to parental responsibility that may be
established in an interim determination.
107. The provision is not intended to prevent the Panel from taking into consideration any
of the information on which the interim parenting orders were based. Under
subsection 11P(3) the Panel must regard the best interests of the child as the paramount
consideration in deciding whether to make a particular parenting determination in relation to
a child.
108. As noted above, given the objectives of the Panel to provide prompt and efficient
resolution of disputes, the Panel may make interim parenting determinations infrequently.
However, it is desirable that the Panel has the flexibility to do so in appropriate cases.
11JG-- Meaning of parenting determination and related terms
109. New section 11JG would provide the meaning of parenting determination and the
matters that a parenting determination can deal with. It is modelled on section 64B of the Act
which provides for the meaning of a parenting order made by a court exercising jurisdiction
under Part VII of the Act. Parenting determinations will be able to deal with similar matters
42
to a parenting order of a court, with some restrictions. New section 11NA, which provides for
the circumstances when the Panel must dismiss an application, would further limit the matters
that the Panel is able to deal with, by requiring the Panel to dismiss applications in certain
circumstances. This section should be read together with new sections 11P (power to make
parenting determinations), 11PB (how parenting determinations are made) and 11PD (period
for which a parenting determination is in force).
110. A parenting determination would be a determination made by the Panel (as
established by section 11T and constituted in accordance with section 11VB).
Paragraph 11JG(1)(b) would provide that a parenting determination includes a determination
discharging, varying, suspending or reviving an earlier parenting determination in relation to
a child.
111. Parenting determinations may provide for appropriate arrangements at a particular
point in time based on the needs of the child and the circumstances of the parents. However,
over time, the needs of the child or the circumstances of the child may change. This might
require a variation to a parenting determination, for example, to enable the child to spend
more time with the other parent who has moved closer to where the child lives for the
majority of time.
112. New subsection 11JG(2) provides for the Panel to make 'interim' determinations,
prior to a final determination. Given the objectives of the Panel to provide prompt and
efficient resolution of disputes, it is not anticipated that the Panel will make an interim
determination in the majority of applications. However, it is important that the Panel has the
flexibility to make an interim determination if appropriate in the circumstances of a particular
matter.
113. The obligations on the Panel when making an interim determination are the same as
that for a final determinations (see section 11PC). It is considered desirable that the same
decision-making framework be applied by the Panel for both interim and final
determinations, given the serious nature of providing for parenting arrangements and the need
to ensure that all determinations (whether interim or final) are made in the best interests of
the child.
114. Subsection 11JG(3) provides that a parenting determination may provide for whom a
child is to live with, the time and other communications the child is to have with another
person/s, the allocation of parental responsibility, the form of consultation that persons with
parental responsibility are to have with one another, and any aspect of the care, welfare or
development of the child or other aspect of parental responsibility. In contrast to
subsection 64B(2), subsection 11JG(2) does not provide for a parenting determination to be
made in respect of maintenance of a child. This reflects the intention that child maintenance
orders should not be dealt with by the Panel.
115. New subsection 11JG(4) would clarify that a parenting determination dealing with the
allocation of parental responsibility under paragraph 11JG(2)(c) may deal with the allocation
of responsibility for making decisions about major long-term issues in relation to the child.
This provision is not intended to limit other matters that paragraph 11JG(3)(c) may cover.
116. New subsection 11JG(5) would set out what the reference to other communications in
paragraph 11JG(3)(e) includes. This is drafted broadly and is intended to cover new
technologies brought about by, for example, the internet, mobile phones and other electronic
devices.
117. New subsection 11JG(6) would explicitly prevent the Panel from making a parenting
determination in relation to a medical procedure in relation to the child under
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paragraph 11JG(3)(f). Such matters often involve significant complexity. The Panel would
also not be able make a determination dealing with the parentage of a child. Declarations of
parentage may only be made by a court under section 69VA of the Act.
118. The Panel is not empowered to make orders for the location and recovery of children.
Such orders are to be made by a court under Subdivision C of Part VII of the Act.
119. In addition to these restrictions, new section 11NA would provide for circumstances
in which the Panel must dismiss an application for a parenting determination. These
circumstances include when relevant consent is not given, when an application is for the
relocation of a child, when an application alleges child sexual abuse or risk of child sexual
abuse, where an application is in relation to a child under the care of a person under a child
welfare law, when a parenting determination or parenting order is in force (with exceptions),
when relevant court proceedings have been instituted, when there is a registered parenting
plan or registered overseas child order in force in relation to the child, when all parties
request the application be dismissed, and when the parenting management hearing fee has not
been paid (if such a fee has been prescribed).
Section 11JH--Parenting determinations may be made in favour of parents or
other persons
120. New section 11JH would provide that parenting determinations may be made in
favour of a parent of the child or some other person. This provision relies on the
subsection 11JH(7) which provides when a determination is deemed to be 'made in favour' of
a person. Section 11JH would clarify that it may be appropriate for the Panel to provide for
the child's relationship with someone other than a parent, for example by allocating that
person parental responsibility for the child, requiring that the child spend time with or
communicate with that person, or in some other way. This section is consistent with existing
section 64C of the Act.
Division 2--Parenting management hearings
Subdivision A--Applications for a parenting determination
121. Subdivision A of Division 2 sets out who may apply for a parenting determination and
the requirements for making such an application, including in relation to consent.
Section 11K--Who may apply for a parenting determination
122. New section 11K would provide for who may apply for a parenting determination. A
parent of the child, the child, a grandparent of the child or any other person concerned with
the care, welfare or development of the child may apply to the Panel for a parenting
determination. This means that the people who can apply to the court for a parenting order
under section 65C would be able to apply for a parenting determination.
123. The new section provides that one or more of the listed people may apply for a
parenting determination. This would ensure that two or more parties could lodge a joint
application for a parenting determination.
124. A note would be inserted to this section to alert readers that the Panel cannot make a
parenting determination unless a parenting management hearing is conducted (see
section 11L), and a parenting management hearing may be conducted in the absence of the
parties in certain circumstances (see section 11LC).
44
Section 11KA--How applications for parenting determinations are made
125. New section 11KA would provide for the manner in which an application for a
parenting determination is made. An application must be made in accordance with the
Principal Member directions and any other information or documents required by the
Principal Member directions.
126. The Principal Member directions would be made under new section 11VA. It is
intended that the process for making applications be as simple as possible to support the
Panel as a forum designed for self-represented litigants.
Section 11KB--Requirements in relation to applications for parenting
determinations
127. New section 11KB would set out the requirements for making an application for a
parenting determination.
128. Subsection 11KB (1) would restrict an application for a parenting determination being
made unless on the day the application is made:
the child to whom the application for a parenting determination relates is present
in Australia, or is an Australian citizen or resident, or
a person whose consent to the application is required (see section 11KD) is an
Australian citizen or resident, or is present in Australia on the day the application
is made.
129. Subsection 11KB(2) would require an application to include a certificate from a
family dispute resolution practitioner, subject to the operation of subsection 11KB(3). This
would mean that, prior to making an application for a parenting management hearing, parties
must have attempted to resolve their parenting matter through family dispute resolution and
have received a certificate from a family dispute resolution practitioner (unless an exception
unless subsection 11KB(3) applies). The types of certificates that would satisfy this
requirement mirror those that are currently provided for under subsection 60I(8) of the Act.
130. By maintaining consistency with the Act in requiring parties to attempt family dispute
resolution prior to making an application to the Panel, the intention is to encourage a culture
of separating couples reaching agreement on parenting arrangements on their own and to help
parties avoid the need for a Panel determination. This is consistent with the aims of Part VII
of the Act which encourage parents to attempt to resolve their parenting disputes through
family dispute resolution prior to commencing an adversarial court process.
131. Subsection 11KB(3) would set out the circumstances in which a certificate from a
family dispute resolution practitioner will not be required in order to make an application for
a parenting determination. These exceptions are intended to ensure that parties will not be
required to attend family dispute resolution in circumstances where it would be inappropriate.
They reflect exceptions that are currently provided for in subsection 60I(9) of the Act,
namely:
where the application has been made in response to an application that another
person has made for a parenting determination in relation to the child (paragraph
11KB(3)(a))
where the Panel is satisfied that there has been abuse of the child by one of the
parties, or there is a risk of abuse to the child if there was a delay in applying for
the determination (subparagraphs 11KB(3)(i-ii))
45
where the Panel is satisfied that there has been family violence, or is a risk of
family violence, by one of the parties to the application
(subparagraphs 11KB(3)(b)(iii)-(iv))
the parties are unable to participate effectively in family dispute resolution due to
an incapacity of some kind, physical remoteness from dispute resolution services
or for some other reason (paragraph 11KB(3)(c)), or
other circumstances specified in the Panel Rules made under section 11SB
(paragraph 11KB(3)(d)).
132. It is not envisaged that every matter where a family dispute resolution certificate has
been issued will be appropriate for a Panel determination. For example, depending on the
individual circumstances of the application, applications involving certificates issued under
paragraphs 11KB(2)(b) or (2)(e) may not be appropriate for a Panel determination. It is
envisaged that the type of family dispute resolution certificate a party has will be taken into
account by the Panel when determining whether, in all the circumstances, it is appropriate for
the Panel to determine the application (subsection 11NB).
133. Further to this, the exceptions set out in subsection 11KB(3) are not intended to
suggest that all applications falling within an exception are necessarily appropriate for a
Panel determination. Rather, it reflects the policy that parties should not be required to attend
family dispute resolution in circumstances where it would be inappropriate. The approach of
the Bill is to ensure that the Panel undertakes a careful assessment of the individual facts of
each application and considers whether, in all the circumstances, the application is one that is
suitable for the Panel to determine.
134. In particular, section 11NB would require the Panel to consider dismissing an
application for a parenting determination in relation to a child if the Panel has reasonable
grounds for suspecting that there has been, or is, a risk of abuse of the child, or there has
been, or is, a risk of family violence to one of the parties. In making this decision the Panel
may have regard to the capacity of the Panel to manage any risks relating to the safety of the
parties or the child; the complexity of the matters for consideration by the Panel; and the
capacity of a party to effectively participate in a parenting management hearing and other
relevant factors.
135. New section 11NA would provide for the circumstances in which the Panel must
dismiss an application for a parenting determination even where the requirements in
section 11KB would be met. These circumstances include when relevant consent is not given,
when an application is for the relocation of a child, when an application alleges child sexual
abuse or risk of child sexual abuse or where an application is in relation to a child under the
care of a person under a child welfare law.
136. It is envisaged that family dispute resolution practitioners will play an important role
in informing parties about the Panel as an option when issuing a certificate for the purposes
of existing section 60I and new section 11KB. It is envisaged that the Panel will be
particularly well suited to matters that have been through family disputes resolution and
reached agreement on a number of issues, but have some remaining issues for resolution.
Government funded legal advice services and private practitioners can advise parties about
the option of applying to the Panel in the context of each party's individual circumstances.
Family law court registry staff will be able to provide parties with information about the
Panel as an alternative to making a court application.
46
137. New 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 family dispute
resolution. 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.
138. The requirements in section 11KB are consistent with sections 60I and 69E of the Act
in relation to proceedings for parenting orders under Part VII of the Act.
139. With the consent of the parties, a court may make an order referring proceedings, or a
part of the proceedings, or any matter arising in the proceedings, to the Panel (see new
section 13L). In this circumstance, section 13L(5) applies to provide that the parties are taken
to have complied with the requirements under sections 11K, 11KB(2) and 11KC.
Section 11KC --Consent of relevant parties required in relation to
applications for parenting determinations
140. New section 11KC would require relevant parties to consent before the Panel makes a
parenting determination in relation to an application. If this requirement is not met, the Panel
would be required to dismiss the application under subsection 11NA(1).
141. 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.
142. The consent requirements set out in section 11KC are drafted in a way that is intended
to require the consent of all persons whose substantive interests may be affected by a Panel
determination. Requiring the consent of relevant parties also reflects the view that if the
parties are voluntarily seeking a parenting determination, they are more likely to participate
fully and openly in the process, leading to a more efficient decision-making process by the
Panel and a greater likelihood of an effective and workable outcome for families.
143. Each person with parental responsibility for the child would be required to consent to
an application. Given the operation of section 61C of the Act, which provides that each
parent has parental responsibility subject to court orders and parenting determinations
(section 61C would be amended by items 35--37 of Part 1 Schedule 1 of the Bill), this would
be the child's parents in most circumstances. If a child has been adopted, the birth parents of
the child would normally cease to have parental responsibility (see existing section 61E) and
so would not be required to consent to the application.
144. 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 must also consent to an
application for a parenting determination. For the purposes of this provision, existing
subsection 64B(6) of the Act provides for when a parenting order is 'made in favour of' a
person, and new subsection 11JG(7) provides for when a parenting determination is 'made in
favour of' a person.
145. The effect of new paragraph 11KC(1)(b) is that the consent of the child's parents will
not be required where a parenting determination or parenting order is in force which
completely displaces the parents' parental responsibility and is not made in the parents'
favour in any other way (for example, by specifying that the child is to spend time with a
parent). In this rare circumstance, it would be inappropriate for a parent to be required to
provide consent to an application given that a court or the Panel would have previously
47
determined that the parent should have no responsibility for, or communication with, the
child.
146. Paragraph 11KC(2)(a) would provide that those who must consent to an application
under subsection 11KC(1) must consent to all of the matters to which the application relates.
This reflects the intention that all parties must be in agreement as to all the issues the Panel
will determine.
147. Paragraph 11KC(2)(b) and (c) would further provide that the consent required by
subsection (1) must be in writing and within the time period specified by the
Principal Member directions. If these requirements are not satisfied, the Panel would be
required to dismiss under subsection 11NA(1).
148. A note would be inserted in this provision to alert readers that if the consent
requirements in this section are not satisfied, the Panel would be required to dismiss the
application under subsection 11NA(1) without conducting a hearing or making a
determination.
149. The term 'application' is used to include not only an initial application that begins the
Panel process, but also any application made in response to the initial application.
Section 11KD--Pre-hearing conferences
150. Subsection 11KD would empower the Principal Member to hold a pre-hearing
conference with the person who made the application, those who consent is required, and any
other people the Panel considers appropriate to deal with preliminary matters relating to an
application. This may include dealing with issues relating to the consent requirements set out
in section 11KC.
151. Given the Panel's objective as an efficient and quick decision-making forum, it is not
intended that the Panel would convene a pre-hearing conference in the majority of matters.
However, there may be situations where it may assist with the efficient resolution of issues
prior to a hearing--for example, a pre-hearing conference could be used to facilitate parties
reaching an agreement about the issues to be determined by the Panel.
152. This power could be delegated by the Principal Member to other Panel members
under new section 11WB.
Subdivision B--Procedures for parenting management hearings
153. Subdivision B would guide the conduct of a parenting management hearing. Parenting
management hearings are intended to be significantly less formal than proceedings before the
family law courts. Hearings are to be conducted inquisitorially, with Panel members given
flexibility to control each hearing according to the individual circumstances of each
application. It is intended that an inquisitorial approach will facilitate the resolution of
parenting disputes between self-represented litigants more quickly and economically than
may be possible in a formal, adversarial court hearing, which is reliant on each party to
present their case and adduce relevant evidence.
Section 11L--Hearing must be conducted before a parenting determination
can be made
154. New section 11L would require the Panel to conduct a parenting management hearing
before making a parenting determination in relation to a child.
155. A note would be inserted alerting the reader that under new section 11LC the Panel
may conduct a hearing in the absence of the parties in certain circumstances.
48
156. It is important that parties are provided with due process and a hearing is conducted in
relation to each application. However, new section 11LC would give the Panel the flexibility
to conduct a hearing without the parties present, where appropriate, if the parties consent.
This is consistent with the objectives of the parenting management hearings to facilitate the
resolution of matters in an economical and prompt way, while still undertaking a thorough
consideration of the matters.
Section 11LA--Parties to hearings
157. New section 11LA would clarify who the parties to a parenting management hearing
are. The parties would be:
the person or persons who made the application for the parenting determination
(an application may be made by a single person or jointly by more than one
person)
the person or person whose consent to the application is required by
section 11KC, and
any other person joined by the Panel under subsection 11LA(2).
158. Subsection 11LA(2) would enable the Panel to join a person as a party to the
parenting management hearing if satisfied that it is appropriate in all the circumstances to do
so.
159. Identifying who is a party to a parenting management hearing is important as a party
would have the right to appear before the Panel and make oral submissions under new
section 11LB. It also clarifies who may be directed to do certain things by the Panel (for
instance, under subsection 11LD(3) the Panel may direct a party to give information to the
Panel) and who has certain obligations in relation to Panel proceedings (under section 11LB
parties have obligations to inform the Panel about family violence orders and care
arrangements under child welfare laws).
Section 11LB--Right to appear before the Panel
160. The principle of procedural fairness will be an important feature of the parenting
management hearings.
161. New section 11LB would give the right to parties to a parenting management hearing
to appear before the Panel and make oral submissions. This right to appear would be subject
to the discretion of the Panel to conduct a hearing in the absence of the parties in certain
circumstances (provided by new section 11LC).
162. New section 11LA provides for who is a party to a parenting management hearing.
Section 11LC--Parenting determinations may be made in the absence of the
parties
163. New section 11LC would enable the Panel to make a parenting determination in the
absence of the parties, on the basis of the information lodged or provided to the Panel. This
provision reflects the objective of the Panel of facilitating resolution of disputes with as little
technicality and formality, and as quickly and economically, as the requirement of the Part
and a proper consideration of the matters before the Panel permits (see section 11LD).
164. However, to ensure consistency with principles of procedural fairness, this would
only occur in circumstances where the Panel considers that it can adequately determine the
matter without the parties appearing or making oral submissions to the Panel, and where the
49
parties consent to the matter being determined without an oral hearing (see
paragraphs 11LC(1)(a) and (b)).
Section 11LD--Procedure for conduct of hearings
165. The procedures for conducting hearings will be a key point of difference between the
parenting management hearings model and the existing court system. The procedures of the
Panel are intended to support the key objectives of providing an informal, prompt, less
expensive and non-adversarial forum for resolving parenting disputes. This section should be
read in conjunction with new section 11LE which sets out four principles that should be
applied by the Panel in performing its duties.
166. New subsection 11LD(1) would provide the Panel with the authority and flexibility to
determine the specific procedures for conducting its hearings, and control each hearing in
accordance with the individual needs and circumstances of the parties and issues for
resolution. In particular, new paragraph 11LD(1)(a) would provide that the procedure of the
Panel is within the Panel's discretion. This flexibility is a critical feature of the Panel model
which is designed to better suit the needs of self-represented parties, who would otherwise
have to present their case, without legal representation, in an adversarial court setting.
167. Importantly, however, the discretion and flexibility provided for in
subsection 11LD(1) would not be unlimited. The discretion would be subject to any
requirements or limitations provided in this Part, the Panel rules (as made by the Minister),
the Principal Member directions (made under paragraph 11LD(1)(e)) and the rules of natural
justice (see subsection 11LD(2)).
168. New paragraph 11LD(1)(b) would provide that Panel would not be bound by the
formal rules of evidence in conducting a hearing, as set out in the Evidence Act 1995 (the
Evidence Act) and the common law (new paragraph 11LD(1)(b)). The Administrative
Appeals Tribunal is similarly not bound by the rules of evidence (section 33(1)(c) of the
Administrative Appeals Tribunal Act 1975 (the Administrative Appeals Tribunal Act)). In the
Oregon Informal Domestic Relations Trial4 (of which aspects of new Part IIIAA are based)
the rules of evidence are also not applied.
169. By not requiring the Panel to adhere to the technical and formal rules of evidence,
parties will be allowed to speak freely to Panel members, which may be particularly
beneficial in matters involving self-represented litigants. However, the Panel is still required
to make its determination on the basis of truthful information provided to, or gathered, by the
Panel. Persons would be subject to possible prosecution under sections 137.1 and 137.2 of the
Criminal Code if they provide false or misleading information or documents to the Panel.
170. In considering information that might not otherwise be admissible through the rules of
evidence, the Panel will still have regard to the appropriate weight to give information and to
the rules of natural justice.
171. Currently, section 69ZT of the Act provides that certain provisions of the
Evidence Act do not apply to child-related proceedings conducted by courts, although a court
may apply such provisions if it is satisfied that the circumstances are exceptional, and if it has
taken into account certain matters.
4
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 at: http://www.courts.oregon.gov/programs/family/forms/Pages/Informal-Domestic-
Relations-Trial.aspx
50
172. As an administrative, rather than judicial, body the Panel may inform itself in any way
it thinks fit in conducting a parenting management hearing (new paragraph 11LD(1)(c)). This
provides the Panel with the ability to ask questions and gather all information it considers is
relevant to the parenting dispute. This power is common across tribunals, including the
Commonwealth Administrative Appeals Tribunal, and the New South Wales, Victoria,
Western Australia and Queensland civil and administrative tribunals.
173. A parenting management hearing is to be conducted with as little technicality and
formality, and as quickly and economically, as possible and as permitted by the requirements
of Part IIIAA and a proper consideration of the matters before the Panel (new
paragraph 11LD(1)(d)). This is consistent with the overall objectives of the parenting
management hearings.
174. New paragraph 11LD(1)(e) would enable the Panel to give directions in relation to the
conduct of the hearing. This would provide the Panel with further flexibility to give
directions as needed in a particular matter. New subsection 11LD(3) would provide that these
directions may include (but not be limited to) directing a party to give certain information or
documents to the Panel, or to attend a post-separation parenting program, if such directions
would be in the best interests of the child (subsection 11LD(4)).
175. New subsection 11LD(2) provides that subsection 11LD(1) is subject to Part IIIAA,
the Panel rules (made by the Minister), the Principal Member directions and the rules of
natural justice. It is appropriate that the discretion given to the Panel in respect of its
procedure is subject to these other requirements.
Section 11LE--Principles to be applied in relation to parenting management
hearings
176. New section 11LE would provide four principles that the Panel must give effect to in
performing its duties and exercising its power in relation to parenting management hearings.
A failure to give effect to these principles would not invalidate a parenting management
hearing or any determination or decision made in relation to a hearing. This will prevent
technical defects from interfering with otherwise sound outcomes of a hearing.
177. The four principles that the Panel must give effect to are provided in
subsections 11LE(2)-(5):
Consider the needs of the child to whom the hearing relates and the impact that the
conduct of the parenting management hearing may have on the child.
Actively direct, control and manage the conduct of the parenting management
hearings: this is intended to make clear that the role of the Panel members is to have
control over the conduct of the hearing, drawing out information and asking pertinent
questions rather than parties controlling the conduct of the hearing. This is consistent
with the intention that the Panel operate as a more inquisitorial and less adversarial
forum to the courts.
Conduct the parenting management hearing in a way that will safeguard the child to
whom the hearing relates from being subjected to, or exposed to, abuse, neglect or
family violence, and the parties to the hearing against family violence: this is intended
to ensure the safety of children and families is prioritised. 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. If the parties were not able to safely
51
participate in the Panel process, the Panel would dismiss the application under
section 11NB.
At any stage of the Panel process, if a Panel member or staff member has reasonable
grounds for suspecting child abuse or risk of child abuse, they must notify a
prescribed child welfare authority (section 11MG). Under subsection 11NA(3), the
Panel must not proceed to determine a matter where there is an allegation or risk of
child sexual abuse.
As far as possible, conduct the parenting management hearing in a way that will
promote cooperative and child-focused parenting by the parties: this is intended to
ensure that the hearings, as far as possible, are conducted in a way that encourages the
parties to focus on the child and to cooperate with one another both during and after
the hearings so that they can communicate in order to meet their obligations under the
parenting determination. This means that the Panel must consider ways that it might
minimise the level of conflict between parties and ensure that the focus is on the child.
This principle is only required to be applied as far as possible, and any family
violence or risk of family violence will impact the extent to which this principle can
be given effect.
178. These principles are largely consistent with those prescribed for the court (in
section 69ZN of the Act) when conducting child-related proceedings. It differs from those
prescribed for the courts in that it does not include the fifth principle set out in
subsection 69ZN(7) that proceedings are to be conducted without undue delay and with as
little formality and technicality as possible. The absence of this particular principle should not
be interpreted as meaning that the Panel is not required to conduct proceedings without undue
delay and with less formality. Rather, it has not been included as this is the principle that
underpins the entire Parenting management hearings model (see the objects provision in
section 11J, which provides that matters should be resolved in a way that is fair, just,
economical, informal and prompt).
Section 11LF--Public hearings and directions for private hearings,
non-publication and non-disclosure
179. New section 11LF would require a parenting management hearing to be conducted in
public, subject to other provisions within this section. This is consistent with the conduct of
family law court proceedings and hearings before tribunals (with some exceptions), and
reflects the ideal for there being open justice, where appropriate.
180. However, the Panel would have the power to make directions if needed to protect the
confidential nature of any matter or for any other reason. The Panel may direct that all or any
part of a hearing is to be held in private, or that only certain people may be present at a
hearing (subsection 11LF(3)).
181. The Panel may also give directions under subsection 11LF(4) and (5) to prevent the
publication or disclosure of information that might tend to identify a party, witness or other
associated person, or information that comprises oral submissions or information lodged with
the Panel.
182. In considering whether to give a direction under 11LF(4) or (5), the Panel is to
consider the principle that it is desirable that oral submissions made to the Panel and the
contents of documents given to the Panel, should be made available to the parties
(subsection 11LF(6)). This is consistent with the principle of procedural fairness.
52
183. However, under new subsection 11LF(7), the Panel is to also consider the confidential
nature of the information and the safety of any person when determining whether to give a
direction. This is an important protection for parties where the matter involves family
violence.
184. These powers to give directions are consistent with the powers available to other
tribunals.
Section 11LG--Obligation to inform the Panel of certain matters
185. New section 11LG would place obligations on parties to a parenting management
hearing to inform the Panel of certain matters.
186. This would require a party to notify the Panel of any family violence orders, care
arrangements under child welfare laws, or notifications to, and investigations by, prescribed
State or Territory agencies in relation to the child the subject of the hearing.
187. A person who is not a party to a parenting management hearing may, but is not
required to, notify the Panel of such matters.
188. These provisions are modelled on existing sections 60CF, 60CH and 60CI of the Act.
189. The Panel will need to be aware of such orders, care arrangements, notifications and
investigations to ensure that it appropriately dismisses matters under new sections 11NA and
11NB, and that it does not inadvertently make an order inconsistent with a family violence
order (which it is not permitted to do under new section 11PH). Under subsection 11NA(4)
the Panel must dismiss an application for a parenting determination in relation to a child if the
child is under the care (however described) of a person under a child welfare law.
190. Subsection 11LG(8) would provide that a failure to inform the Panel of a matter in
this section, of itself, does not affect the validity of a parenting determination made by the
Panel. This will prevent technical defects after the Panel has already considered the matter.
191. Subsection 11LG(9) would provide the meaning of a prescribed State or Territory
agency to be an agency prescribed for the purpose of section 11MK (which empowers the
Panel to give a direction to require a prescribed State or Territory agency to provide specified
documents or information).
Section 11LH--Participation in hearings by video link etc.
192. New section 11LH would enable a Panel member to allow a person to use video or
audio technology to participate in a parenting management hearing. This might be used in
matters involving family violence, for example, to allow a vulnerable party to present their
case as clearly, effectively and safely as possible.
193. This will be a matter for the Panel to consider on a case by case basis. This power
may be used by the Panel to ensure victims of family violence are not re-traumatised by the
parenting management hearing process, and to achieve a fair hearing. The power may also be
used where there are practical impediments to parties physically attending an oral hearing,
parties are geographically separated, or where it is otherwise appropriate.
11LJ--Legal representation and assistance in relation to hearings
194. The Parenting Management Hearing Panel is designed to be a more informal and
inquisitorial forum for resolving parenting disputes involving self-represented parties. The
Panel has flexibility and discretion in setting procedures and conducting hearings in a way
53
that is appropriate for each matter--this is important as it will allow the hearings to be run in
a way that accounts for the particular needs of self-represented parties.
195. New section 11LJ would provide that a party to a parenting management hearing may
be legally represented when appearing before the Panel with the leave of the Panel. This
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.
196. Subsection 11LJ(6) clarifies 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.
197. Subsection 11LJ(2) provides factors that the Panel must have regard to 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 parenting management
hearing without legal representation (having regard to any power imbalances between the
parties or any other relevant factor).
198. Consideration of these factors is important to ensure victims of family violence are
not re-traumatised by the parenting management hearing process, and to achieve a fair
hearing.
199. The inclusion of these factors as matters that must be given regard to are not intended
to limit the matters that the Panel may have regard to in making a decision about legal
representation.
200. Where leave has been granted under subsection 11LJ(1), the Panel may give
directions under subsection 11LJ(3) in relation to the role of that legal representative. For
example, the Panel might make directions limiting the role of a legal representative to
delivering only an opening and closing argument (not questioning parties). This will assist the
Panel to ensure that the presence of a legal representative facilitates the resolution of the
dispute in a way that is consistent with the objectives of the parenting management hearings
to provide an informal, economical and less-adversarial forum to deal with parenting matters.
201. New subsection 11LJ(4) would entitle a party to have a support person with them
when appearing before the Panel. For some parents, appearing before the Panel may be an
intimidating prospect and they may require support, for example, from a close friend or
relative.
202. The entitlement to a support person is subject to any direction made under
subsection 11LF(3) which provides that the presiding member may make directions about
who may be present at that hearing. This will ensure that the presiding member could direct
that an assistant not attend, or be removed from, a hearing. This power might be exercised if
the assistant is intimidating another party, or adversely affecting their ability to participate in
the process.
203. A support person will not be able to address the Panel, unless requested by the Panel,
in exceptional circumstances (subsection 11LJ(5)). For example, a party may have a
disability and require assistance in presenting their information to the Panel. This is to ensure
54
that the Panel hearings remain fair and informal and that the Panel hears from the parties
themselves (to the extent that this is possible), rather than a spokesperson.
Section 11LK--Direction for independent representation of child's interests
204. New section 11LK would provide the Panel with the discretion to appoint an
independent children's lawyer if it appears to the Panel that a child's interests in a parenting
management hearing ought to be independently represented by a lawyer. This is consistent
with the court's ability to make an order for independent legal representation of children
under section 68L of the Act. Although the Panel is intended to deal with less complex
matters, the Bill gives the Panel the ability to appoint an independent children's lawyer if it is
considered appropriate in the circumstances. It is not envisaged that an independent
children's lawyer would be required in the majority of applications determined by the Panel;
however, it is desirable that the Panel has the flexibility to make such appointments if
appropriate in the particular circumstances of an application.
205. The Panel may give directions under paragraph 11LK(1)(b) as it considers necessary
to secure that independent representation, and this may include a direction that the children's
lawyer seek the child's views on certain matters to which the hearing relates. A note would
be inserted advising that a child cannot be required to give his or her views in relation to any
matter (see section 11JC(3)). This is consistent with the approach in section 60CE of the
Act).
206. This section refers to a lawyer representing a child's 'interests', rather than
representing the child. It is important that child representatives should act as independent
advocates for the best interests of the child, rather than act on the instructions of the child.
This enables the legal representative to assist the Panel while allowing the child's voice to be
heard.
207. Subsection 11LK(3) would provide that a direction for the purpose of allowing a
lawyer to find out what the child's views are does not apply where complying with that
subsection would be inappropriate because of the child's age or maturity or some other
special circumstance. For example, although the child may have firm views on which parent
the child would like to live with, the child may have special needs that are best served by
living with the other parent.
Section 11LL--Role of independent children's lawyer
208. New section 11LL would set out the role of the independent children's lawyer when
one is appointed under new section 11LK.
209. Subsection 11LL(2) would provide direction on the general nature of the role of the
independent children's lawyer. An independent children's lawyer must form an independent
view of what is in the best interests of the child, and act in relation to the parenting
management hearing in what they believe to be in the best interests of the child.
210. This seeks to clarify that the independent children's lawyer should act as an
independent advocate for the best interests of the child, rather than act on the instructions of
the child. This is appropriate, given the legislative requirement for the Panel to make a
parenting determination in the best interests of the child.
211. Subsection 11LL(3) states that if an independent children's lawyer is satisfied that a
particular course of action is in the best interests of the child, the lawyer must make a
submission to the Panel suggesting the adoption of that particular course of action. This is to
provide guidance to the independent children's lawyer in situations where what they consider
55
to be in the best interests of the child differs from the views expressed by the child.
Subsection 11LL(3) does not limit the consideration of the independent children's lawyer in
coming to a view about the best interests of the child referred to in paragraph 11LL(2)(a).
212. Subsection 11LL(4) would provide further confirmation that an independent
children's lawyer is not the legal representative of the child and is not obliged to act on the
child's instructions in relation to the parenting management hearing. The intention of this
provision is to provide absolute clarity on the role and obligations of the independent
children's lawyer.
213. Subsection 11LL(5) provides guidance to lawyers acting in the role of the
independent children's lawyer and clarity to readers about the specific duties of the role. The
independent children's lawyer must:
act impartially in dealings with the parties
ensure that any views expressed by the child in relation to the matters to which
the hearing relates, are fully put before the Panel
if a report or other document that relate to the child is to be used in the parenting
management hearing:
- analyse the report or document to identify matters that they consider to be
the most significant ones for determining what is in the best interests of the
child
- ensure that those matters are properly drawn to the Panel's attention
endeavour to minimise trauma to the child associated with the parenting
management hearing, and
facilitate an agreed resolution of matters at issue in the parenting management
hearing to the extent to which doing so is in the best interests of the child.
214. New subsections 11LL(6) and (7) would provide clarification as to the level of
confidentiality that exists in the relationship between the independent children's lawyer and
the child. Subsection 11LL(6) would provide that the independent children's lawyer is not
under an obligation to disclose to the Panel and, importantly, cannot be required to disclose to
the Panel, any information that the child communicates to the independent children's lawyer.
This is subject to subsection 11LL(7) which would enable the independent children's lawyer
to disclose to the Panel any information that the child communicates to them, if they consider
the disclosure to be in the best interests of the child.
215. The intention of these provisions is to clarify the confidential relationship between the
independent children's lawyer and the child and to enable a professional relationship to be
established between them. Client legal privilege cannot operate for an independent children's
lawyer who is acting in a 'best interests' capacity, as the independent children's lawyer has
an overriding duty to the Panel to present all relevant information and make submissions in
the child's best interests. This provision will protect an independent children's lawyer from
being required by any party or the Panel to disclose information communicated to the
independent children's lawyer by the child.
216. Subsection 11LL(8) would provide that the independent children's lawyer may
disclose information to the Panel if the independent children's lawyer considers it to be in the
child's best interests, even if this disclosure is made against the wishes of the child. This
provision further confirms that the independent children's lawyer is acting as a best interests
advocate, and not on the instructions of the child. It also balances the need for the
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independent children's lawyer to establish a professional relationship with the child while
operating in the child's best interests.
217. This section is consistent with the role of independent children's lawyers appointed
under section 68L in relation to children's proceedings under Part VII of the Act. Although
the Panel is intended to deal with less complex matters, the Bill gives the Panel the ability to
appoint an independent children's lawyer if it is considered appropriate in the circumstances.
It is not envisaged that an independent children's lawyer would be required in the majority of
applications determined by the Panel; however, it is important that the Panel has the
flexibility to make such appointments if necessary and appropriate in the circumstances of a
particular application.
Section 11LM --Direction that child be made available for examination
218. New section 11LM would give the Panel the power to direct a party to a parenting
management hearing to make their child available for examination for the purposes of a
report by an independent children's lawyer. This report would be for use by the independent
children's lawyer in connection with the parenting management hearing.
219. This section is consistent with section 68M of the Act which provides for the court to
order a party to a proceeding under Part VII of the Act to make a child available for
examination by an independent children's lawyer.
Section 11LN--Admissibility of communications in hearings
220. New section 11LN would provide for the admissibility of communications in
hearings.
221. Subsection 11LN(1) would provide for evidence of anything said, or any admission
made, by or in the company of the Panel or a member of the Panel, to be admissible in
proceedings before a court under the Act.
222. This would not apply to anything said or any admission made by a person, who at the
time of saying the thing or making the admission, had not been informed of the effect of
subsection 11LN(1) (subsection 11LN(2)).
223. Subsection 11LN(3) would provide that even in cases where a person has not been
informed that communications are admissible, communications that indicate that a child
under 18 has been abused or is at risk of abuse may be admitted as evidence, unless, in the
opinion of the court, there is sufficient evidence of the admission or disclosure available to
the court from other sources.
Subdivision C--Powers of the Panel
Section 11M--Panel may direct parties to attend, or arrange for child to
attend appointments with a family consultant
224. New section 11M would provide the power for the Panel to direct a party to attend, or
arrange for a child to attend, appointments with a family consultant. A family consultant may
be requested to assist the Panel under section 11MB to perform functions set out in item 20
(new subsection 11A(2)).
225. This power may be exercised for the purposes of obtaining relevant information for
the parenting management hearing, conducting an intake process and risk assessment, and to
provide valuable support to parties and their children.
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226. Subsection 11M(2) would require the Panel to inform the parties of the effect of
section 11MA which provides the consequences of a failure to comply with a direction given
under this section.
227. This section is consistent with section 11F of the Act which enables the court to order
parties to proceedings to attend, or to arrange for a child to attend, appointments with a
family consultant.
Section 11MA--Consequences of failure to comply with direction under
section 11M
228. New section 11MA would provide for the consequences of a failure to comply with a
direction made by the Panel for a party or child to attend appointments with a family
consultant (made under new section 11M).
229. This section would create an obligation on the family consultant to inform the Panel
of a failure by a person to comply with the Panel direction made under section 11M
(including if the child fails to attend an appointment), or for failing to comply with any
instruction the consultant gives to the person.
230. Subsection 11MA(3) would provide the Panel with the discretion to give any further
directions it considers appropriate. This would enable the Panel to take appropriate action,
which may for example, lead to a further direction to attend an appointment with a family
consultant, or the dismissal of an application for a hearing.
231. This section is consistent with section 11G of the Act.
Section 11MB--Panel may request reports and other services from family
consultants
232. New section 11MB would provide the power for the Panel to request reports and other
services from a family consultant.
233. The Panel may, under new subsection 11MB(1), request a family consultant report on,
investigate, or carry out other tasks on matters that are relevant to a parenting management
hearing, as it thinks desirable.
234. New subsection 11MB(2) would enable the Panel to direct a family consultant to do
any of these things at any stage after the application for a parenting determination has been
made and the consent of the relevant parties has been obtained. This provides flexibility to
the Panel to request a report of a family consultant if or when it is deemed appropriate.
235. In meeting this request, new subsection 11MB(3) would require that the family
consultant:
(a) ascertain the views of the child in relation to the matter, and
(b) include the views of the child on that matter in the report.
236. A note is included to clarify that a person cannot require a child to express his or her
views in relation to any matter. Subsection 11JC(3) provides that nothing in Part IIIAA
permits the Panel or any person to require the child to express his or her views in relation to
any matter. Paragraph 11JB(4)(a) provides that in determining child's best interests, the Panel
must consider any views expressed by the child.
237. New subsection 11MB(4) would provide that subsection (3) does not apply if
ascertaining and including the views of the child on a matter would be inappropriate because
of the child's age or maturity, or some other special circumstance. A family consultant has
58
the necessary skills and experience in working with children and their families to make this
assessment.
238. It is important that the report of the family consultant provides a comprehensive
independent assessment of the issues and is best able to help the Panel to make its
determination. For this reason, new subsection 11MB(5) would enable the family consultant
to include other matters that relate to the care, welfare or development of the child, in
addition to the matters required by the Panel.
239. New subsection 11MB(6) would enable the Panel to give any direction that it
considers appropriate for the purposes of the preparation of the report (including directions
that a party attend or arrange for the child to attend, an appointment(s) with a family
consultant). A party may, for any number of reasons, be reluctant or unwilling to allow their
child to meet with the family consultant, and so a direction may be necessary to ensure this
occurs.
240. Where a party does not comply with a direction under subsection (6) or a child does
not attend an appointment with a family consultant as required by a direction, new
subsection 11MB(7) would require the family consultant to notify the Panel. The Panel may
then, under new subsection 11MB(8), give a further direction in relation to the preparation of
the report as it considers appropriate.
Section 11MC--Panel may refer parties to family counselling, family dispute
resolution and other family services
241. A key feature of the parenting management hearings model is that parties would be
linked to other support services to minimise the intensity and duration of conflict and better
support families and children.
242. New section 11MC would give the Panel the power to refer parties to family
counselling, family dispute resolution, to a family consultant or to an appropriate course,
program or other service. Subsection 11MC(1) would provide the Panel with the discretion to
give a referral through one or more directions, made at any stage in a parenting management
hearing. This would provide the Panel with the flexibility to refer a party or family at a stage
most appropriate in the circumstances.
243. The Panel may suggest a particular purpose for the attendance or participation of a
party (under subsection 11MC(2)). Subsection (3) would provide the power for the Panel to
give any other direction/s it considers reasonably necessary or appropriate in relation to the
direction. This is intended to help to ensure that any referral is taken up.
244. This section is consistent with section 13C of the Act.
Section 11MD--Consequences of failure to comply with direction under
section 11MC
245. New section 11MD would provide consequences for a failure to comply with a
direction made by the Panel under new section 11MC for a party to attend family counselling,
family dispute resolution or other family services.
246. This section would create an obligation on the family counsellor, family dispute
resolution practitioner or course provider to inform the Panel of any failure to comply with
the Panel direction.
247. The Panel would have the discretion under subsection 11MD(2) to make any further
directions it considers appropriate. This is intended to ensure the Panel is able to take
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appropriate action, which may for example, lead to a further direction to attend a service, or
the dismissal of an application for a hearing.
248. This section is consistent with section 13D of the Act.
Section 11ME--Powers to obtain information or documents
249. New section 11ME would provide the Panel with powers to obtain information or
documents. This would facilitate the Panel gathering information or evidence necessary to
enable it to make an informed determination. This is important in the context of a forum that
is aimed at self-represented litigants, who may be unsure of what information is relevant or
necessary to provide the Panel. Providing the Panel with this power will ensure it has the
information before it to undertake a thorough consideration of all the relevant issues and
make a determination in the child's best interests. Under subsection 11ME(1), the Panel must
be satisfied that a person has information or documents that are likely to assist in:
(a) the resolution of a matter before the Panel; or
(b) the expeditious and efficient conduct of a parenting management hearing.
250. The Panel may request this information or documents by written notice to the person
under subsection 11ME(2). Subsection 11ME(3) would require the written notice to state:
(a) how the person is to give the information or documents; and
(b) the period within which the person is to provide that information or documents
(which must be at least 14 days after the notice is given); and
(c) the effect of subsections (5) and (6) of this section and section 11R (failure to
comply with a notice); and
(d) the effect of subsections 137.1(3) and 137.2(3) of the Criminal Code. These
subsections provide a defence to the offences for providing false or misleading
information (section 137.1) and providing false or misleading documents
(section 137.2). The defence enables a person (the defendant) to point to evidence
that the false or misleading information was not false or misleading in relation to
a material particular.
251. Subsection (4) would enable the notice to require the person to give information by
appearing before the Panel to answer questions. It may be in the interests of an expeditious
hearing that a person attends a hearing to provide certain information and be available to
answer questions relating to that information. This may help to avoid the circumstance
whereby the Panel issues a further notice to a person seeking additional information to
address any gaps or queries related to that initial information.
252. Subsection (5) abrogates the privilege against self-incrimination. A person would not
be excused from providing the information or document requested by the Panel under
subsection (2) on the basis that the information or document might tend to incriminate that
person or expose them to a penalty. If a person was able to rely on the privilege, the Panel
may not have all the information before it that would be necessary to make an appropriate
determination in the best interests of the child. This would undermine the intent of this reform
and potentially lead to the dismissal of applications, or to determinations being made that
may have been made differently (in terms of substance) had all information been available to
the Panel.
253. Subsection (6) would provide a derivative use immunity to afford protection to
persons who provide information or documents. The information or documents given by a
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person, or any information, document or thing obtained as a consequence of giving that
information or documents, are not admissible in evidence against that person in any criminal
or civil proceedings other than proceedings under sections 137.1 and 137.2 of the Criminal
Code. Those provisions are offences of giving false or misleading information, or omitting
any matter or thing without which the information is misleading, or documents to a
Commonwealth entity or a person who is exercising powers or performing functions under,
or in connection with, a law of the Commonwealth or in compliance or purported compliance
with a law of the Commonwealth.
254. These provisions seek to encourage frank and full disclosure of information to the
Panel to ensure fair and timely determinations are made.
255. New section 11ME operates together with proposed new section 11MK, which
empowers the Panel to direct a prescribed State or Territory agency to provide the Panel with
documents or information. Section 11MK (rather than section 11ME) would be used by the
Panel to request certain information from a prescribed State or Territory agency. Directions
for information from other individuals or agencies would be made through section 11ME.
Section 11MF--Where interested person makes allegation of child abuse
256. New section 11MF would create obligations on an 'interested person' in an
application for a parenting determination where an allegation of child abuse is made. New
section 11MJ would create similar obligations in relation to allegations of family violence.
257. This provision is intended to ensure that the Panel receives notice of allegations of
child abuse in a systematic manner. This would help ensure that the Panel has accurate
information before it about any risks to the child so the Panel:
is able to alert a child welfare authority to the allegation or risk, and
can determine whether it must dismiss the application under subsection 11NA(3)
(if there is an allegation of child sexual abuse or risk of child sexual abuse) or
under subsection 11NA(4) if the child is under the care of a person under a child
welfare law), or
can determine whether it exercises its discretion to dismiss under
subsection 11NB(1) if it is appropriate in all the circumstances to do so. Under
subsection 11NB(3) the Panel would be required to consider dismissing the
application if it has reasonable ground for suspecting there has been, or is a risk
of, child abuse (other than child sexual assault).
258. Subsection 11MF(2) would provide that where an interested person makes an
allegation of child abuse, that person must give a notice to the Panel in the form approved in
accordance with the Principal Member directions, and give a true copy of the notice to the
person to whom the allegation relates. It would be open to the Principal Member to prescribe
the same form for the purposes of new subsection 11MJ(2).
259. Subsection 11MF(3) would require the Principal Member to notify a prescribed child
welfare authority as soon as practicable, when a notice under subsection 11MF(2) is given to
the Panel.
260. Subsection (4) would provide that the section does not apply if the application has
been referred to the Panel under section 13L, the interested person is also an interested person
in proceedings under the Act, and they have already complied with their obligation in
section 67Z. The interested person would not be required to again provide notice to the Panel
under section 11MF. The provision makes clear that the interested person would only be
61
exempt under subsection (4) where the child to whom the court proceedings relates is the
same child as to whom the application for the parenting determination relates, and where the
allegation is the same. This means that if the allegation of abuse or risk is different to that set
out in the section 67Z notice, the interested person would be required to file another notice
under section 11MF. The purpose of this subsection is to not require an interested person to
file a second notice in respect of the same child and the same allegation following referral of
the matter to the Panel given that:
the Panel will be informed about any allegations of child abuse when it receives
the Notice of Risk filed in court on referral, and
a child welfare authority would have already been notified about the allegations
under subsection 67Z(3). This picks up on the approach in subsection 67ZA(4)
which provides that notification is not required if the authority has already been
notified under subsection 67ZA(2) or 67Z(3).
261. Subsection (5) would define an 'interested person' for the purposes of this section.
The term would mean a party to the parenting management hearing to which the application
relates, a lawyer (if a lawyer is representing the child's interests in relation to the
application), or any other person prescribed by the Panel rules.
262. This provision is consistent with the obligations under section 67Z of the Act.
Section 11MG--Where Panel or staff member suspects child abuse etc.
263. New section 11MG would apply where a Panel member or a staff member, in the
course of performing their duties or functions, or exercising their powers, has reasonable
grounds to suspect a child has been abused, or is at risk of abuse. Subsection (2) would place
an obligation on that person to notify a prescribed child welfare authority as soon as
practicable of his or her suspicion and the basis for the suspicion.
264. New subsection 11MG(3) would provide the discretion for the person to notify a
prescribed child welfare authority when they have reasonable grounds for suspecting that a
child has been, or is at risk of, ill-treatment, or has been exposed or subjected, or at risk of
being exposed or subjected to behaviour which psychologically harms the child.
265. The person would not be required to notify a prescribed child welfare authority of
his/her suspicion if they know that the authority has already been notified about the abuse or
risk of abuse under subsection (2), new subsection 11MF(3), or subsections 67Z(3) or
67ZA(2) of the Act. The person may notify the authority if they wish. This would prevent a
child welfare authority from receiving duplicate notifications about the same allegation.
266. Notice to the child welfare authority is to be given in writing, however oral notice
may be given so long as written notice confirming the oral notice is provided to the child
welfare authority as soon as is practicable (new subsection 11MG(5)).
267. If a Panel member notifies a prescribed child welfare authority under this section or
subsection 11MF(3), the Panel member may (under subsection 11MG(6)) make such
disclosures of other information as they reasonably believe is necessary to enable the
authority to properly manage the matter the subject of the notification.
268. These requirements are intended to ensure the relevant authorities are notified in a
proper and timely manner of risks to children.
269. This provision is consistent with the obligations under section 67ZA of the Act, in
relation to proceedings for an order under Part VII.
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Section 11MH--No liability for notification under section 11MF or 11MG
270. New section 11MH would require, or provide a discretion for, a person to give a
notice or disclosure under sections 11MF and11MG (in relation to a child abuse allegation)
regardless of any obligation of confidentiality imposed by this Act, another Act, another law
or anything else including a contract or professional ethics.
271. Subsection 11MH(2) would protect a person from liability in civil or criminal
proceedings, or a breach of professional ethics, following a notification under 11MF(3) or
11MG(2).
272. Subsection 11MH(3) would protect a person from liability in civil or criminal
proceedings, or a breach of professional ethics, following a notification under
subsection 11MG(3) or (4), or a disclosure under subsection 11MG(6), if the notification or
disclosure is made in good faith.
273. Subsection 11MH(4) would provide that evidence of a notification made under new
subsections 11MF(3), or 11G(2), (3) or (4), or a disclosure under subsection 11MG(6) is not
admissible in any court except where that evidence is given by the person who made the
notification or disclosure.
274. Subsection 11MH(5) would define 'court' to mean a court, whether or not exercising
jurisdiction under the Act, and includes a tribunal or other body concerned with professional
ethics.
275. These requirements are consistent with section 67ZB of the Act and ensure that a
person is sufficiently compelled to notify a child welfare authority of suspected child abuse
without fear of liability professional misconduct action. This reflects the importance of
prioritising the safety and protection of children.
Section 11MJ--Where interested person makes allegation of family violence
276. New section 11MJ would create obligations on an 'interested person' in an
application for a parenting determination where an allegation of family violence or risk of
family violence is made. New section 11MF would create similar obligations in relation to
allegations of child abuse.
277. New section 11MJ is intended to ensure that the Panel receives notice of allegations
of family violence in a systematic manner. This would help ensure that the Panel has accurate
information before it about any risks to the child and the parties, so it is able to determine
whether it is appropriately placed to determine the application, or whether it should dismiss
under section 11NB on the basis that it is appropriate in all the circumstances to do so. Under
paragraphs 11NB(3)(c) and (d) the Panel would be required to consider dismissing the
application if it has reasonable grounds for suspecting there has been, or is a risk of, family
violence by one of the parties.
278. Notifications under new section 11MJ would also help to ensure that the Panel is able
to put in place procedures that provide for the protection and safety of parties during the
Panel process.
279. New subsection 11MJ(1) would provide that the section applies if family violence (or
risk of family violence) has been alleged by an interested person, as a consideration that is
relevant to whether the Panel should make or refuse to make a parenting determination.
280. Subsection 11MJ(2) would provide that where an interested person makes an
allegation of family violence, that person must give a notice in the form approved in
accordance with the Principal Member directions, to the Panel, and give a true copy of the
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notice to the person to whom the allegation relates. It would be open to the Principal Member
to prescribe the same form for the purposes of new subsection 11MF(2).
281. Subsection 11MJ(3) would set out the obligations where the alleged family violence
(or risk of family violence) is also abuse of a child (or risk of abuse of a child). This
subsection clarifies that, in such cases, only one notice is required to be given, either under
new subsection 11MF(2) or subsection 11MJ(2). If the notice is given under
subsection 11MJ(2), the Principal Member must deal with the notice as if it had been given
under subsection 11MF(2).
282. Subsection (4) would provide that the section does not apply if the application has
been referred to the Panel under section 13L, the interested person is also an interested person
in proceedings under the Act, and they have already complied with their obligation in section
67ZBA. The interested person would not be required to again provide notice to the Panel
under section 11MJ. The provision makes clear that the interested person would only be
exempt under subsection (4) where the child to whom the court proceedings relates is the
same child as to whom the Panel application relates, and where the allegation is the same.
The purpose of this subsection is to not require an interested person to file a second notice in
respect of the same allegation following referral of the matter from a court given that the
Panel will be informed about any allegations of family violence when it receives the Notice
of Risk filed under section 67ZBA.
283. Subsection (5) would define an 'interested person' for the purposes of this section.
This term would mean a party to the parenting management hearing to which the application
relates, a lawyer (if a lawyer is representing the child's interests in relation to the
application), or any other person prescribed by the Panel rules.
284. This provision is consistent with the obligations under section 67ZBA of the Act, in
relation to proceedings for an order under Part VII.
Section 11MK--Documents or information relating to child abuse or family
violence
285. New section 11MK would give the Panel power to make a direction requiring a
prescribed State or Territory agency to provide the Panel with documents which contain
information about one or more of the following:
any notifications to the agency of suspected abuse of the child or family violence
affecting the child
any assessment by the agency of investigations into a notification of that kind,
any reports commissioned by the agency in the course of investigating a
notification.
286. The purpose of this provision is ensure that the Panel has as much information as
possible relevant to allegations of child abuse when making a determination about what it is
the best interests of the child. The Panel would have a general information gathering power in
new section 11ME which could be used to gather information from child protection and
police. However, section 11MK (which is an equivalent of section 69ZW of the Act) has
been included in new Part IIIAA given that child protection departments and state and
territory police are familiar with the operation of section 69ZW notices and have, in some
cases, developed procedures to respond to them efficiently. It is intended that the Family Law
Regulations 1984 would be amended so that the prescribed agencies will be the same as those
prescribed for the purposes of section 69ZW of the Act.
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287. Subsection 11MK(3) would clarify that nothing in the direction is to be taken to
require the agency to provide the Panel with documents or information not in the possession
or control of the agency; or documents or information that include the identity of the person
who made the notification.
288. Subsection 11MK(4) would ensure that a law of a State or Territory has no effect to
the extent that it would hinder or prevent an agency from complying with the direction. The
intention is that subsection 11MK(4) will prevail to the extent of any inconsistency between it
and the law of a State or Territory. This will ensure that the Panel is able to compel the same
information from all States and Territories in spite of the differences in their child welfare
legislation.
289. Subsection 11MK(5) would provide that the Panel must disclose to the parties of the
parenting management hearing any documents or information provided in response to the
direction on which the Panel intends to rely. This ensures that where the Panel intends to rely
on information it has received relating to an allegation of abuse or violence, the parties are
aware of the information or allegation and have an opportunity to respond. This is in
accordance with principles of procedural fairness.
290. Subsection 11MK(6) provides that where an agency has provided documents or
information that include the identity of the person who made the notification of suspected
abuse or family violence, the Panel must not disclose the identity of the person unless he or
she consents to the disclosure, or the Panel is satisfied that the identity or information is
critically important to the hearings and that failure to make the disclosure would prejudice the
proper consideration of the application for a parenting determination. An equivalent of this is
found in section 29 of the Children and Young Persons (Care and Protection) Act
1998 (NSW). It recognises that it is a matter of public policy that the identity of a notifier
should be protected in most circumstances to ensure that there is no disincentive to
notification of child protection issues.
291. Subsection 11MK(7) would ensure that before any disclosure is made under
subsection 11MK(6), the agency that provided the identity of the person who made the
notification is notified and given an opportunity to respond. This provision addresses the
concerns expressed by some State agencies about the sensitivities in release of the identity of
the notifier. In most cases the identity of the notifier will not be relevant - what is relevant is
what the findings were about the child protection issue. Protection of the identity of the
notifier ensures that there is no disincentive to report suspected child protection issues. This
will ensure that there is an appropriate process to assess whether the information is critically
important and whether failure to make the disclosure would prejudice the proper
administration of justice.
Subdivision D--Dismissing applications
Section 11N--Power to dismiss may be exercised at any time
292. New section 11N would provide the Panel with the ability to dismiss an application
for a parenting determination (using one of the 'Dismissing application' powers provided in
this subdivision) at any time after the application has been received by the Panel.
Subsections 11NA(1)--(15) provide for the circumstances when the Panel is required to
dismiss an application. Sections 11NB--11NF provide for the circumstances when the Panel
has the discretion to dismiss an application.
293. It is anticipated that the majority of dismissals will occur either:
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upon receipt of application (if, for example, the applicant is seeking a relocation
order which is outside of the Panel's jurisdiction, or if an application in any other
respect 'on its face' requires dismissal), or
following an intake process where it has become apparent that the issues for
determination are legally complex or would require lengthy and complex
fact-finding, or are otherwise inappropriate or not possible for the Panel to
determine.
294. However, it is important that the Panel has flexibility as to when it can dismiss a
matter. If the Panel becomes aware of information that impacts upon its view as to whether it
is appropriate for the parenting management hearing to continue, it is appropriate that it can
dismiss the application at a later stage of the process. For example, the Panel might receive
further information that was not provided in the application (but is then disclosed part-way
through the hearing or comes to the Panel through a direction issued under section 11ME or
11MK). This information might indicate that the issues in dispute are more complex than first
assessed, or that there are reasons to believe that a party will not be able to effectively
participate in the hearing process. In this circumstance, section 11N gives the Panel discretion
to discontinue proceedings and dismiss the application.
Section 11NA--When Panel must dismiss an application for parenting
determination
295. New section 11NA would set out the circumstances in which the Panel must dismiss
an application for a parenting determination in relation to a child.
When relevant consent is not given
296. The first circumstance in which the Panel must dismiss an application is when the
consent requirements provided for in section 11KC have not been met. Section 11KC
provides that consent for an application to be determined by the Panel is required from each
person with parental responsibility for the child and, if there is a parenting determination or
parenting order in force, each person in whose favour the determination or order is made (this
may include, for example, a person who the child is to spend time with or communicate with
under an order).
297. Consent must be given in relation to all the matters to which the application relates; in
writing; and within the period specified by the Principal Member.
298. If consent is not provided in accordance with these requirements the Panel must
dismiss the application. This reflects the design of the Panel as a consent-based forum, which
offers an alternative option to court for settling family law disputes. The Panel is not
mandatory, and people must provide consent to use the forum.
When application is for the relocation of a child
299. The second circumstance is when an application is for the relocation of a child
(subsection 11NA(2)). Matters involving the relocation of a child 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.
When application alleges child sexual abuse or risk of child sexual abuse
300. The third circumstance is when an application alleges child sexual abuse or a risk of
child sexual abuse (subsection 11NA(3)). Child sexual abuse is defined in new
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subsection 11NA(1). Matters involving child sexual abuse involve allegations of a very
serious nature, are typically highly complex, and are more appropriate for court resolution.
301. New 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 (see
subsection 11MF(3)). If, during any stage of the parenting management hearings process, a
Panel or staff member reasonably suspects child abuse or risk of child abuse, the person
would be obligated to notify a child welfare authority (see new section 11MG).
When the child is under the care of a person under a child welfare law
302. The fourth circumstance is when an application relates to a child who is under the
care of a person under a child welfare law (subsection 11NA(4)). These matters typically
have a complex history, cross jurisdictional boundaries and generally require lengthier
proceedings to resolve the dispute.
When a final parenting determination is in force
303. Subsections 11NA(5)--(11) would provide the Panel with the power to dismiss an
application when certain steps have already been taken to resolve the parenting matter. It is
important that the framework supporting the family law system promotes an appropriate level
of finality following the making of a parenting determination, parenting plan or court order.
Prolonged parenting disputes and relitigation of matters cause ongoing instability and other
harms for children and families. However, due to the nature of family law cases, there is a
need to retain the ability for a family law matter to be reconsidered should there be a
significant change in circumstances.
304. Subsections 11NA(5) and (6) would require the Panel to dismiss an application if a
final parenting determination is in force in relation to the child, unless the Panel is satisfied
that there has been a significant change in circumstances relating to the child. The intention
of this provision is to be consistent with the common law test that the family law courts apply
in deciding whether or not to make a new parenting order where a parenting order already
exists. At the time of writing, the common law test applied by the family law courts in this
circumstance is that set out in Rice & Asplund (1979) FLC 90-725 which provides that, where
parenting orders already exist, the court should only make a new parenting order made if
satisfied that there is:
' ... some changed circumstance which will justify such a serious step, some
new factor arising or, at any rate, some factor which was not disclosed at the
previous hearing which would have been material.'
305. This provision does not intend to modify the common law test, but rather provide that
the Panel is to apply the same common law test as the courts in determining whether there
has been a 'significant change of circumstances' (and therefore whether it can continue with
an application where there is an existing parenting determination). It is important for the
Panel to be satisfied that this test has been met before continuing with an application, to avoid
unnecessary re-litigation of matters and instability for children.
When relevant court proceedings are instituted
306. Subsection 11NA(7) would require the Panel to dismiss an application in relation to a
child if proceedings under the Act have been instituted, but not finally determined, in relation
to the child. This requirement applies whether the proceedings are instituted before or after
the application for a parenting determination is made. The requirement does not apply if
proceedings have been referred by the Court to the Panel under new section 13L.
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307. This subsection would not capture applications by parties solely for a property
settlement, as it only applies where the application is in "relation to the child".
308. Subsection (7) is intended to avoid the undesirable circumstance of having related
matters proceeding in two different forums at the same time. For example, to ensure that
there are not two parallel applications for parenting orders relating to the same child/children
proceeding in both the Panel and the family law courts.
309. The effect of this provision will be that the Panel will be required to dismiss an
application in relation to a child if, for example, a person (either a party to the Panel
proceedings, or a third party) files a court application for parenting orders, or for a location or
recovery order, in relation to the child while panel proceedings are ongoing.
310. Nothing would preclude the court, with the consent of the parties, from referring a
proceeding, or part of a proceeding, back to the Panel in circumstances where the Panel has
dismissed an application under section 11NA(7). Section 11NG would enable the Panel to
reinstate the application. It would be a matter for the court to determine the appropriate
course in the circumstances.
311. Item 137 of the Bill would provide that subsections (7) and (8) apply in relation to
proceeding under the Act whether instituted before or after commencement of the Schedule.
When a parenting order is in force
312. Subsections 11NA(9) and (10) and (11) would require the Panel to dismiss an
application in relation to a child if a parenting order (other than an interim parenting order) is
in force in relation to the child. However, the Panel would have the discretion to continue to
deal with the application if the Panel is satisfied that there has been a significant change of
circumstances. This approach means that families in this circumstance have the option of
applying to the Panel or returning to court for reconsideration of their matter.
313. The intention of this provision is to be consistent with the common law test that the
family law courts apply in deciding whether or not to make a new parenting order where a
parenting order already exists. At the time of writing, the common law test applied by the
family law courts in this circumstance is that set out in Rice & Asplund (1979) FLC 90-725
which provides that, where parenting orders already exist, the court should only make a new
parenting order made if satisfied that there is:
' ... some changed circumstance which will justify such a serious step, some
new factor arising or, at any rate, some factor which was not disclosed at the
previous hearing which would have been material.'
314. This provision does not intend to modify the common law test, but rather provide that
the Panel is to apply the same common law test as the courts in determining whether there
has been a 'significant change of circumstances' (and therefore whether it can continue with
an application where there is an existing parenting order). It is important for the Panel to be
satisfied that this test has been met before continuing with an application, to avoid
unnecessary re-litigation of matters and instability for children.
315. Even if the Panel was satisfied that there had been a significant change of
circumstance, the Panel would still be required to dismiss the application if the relevant
parenting order contained a provision that the order must not be varied by a parenting
determination (subsection (10)). Courts would be given the power to include such a
restriction in a parenting order by virtue of proposed new subsection 64E(2). New
section 64E would apply in relation to parenting orders made before or after commencement
of this Schedule (see item 137(8) of the Bill).
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316. Item 137(3) and (4) of the Bill set out the application provisions in relation to
subsections 11NA(9)--(11). Their effect is that the Panel would be required to dismiss an
application if a parenting order made before the Schedule commenced provided that the
order, or provision of the order, could only be varied by a subsequent order of the court (and
not by a parenting plan). In this circumstance, it is appropriate that the Panel be required to
dismiss the application, as the reasons the court may have ordered that the parenting order
could only be varied by a subsequent order of the court, may be applicable to the question of
whether the order, or provision of the order, should be able to be varied by a subsequent
parenting determination.
When there is a registered parenting plan
317. Under subsection 11NA(12) the Panel would also be required to dismiss if a
registered parenting plan is in force. A registered parenting plan is a parenting plan that was
registered with a court prior to 2004. As there would only be a limited number of registered
parenting plans in force today, the Bill does not make provision for the Panel to deal with
such applications.
When there is a registered overseas child order
318. The Panel would be required to dismiss an application if an overseas child order is
registered under section 70G in relation to the child (subsection 11NA(13)).
319. Australia has arrangements with some countries to register court orders made
overseas so that they are enforceable in Australia. These countries are listed in Schedule 1A
of the Family Law Regulations 1984.
320. A registered overseas child order has the same force and effect as an order made
under Part VII of the Act (see existing section 70H). If an Australian court is aware that the
overseas child order has been registered it must not exercise its jurisdiction in proceedings for
an order relating to with whom a child is to live or spend time with, except in certain limited
circumstances (see existing subsection 70J(1)). On this basis, it is appropriate that the Panel
be required to dismiss applications where there is a registered overseas child order in relation
to the child.
When all parties request application be dismissed
321. The Panel would be required to dismiss an application when all parties request that
the application be dismissed. This is appropriate given that the Panel is a consent-based
forum.
322. In situations where not all parties want to have the application dismissed, under
section 11NF, a party can request that the Panel exercise its discretion to dismiss the
application.
When parenting management hearing fee has not been paid
323. 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. 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 regulations until on or after 1 July 2021 which is when the pilot phase concludes.
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Section 11NB--Application for parenting determination may be dismissed if
Panel considers it is appropriate
324. New section 11NB would provide the Panel with the discretion to dismiss an
application if it is satisfied that it is appropriate in all the circumstances to do so. This broad
discretion is important, given that parenting management hearings are to be piloted initially in
two locations and the potential caseload of the body is uncertain. The Parenting Management
Hearings Panel may not have the resources to deal with all applications made. Further, noting
that applicants can both make applications directly, or be referred to the Panel by a court
under section 13L, it may be that some applications involve matters that the Panel cannot
determine or does not consider appropriate for it to determine.
325. Subsection 11NB(2) sets out factors that the Panel may have regard to in exercising
its discretion to dismiss a matter. These factors include: the complexity of the matters for
consideration; the capacity of the Panel to manage any risks relating to the safety of parties or
the child; the capacity of the Panel to determine the matters in a manner consistent with the
objective of the Panel (set out in subsection 11TA(1)); the capacity of a party to participate
effectively in the hearing (having regard to any power imbalances between the parties or any
other relevant factor); any relevant inferences that can be drawn from the application of a
family violence order to the child or a member of the child's family; and any other matter that
the Panel considers relevant.
326. These factors would guide Panel Members in considering whether it is appropriate for
the Panel to hear a particular matter. It would enable the Panel to manage its workload and
ensure that it only determines matters where it can do so in a fair, just, economical, informal
and prompt way, consistent with its key objective in subsection 11TA(1).
327. Subsection 11NB(3) would require the Panel to consider whether to dismiss an
application under subsection (1) if there has been abuse or is risk of abuse of the child by one
the parties, or there has been family violence or is a risk of family violence by one of the
parties. Child sexual abuse is specifically excluded from this provision as the Panel must
dismiss an application where there are child sexual abuse allegations or risk of child sexual
abuse under subsection 11NA(3) (therefore, there is no need for the Panel to consider
dismissing, as it is a mandatory requirement that it be dismissed). This section is not intended
to limit the ability of the Panel to consider whether to dismiss an application in any other
circumstance.
328. The approach in section 11NB(3) ensures that in each case that comes before it, 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. It also recognises that if applications involving allegations of family
violence were to be automatically excluded from the matters the Panel can deal with, there is
a real risk that vulnerable parties may choose to withhold information about family violence
in order to have access to the Panel. Providing a disincentive to parties to disclose risks, and
inhibiting help-seeking behaviour in this way, would pose unacceptable risks to families and
children.
329. In making an assessment about the suitability of a matter under subsection 11NB(3),
it is intended that the Panel will be informed by screening and risk assessment conducted at
intake (see proposed subsection 11VA(2)). Panel members will be well placed to make
decisions of this nature given the significant expertise and experience required of the
Principal Member and Panel members (see proposed new section 11UA).
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330. The approach in proposed section 11NB will also help to avoid complex
jurisdictional arguments about when a child's exposure to family violence constitutes abuse
under section 4 of the Act, allowing the Panel to consider the circumstances of a family
holistically in assessing the suitability of the forum.
331. If matters are dismissed under section 11NB (or section 11NA) Panel staff would be
able to refer parties to relevant support and advice services to assist them to take the next
appropriate steps in resolving their dispute, which may be to make an application to a family
law court.
Section 11NC--Application may be dismissed if consent obtained by fraud etc.
332. New section 11NC would enable the Panel to dismiss an application for a parenting
determination if the Panel is satisfied that consent (as required in section 11KC) was obtained
by fraud, threat, duress or coercion. This section is not intended to limit the broad power to
dismiss an application under section 11NB.
333. The Panel is a consent-based forum, and parties cannot be compelled to participate.
This provision recognises that there may be circumstances that consent provided by a party
was not true consent as it was not freely given--for example, if a victim of family violence
consents to the forum because they are intimidated by or fearful of the perpetrator.
334. This supports other safeguards that will be provided around consent, including that:
parties will be encouraged to obtain legal advice prior to applying to the Panel, or
providing consent to the forum, so their consent is informed, and
it is intended that the issue of consent, including whether it was provided freely,
will be assessed at the intake stage by trained Panel staff.
Section 11ND--Application may be dismissed if frivolous etc.
335. New section 11ND would provide the Panel with the discretion to dismiss an
application for a parenting determination if it is satisfied that the application is frivolous or
vexatious, or is otherwise an abuse of the process of the Panel. The Panel may give a written
direction stopping the person from making a subsequent application to the Panel of a kind
specified, without the leave of the Panel (subsection 11ND(2)). Such a direction may be
varied or revoked by the Panel under subsection 11ND(3).
Section 11NE--Application may be dismissed where failure to proceed etc.
336. New section 11NE would provide the Panel with the discretion to dismiss an
application for a parenting determination if a party to the hearing does not proceed with the
application within a reasonable time, or a party fails to comply with a direction given by the
Panel in relation to the application.
337. This supports the Panel's objective of providing efficient and prompt determinations.
Section 11NF--Application may be dismissed on request by a party to the
hearing if Panel satisfied it is appropriate
338. If a party to a parenting management hearing application wishes to withdraw their
consent to the process after it has been given, the party would be able to apply to the Panel
under section 11NF to have the application dismissed.
339. New section 11NF would provide the Panel with the discretion to dismiss an
application for a parenting determination if (a) a party to the hearing makes a written request
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that the application be dismissed, and (b) the Panel is satisfied that it is appropriate to dismiss
the application. The second limb (that the Panel is satisfied that it is appropriate to dismiss
the application) seeks to ensure that once all relevant parties have consented to an application
for a parenting determination being made, the process can continue to determination unless
there is an appropriate reason not to continue. Giving discretion to the Panel in making this
assessment will ensure that the interests of all relevant parties and the child can be
considered.
340. Under subsection 11NA(14) the Panel would be required to dismiss an application if
all the parties to the hearing request that it be dismissed.
Section 11NG--Power of Panel to reinstate application
341. New section 11NG would empower the Panel to reinstate applications.
342. New subsection 11NG(1) would provide the Panel with the power to reinstate an
application and give appropriate directions if needed, in circumstances where the Panel
considers that an application was dismissed in error. This could be used, for example, if an
application has been dismissed on the grounds that a party failed to proceed with the
application within a reasonable time. The party may be able to show that they had taken
action to proceed, such as by submitting certain documentation requested by the Panel, but
that documentation was not received by the Panel.
343. New subsection 11NG(2) would provide the Panel with the power to reinstate an
application and give appropriate directions if needed, if a court refers proceedings, or a part
of proceedings, or a matter arising from proceedings, to the Panel under section 13L and the
proceedings or matters deal with issues covered by an application for a parenting
determination that has been dismissed by the Panel (under new subdivision D).
Subdivision E--Parenting determinations
Section 11P--Power to make parenting determinations
344. New section 11P would empower the Panel to make a parenting determination in
relation to a child. This provision should be read in conjunction with new section 11JG
(which provides the definition of a parenting determination) and section 11PB (how parenting
determinations are made).
345. The power to make a parenting determination would be available following an
application made by the relevant parties under new section 11K directly to the Panel, or
following a referral of an application from the court under new section 13L.
346. Under new subsection 11P(2), the Panel would be able to make any parenting
determination in relation to a child as it thinks proper (subject to section 11JE and 11P(3)).
The determination may provide for any or all of the matters set out in subsection 11JG(3)
including the persons with whom the child is to live, or the nature and amount of
communication a child is to have with any person, and may be expressed to be an interim or
final determination (see subsection 11JG(2)).
347. Consistent with the object of this Part, subsection 11P(3) would require the Panel to
have regard to the best interests of the child as the paramount consideration in deciding
whether to make a particular parenting determination in relation to a child. The Panel would
apply the considerations provided in new section 11JB to determine what is in the child's best
interests. This would include considering the benefit of the child having a meaningful
relationship with both parents and the need to protect the child from harm.
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Section 11PA--Panel to consider risk of family violence when making
determinations
348. New section 11PA would require the Panel to ensure, when it makes a parenting
determination or interim parenting determination, that the determination does not expose a
person to an unacceptable risk of family violence. The Panel must do so to the extent that it is
possible consistent with the child's best interests as the paramount consideration.
349. To ensure the protection of families, new subsection 11PA(2) would provide that the
Panel may include in the determination any safeguards that it considers necessary for the
safety of those affected by the determination. Under new section 11PH the Panel would be
restricted from making a parenting determination that is inconsistent with an existing family
violence order.
350. This is consistent with section 60CG of Part VII of the Act which requires the court to
consider the risk of family violence when considering what order to make.
Section 11PB--How parenting determinations are made
351. New section 11PB places obligations on the Panel when making a parenting
determination (whether expressed to be an interim or final determination--see
subsection 11JG(2)). This provision should be read in conjunction with section 11P (power to
make parenting determinations) and section 11JG (the meaning of a parenting determination).
352. New subsection 11PB(1) would provide that a parenting determination may be made
orally, or in writing. This provides the Panel with the ability to provide the parties with its
determination at the end of the hearing while both parties are present. This would be
consistent with the objective of the Panel to facilitate the resolution of matters in an informal
and prompt way as provided for in new section 11TA. It also enables the Panel to take time
for consideration after the hearing before making a determination.
353. It is important that both parties understand what the Panel has determined (through a
parenting determination) so that they are able to put the necessary arrangements in place for
the child. New subsection 11PB(2) would require the Panel to give a written copy of the
parenting determination to each party within 28 days after the conclusion of the hearing, or
within such longer period as the Principal Member allows. A written parenting determination
can be a useful reference tool for parties and can help them to better understand more detailed
or complex arrangements, or to seek help in understanding what has been determined, if
needed.
354. Each party should also understand why the Panel has made the parenting
determination. For this reason, new subsection 11PB(4) would require the Panel to give
reasons for the parenting determination, either orally or in writing, and new
subsection 11PB(6) would give each party the right to request written reasons when the Panel
has only given oral reasons.
355. To ensure each party is aware of their rights, the Panel would be required under
subsection 11PB(3) to give each party a notice that includes a statement informing parties:
that they may request written reasons for the parenting determination under new
subsection 11PB(6), and
that they have the right to appeal to the Federal Circuit Court on a question of law
under new section 11Q.
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356. New subsection 11PB(7) would specify the obligations in relation to a request by a
party for written reasons from the Panel. A request must be made within 28 days after the
written copy of the parenting determination is provided to the party. Once a request is made
by a party, the Panel must provide written reasons within 28 days of receiving the request or
within such longer period as the Principal Member allows. These timeframes are reasonable
and practicable and are consistent with the requirements for written reasons to be requested
and provided in relation to administrative tribunals.
357. New subsection 11PB(8) would provide that a failure by the Panel to comply with the
notice requirements of new sections 11PB would not affect the validity of the determination.
This is appropriate to prevent technical defects after the Panel has already considered the
matter.
Section 11PC--Duties of the Panel when making parenting determinations
358. New subsection 11PC would provide that the Panel, when making a parenting
determination, has a duty to set out the particulars of the obligations created by the
determination, as well as the consequences that would follow if the determination is
contravened.
359. The Panel must also explain to self-represented parties (the intended users of the
Panel) the availability of programs to help parties understand their responsibilities, and the
availability and use of location and recovery orders to ensure that determinations are
complied with. Subsection 11PC(8) would provide that the Panel must use language that is
able to be understood by the person to whom the explanation is being given.
360. If a person is legally represented, the Panel may impose a duty on the practitioner to
undertake the explanation to the person (see subsections 11PC(5) and (6)). Although the
hearings are aimed at self-represented litigants, a person is not restricted from having legal
representation other than during the hearing itself and may have legal representation during
the hearing if leave is given.
361. Failure to comply with the requirements of section 11PC would not affect the validity
of a parenting determination (subsection 11PC(7)). This will prevent technical defects in
parenting determinations after the Panel has already considered the matter.
362. This section is important to ensure that parties are aware of obligations created by
determinations and to encourage compliance with the determination. This section is modelled
on section 65DA of the Act.
Section 11PD--Period for which a parenting determination is in force
363. New subsection 11PD(1) would provide that a parenting determination starts to
operate on the day specified in the determination. This is intended to avoid any confusion
about when the determination is understood to commence.
364. Subsection 11PD(2) sets out the circumstances in which a parenting determination
will cease having force as being:
at the time specified in the determination (if any)
at the time the determination is discharged, varied or suspended under
paragraph 11JG(1)(b). This may occur where there is already an existing
parenting determination is force, but there has been a significant change of
circumstances, so the Panel can continue with the application and discharge, vary
or suspend the existing determination (see subsections 11NA(5)--(6))
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when the child to whom the determination relates turns 18, marries or enters into
a de facto relationship (subsection11PF(2)), or is adopted (subsection 11PX(2))
at the time the determination is revoked because the court has made an order
under Part VII of the Act (subsection 11PW(1))
at the time the determination is set aside following an appeal to the Federal
Circuit Court (paragraph 11Q(4)(b)) or enforcement proceedings (section
70NBAB)
when there is registered overseas child order and the determination is discharged
(subsection 70LA(2)).
365. Subsection 11PD(3) would make clear that where the Panel has made an interim
determination, but the application is subsequently dismissed, the interim determination is
automatically revoked. This is appropriate given that the Panel has dismissed the application
either because a mandatory dismissal factor has arisen, or because the Panel comes to the
view that it is no longer appropriate in all the circumstances for it to continue to determine
the matter. In those circumstances it would not be appropriate for an interim determination to
remain in force. Panel staff would be able to refer parties to relevant support and advice
services to assist them to take the next appropriate steps in resolving their dispute, which may
be to make an application to a family law court.
366. A note would be inserted to this section to specify that the operation of a parenting
determination may be stayed under new subsection 11QA(2) which provides for the operation
and implementation of a decision or determination of the Panel that is subject to appeal
proceedings.
Section 11PE--Parenting determination subject to later parenting plans
367. New section 11PE would insert a default provision into parenting determinations
made by the Panel. Under new subsection 11PE(1), a parenting determination in relation to a
child will be taken to include a provision that the determination is subject to any subsequent
parenting plan entered into by the child's parents and agreed in writing by any other person to
whom the parenting determination applies (other than the child).
368. This would be subject to new subsection 11PE(2). Under subsection 11PE(2), the
Panel would be given the discretion to include a provision in a parenting determination that
the parenting determination, or a provision of the parenting determination, may only be
varied by a subsequent parenting determination (and not by a parenting plan). This may only
be done in exceptional circumstances. The default provision in subsection 11PE(1) would
otherwise apply.
369. This section is consistent with section 64D of Part VII of the Act which similarly
includes a default provision and discretion to override this, in relation to parenting orders of
the court and subsequent parenting plans.
Section 11PF--Children who are 18 or over or who have married or entered
de facto relationships
370. New section 11PF would provide that a parenting determination must not be made in
relation to a child who is 18, over or who is or has been married or who is in a de facto
relationship. A parenting determination in relation to a child would cease to operate when the
child turns 18, marries or enters a de facto relationship.
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371. It would not be necessary or appropriate for a parenting determination to apply in
these circumstances as the 'child' would have their own legal status. This is consistent with
the application of parenting orders to children in section 65H in Part VII of the Act.
Section 11PG--Interaction with child welfare laws
372. New section 11PG would provide for the interaction between parenting
determinations and child welfare laws. Under subsection 11NA(4) the Panel must dismiss an
application if it relates to a child who is under the care of a person under a child welfare law.
Section 11PG supports this by making clear that a parenting determination is not able to
interfere with arrangements made for the care and protection of a child under a child welfare
law. In particular, subsubsection 11PG(1) would provide that nothing in new Part IIIAA or
any determination made under Part IIIAA, would affect the jurisdiction of the court or a
power of a child welfare authority to make an order or take action by placing a child under
the care of a person under a child welfare law. Nor would it affect any such order made or
action taken, or the operation of a child welfare law in relation to the child.
373. New subsection 11PG(2) would require the Panel to dismiss an application for a
parenting determination in relation to a child if it appears that another court or an authority
proposes to make an order, or take any other action, by which the child would be placed
under the care of a person under a child welfare law.
374. This section is consistent with section 69ZK in Part VII of the Act which ensures the
operation of child welfare laws are not affected by an order of the court under the Act.
Section 11PH--Interaction with existing family violence orders
375. New section 11PH would prohibit the Panel from making a parenting determination
that is inconsistent with an existing family violence order.
376. A note would be inserted to highlight that new section 11PY and section 68R of the
Act (which would be amended by item 49 of the Bill) also deal with the interaction between
family violence orders and parenting determinations.
377. This section would provide a different approach to the way the Act operates in respect
of inconsistencies between parenting orders and existing family violence orders (under
sections 68P and 68Q). This is considered appropriate on the basis that the Panel is intended
to deal with less-complex family law disputes and make less-complex findings of fact. New
section 11LG would oblige the parties to a parenting management hearing to inform the Panel
of any family violence order.
Section 11PJ--Effect of parenting determinations that provide for shared
parental responsibility
378. New section 11PJ would help clarify the effect of parenting determinations that
provide for shared parental responsibility.
379. New subsections 11PJ(1) and (2) would provide a rule that where parental
responsibility is shared between two or more people, and a decision about a major long-term
issue in relation to the child is required, that decision is required to be made jointly. For those
allocated parental responsibility by a parenting determination, this clarifies what exercising
shared parental responsibility actually involves. This will ensure all persons allocated
parental responsibility have meaningful involvement in making important long-term
decisions that affect the child's life. Consultation between people about major long-term
issues is required for those parts of parental responsibility that are shared.
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380. A note would be inserted under new subsection 11PJ(2) to clarify that there is no
requirement for people to consult about decisions that are not major long-term issues unless
otherwise specified by a court order or parenting determination . Ordinarily, where a child is
spending time with one person with parental responsibility, that person can make decisions
about issues that are not major long-term issues (as per new section 11PK).
381. New subsection 11PJ(3) would require that in the context of making decisions jointly,
those persons must consult with one another and make a genuine effort to come to a joint
decision.
382. When a decision about a major long-term issue is communicated to another person
(who does not share parental responsibility) by a parent with shared parental responsibility,
new subsection 11PJ(4) would clarify that this section does not require that person to
establish that the decision has been made jointly. This is intended to avoid any doubt and
ensure that third parties, for example schools, do not bear responsibility for establishing
whether a decision has been made jointly by parents.
383. This section is consistent with section 65DAC of the Act which provides the
requirements for making decisions about major long-term issues where two or more persons
share parental responsibility for a child under a parenting order.
Section 11PK--No need to consult on issues that are not major long-term
issues
384. New section 11PK would provide that, where a child is spending time with a person
under a parenting determination, there is no need to consult with the person or persons who
have parental responsibility for the child about decisions that are not major long-term
issues--unless a parenting determination provides otherwise.
385. A note would be inserted to clarify that what a child eats or wears are usually not
major long-term issues and would therefore not require consultation.
386. This section is consistent with section 65DAE of Part VII of the Act which provides
that no consultation is required on issues that are not major long-term issues where two or
more persons share parental responsibility for a child under a parenting order.
Section 11PL--Panel to consider child spending equal time or substantial and
significant time with each parent in certain circumstances
387. Section 11PL is an equivalent of section 65DAA of the Act. This provides for
consistency in decision-making frameworks across the Panel and the family law courts.
388. Section 11PL sets out the circumstances where the Panel is to consider children
spending either equal and if not equal then substantial and significant time with both a child's
parents. The Panel must consider whether it is in the best interests of the child and reasonably
practicable for the child to spend equal time with the parents--it is not a presumption of
50:50 joint custody.
389. Subsection 11PL(2) recognises that an equal time arrangement will not be appropriate
in some cases but that the Panel must consider other arrangements that promote a meaningful
relationship with the child's parents. This provision places an obligation on the Panel in
situations where there is equal shared parental responsibility and equal time is not
appropriate, to consider whether it would be in the best interests of the child and reasonably
practicable for the child to spend substantial and significant time with both parents.
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390. Subsection 11PL(3) makes it clear that substantial and significant time requires that
the child spend both some time with a parent on weekends, holidays and other days. It must
also allow the parent to participate in the child's daily routine and in events that are
significant to the child. This might include sporting events, birthdays or concerts. It would
also include the child being able to be involved in events of significance to the parent such as
family weddings or christenings, mother's or father's day or birthdays.
391. Subsection 11PL(4) makes it clear that the Panel can have regard to other things when
deciding what is substantial and significant time. This will allow the Panel flexibility in
determining for each unique case what the significant events are for that child and parent and
what would constitute substantial time. For some children it may include time related to
religious or cultural events.
392. Subsection 11PL(5) sets out factors that the Panel should consider in determining
whether both equal or substantial and significant time are reasonably practicable.
Section 11PM--Interaction with parenting plans
393. New section 11PM would provide for the interaction between parenting
determinations and parenting plans.
394. When making a parenting determination in relation to a child, the Panel must consider
the most recent parenting plan (if any) that has been entered into by the parents about the
child. Prior to seeking a parenting determination from the Panel, parents may have agreed on
a parenting plan that subsequently breaks down. This provision will give the Panel the benefit
of information about the types of arrangements that the parents have previously agreed on.
The Panel is still required to make a determination in the best interests of the child but
information about the parenting plan may assist the Panel in considering the appropriate
parenting determination to make. The Panel is not bound by any previous agreement in the
form of a parenting plan.
395. This requirement would not apply to a registered parenting plan. A note would be
included to direct the reader to new subsection 11NA(12) which would require the Panel to
dismiss an application for a parenting determination if a registered parenting plan is in force
in relation to the child.
396. This section is consistent with section 65DAB of Part VII of the Act which requires
the court to have regard to parenting plans when making parenting orders.
Section 11PN--Obligations created by parenting determinations
397. New section 11PN would provide for the obligations created when a parenting
determination is in force in relation to a child. A parenting determination will be made by a
Panel with the best interests of the child as the paramount consideration, and after
considering all information put before it. Given this, it is important that obligations under a
parenting determination made by the Panel are met, and there is no interference from others
which hinders compliance with the determination.
398. If a determination deals with who the child is to live with, new subsection 11PN(2)
would provide that a person must not remove the child from the care of a person, refuse or
fail to deliver or return the child, or interfere with the exercise of performance of any of the
powers, duties or responsibilities that a person has under the determination.
399. If a determination deals with who the child is to spend time with, new
subsection 11PN(3) would provide that a person must not hinder or prevent a person
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spending time with the child in accordance with determination, or interfere with a person and
the child benefiting from spending time with each other under the determination.
400. If a determination deals with who the child is to communicate with, new
subsection 11PN(4) would provide that a person must not hinder or prevent a person and
child from communicating with each other in accordance with a determination, or interfere
with the communication that a person and the child are supposed to have with each other
under the determination.
401. If the determination allocates parental responsibility for the child to a person, new
subsection 11PN(5) would provide that another person must not hinder that person in, or
prevent the person from, discharging that responsibility.
402. Two notes would be inserted to section 11PN. The first note would alert users to
additional obligations created by parenting determinations within Subdivision C of Division 8
of Part VII of the Act (about recovery and location orders). The second note would alert
readers to provisions dealing with contraventions and alleged contraventions of parenting
determinations, in Division 13A of Part VII of the Act. If a person was seeking to enforce a
parenting determination, they would apply to the court under Division 13A. Under
section 11PO the court would be empowered, in the context of enforcement proceedings, to
issue a warrant to arrest a person alleged to have contravened this section by failing to
comply with the obligations provide for in the determination.
Section 11PO--Court may issue warrant for arrest of alleged offender in
relation to alleged contraventions of parenting determinations
403. New section 11PO would empower the court to issue a warrant for the arrest of an
alleged offender who has prevented or hindered the carrying out of a parenting determination.
This requires the court to be satisfied that there are reasonable grounds for believing that the
alleged offender has contravened new section 11PN by failing to meet their obligations in
relation to complying with a determination that provides for whom the child is to live with,
spend time with, or communicate with.
404. An application to have the alleged offender dealt with under the enforcement
provisions in Division 13A of Part VII must be before the court; and the court must be
satisfied that the issuing of a warrant is necessary to ensure the alleged offender attends court
for the alleged contravention.
405. New subsection 11PO(3) would provide that a warrant issued under this section
would cease to be in force on the day specified in the warrant, providing it is no longer than 6
months after the issue, or alternatively 6 months after the date of issue.
406. This section is consistent with section 65Q of the Act which empowers the court to
issue a warrant for the arrest of an alleged offender who has prevented or hindered the
carrying out of a parenting order.
Section 11PP--Obligations if certain parenting determinations have been
made
407. New section 11PP imposes obligations if certain parenting determinations have been
made. A person who is, or was, a party to the parenting management hearing in relation to the
parenting determination would not be allowed to take the child out of Australia where a
parenting determination has been made which makes provision about whom the child is to
live with, spend time with or communicate with, or whom is to have parental responsibility
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for the child, except as permitted by subsection (3). Acting in contravention of this obligation
would be an offence under new subsection 11PP(2), with a penalty of 3 years imprisonment.
408. New subsection 11PP(3) would provide exceptions to the offence, whereby a child
could be taken or sent outside Australia:
with the written consent of each other party to the parenting management hearing,
or
if done in accordance with the terms of parenting determination, at the time or, or
after, the making of the determination, or
if done in accordance with an order of a court made under Part VII or under a law
of a State and Territory, at the time of, or after, the making of the determination.
409. A note would be inserted to clarify that the defendant bears the evidential burden of
proving the exception under subsection 11PP(3) as per the principle codified in
subsection 13.3(3) of the Criminal Code. It is appropriate for the burden of proof to be placed
on the person as the facts in relation to how the person was 'authorised' to take or send the
child to a place outside Australia would be peculiarly within the knowledge of that person.
For example, they may be able to show an email communication with the other parent
whereby that parent gave them permission to take the child for an overseas holiday.
410. This section is consistent with section 65Y of the Act which provides obligations if
certain parenting orders have been made. It similarly creates an offence punishable by
imprisonment for three years.
Section 11PQ--Obligations if application for parenting determination has
been made etc.
411. New section 11PQ imposes obligations where an application for a parenting
determination in relation to a child, or an appeal proceeding in relation to a parenting
determination, is on foot. A person who is a party to the parenting management hearing (or
who is acting on behalf of a party) would not be allowed to take the child out of Australia
where a parenting determination provides, or would provide, for whom the child is to live
with, spend time with or communicate with, or who is to have parental responsibility for the
child, except as permitted by subsection (3). Acting in contravention of this obligation would
be an offence under new subsection 11PQ(2), with a penalty of 3 years imprisonment.
412. New subsection 11PQ(3) would provide exceptions to the offence, whereby a child
could be taken or sent outside Australia:
with the written consent of each other party to the parenting management hearing
(authenticated as prescribed), or
if done in accordance with the terms of a parenting determination, at the time of,
or after, the application for the determination was made, or
if done in accordance with an order of a court made under Part VII or under a law
of a State and Territory, at the time of, or after, the application for the
determination was made.
413. A note would be inserted to clarify that the defendant bears the evidential burden of
proving the exception under subsection 11PQ(3) as per the principle codified in
subsection 13.3(3) of the Criminal Code. It is appropriate for the burden of proof to be placed
on the person as the facts in relation to how the person was 'authorised' to take or send the
child to a place outside Australia would be peculiarly within the knowledge of that person.
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For example, they may be able to show an email communication with the other parent
whereby that parent gave them permission to take the child for an overseas holiday.
414. This section is consistent with section 65Z of the Act which provides obligations if
proceedings for the making of certain parenting orders are pending. It similarly creates an
offence punishable by imprisonment for three years.
Section 11PR--Obligations of owners etc. of aircraft and vessels if certain
parenting determinations made
415. New section 11PR would impose obligations on owners, captains and charterers of
aircraft and vessels in relation to taking or sending a child from Australia. The obligations
would apply when a parenting determination is in force and a person in whose favour the
determination has been made has served a statutory declaration on the owner etc setting out
the full particulars of the parenting determination.
416. New subsection 11PR(2) would create an offence. The person on whom the
declaration is served must not permit the child to leave a port or place in Australia in the
aircraft or vessel for a destination outside Australia except as permitted (for example, with
the written consent of the parent who made the statutory declaration). A person who does not
comply with this obligation would be subject to a penalty of 60 penalty units. This penalty
would be reasonable and appropriate based on the seriousness of the offence and with
consideration to comparable offences in the Act.
417. A defence of reasonable excuse would be available under new subsection 11PR(3). It
is foreseeable that a person may not comply with the obligation due to an extenuating or
practical reason. For example, the child's identity may have been hidden and the owner etc of
the aircraft or vessel may not have been aware that the child was the subject of the statutory
declaration.
418. New subsection 11PR(4) would provide exceptions to the offence, whereby a child
would be permitted to leave Australia in the aircraft or vessel:
with the written consent of the person who made the statutory
declaration(authenticated as prescribed), or
if done in accordance with the terms of parenting determination, at the time of, or
after, the making of the determination, or
if done in accordance with an order of a court made under Part VII or under a law
of a State and Territory, at the time of, or after, the making of the determination.
419. This provision is consistent with section 65ZA of the Act which imposes obligations
on owners etc of aircraft and vessels if certain parenting orders are made.
420. New section 11PT would provide further general provisions in relation to
sections 11PR and 11PS.
Section 11PS--Obligations of owners etc. of aircraft and vessels if application
for parenting determination has been made etc.
421. New section 11PS would impose obligations on owners, captains and charterers of
aircraft and vessels in relation to taking or sending a child from Australia, when an
application for a parenting determination in relation to a child has been made but not yet fully
determined, or an appeal in relation to a parenting determination under section 11Q has been
instituted but not yet finally determined. The parent must have served a statutory declaration
on the owner etc. setting out the full particulars of the application for the obligations to apply.
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422. New subsection 11PS(2) would create an offence. The person on whom the
declaration is served must not permit the child to leave a port or place in Australia in the
aircraft or vessel for a destination outside Australia except as permitted (for example, with
the written consent of the parent who made the statutory declaration). A person who does not
comply with this obligation would be subject to a penalty of 60 penalty units. This penalty
would be reasonable and appropriate based on the seriousness of the offence and with
consideration to comparable offences in the Act.
423. A defence of reasonable excuse would be available under new subsection 11PS(3). It
is foreseeable that a person may not comply with the obligation due to an extenuating or
practical reason. For example, the child's identity may have been fabricated and the owner
etc of the aircraft or vessel was not aware that the child was the subject of the statutory
declaration.
424. New subsection 11PS(4) would provide exceptions to the offence, whereby a child
would be permitted to leave Australia in the aircraft or vessel:
in the company of, or with the written consent (authenticated as prescribed), of
the person who made the statutory declaration, or
if done in accordance with the terms of parenting determination, at the time or, or
after, the making of the application or instituting the appeal, or
if done in accordance with an order of a court made under Part VII or under a law
of a State and Territory, at the time of, or after, the making of the determination.
425. This provision is consistent with section 65ZB of the Act which imposes obligations
on owners etc of aircraft and vessels if the making of certain parenting orders are pending.
426. New section 11PT would provide further general provisions in relation to
sections 11PR and 11PS.
Section 11PT--General provisions applicable to sections 11PR and 11PS
427. New section 11PT would provide further general provisions in relation to
sections 11PR and 11PS which provide obligations on owners etc. of aircraft and vessels in
relation to taking a child outside Australia.
428. New subsection 11PT(1) would provide that a statutory declaration under
sections 11PR or 11PS may be served on the owner, charterer or agent of the owner of the
aircraft or vessel by registered post addressed to the owner, charterer or agent at their
principal place of business. This is likely to be the best means for ensuring the declaration is
received.
429. New subsection 11PT(2) would protect the captain, owner or charterer of an aircraft
or vessel from liability in any civil or criminal proceedings in respect of anything done in
good faith for the purpose of complying with section 11PQ or 11PR.
430. New subsection 11PT(3) would protect a person from being prosecuted and convicted
of an offence against subsection 11PR(2) or 11PS(2) if the act or omission also constitutes an
offence against another law and that person is prosecuted and convicted under that other law.
It would not be just for a person to be punished twice for the same action or failure to do
something.
431. This provision is consistent with section 65ZC of the Act which provides general
provisions in relation to the obligations on owners etc of aircraft and vessels if certain
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parenting orders are in force or an application for parenting orders is pending or an appeal
underway.
Section 11PU--State or Territory laws stopping children leaving Australia not
affected
432. New section 11PU would provide that nothing within new sections 11PP, 11PQ,
11PR, 11PS, 11PT or in this section would prevent or restrict the operation of any State or
Territory law under which action may be taken to prevent a child from leaving Australia or
being taken or sent Australia, or a person may be punished for taking or sending a child
outside Australia.
433. This is intended to ensure that State or Territory laws continue to operate and are not
affected by these sections. This provision is consistent with section 65ZD of the Act which
would ensure that Subdivision E (Obligations under parenting orders relating to taking o
sending children from Australia) does not affect State or Territory laws.
Section 11PV--Publication of parenting determinations
434. New section 11PV would allow the Panel to publish parenting determinations and the
reasons for them by any means it considers appropriate. However, the Panel would not be
authorised to publish information when its disclosure is prohibited or restricted by or under
the Act. This is consistent with the approach for family law court judgments which are
anonymised and published in accordance with section 121 of the Act.
435. Accessibility of Panel decisions reflects the principle of open justice, and ensures
Panel determinations are transparent. However, given the particular sensitivity of disputes
about family law matters, section 11RA would make it an offence to publish information
about the hearings that identifies a person or witness involved in the hearing. This strikes the
appropriate balance between Panel transparency and protecting the privacy of the parties.
Section 11PW--Parenting determinations automatically revoked if certain
court orders made
436. New section 11PW would provide for parenting determinations be automatically
revoked if the court makes an order under Part VII of the Act in relation to the child.
However, subsection 11PW(2) would provide that this does not apply to the extent, if any,
provided by the court in the order.
437. This in intended to avoid confusion as to whether any aspect of the parenting
determination continues to operate. In making a parenting order in circumstances where a
parenting determination is in force in relation to the child, the court must take into account
any consideration that the court would take into account if the parenting determination were a
parenting order (new section 65DABA). It is appropriate then, that in making a parenting
order, the court considers whether or not any aspect of a parenting determination should
continue to apply.
438. Subsection 11PW(3) would provide that a parenting determination would not
automatically be revoked if the court makes an order under section 67M (about location
orders), section 67N (about Commonwealth information orders) and section 67U (about
recovery orders). These orders may be used to support compliance with a parenting
determination; therefore, it is appropriate that a parenting determination is not automatically
dismissed. It also provides that a parenting determination would not be automatically revoked
if the court makes an order under section 68R. Under section 68R, state and territory courts
making or varying family violence orders may revive, vary, discharge or suspend a parenting
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order. Similarly, in this circumstance, it would not be appropriate for the determination to be
automatically revoked.
Section 11PX--Effect of adoption on parenting determinations
439. New section 11PX would provide for the effect of adoption on the operation of a
parenting determination.
440. A parenting determination would stop being in force if a child is adopted and the
determination was in force in relation to the child immediately before the adoption. It would
be appropriate that any arrangements provided for in a parenting determination be overtaken
in this circumstance.
441. This would not apply if the family court has not granted leave for proceedings to
commence for the adoption of a child by a prescribed adopting parent. This is consistent with
section 65J of the Act which provides for the effect of adoption on parenting orders.
Section 11PY--Subsequent family violence order invalid to extent of
inconsistency with parenting determination
442. New 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.
443. This approach is consistent with the current approach in the Act in relation to
inconsistency between parenting orders and family violence orders.
444. Current section 68R of the Act addresses the situation where a victim of family
violence seeks a family violence order, after a parenting order has been made, and is seeking
conditions in that order that would be inconsistent with the existing parenting order. As
conditions in a parenting order made under the Act will override any inconsistent conditions
in a protection order, section 68R 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. Given the effect of new section 11PY, item 49 of the Bill would amend
section 68R to provide that in proceedings to make or vary a family violence order, a state
and territory court is empowered to revive, vary, discharge or suspend a parenting
determination made by the Panel. This would 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.
445. In the context of an interim family violence order, a court would not be able to
discharge a parenting determination, and any revival, variation or suspension would cease at
the earlier of when the interim order stops being in force or at the end of 21 days. This is
consistent with the approach taken in relation to parenting orders (see sections 68R and 68T
of the Act).
446. If a family violence order is in place prior to a Panel determination, the Panel cannot
make a determination that would be inconsistent with the family violence order (see new
section 11PH).
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Section 11PZ--What happens when parenting determination that deals with
who a child lives with does not make provision in relation to death of parent
with whom child lives
447. New section 11PZ would deal with what happens when a parenting determination is
in force that provides that a child is to live with one of the child's parents, and that parent
dies, and the determination does not provide what is to happen on that parent's death.
448. Under subsection 11PZ(2), the surviving parent cannot require the child to live with
him or her. Under subsection (3), the surviving parent or (subject to section 11K) another
person may apply under Part VII for a parenting determination that deals with who the child
is to live with.
449. If an application is made by a person who does not have parental responsibility for the
child at the time of the application, any person who does have parental responsibility at that
time is entitled to be a party to the proceedings.
450. This is consistent with section 65K of the Act which deals with what happens with a
parenting order is in force that provides that a child is to live with one of the child's parents,
and that parent dies, and the order does not provide what is to happen on that parent's death.
Subdivision F--Appeals to the Federal Circuit Court
Section 11Q--Appeals to the Federal Circuit Court
451. New section 11Q would provide an avenue for parties to the parenting management
hearing to appeal to the Federal Circuit Court on a question of law. This would enable parties
to seek judicial review of decisions and determinations of the Panel.
452. Unlike similar bodies, the Parenting Management Hearings Panel would not be able
to refer questions of law to the Court on its own initiative. The intention is that if a Panel
considers an application to be too complicated to determine without a court considering a
question of law, that application is not an appropriate one for the Panel to consider.
453. This provision would not provide an avenue for merits review. The Panel forum offers
an alternative to the court process--the Panel is consent-based and parties cannot be
compelled to participate. The Panel's objective is to provide a quick and informal way of
obtaining a binding decision in respect of a parenting dispute, with decisions made by a
specialist panel of experts.
454. New subsection 11Q(2) would provide the time-limit and manner in which such an
appeal may be instituted. Under new paragraph 11Q(2)(a) an appeal would need to be
instituted within 28 days after the date of decision or the determination of the Panel, or within
such further time allowed by the Federal Circuit Court. This would provide the Federal
Circuit Court with the ability to hear out of time matters where the court considers it would
be just and/or appropriate to do so. The provision is not limited to just and appropriate
circumstances however, and the Federal Circuit Court's ability to decide to hear an out of
time matter is unfettered.
455. New paragraph 11Q(2)(b) would provide that an appeal to the Federal Circuit Court
must be instituted in such manner as prescribed by the rules of the Federal Circuit Court.
Applying the existing rules for the institution of an appeal in the Federal Circuit Court
simplifies the administrative burden on the court and allows the court to easily assess when
an appeal application has been validly instituted.
456. New subsection 11Q(3) would provide for the jurisdiction of the Federal Circuit Court
to hear and determine an appeal from a determination or decision of the Parenting
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Management Hearings Panel. This is intended to ensure that the Federal Circuit Court has the
authority to hear appeals on all substantive decisions of the Panel, not just on final
determinations. The Court's jurisdiction includes jurisdiction to make findings of fact as
provided by subsection 11Q(8).
457. New subsection 11Q(4) would provide the power for the Federal Circuit Court to
make orders in hearing and determining an appeal in relation to a matter heard by the
Parenting Management Hearings Panel. The Federal Circuit Court may make an order
affirming the decision or determination of the Panel, 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 Federal Circuit Court.
458. New subsection 11Q(5) would enable the Federal Circuit Court to make findings of
fact where a decision of the Panel is appealed to the Court under subsection 11Q(1), provided
the conditions in new paragraphs 11Q(5)(a) and 11Q(5)(b) are met.
459. Paragraph 11Q(5)(a) would place a limitation on the Court's power to make findings
of fact by providing that it can only do so if they are consistent with those made by the Panel.
This limitation is intended to ensure that the Court does not re-open factual matters that have
already been settled by the Panel. However, the Court would be able to make findings of fact
overriding those of the Panel where the Panel's findings are the result of an error of law. The
Court would be able to make findings of fact where the Panel did not make any findings in
relation to relevant facts.
460. Paragraph 11Q(5)(b) would provide that the Court can make findings of fact if it
appears to the Court that it is convenient to do so, having regard to the following
considerations:
the extent (if any) to which it is necessary for the fact to be found
the means by which those facts might be established
the expeditious and efficient resolution of the whole of the matter to which the
parenting management hearing before the Panel relates
the relative expense to the parties of the Court, rather than the Panel, making
findings of fact
the relative delay to the parties of the Court, rather than the Panel, making
findings of fact
whether any of the parties considers that it is appropriate for the Court, rather
than the Panel, to make findings of fact, and
such other matters (if any) as the Court considers relevant.
461. New subsection 11Q(6) would provide that the Court may have regard to statements
made and other information given in the parenting management hearing before the Panel, and
receive evidence for the purposes of making findings of fact under new subsection 11Q(5).
462. These amendments are not intended to reduce the Panel's role as the primary finder of
fact in a parenting management hearing. Rather, they are intended to provide flexibility to the
Federal Circuit Court to improve the efficiency of the review process.
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Section 11QA--Operation and implementation of a decision or determination
that is subject to appeal
463. New section 11QA would deal with the status of a decision or determination of a
Parenting Management Hearings Panel while an appeal on that decision is underway in the
Federal Circuit Court. In general, this section would provide that an appeal does not affect the
operation of a decision or determination, nor does it stop any action being taken to implement
that decision or determination.
464. However, the Federal Circuit Court is provided with the power to make orders that
would stay or otherwise affect the decision or determination of the Panel for the purpose of
securing the effectiveness of the appeal hearing and determination by the court. These
provisions mirror the provisions in section 44A of the Administrative Appeals Act.
465. By providing that the decision or determination of the Panel stands unless modified
by the court, the intention is to discourage parties from making groundless appeals to delay
the commencement of parenting determinations. However, there may be circumstances where
allowing for a parenting determination to commence or be implemented could potentially
make the appeal process futile.
466. New subsection 11QA(3) would provide that an order made by the court under new
subsection 11QA(2) may be varied or revoked at any time. This is intended to provide the
Federal Circuit Court, or a judge of that court, the discretion to modify an order if it becomes
apparent that the order is no longer appropriate or necessary. This power is not limited to a
change in circumstance and could be exercised for any reason. It may be used, for example,
to revoke an order which stayed the implementation of a determination by the Panel, on the
basis the court wishes to make an order whereby parts of the determination could be
implemented by the parents (eg about the time a child is to spend with each parent), but a
particular aspect cannot be implemented (eg a parent cannot take the child on an overseas
holiday).
467. New subsection 11QA(4) would provide for the effect of orders made by the Federal
Circuit Court under new section 11QA(2). An order would be subject to the conditions
specified in the order and would have effect for the period of time specified in the order or
until the decision on appeal is made.
Section 11QB--Transmission of documents
468. New section 11QB would provide that when an appeal under new section 11Q is
instituted in the Federal Circuit Court, the Panel is required to provide all relevant documents
that were before the Panel that related to the matter to which the appeal relates.
469. This is intended to ensure that the Federal Circuit Court is able to consider all relevant
information when determining an appeal. It will also ensure that such a transfer of
information from the Panel is authorised by law and would not breach the Australian Privacy
Principles under the Privacy Act 1988.
Section 11QC--Constitution of Panel if matter remitted etc.
470. New section 11QC provides for the constitution of the Panel to hear and decide or
determine a matter that the Federal Circuit Court remits back to the Panel. This section is
intended to provide flexibility in how the Panel may be constituted for the new hearing.
471. Under new paragraph 11QC(a), the Panel would not need to be constituted of the
same person or persons who made the decision or determination to which the appeal relates.
New paragraph 11QC(b) would enable the Panel, whether or not the Panel is made up of the
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same or different person/s, to have regard to any record of the original hearing before the
Panel. However, this would be subject to any directions of the Federal Circuit Court, and the
new Panel would not be able to have regard to those records, if doing so would be
inconsistent with the directions of the court.
472. This provision would provide flexibility for the Principal Member in allocating
matters to Panel members, for example, based on the availability of certain Panel members,
consistent with the objective of the parenting management hearings to have matters heard
expeditiously. Allowing the new Panel to have regard to the records of the earlier Panel
would also assist in ensuring an expeditious hearing, which is a better outcome for families.
Subdivision G--Offences
Section 11R--Failure to comply with notice to give information or produce
documents
473. New section 11R would provide that a person commits an offence if that person is
given a notice under new subsection 11ME(2) and fails to comply with that notice. New
subsection 11ME(2) would allow the Panel to issue a written notice to a person requiring
them to give specified information or to produce specified documents to the Panel. The Panel
must be satisfied that the person has information or documents that are likely to assist in the
resolution of the matter before the Panel, or would assist in the expeditious and efficient
conduct of a parenting management hearing.
474. Parenting management hearing proceedings will, to the extent possible, be informal
and flexible. However, it is important that the Panel has adequate powers to compel the
production of whatever information the Panel considers necessary to make a proper
determination. To ensure that decisions are made based on all relevant information, a member
of the Panel should be able to compel a person to give whatever information or documents
that the Panel considers necessary and in whatever form, for example, by attending a hearing
and answering questions put forward by the Panel. This offence is intended to ensure that the
person who has been given the written notice complies with the request.
475. New section 11R(1) would specify that the penalty for this offence is 12 months
imprisonment or 60 penalty units or both. This penalty would be consistent with comparable
sanctions in Part XIIIA of the Act. A defence of reasonable excuse would be available under
new subsection 11R(2).
476. New subsection 11R(2) would also insert two notes. The first note would state that a
defendant bears an evidential burden in relation to the matters in this subsection as per the
principle codified in subsection 13.3(3) of the Criminal Code. It is appropriate for the burden
of proof to be placed on the person as the facts in relation to why that person has not been
able to comply with the notice would be peculiarly within the knowledge of that person, for
example to produce a medical certificate to show that ill-health prevented them from
attending a hearing.
477. The second note to new subsection 11R(2) would clarify that the defence of
reasonable excuse cannot be used on the grounds that the information or documents might be
incriminatory. This refers to the operation of new subsection 11ME(5) which provides that a
person is not excused from providing information or producing a document required by the
Panel through a written notice, on the ground that the information or document might tend to
incriminate the person or expose them to a penalty.
478. The approach taken in new section 11R is consistent with the intention that the Panel
have all necessary information and documents available to it to assist in the resolution of the
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matter, in an expeditious and efficient manner. Confidentiality in respect of communications
in the context of family counselling and family dispute resolution, however, would be
maintained. Items 12--18 would amend existing sections 10E and 10J to make clear that
information about anything said, or admissions made, in family counselling or family dispute
resolution is not admissible in the Panel. This is consistent with the approach taken for court
proceedings.
Section 11RA--Restriction on publication of parenting management hearing
479. New section 11RA would insert two new offences relating to the publication of
parenting management hearings.
480. New subsection 11RA(1) would provide that a person commits an offence if:
that person publishes or otherwise disseminates to the public, or a section of the
public, by any means any account of a parenting management hearing, and
the account identifies a party to the hearing, or a person who is related to, or
associated with, a party to the hearing or is, or is alleged to be, in any other way
concerned in the matter to which the hearing relates, or a witness to the hearing.
481. The penalty for this offence would be 12 months imprisonment or 60 penalty units or
both. This penalty would be consistent with the sanction for a comparable contravention in
the Act, for example, for a failure to comply with a non-publication order in Division 2,
Part XIA of the Act and in section 121 of the Act (Restriction on publication of court
proceedings). This penalty reflects the importance of protecting the identity of persons
involved in parenting management hearings, and the children of parents participating in the
hearings, to avoid causing undue distress or embarrassment, and to protect the safety of all
persons.
482. New subsection 11RA(2) would expand on subsection 11RA(1) by outlining the types
of things that would identify a person in an account of the hearing. This would include for
example:
giving particulars such as the alias of the person, the physical description or style
of dress of the person, or the recreational interests of the person if those
particulars are sufficient to identify that person to a member of the public or to a
member of a section of the public to which the account is disseminated, or
including a picture of the person, or
using a voice in giving the account that is sufficient to identify that person to the
public or to a member of the section of the public to which the account is
disseminated, as the case requires.
483. In considering whether an account of a hearing is taken to have identified a person,
the list of items provided in subsection 11RA(2) is not exhaustive. An account of a hearing
may identify a person through other particulars or means. This broad approach would afford a
high level of protection against others revealing the identity of persons, and their children,
who participate in a parenting management hearing.
484. New subsection 11RA(3) would provide that a person commits an offence if the
person publishes or disseminates a list of parenting management hearings and the hearings
are identified by reference to the names of the parties to the hearing. This does not include
any notice displayed in the premises of the Panel, as these would be notices of the Panel.
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485. The penalty for this offence would be 12 months imprisonment or 60 penalty units or
both. This penalty would be consistent with the sanction for a comparable contravention in
the Act, for example, for a failure to comply with a non-publication order in Division 2,
Part XIA of the Act and in section 121 of the Act (Restriction on publication of court
proceedings). This penalty reflects the importance of protecting the identity of persons
involved in parenting management hearings, and the children of parents participating in the
hearings, to avoid causing undue distress or embarrassment and to protect the safety of all
persons.
486. New subsection 11RA(4) would provide a defence to the offences in
subsections 11RA(1) and (3), by setting out the types of communication that would be
permissible, and not subject to the offence provisions. This includes:
communications to state and territory authorities that have responsibility for the
welfare of children and are prescribed by the Panel rules
the publication by the Panel of a list of parenting management hearings with the
names of parties, to be dealt with by the Panel
publishing accounts of hearings, where those accounts have been approved by the
Panel.
487. The defence would clarify that the offences are not intended to cover the circumstance
where a person provides an account of the hearing, or publishes information about a hearing,
to be used in connection with the hearing, as directed or approved by the Panel, or for the
purposes of complying with legal obligations or other requirements. For example, the Panel
may direct a staff member to display a list of parenting management hearings to be held on a
particular day, in the foyer of the building that the hearings are to be conducted, to direct
parties to the appropriate hearing room. That would be an appropriate form of communication
falling within the ambit of the defence. Published accounts of Panel hearings, like published
family law court judgments, would be anonymised.
488. A note is included stating that a defendant bears an evidential burden in relation to the
matters in this subsection as per the principle codified in subsection 13.3(3) of the
Criminal Code. It is appropriate for the burden of proof to be placed on the person as the facts
in relation to why that person has published an identifying account of a hearing, would be
peculiarly within the knowledge of that person, for example, to show that they were directed
by a Panel member to do so.
489. New subsection 11RA(5) would provide that proceedings for an offence against
subsections (1) or (3) must not be commenced except by, or with the written consent of, the
Director of Public Prosecutions. This is consistent with section 121(8) of the Act which also
requires the written consent of the Director of Public Prosecutions to commence proceedings
for an offence relating to publishing information about court proceedings under the Act. This
is an important safeguard in addition to the Prosecution Policy of the Commonwealth which
requires that a prosecution only be pursued where there is sufficient evidence to prosecute the
case, and the prosecution would be in the public interest.
490. Under new section 11PV the Panel would be able to publish parenting determinations,
but only in accordance with the restrictions set out in this section.
Section 11RB--Breach of non-disclosure order
491. New section 11RB would provide for an offence where a person engages in conduct
that contravenes a direction under new subsections 11LF(4) or (5). New subsections 11LF(4)
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and (5) would provide the Panel with the power to give directions prohibiting or restricting
the publication or other disclosure of information that would tend to identify a party, witness
or other person associated with a parenting management hearing, or information that has been
given to the Panel in relation to a hearing (eg information lodged with the Panel).
492. The penalty for this offence would be 12 months imprisonment or 60 penalty units or
both. This penalty would be consistent with the sanction for a comparable contravention in
the Act, for example, for a failure to comply with a non-publication order in Division 2,
Part XIA of the Act and in section 121 of the Act (Restriction on publication of court
proceedings). This penalty reflects the importance of protecting the identity of persons
involved in parenting management hearings, and the children of parents participating in the
hearings, to avoid causing undue distress or embarrassment, and to protect the safety of all
persons.
Section 11RC--Contempt of Panel
493. New section 11RC would provide two offences for contempt of the Panel. It is
important that hearings, including the hearing of oral submissions, proceed without
interruption or interference from individuals.
494. New subsection 11RC(1) would provide that a person commits an offence if the
person engages in conduct that obstructs or hinders the Panel or a Panel member in the
performance of the functions of the Panel.
495. The penalty for this offence would be 12 months imprisonment or 60 penalty units or
both. This penalty would be consistent with the sanction for the contempt of court provisions
in Part XIIIB of the Act which may attract a penalty of a term of imprisonment or a fine or
both.
496. New subsection 11RC(2) would provide that a person commits an offence if the
person engages in conduct that would, if the Panel were a court of record, constitute contempt
of that court.
497. The penalty for this offence would be 12 months imprisonment or 60 penalty units or
both. Similarly to the offence in subsection 11RC(1), this penalty would be consistent with
the sanction for the contempt of court provisions in Part XIIIB of the Act which may attract a
penalty of a term of imprisonment or a fine or both.
Subdivision H--Other matters
Section 11S--Protection of members and others appearing before the Panel
498. New section 11S would provide protections to Panel members and to persons
appearing before the Panel.
499. New subsection 11S(1) would provide that a Panel member performing duties as a
member, is afforded the same protection and immunity as a Justice of the High Court. It is
appropriate that this protection be provided to those carrying out the functions of a Panel
member and is consistent with the protections provided to members of tribunals, including
the Administrative Appeals Tribunal and the Native Title Tribunal.
500. New subsection 11S(2) would afford the same protection to a person appearing before
the Panel, as if they were a witness in proceedings to the High Court. It would also provide
that a person appearing before the Panel is subject, not only to the penalties provided by this
Act, but also to the same liabilities, as if they were a witness in proceedings to the High
Court.
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501. It is appropriate that this protection and the exposure to penalties and liabilities be
provided to those appearing before the Panel, and is consistent with the approach taken in
relation to witnesses appearing before the Administrative Appeals Tribunal and the Native
Title Tribunal.
Section 11SA--Costs
502. New section 11SA would provide that each party to a parenting management hearing
must bear his or her own costs in relation to the hearing. This is consistent with the general
approach taken in relation to other Commonwealth proceedings, although cost orders may be
made in some circumstances in those other proceedings.
503. Given both parties must consent to an application for a parenting management
hearing, and a Panel hearing is intended to facilitate the resolution of matters in an
economical and prompt way, it would be appropriate for each party to meet his/her own
costs, which are expected to be low.
Section 11SB--Panel rules
504. New section 11SB would provide the power for Panel rules to be made. These rules
would be legislative instruments and would deal with matters that would not be more
appropriately set out in the Act.
505. New subsection 11SB(1) would provide that the Minister may, by legislative
instrument, make rules prescribing matters required or permitted by this Act to be prescribed,
or that are necessary or convenient to be prescribed for carrying out or giving effect to this
Part. It is intended that the term 'Minister' would take its meaning from section 19 of the Acts
Interpretation Act 1901 (Cth) ('the Acts Interpretation Act') and, at the time of writing,
means the Attorney-General.
506. This is a broad rule-making power intended to provide the authority for a wide range
of procedural and administrative type matters to be set out. It is a standard instrument-making
provision used across Commonwealth legislation. The words 'required or permitted' would
enable matters to be prescribed in rules that are provided for in the Act. The words 'necessary
or convenient' would enable matters to be prescribed in rules that might not be required or
permitted by the rest of this Part but would be ancillary or incidental to the Act.
507. The types of things that may be included in the Panel rules are set out in new
subsection 11SB(2). This list is not exhaustive and includes: receiving referrals from the
court under section 13L; transferring of dismissed applications from the Panel to the court;
and prescribing allowances to be paid by the Commonwealth to witnesses required to appear
at a hearing. While it is important that these matters be provided for legislatively to ensure
transparency and facilitate compliance, it is not considered appropriate or necessary to
provide for these more detailed matters in the Act itself.
508. To avoid doubt about what may be prescribed in the Panel rules, new 11SB(3) would
provide that the rules may not do the following: create an offence or civil penalty; provide
powers of arrest, detention, entry, search or seizure; impose a tax; set an amount to be
appropriated from the Consolidated Revenue Fund under an appropriation in this Act; nor
directly amend the text of this Act. It would not be appropriate for these matters to be
included in subordinate legislation as they are significant matters that should be in the
principal Act if required and subject to full Parliamentary scrutiny.
509. New subsection 11SB(4) would clarify how the Panel rules made under this section
would operate alongside the regulations made under the Act. The rules would have no effect
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to the extent of any inconsistency with the regulations, but the rules would be taken to be
consistent with the regulations to the extent that the rules are capable of operating
concurrently with the regulations. This reflects the general principles of statutory
interpretation, ensuring the primacy of the regulations over the rules.
Division 3--Parenting Management Hearings Panel
Subdivision A--Establishment and functions
510. New Subdivision A would provide for the establishment of the Parenting
Management Hearings Panel and the objectives and functions of the Panel.
Section 11T--Establishment of Panel
511. New section 11T would establish the Parenting Management Hearings Panel as a
statutory authority.
Section 11TA--Objective and functions of Panel
512. New section 11TA would provide the objectives and functions of the Parenting
Management Hearings 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.
513. The functions of the Panel would be to:
receive and consider applications for parenting determinations (see new
Subdivision A of Division 2 of Part IIIAA)
conduct pre-hearing conferences in relation to applications for parenting
determinations (see new section 11KD of Part IIIAA)
conduct parenting management hearings to consider such applications (see new
Subdivision B of Division 2 of Part IIIAA), and
make parenting determinations (under new section 11P).
514. The Panel also has any other function conferred by or under this Act or the Panel
rules. Panel rules can be made by the Minister, by legislative instrument, under new
section 11SB. It is intended that the term 'the Minister' would take its meaning from
section 19 of the Acts Interpretation Act and, at the time of writing, means the
Attorney-General.
Subdivision B--Panel members
Section 11U--Membership of Panel
515. New section 11U would provide for the membership of the Parenting Management
Hearings Panel. The Panel would consist of a Principal Member and other Panel members as
appointed under new section 11UA.
Section 11UA--Appointment of Panel members
516. New section 11UA would provide for the appointment of Panel members, including
the Principal Member, to the parenting management hearings. New subsection 11UA(1)
would provide that Panel members would be appointed by the Governor-General by written
instrument.
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517. New subsection 11UA(2) would provide the eligibility requirements for the
Principal Member. To be eligible for appointment as the Principal Member, a person would
need to be enrolled as a legal practitioner of the High Court or the Supreme Court of a state
or territory and have been enrolled for at least 5 years. In addition, the Minister would have to
be satisfied that the person has extensive specialist knowledge and skills relevant to the duties
of the Principal Member, including knowledge of, and experience in, matters or family law,
and knowledge of, and experience in, dealing with matters relating to family violence.
518. The express requirement for the Principal Member to have 'knowledge of, and
experience in dealing with matters relating to family violence' recognises the prevalence of
family violence among separating couples. It recognises the importance of ensuring that the
person appointed to lead the Parenting Management Hearing Panel has the necessary skills
and experience to ensure the Panel effectively responds to applications involving family
violence. The Principal Member is empowered under new section 11VA to make directions
in relation to the practice and procedure of the Panel, and the conduct of parenting
management hearings - the qualification requirements of the Principal Member will assist in
ensuring the practice directions of the Panel are based on knowledge and experience in
responding to family violence.
519. New subsections 11UA(3) and 11UA(4) would provide the eligibility requirements
for Panel members other than the Principal Member. The subsections provide for two
separate types of eligibility - eligibility for a qualified legal practitioner
(subsection 11UA(3)) and eligibility for a person who is not a qualified legal practitioner
(subsection 11UA(4)).
520. To be eligible for appointment under subsection 11UA(3), a qualified legal
practitioner must be enrolled as a legal practitioner of the High Court or the Supreme Court
of a state or territory and have been enrolled for at least 5 years. In addition, the Minister
must be satisfied that the person has specialist knowledge and skills relevant to the duties of a
Panel member, including knowledge of, and experience in, matters of family law. These
requirements will ensure that legally qualified Panel members have substantial family law
experience.
521. To be eligible for appointment under subsection 11UA(4), the Minister must be
satisfied that the person who is not a qualified legal practitioner has at least 5 years'
experience working with families or children, and have specialist knowledge and skills in one
or more of the fields specified in paragraph 11UA(4)(b). These fields include psychology,
social work, family dispute resolution, family violence, mental health and child development.
522. 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 decisions about
parenting arrangements that are in the best interests of children and provide families with
safe, sound and workable outcomes.
523. New subsections 11UA(5), (6) and (7) set out the basis and length of appointments.
The Principal Member must be appointed on a full-time basis. Other Panel members may be
appointed on a full-time or part-time basis. For the pilot phase, it is intended that each of the
pilot locations will have one full-time member (the Principal Member in the first location;
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and a Panel member in the other location); with other Panel members being appointed on a
sessional (part-time) basis to sit on the parenting management hearings.
524. The period of a Panel member's appointment is specified in the instrument of
appointment and must not exceed 5 years.
Section 11UB--Acting appointments
525. New section 11UB would provide for acting arrangements for Panel members.
526. Under subsection 11UB(1), the Minister would be able to appoint, by written
instrument, a person to act as the Principal Member during any period that the position is
vacant or during a period that the Principal Member is absent from duty or from Australia, or
is unable to perform the duties for any reason.
527. Under subsection 11UB(2), the Minister would be able to appoint, by written
instrument, a person to act as a Panel member (not the Principal Member) during any period
that a full-time member is absent from duty or Australia, or a part-time member is
unavailable to perform the duties of office.
528. Subsection 11UB(3) would require acting appointments to meet the requirements in
new subsection 11UA(2), (3) or (4) in relation to qualifications, knowledge and skills. This is
to ensure a person appointed on an acting basis has the requisite knowledge and experience.
Section 11UC--Remuneration and allowances
529. New section 11UC would provide for the remuneration and allowances of Panel
members with effect subject to the Remuneration Tribunal Act 1973.
530. A Panel member would be paid the remuneration as determined by the
Remuneration Tribunal. If no determination by the Remuneration Tribunal is in place, the
Panel member would be paid the remuneration that is prescribed by the regulations. A Panel
member would also be paid the allowances that are prescribed by the regulations.
531. This provision is consistent with the current standard model for remuneration and
allowance provisions in Commonwealth legislation
Section 11UD--Leave of absence
532. New section 11UD would provide for leave of absence arrangements for Panel
members.
533. A full-time Panel member would have recreation leave entitlements that are
determined by the Remuneration Tribunal. Other leave for a full-time Panel member may be
granted by the Minister on the terms and conditions as to remuneration or otherwise that the
Minister determines.
534. The Minister may grant a leave of absence to a part-time Panel member on the terms
and conditions that the Minister determines.
535. This provision is consistent with the current standard model for leave of absence
provisions in Commonwealth legislation.
Section 11UE--Outside employment
536. New section 11UE would provide restrictions on outside paid employment for Panel
members. The Minister must approve any paid outside work for a full-time Panel member.
Part-time Panel members must not undertake any paid outside employment that, in the
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Principal Member's opinion, conflicts or may conflict with the proper performance of his/her
duties as a Panel member.
537. It is important to the integrity of the parenting management hearings that Panel
members do not have an actual or perceived conflict of interest. Requiring the Minister or
Principal Member to approve any paid outside employment would provide an appropriate
safeguard.
Section 11UF--Other terms and conditions
538. New section 11UF would provide for other terms and conditions for the employment
of Panel members to be determined in writing by the Minister. It would be appropriate for
these matters to be within the authority of the Minister, consistent with the Minister's other
responsibilities for Panel members, such as granting leave of absence, and approving outside
employment.
539. This provision is consistent with other standard terms and conditions provisions in
Commonwealth legislation, for example, in the Administrative Appeals Tribunal Act.
Section 11UG--Disclosure of interests
540. New section 11UG would require Panel members to disclose conflicts of interest in
relation to a parenting management hearing. It is important to the integrity of the parenting
management hearing process that any conflicts of interest are disclosed and arrangements put
in place to ensure each party has the full confidence in the fairness of the hearing process and
outcomes.
541. Under new subsection 11UG(1), a member of the Panel must disclose the matters
giving rise to the conflict, to the parties to the hearing and to the Principal Member (or if the
member is the Principal Member, to the Minister). The Panel member must not take part in
the hearing or exercise any powers in relation to the hearing unless the parties to the hearing
and the Principal Member (or if the member is the Principal Member, the Minister) consent.
542. Where the Principal Member becomes aware of a conflict of interest in relation to a
hearing, the Principal Member may direct the Panel member not to take part in the hearing if
that would be appropriate. If the Principal Member does not consider this appropriate, the
Principal Member must ensure that the Panel member discloses the matters giving rise to the
conflict to the parties.
543. Subsection 11UG(2) provides that a member will have a conflict of interest in relation
to a Panel hearing if the Panel member has 'any interest, pecuniary or otherwise, that could
conflict with the proper performance of the member's functions in relation to the hearing'.
Section 11UH--Resignation
544. New section 11UH would require a Panel member to provide a written resignation to
the Governor-General if that Panel member wishes to resign from his/her appointment.
545. The resignation would take effect on the day it is received by the Governor-General
or, if a later day is specified in the resignation, on that later day.
546. This provision is consistent with other standard resignation provisions in
Commonwealth legislation, for example, in the Administrative Appeals Tribunal Act.
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Section 11UJ--Termination of appointment
547. New section 11UJ would provide the Governor-General with the discretion to
terminate the appointment of a Panel member in certain circumstances. These circumstances
include:
for misbehaviour
if a Panel member is unable to perform the duties of his/her office because of a
physical or mental incapacity
on bankruptcy-related grounds
if the Panel member is absent, except on leave of absence, for 14 consecutive
days or for 28 days in any 12 months (for a full-time Panel member)
if the Panel member engages, except with the Minsters' approval, in paid work
outside the duties of his/her office (for a full-time Panel member)
if the Panel member engages in paid work, that in the Principal Member's
opinion, conflicts or could conflict with the proper performance of his/her duties
(for a part-time Panel member - see section 11UE(2)), or
if the Panel member fails, without reasonable excuse, to comply with
section 11UG (disclosure of interests).
548. This provision is consistent with other standard termination provisions in
Commonwealth legislation, for example, in the Administrative Appeals Tribunal Act.
Subdivision C--Organisation of the Panel
Section 11V--Arrangement of business
549. New section 11V would provide 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.
Section 11VA-- Principal Member directions
550. The Principal Member would have the power under new section 11VA to give written
directions in relation to the practice and procedures of the Panel, and the conduct of parenting
management hearings. Among other things, the directions may deal with the following:
the requirements for making applications to the Panel
the form and manner in which, and the time within which, documents may or
must be given to the Panel
the arrangements for assessing the suitability of, and risks associated with,
applications for parenting determinations
procedures for amending applications
the arrangement of business of the Panel
the Panel members who are to conduct parenting management hearings, and
the places at which the Panel may sit.
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551. 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.'
552. The list in subsection 11VA(2) is not intended to be exhaustive.
553. New subsection 11VA(3) and 11VA(4) would provide that where the Panel has dealt
with a matter in a way that complies with directions given under section 11VA, the Panel is
not required to take any other action in dealing with the matter, and that a failure by the Panel
to comply with a direction does not invalidate anything done by the Panel. This is intended to
ensure that the directions made under section 11VA can be considered both necessary and
sufficient rules for dealing with the matters they address and that parenting determinations
made largely in accordance with a direction are not invalid on the basis of non-compliance.
554. New subsection 11VA(5) would provide that section 11VA is not limited by anything
in section 11LD which deals with the procedure for the conduct of hearings and provides that
the procedure of the Panel is within the discretion of the Panel.
Section 11VB--Constitution and presiding member for hearings
555. Each parenting management hearing will be conducted by a Panel.
Subsection 11VB(1) provides that the Panel must be constituted by at least one legally
qualified Panel member and at least one non-legally qualified Panel member. 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).
556. New subsection 11VB(1) is subject to the Panel rules (made by the Minister), to
provide flexibility as to the requirements for the constitution of the Panel, noting that the
Panel will commence operations as a pilot in two locations.
557. New subsection 11VB(2) would provide 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 parenting management hearing, and the Panel member who will preside over
the Panel.
558. Subsection 11VB(3) would clarify that nothing in section 11VB would prevent a
single Panel member from exercising the powers of the Panel in relation to matters of
procedure. This will assist in facilitating the efficient and timely resolution of matters.
Section 11VC-- Determination of matters under consideration
559. It is possible that the opinion of the Panel be divided. To help resolve a situation
where a Panel is divided in its opinion, new section 11VC would provide that any question or
matter before the Panel is to be decided based on the opinion of the majority of the members;
or if the members are evenly divided on the question or matter - according to the opinion of
the member who is presiding.
Section 11VD--Reconstitution of Panel for hearings
560. New section 11VD would enable the Principal Member to reconstitute a Panel.
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561. Under new subsection 11VD(1), the Principal Member would be able to revoke a
direction which provided for the constitution of a Panel (given under new section 11VB) and
give another such direction at any time before the Panel starts to consider the application.
562. This may be necessary, if for example, a particular Panel member requests a late or
unexpected leave of absence which would impact on the Panel's ability to hear an
application.
563. Under new subsection 11VD(2), the Principal Member would be able to revoke a
direction and give another such direction after a hearing has commenced, in certain
circumstances. This may occur if a Panel member stops being a Panel member, if a Panel
member becomes unavailable, if a Panel member is directed by the Principal Member not to
take part in the hearing, or if the Principal Member considers that this is necessary to ensure
an expeditious and efficient hearing. Before revoking a direction and making a new direction,
the Principal Member must be satisfied that it is in the interests of justice to do so, and they
have consulted each Panel member (subsection 11VD(5)).
564. To enable the hearing to continue without unnecessary delay or duplication, the
reconstituted Panel may have regard to any record of the hearing before the previous Panel
(subsection 11VD(3)).
565. The Principal Member would not be able make a direction that a Panel member not
take part in a hearing (under subparagraph (2)(a)(iii)) unless he/she is satisfied that it is in the
interests of justice to do so, and he/she has consulted the Panel member concerned (new
subsection 11VD(4)). A Principal Member, may for example, find out that the Panel member
has a conflict of interest that has not been disclosed, and that may be seen to impact or
influence the exercise of functions or powers or on the making of a parenting determination.
The Principal Member would be required to consult with the Panel member concerned to
ensure that they have all the relevant facts about the conflict, before making such a direction.
566. Importantly, new subsection 11VD(6) requires the Principal Member to have regard
to the Panel's objective under subsection 11TA(1) when giving directions for the purposes of
section 11VD. That is, a Panel should be constituted or reconstituted, in a way that facilitates
the resolution of parenting matters in a fair, just, economical, informal and prompt way, and
whereby the child's best interests are the paramount consideration.
Section 11VE--Exercise of powers in relation to conduct of hearing
567. New section 11VE would provide for the exercise of the powers of the Panel in
relation to the conduct of a particular hearing by: the Panel member/s conducting that hearing
or in accordance with the Principal Member directions.
568. This provides a level of flexibility for powers to be exercised by a member who is not
a member of the Panel conducting a particular hearing, including the Principal Member,
when that would be appropriate or necessary. For example, the Principal member directions
may provide that the Principal Member can exercise the power to direct parties to attend
appointments with a family consultant (see section 11M) immediately upon receipt of an
application for the purpose of intake and risk assessment.
Subdivision D--Management of the Panel
Section 11W--Management of administrative affairs of the Panel
569. New section 11W would provide that the Principal Member is responsible for 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
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Act 2013 (the finance law) or the Public Service Act 1999. 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.
570. The Panel forms part of the federal court single administrative entity, which was
established by the Courts Administration Legislation Amendment Act 2016. In relation to
responsibilities under the Freedom of Information Act 1982, the Privacy Act 1988 and the
Public Interest Disclosure Act 2013, these Acts generally operate within a framework where
the responsibilities are given at first instance to the agency head or principal executive of the
agency. The Federal Court Chief Executive Officer is the responsible agency head on behalf
of the federal court entity and as such it is intended that that office perform the
responsibilities under the Privacy Act, the Freedom of Information Act and the Public Interest
Disclosure Act.
Section 11WA--Federal Court Chief Executive Officer to assist Principal
Member
571. New 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 new 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.
572. It would be reasonable and necessary for the Federal Court Chief Executive Officer to
be given this responsibility as the accountable authority for the Panel, for the purposes of the
finance law.
Section 11WB--Delegation by Principal Member
573. New section 11WB would provide authority for the Principal Member to delegate his
or her functions or powers under the Act to one or more Panel members (new
subsection 11WB(1)). A Panel member who is delegated functions or powers, must comply
with any written directions of the Principal Member (new subsection 11WB(2)).
574. 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.
Section 11WC--Delegations by Federal Court Chief Executive Officer
575. New 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.
576. This power of delegation would be appropriate as the power restricts the delegation to
a member of staff assisting the Panel who is an SES employee or acting SES employee which
would ensure that only a person with the necessary skills and experience would be able to
perform these functions. Such functions would include assisting the Principal Member to
manage the administrative affairs of the Panel (under section 11WA) or engaging consultants
to assist the Panel in performing its functions (under section 11WE).
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Section 11WD--Staff of Panel
577. New section 11WD would provide 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.
578. New subsection 11WD(2) would enable the Federal Court Chief Executive Officer,
on behalf of the Principal Member, to arrange with an Agency Head (within the meaning of
the Public Service Act 1999) or with an authority of the Commonwealth, for officers or
employees to be made available for the purposes of the Panel.
579. The Federal Court Chief Executive Officer would be given this responsibility as the
accountable authority for the purposes of the finance law.
Section 11WE--Consultants
580. New section 11WE would provide authority for the Principal Member with the
Federal Court Chief Executive Officer (who is the accountable authority for the purposes of
the finance law) to arrange for consultants to be engaged to assist the Panel. Any such
engagement would be made on behalf of the Commonwealth and by written agreement. A
consultant would be subject to directions given by the Principal Member under new
subsection 11VA(1) (which provides for the Principal Member to give written directions in
relation to the operations, procedures, conduct, arrangements and location of the Panel).
Subdivision E--Other Matters
Section 11X--Confidential information not to be disclosed
581. New section 11X protects against the disclosure of confidential documents and
information to a court, tribunal or other authority or person with the power to compel
information. This is intended to protect an 'entrusted person' from being required to produce
a document or disclose information concerning a person and obtained in the course of their
duties, except so far as is necessary for the purposes of carrying into effect the provisions of
this Act (for example, notifying a prescribed child welfare authority of a suspicion of child
abuse, under new section 11MG).
582. An entrusted person would be a person who is or has been a Panel member, a staff
member of the Panel or a person otherwise engaged to provide services for the purpose of a
parenting management hearing.
583. This provision is intended to protect information that is provided as part of a parenting
management hearing, to encourage parties to be open and frank with the Panel and to provide
all relevant information and documents that may assist the Panel in considering their
parenting matter.
584. New subsection 11X(3) specifies that a person who is, or has been, a Panel member
must not be required to give evidence to a court in relation to anything said or done in a
hearing before the Panel. This protects Panel members from being called as a witness. This
provision is consistent with the protections provided to members of similar bodies, for
example, members of the Administrative Appeals Tribunal.
Section 11XA--Annual report
585. New section 11XA would require the Principal Member to prepare a report relating to
the Panel's activities for the year, as soon as practicable after 30 June each year. This report
must be given to the Chief Justice of the Federal Court for inclusion in the report prepared for
the relevant year under section 18S of the Federal Court of Australia Act 1976. The annual
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report of the Panel would be included in the report prepared by the Federal Court of Australia
as the administrative matters relating to the Panel under the finance law would fall within the
responsibility of the Federal Court of Australia (as per new section 11W).
Section 11XB--Proceedings arising out of administration of Panel
586. New section 11XB would provide that any judicial or other proceedings relating to
the management of the administrative affairs of the Panel, may be instituted by or against the
Commonwealth as the case requires. This provision replicates section 24W of the
Administrative Appeals Tribunal Act and section 136 of the Native Title Act 1993, providing
a consistent approach with Commonwealth tribunals whereby proceedings can be instituted
by or against the Commonwealth in relation to the administration of those bodies.
Division 4--Extension, application and additional operation of Part
587. The states of New South Wales, Victoria, Queensland, South Australia and Tasmania
have referred certain powers in respect of children to the Commonwealth. New Division 4
would insert into new Part IIIAA provisions that largely replicate those in Subdivision F of
Division 12 of Part VII of the Act which provide for the 'Extension, application and
additional operation' of Part VII in relation to children, and which deal with the references of
power from the states.
Section 11Y--Extension of Part to the States
588. New section 11Y would replicate section 69ZE of the Act, providing that Part IIIAA
extends to New South Wales, Victoria, Queensland, South Australian and Tasmania, relying
on the referrals of powers by those states.
589. Like subsection 69ZE(2) of the Act, subsection 11Y(2) would make clear that new
Part IIIAA only applies to Western Australia if the Parliament of Western Australia refers to
the Parliament of the Commonwealth, matters relating to the maintenance of children and the
payment of expenses in relation to children or child bearing, and parental responsibility for
children, or, if Western Australia adopts Part IIIAA.
590. Like subsection 69ZE(3) of the Act, new subsection 11Y(3) would make it clear that
the extension of new Part IIIAA to a state only remains for so long as there is in force an Act
of the Parliament of that State referring powers to the Commonwealth or a law of the State
adopting new Part IIIAA. The new subsection 11Y(4) would provide that the Part extends to
a State only in so far as it makes provision with respect to the matters referred to the
Parliament of the Commonwealth by the Parliament of the State or matters incidental to the
execution of those powers.
Section 11YA--Application of Part in, and in relation to, Territories
591. New section 11YA would apply new Part IIIAA to the Territories. This replicates
section 69ZG of the Act which applies Part VII in, and in relation to, the Territories.
Section 11YB--Application of Part to void marriages
592. New section 11YB would provide that new Part IIIAA would apply in relation to a
purported marriage that is void as if the purported marriage were a marriage, and the parties
to the purported marriage were husband and wife.
593. This replicates section 60E of the Act.
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Section 11YC--Additional application of Part
594. New section 11YC would replicate section 69ZH of the Act to provide that the
provisions in new Part IIIAA relating to children will apply to the extent possible in Western
Australia (as a State that has not referred legislative power in respect of children to the
Commonwealth), relying on section 51(xxi) of the Constitution (the marriage and
matrimonial causes power).
Division 5--Review of Part
Section 11Z--Review of operation of this Part
595. This item would insert new section 11Z to provide a statutory requirement for an
independent review of the parenting management hearings and operation of new Part IIIAA.
A written report setting out the findings of the review would be required to be provided to the
Minister as soon as practicable three years after this section commences.
596. Given that the Parenting Management Hearings Panel will commence as a pilot in two
locations, it is appropriate that its operations be subject to a comprehensive evaluation.
Items 23 and 24--Subsection 12B(1); After paragraph 12B(2)(d)
597. Item 23 would insert the words ", parenting management hearings" in existing
subsection 12B(1) the Act. Item 24 would insert a new paragraph (da) after
paragraph 12B(2)(d).
598. Existing section 12B of the Act gives a power for regulations to prescribe information
that must be provided to people affected, or likely to be affected, by separation or divorce
about both non-court based family services and court processes and services. Regulation 8 of
the Family Law Regulations prescribes information for the purposes of section 12B of the
Act.
599. Items 23 and 24 would ensure that the regulations can also prescribe that information
about parenting management hearings must be provided to people under section 12B. This
will ensure that families affected by separation or divorce are provided with information
about all the options available to them to resolve their dispute, including parenting
management hearings.
Items 25 and 26--After paragraph 13A(1)(c); At the end of section 13A
600. Item 25 would insert a new paragraph 13A(1)(ca) into section 13A of the Act.
601. Section 13A provides the objects of Part IIIB of the Act, which sets out the court's
power in relation to court and non-court based family services. The objects currently include:
facilitating access to family counselling
encouraging people to use dispute resolution mechanisms and arbitration services
in appropriate circumstances, and
giving the court power to require parties to make use of court or non-court based
family services.
602. Item 25 would add an additional object into section 13A, namely, to encourage people
to use parenting management hearings, in appropriate circumstances, to resolve matters in
which a court order might otherwise be made, and to provide ways of facilitating that use.
603. Item 26 would insert an additional subsection into section 13A, which would replicate
subsection (2) in respect of court orders made under Part VII for parenting management
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hearings. Specifically, it would make clear that the object which would be inserted by item 25
also lies behind the general requirement in section 11KB for family dispute resolution
services to be used before applications for parenting determinations under Part IIIAA are
made. This supports the policy that families, where possible, should attempt to resolve
disputes on their own prior to seeking formal resolution through a parenting management
hearing.
Item 27-- At the end of Part IIIB
Division 5--Court's role in relation to parenting management hearings
13L--Court may refer Part VII proceedings to Parenting Management
Hearings Panel
604. Item 27 would add new Division 5 into the Act at the end of Part IIIB.
605. There would be two ways in which a matter can come before the Panel for
determination. A person may make an application under new section 11K, or a matter may be
referred by the court to the Panel under new section 13L following an application to the court
for a parenting order under Part VII of the Act.
606. New subsection 13L(2) would empower the Family Court, the Federal Circuit Court
or any other court prescribed by the regulations for the purposes of this section to refer one or
more matters arising in the court proceedings to the Panel for determination. The court could
only refer a matters within the Panel's jurisdiction (that is, the Panel cannot accrue
jurisdiction by virtue of a referral), and with the parties' consent (new subsection 13L(3)).
607. New subsection 13L(3) would provide that the court is only able to refer a matter to
the Panel that would otherwise be able to be dealt with by the Panel under new Part IIIAA,
and with the parties' consent (new subsection 13L(3)).
608. Subsection 13L(4) would provide that, if the court makes an order referring the matter
to the Panel, the court may, if necessary, adjourn the proceedings and make any other orders
that it thinks are appropriate to facilitate the effective conduct of the parenting management
hearing.
609. New subsection 13L(5) would make it clear that, if the matter is referred to the Panel,
the parties to the hearing are to be taken as having made an application for a parenting
determination under section 11K; to have complied with the requirement in new
subsection 11KB(2) (to have a certificate from a family dispute resolution practitioner); and
to have met the requirements for consent in new section 11KC. This avoids any doubt that
provisions which refer to a party making an application are taken to apply in the same way to
matters referred by a court.
610. New subsection 13L(6) would clarify that an order may be made under section 13L
even if the matters to which the proceedings relate have been the subject of an earlier
application for a parenting determination. This may be useful in certain circumstances, for
example, if the Panel has dismissed a matter under subsection 11NA(7) because an interested
person (a third party) has instituted proceedings under the Act in relation to the child while
Panel proceedings are on foot between two parents. It would be a matter for the court to
determine the appropriate course of such a matter. Subsection 13L(6) clarifies that nothing
would preclude the court from referring a matter back to the Panel if all the relevant parties
consent.
611. New subsection 13L(7) would provide that a decision of the court to refer a matter to
the Panel under section 13L cannot be appealed. While it would be unlikely that a party
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would seek to appeal such a decision given their consent to the referral is required by new
subsection 13L(3), this would prevent any possible appeals of this nature which would not be
an effective use of the court's time.
Item 28--After paragraph 26B(1A)(c)
612. Item 28 would insert new paragraph (ca) in subsection 26B(1A) of the Act.
613. Existing section 26B of the Act empowers Judges, or a majority of them, to make
Rules of Court delegating to Judicial Registrars all or any of the powers of the Court except
the power to make an 'excluded child order' (as defined in subsection (1A)) and the power to
make an order setting aside a registered award under section 13K of the Act. Subsection (1A)
defines an 'excluded child order' as including certain parenting orders and an order in
relation to the welfare of a child, with exceptions.
614. This amendment would insert a new exception in paragraph 26B(1A)(ca) for an order
made under subparagraph 70NEB(1)(ba)(i) or paragraph 70NFB(2)(ca). The effect would be
that Rules of Court may be made which delegate to judicial registrars the power to make
compensatory orders for the time a person did not spend with, or live with, the child as a
result of a contravention of a parenting determination. It would be appropriate for judicial
registrars to make such orders.
Item 29--Section 38BA
615. Item 29 would insert the words "(other than subsection (2)) after "section 11A" in
subsection 38BA(1).
616. Existing section 38BA of the Act provides that the Chief Executive Officer of the
Family Court of Australia has all the functions conferred on family consultants by
section 11A of the Act and any associated powers and duties.
617. Item 29 would exclude the functions set out in new subsection 11A(2) from being
functions of the Chief Executive Officer.
618. Subsection 11A(2) (as inserted by item 20) would specify that family consultants have
the function of providing services in relation to parenting management hearings. It would not
be appropriate for these functions to be conferred on the Chief Executive Officer of the
Family Court of Australia, as the Principal Member (assisted by the Chief Executive Officer
of the Federal Court of Australia) is responsible for managing the administrative affairs of the
Panel (section 11W).
Item 30 and 31--Section 60C (cell at table item 11, column headed "Divisions and
coverage"); Section 60C (cell at table item 13A, column headed "Divisions and coverage",
after paragraph (b) (second occurring))
619. Items 30 and 31 would make minor technical amendments to insert references to
'parenting determinations' into section 60C which provides the outline of Part VII.
Item 32--Subsection 60G(2)
620. Item 32 would insert the words "section 11PX," after "effect of" into
subsection 60G(2).
621. Existing section 60G provides that the Family Court, the Supreme Court of the
Northern Territory or the Family Court of a State may grant leave for proceedings to be
commenced for the adoption of a child by a prescribed adopting parent. In deciding whether
to grant leave, the court must consider whether granting leave would be in the child's best
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interests, having regard to the effect of certain provisions including existing section 65J of the
Act.
622. Item 32 would insert a reference to new section 11PX to require a court to also have
regard to that section when considering applications for leave. New section 11PX is
equivalent to section 65J of the Act, and would provide that a parenting determination ceases
to have force if a child is adopted.
Item 33--After paragraph 60I(9)(c)
623. Item 33 would insert new paragraph (c) into subsection 60I(9) of the Act. Section 60I
requires parties to attempt family dispute resolution prior to filing an application for a
Part VII order in a court, unless one of the exceptions in subsection 60I(9) applies.
624. New paragraph (ca) would mean that the requirement to attempt to resolve the dispute
by family dispute resolution before applying for a parenting order does not apply where a
person has contravened a parenting determination that has been made within the previous
12 months and a court has found that there was a contravention and the person behaved in a
way that shows serious disregard for his or her obligations under the determination.
625. If those conditions are satisfied then a person is exempt from attempting family
dispute resolution prior to filing an application for a parenting order in court. This is
appropriate to enable an applicant to seek a resolution for a matter in circumstances where
they have already been through the parenting management hearing process and had their
matter determined, but the other party is demonstrating a serious disregard for his or her
obligations under the order.
Item 34--Section 61B
626. Item 34 would insert a reference to "Part IIIAAA and" in section 61B of the Act.
Section 61B of the Act provides the meaning of parental responsibility for the purposes of
Part VII of the Act.
627. This amendment would have the effect of expanding the application of the meaning of
parental responsibility to new Part IIIAA as well as Part VII of the Act.
Item 35--Section 61C (heading)
628. Item 35 would replace the heading in section 61C of the Act and replace it with the
heading "Each parent has parental responsibility (subject to court orders and parenting
determinations)". This is a technical amendment which would reflect the insertion of new
subsection 61C(4) by Item 32.
Item 36--Subsection 61C(1) (notes 1 and 2)
629. Item 36 would replace Notes 1 and 2 in subsection 61C(1) of the Act with two new
notes.
630. Subsection 61C(1) provides that each parent of a child under 18 has parental
responsibility for the child. Currently, note 1 clarifies that section 61C states the legal
position that prevails in relation to parental responsibility to the extent that it is not displaced
by a parenting order. The new note 1 would clarify that section 61C states the legal position
that prevails in relation to parental responsibility to the extent that it is not displaced by either
a parenting determination made by the Panel or a parenting order made by the court.
631. Currently, note 2 clarifies that section 61C does not establish a presumption to be
applied by the court when making a parenting order. The new note 2 would extend this to
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clarify that section 61C does not establish a presumption to be applied by the Panel when
making a parenting determination or by the court when making a parenting order.
Item 37--At the end of section 61C
632. Item 37 would insert new subsection (4) into section 61C to provide that each of the
parents of a child who is not 18 has parental responsibility for the child, subject to any
parenting determination made by the Panel for the time being in force.
633. This reflects the power that the Panel has to make parenting determinations which
provide for parental responsibility (see 11JG). This amendment would ensure that the general
position taken for parenting responsibility, namely that each parent has parental responsibility
for a child under 18, is subject to any parenting determination of a Panel.
634. This is consistent with the approach provided for in relation to court orders (see
subsection 61C(3) of the Act).
Item 38--Subsection 64D(2)
635. Item 38 would replace "may only be varied by a subsequent order of the court (and
not by a parenting plan)" with "must not be varied by a parenting plan" in subsection 64D(2)
of the Act.
636. Section 64D(2) of the Act overrides subsection 64D(1), which has the effect of
inserting a default provision in parenting orders so that parenting orders will be subject to any
subsequent parenting plan, by allowing the court (in exceptional circumstances) to include a
provision that the parenting order, or a specified provision of the parenting order, may only
be varied by a subsequent order of the court (and not by a parenting plan).
637. This amendment would provide that the court may, in exceptional circumstances,
include a provision in a parenting order, that the order (or a provision of the order) must not
be varied by a parenting plan. This would provide consistency in approach with item 39
below, which provides for the interaction between parenting orders and subsequent parenting
determinations.
Item 39--At the end of Division 5 of Part VII
638. Item 39 would add new section 64E at the end of Division 5 of Part VII of the Act to
provide that parenting orders made by a court are subject to any later parenting
determinations made in relation to the child. That is, a later in time parenting determination
can override a prior court order.
639. However, new subsection 64E(2) would allow a court, in exceptional circumstances,
to include in a parenting order a provision that the order (or a specified provision of the
order) must not be varied by a parenting determination. The court is also able to include a
provision in a parenting order to prevent the order (or a provision of the order) from being
varied by a parenting plan (see item 38 above).
640. New section 64E should be read subject to new subsections 11NA(9)--(11).
Subsections 11NA(9) and (10) provide that the Panel must dismiss an application for a
parenting determination where there is a parenting order in force in relation to a child, unless
the Panel is satisfied that there has been a significant change in circumstances relating to the
child. However, subsection 11NA(11) provides that the Panel must not deal with such an
application if the parenting order includes a provision that the parenting order, or a specified
provision of the parenting order, must not be varied by a parenting determination (as new
section 64E would allow).
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641. Item 137(3) and (4) of the Bill set out the application provisions in relation to
subsections 11NA(9)--(11). These application provisions are intended to deal with the
situation where an application for a parenting determination is made in relation to a child and
a parenting order that was made before the Schedule commenced is in force in relation to the
child.
642. If the parenting order provided that the order, or a provision of the order, could only
be varied by a subsequent order of the court (and not by a parenting plan) the Panel would not
be able to determine the matter. In this circumstance, it is appropriate that the Panel be
required to dismiss the application, as the reasons the court may have ordered that the
parenting order could only be varied by a subsequent order of the court, may be applicable to
the question of whether the order, or provision of the order, should be able to be varied by a
subsequent parenting determination.
643. If the parenting order did not provide that the order, or a provision of the order, could
only be varied by a subsequent order of the court (and not by a parenting plan), the Panel
could decide to determine the matter (if it satisfied that there has been a significant change in
circumstances in relation to the child).
644. This approach gives parents (with limited exceptions) the option of applying to either
the Panel or the court for the reconsideration of a parenting matter where there is an existing
court order in place, in situations where there has been a significant change of circumstances.
Item 40--Subsections 65D(1) and (2)
645. Item 40 would make a technical amendment to add a reference to new
section 65DABA to existing subsections 65D(1) and (2) to reflect the insertion of that new
section by item 41 below.
Item 41--After section 65DAB
646. Item 41 would insert new section 65DABA to provide that the court must have regard
to a parenting determination when making a parenting order in relation to the child.
647. In order to ensure stability and finality for parents and children who are the subject of
a parenting determination, it is important that in deciding whether to make a parenting order
in relation to a child (to whom a parenting determination applies) it takes into account the
same considerations as it would take into account if the parenting determination was a court
order.
648. There is no explicit legislative restriction on a court re-determining parenting orders.
However, in Rice v Asplund (1979) FLC 90-725 the Full Court of the Family Court of
Australia found that:
The principles which, in my view, should apply in such cases are that the court should
have regard to any earlier order and to the reasons for and the material on which that
order was based. It should not lightly entertain an application to reverse an earlier
custody order. To do so would be to invite endless litigation for change is an ever
present factor in human affairs. Therefore, the court would need to be satisfied by the
applicant that, to quote Barber J., there is some changed circumstance which will
justify such a serious step, some new factor arising or, at any rate, some factor which
was not disclosed at the previous hearing which would have been material (passage
quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily
matters for a preliminary submission, but they are matters that the judge should
consider in his reasons for decision. It is a question of finding that there are
circumstances which require the court to consider afresh how the welfare of the child
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should best be served. These principles apply whether the original order is made by
consent or after a contested hearing. The way they apply and the factors which will
justify the court in reviewing a custody order will vary from case to case (Evatt CJ).
649. In SPS & PLS (2008) FLC 93-363 Warnick J reflected that the significant changed
circumstance principle in Rice v Asplund was a 'manifestation of the "best interests principle"
[as expressed in subsection 60CA of the Family Law Act 1975]'.
650. The intention of the provision is to ensure that the same considerations are applied by
a court in considering whether to revisit a parenting determination, as for revisiting a court
order.
651. A note is inserted under new section 65DBAB to refer readers to new section 11PW
which provides that if a court makes a parenting order in relation to a child, any parenting
determination in force in relation to the child is revoked, other than to the extent (if any)
provided for in the order.
Item 42--Paragraph 65R(a)
652. Item 42 would make a technical amendment that would insert a reference to new
subsection 11PO(2) into paragraph 65R(a) of the Act.
653. Section 65R provides for when this subdivision (Subdivision D - Dealing with people
who have been arrested) applies. This amendment would extend the application of this
subdivision in circumstances where a person is arrested under a warrant issued following an
alleged contravention of a parenting determination (new subsection 11PO(2)).
Item 43--Paragraphs 67K(1)(a) to (caa)
654. Item 43 would amend paragraphs 67K(1)(a) to (caa) of the Act to insert a reference to
parenting determination alongside each reference to parenting order.
655. Section 67K of the Act sets out who may apply for a location order and this includes a
person with whom a child is to live, spend time, or communicate with under a parenting
order, or a person with parental responsibility under a parenting order.
656. This amendment would allow a person with whom a child is to live, spend time, or
communicate with under a parenting determination, or a person with parental responsibility
under a parenting determination, to also apply for a location order.
Item 44--Subparagraphs 67Q(1)(a)(ii) to (iv)
657. Item 44 would amend subparagraphs 67Q(a)(ii) to (iv) of the Act to insert a reference
to parenting determination alongside each reference to parenting order.
658. Section 67Q of the Act provides the meaning of recovery order. A recovery order
includes an order made by the court requiring the return of a child to a person with whom the
child is to live, spend time with, or communicate with under a parenting order.
659. This amendment would expand a recovery order to include an order made by the court
requiring the return of a child to a person with whom the child is to live, spend time with, or
communicate with, under a parenting determination.
Item 45--Paragraphs 67T(a) to (caa)
660. Item 45 would amend paragraphs 67T(a) to (caa) of the Act to insert a reference to
parenting determination alongside each reference to parenting order.
661. Section 67T of the Act provides for who may apply for a recovery order in relation to
a child. This includes a person with whom the child is to live, spend time with, or
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communicate with under a parenting order, or a person who has parental responsibility for the
child under a parenting order.
662. This amendment would expand who may apply for a recovery order to include a
person with whom the child is to live, spend time with, or communicate with under a
parenting determination, or a person who has parental responsibility for the child under a
parenting determination.
Item 46--Paragraphs 68M(3)(b), (c) and (d)
663. Item 46 would insert a reference to "or a parenting determination" after each
reference to "order" in paragraphs 68M(3)(b), (c) and (d) of the Act.
664. This amendment would ensure that the court is able to, on application by an
independent children's lawyer, order a person to make a child available for examination when
that person is specified in either a parenting order or a parenting determination as the person
with whom the child is to live, spend time with or communicate with.
Item 47-- Subparagraph 68N(a)(ii)
665. Item 47 would insert a reference to "parenting determinations," after the reference to
'orders,' in subparagraph 68N(a)(ii) of the Act.
666. This amendment would clarify that one of the purposes of this Division
(Division 11-Family Violence) is to resolve inconsistencies between family violence orders
and certain orders, parenting determinations, injunctions and arrangements made under this
Act that provide for a child to spend time with a person or require or authorise a person to
spend time with a child.
Item 48--Paragraph 68N(aa)
667. Item 48 would insert a reference to "parenting determinations," after the reference to
"orders," in paragraph 68N(aa) of the Act.
668. This amendment would clarify that one of the purposes of this Division
(Division 11-Family Violence) is to ensure that orders, parenting determinations, injunctions
and arrangements that provide for a child to spend time with a person or require or authorise
a person to spend time with a child, do not expose people to family violence.
Item 49--Section 68R (heading)
669. Item 49 would repeal the existing heading of section 68R and replace it with a
heading which also refers to parenting determinations, that is 'Power of court making family
violence order to revive, vary, discharge or suspend parenting determination or existing
order, injunction or arrangement under this Act'.
670. This is a technical amendment to reflect the substantive changes that would be made
to section 68R by items 50--53.
Item 50--Before paragraph 68R(1)(a)
671. Item 50 would insert new paragraph (aa) to subsection 68R(1) of the Act.
672. Division 11 of the Act deals with the interaction between parenting orders made by a
federal family court and family violence orders made by a State or Territory court.
Section 68N sets out the purposes of the Division as being to resolve inconsistencies between
orders made under Part VII of the Act and family violence orders; to ensure that orders do not
expose people to family violence; and to achieve the objects and principles in section 60B.
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673. Subject to the limitations set out in section 68S, section 68R gives a State or Territory
court with jurisdiction under Part VII of the Act the power to revive, vary, discharge or
suspend an order, injunction or arrangement under the Act in proceedings to make or vary a
family violence order. The court may only do this where it has before it evidence that was not
before the court which made the Part VII order (see subsection 68R(3)).
674. The amendments that would be made by items 49--53 would amend section 68R so
that it applies to parenting determinations made by the Panel in the same way that it applies
to parenting orders made by a court.
675. This item would insert an additional paragraph into subsection 68R(1) that would give
a State or Territory Court with Part VII jurisdiction the power to revive, vary, discharge or
suspend a parenting determination to the extent that it provides for a child to spend time with
a person or expressly or impliedly requires or authorises a person to spend time with the
child.
Item 51--After paragraph 68R(3)(a)
676. Item 51 would insert new paragraph (aa) into subsection 68R(3) to ensure that the
restriction on this power provided in relation to court orders is similarly applied in relation to
parenting determinations--that is, the court can only exercise the power under subsection (1)
in relation to parenting determinations if it has before it material that was not before the Panel
when the determination was made.
Item 52--Subsections 68R(4) and (6)
677. Item 52 would insert a reference to a parenting determination into subsection 68R(4)
to ensure that, like for court orders, a court cannot exercise its power under subsection 68R(1)
to discharge a parenting determination in proceedings to make an interim family violence
order or an interim variation of a family violence order.
678. This item would also insert a reference to a parenting determination into
subsection 68R(6) to provide that, like for court orders, regulations may require a copy of the
court's decision to exercise its power under paragraph 68R(1)(aa) to be registered.
Item 53--At the end of section 68R
679. Item 53 would add two additional subsections to section 68R of the Act to provide
that, in exercising its power under subsection (1) to revive a parenting determination, the
court may do this by making an order that is equivalent in its terms to the determination
intended to be revived. New subsection (8) would make clear that section 68R has effect
subject to Chapter III of the Constitution.
680. It is important that the power provided in section 68R be amended to apply to
parenting determinations to ensure that the objectives set out in section 68N of the Act are not
frustrated, and that there are appropriate mechanisms to deal with any inconsistency between
a parenting determination and a subsequent family violence order.
Item 54--Subsection 68T(1)
681. Item 54 would make a minor amendment to subsection 68T(1) of the Act.
682. Section 68T makes special provision for proceedings involving interim family
violence orders or interim variations of family violence orders. Subsection 68T(1) provides
that in such proceedings, if the court revives, varies or suspends an order, injunction or
arrangement under section 68R, that revival, variation or suspension ceases to have effect at
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the time the interim order stops being in force, or 21 days after the interim order was made
(whichever is earlier).
683. This amendment would include a reference to 'a determination' alongside the
reference to 'an order, injunction or arrangement' under section 68R.
684. Part 3 of Schedule 2 to the Bill provides for an additional amendment to section 68T
of the Act, which is contingent on the commencement of the Family Law Amendment
(Family Violence and Other Measures) Bill 2017.
Item 55--After section 70L
685. Item 55 would insert new section 70LA after section 70L of the Act.
686. New section 70LA would provide for the relationship between parenting
determinations and overseas child orders, where the overseas child order has a different effect
from the parenting determination and has been registered under section 70G of the Act.
687. Subsection (2) would allow the responsible person under the overseas child order to
apply to a court for the parenting determination to be discharged.
688. This would be used where, for example, a parenting determination has been made that
provides for parenting arrangements inconsistent with what has been provided for in an
overseas child order. It would be confusing and unworkable for the determination to have
operation alongside the overseas child order.
689. The term 'responsible person' would be defined in subsection 70LA(3) as a person
with whom the child is supposed to live, spend time with, or have contact with, under the
order, or who is responsible for the child's day-to-day care, welfare and development under
the order, or who has a right to custody of, or access to, the child under the order.
Item 56--Subdivision D of Division 13 (heading)
690. Item 56 would make a technical amendment to amend the heading for Subdivision D
of Division 13 of the Act to include a reference to parenting determination. The heading
would now read, 'Subdivision D--Transmission of Australian orders and parenting
determinations to overseas jurisdictions'.
Item 57--Section 70M (heading)
691. Item 57 would make a technical amendment to replace the heading to section 70M of
the Act to reference the term 'orders'. The heading would now read 'Section 70M Registrar
to send documents etc. relating to orders to overseas jurisdiction'. This would help
differentiate the section from new section 70MA, which would be inserted into the Act by
item 58 below.
Item 58--After section 70M
692. Item 58 would insert new section 70MA to require the Panel to share information with
an overseas jurisdiction in certain circumstances to enable a parenting determination to be
enforced overseas.
693. New subsection 70MA(1) would provide that this section applies when the Panel
makes a parenting determination in relation to a child, and the determination is enforceable in
a prescribed overseas jurisdiction under provisions corresponding to Subdivision C, or in a
convention country (within the meaning of regulations made for the purposes of
section 111B).
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694. Under new subsection 70MA(2), a person may, in writing, request the Principal
Member to send a court or authority in the overseas jurisdiction or convention country, the
documents and information necessary to secure the enforcement of the parenting
determination in the overseas jurisdiction or convention country.
695. New subsection 70MA(3) would set out who may make a request under
subsection 70MA(2). This would be a person with whom the child is supposed to live with,
spend time with, or have contact with under the determination, or a person who has a right to
custody of, or access to, the child under the determination.
696. The Principal Member would be required, under new subsection 70MA(4), to comply
with a request made under new subsection 70MA(2).
Item 59--After paragraph 70N(1)(a)
697. Item 59 would insert new paragraph "(aa) a parenting determination; or" to
subsection 70N(1) of the Act.
698. Subsection 70N(1) of the Act provides that the regulations may prescribe matters
relating to providing a prescribed overseas jurisdiction with documents relating to either a) a
parenting order, other than a child maintenance order, or b) a State child order, that relates to
a child to whom an overseas child order relates.
699. This amendment would expand the list so that regulations may also make provision
for the sending of documents or copies to a prescribed overseas jurisdiction relating to a
parenting determination that relates to a child to whom an overseas child order relates.
Item 60--At the end of section 70NAA
700. Item 60 would add two new subsections to section 70NAA of the Act.
Section 70NAA provides an outline of Division 13A of the Act, which sets out the
framework for the consequences that follow from the failure to comply with orders, and other
obligations, that affect children.
701. New subsections 70NAA(4) and (5) would replicate subsections 70NAA(1) and (2),
which relate to court orders, to reflect the changes to Division 13A of Part VII.
702. New subsection 70NAA(4) would specify that the Division would also deal with the
powers that a court has to make orders to enforce compliance with parenting determinations.
703. New subsection 70NAA(5) would specify that the court has the power to set aside
parenting determinations under Subdivision B, and in doing so, will have regard to any
parenting plan that has been entered into since the parenting determination was made (see
section 70NBC as inserted by item 86).
Item 61--After section 70NAB
704. Item 61 would insert a new section 70NABA to provide that a reference to primary
order in Division 13A of the Act includes a reference to a parenting determination (including
such a determination as varied).
705. Section 4 of the Act currently defines 'primary order' to mean an order under the Act
affecting children (includes such order as varied). As it stands, it is not clear that a parenting
determination, or variation of a parenting determination, would fall within the meaning of a
primary order.
706. New section 70NABA would make clear that a reference to a primary order in
Division 13A is taken to include a reference to a parenting determination, to ensure that
sections in Division 13A which use the term (sections 70NBA, 70NCA, 70NCB, 70NDA,
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70NBD, 70NDC, 70NEA, 70NEB, 70NFA), apply to parenting determinations in the same
way as they would any other order affecting children made under the Act.
Item 62--Section 70NAC (note)
707. Item 62 would insert a reference to "parenting determination (see section 63E)" after
"64D)" in the note to section 70NAC of the Act. Section 70NAC of the Act provides the
meaning for when a person has contravened an order under the Act and includes a note to
clarify that parenting orders may be subject to any subsequent parenting plan as provided for
in section 64D of the Act. This means that an action that would otherwise be a contravention,
may not be a contravention because of a subsequent inconsistent parenting plan.
708. This amendment read with item 63 would help clarify that an action that would
otherwise be a contravention of a parenting order, may not in fact be a contravention, because
of a subsequent inconsistent parenting determination.
Item 63--Section 70NAC (note)
709. Item 63 would insert the text "or parenting determination" after "inconsistent
parenting plan" in the note to section 70NAC of the Act.
710. This amendment, read together with item 62, would help clarify that an action that
would otherwise be a contravention of a parenting order, may not in fact be a contravention,
because of a subsequent inconsistent parenting determination.
Item 64--After section 70NAC
711. Item 64 would insert a new section 70NACA after section 70NAC of the Act.
712. New section 70NACA would provide for the meaning of 'contravened a parenting
determination'. A person would have contravened a parenting determination if:
a) where the person is bound by the determination - he/she has intentionally failed to
comply with the determination, or made no reasonable attempt to comply with the
determination, or
b) otherwise, he/she has intentionally failed to comply with the determination, or aided
or abetted a contravention of the determination by a person who is bound by it.
713. The section would also insert a note to clarify that parenting determinations may be
subject to any subsequent parenting plan. This means that an action that would otherwise
contravene a parenting determination may not be a contravention because of a subsequent
inconsistent parenting plan.
714. New section 70NACA is consistent with section 70NAC of the Act which provides
the meaning of 'contravened an order'.
Item 65--After section 70NAD
715. Item 65 would insert a new section 70NADA after section 70NAD of the Act.
716. New section 70NADA would provide the requirements that would be taken to be
included in certain parenting determinations for the purposes of this Division. These
requirements are:
(a) in relation to a parenting determination that deals with whom a child is to live
with, people must act in accordance with new subsection 11PN(2) (that is, that a
person must not remove the child from the care of a person, or refuse or fail to
deliver or return the child, or interfere with the exercise of the powers, duties or
responsibilities that a person has under the determination);
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(b) in relation to a parenting determination that deals with whom a child is to spend
time with, people must act in accordance with new subsection 11PN(3) (that is, a
person must not hinder or prevent a person and a child from spending time
together or interfere with a person and a child benefiting from spending time with
each other, under the determination);
(c) in relation to a parenting determination that deals with whom a child is to
communicate with, people must act in accordance with new subsection 11PN(4)
(that is, a person must not hinder or prevent a person and child from
communicating with each other or interfere with the communication that a person
and the child are supposed to have with each other under the determination); and
(d) in relation to a determination to which new subsection 11PN(5) applies (parental
responsibility for the child is allocated to a parent), people must not hinder the
parent in, or prevent the parent from, discharging that responsibility.
Item 66--Section 70NAE (heading)
717. Item 66 would repeal the heading of section 70NAE of the Act ('Meaning of
reasonable excuse for contravening an order'), and replace it with 'Meaning of reasonable
excuse for contravening order or parenting determination'.
718. Section 70NAE sets out what constitutes a reasonable excuse for contravening a
parenting order. This is a matter determined by the court.
719. This amendment, read with items 67--79, would expand section 70NAE of the Act so
that a person who has contravened a parenting determination may be able to rely on having a
reasonable excuse.
Item 67--Subsection 70NAE(1)
720. Item 67 would amend subsection 70NAE(1) of the Act to insert ", or a parenting
determination," after "children". This amendment, read with items 66 and 68--79, would
expand section 70NAE of the Act so that a person may be taken to have had a reasonable
excuse for contravening either an order under the Act affecting children or a parenting
determination, if one of the listed circumstances (or another circumstance) applies.
Item 68--Subsection 70NAE(1)
721. Item 68 would amend subsection 70NAE(1) of the Act to expand the list of references
to subsections in the provision which set out the circumstances in which a person may be
taken to have a reasonable excuse for contravening a parenting determination. References to
two new subsections would be included (subsections (2A) and (8)). These are explained
below in items 69 and 79.
Item 69--After subsection 70NAE(2)
722. Item 69 would insert a new subsection 2A into section 70NAE of the Act. New
subsection 2A would provide an additional circumstance setting out when a person may be
taken to have a reasonable excuse for contravening a parenting determination--that is,
because the respondent did not understand the obligations imposed by the determination on
the person who was bound by it, and the court is satisfied that the respondent ought to be
excused for the contravention.
723. This provision mirrors subsection 70NAE(2) of the Act which provides a similar
circumstance in relation to a contravention of an order under the Act affecting children.
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Item 70--Subsection 70NAE(3)
724. Item 70 would include a reference to new subsection 70NAE(2A)(a) within
subsection 70NAE(3) of the Act.
725. Section 70NAE(3) applies where the court is satisfied that a person has a reasonable
excuse for contravening an order under the Act affecting children (as per the circumstance set
out in subsection 70NAE(2)) and confers a duty on the court to ensure the person understands
their obligations under the order and the consequences if the order is breached again.
726. This item would expand that duty to circumstances where the court is satisfied that a
person has a reasonable excuse for contravening a parenting determination (as per new
subsection 70NAE(2A)).
Item 71--Subsection 70NAE(3)
727. Item 71 would insert a reference to a 'determination' within subsection 70NAE(3) of
the Act so that this amendment, when read with the amendments in items 70 and 72, would
expand the duty conferred on a court to ensure a person understands their obligations under
either an order or a determination and the consequences of a further breach.
Item 72--At the end of subsection 70NAE(3)
728. Item 72 would insert a further reference to a 'determination within
subsection 70NAE(3) of the Act so that this amendment, when read with the amendments in
items 70 and 71, would expand the duty conferred on a court to ensure a person understands
their obligations under either an order or a determination and the consequences of a further
breach.
Item 73--Subsection 70NAE(4)
729. Item 73 would insert ", or a parenting determination," after "a parenting order" in
subsection 70NAE(4) of the Act.
730. Section 70NAE(4) provides that an action constitutes a reasonable excuse for
contravening a parenting order if the order deals with whom a child is to live and they believe
that the breach was necessary to protect the health and safety of a person.
731. This item, when read with item 74, would expand the provision so that a breach made
for the purpose of protecting the health and safety of a person would apply to either a breach
of a parenting order or a parenting determination.
Item 74--Subsection 70NAE(4)
732. Item 74 would insert ", or the determination" after each reference to "the order" in
subsection 70NAE(4) of the Act.
733. This item, when read with item 73, would expand the provision so that a breach made
for the purpose of protecting the health and safety of a person would apply to either a breach
of a parenting order or a parenting determination.
Item 75--Subsection 70NAE(5)
734. Item 75 would insert ", or a parenting determination," after "a parenting order" in
subsection 70NAE(5) of the Act.
735. Subsection 70NAE(5) of the Act provides that an action constitutes a reasonable
excuse for contravening a parenting order if the order deals with whom a child is to spend
time with and they believe that the breach was necessary to protect the health and safety of a
person.
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736. This item, when read with item 76, would expand the provision so that a breach made
for the purpose of protecting the health and safety of a person would apply to either a breach
of a parenting order or a parenting determination.
Item 76--Subsection 70NAE(5)
737. Item 76 would insert "or the determination" after "the order" in subsection 70NAE(5)
of the Act.
738. This item, when read with item 75, would expand the provision so that a breach made
for the purpose of protecting the health and safety of a person would apply to either a breach
of a parenting order or a parenting determination.
Item 77--Subsection 70NAE(6)
739. Item 77 would insert ", or a parenting determination," after "a parenting order" in
subsection 70NAE(6) of the Act.
740. Subsection 70NAE(6) of the Act provides that an action constitutes a reasonable
excuse for contravening a parenting order if the order deals with whom a child is to
communicate with and they believe that the breach was necessary to protect the health and
safety of a person.
741. This item, when read with item 78, would expand the provision so that a breach made
for the purpose of protecting the health and safety of a person would apply to either a breach
of a parenting order or a parenting determination.
Item 78--Subsection 70NAE(6)
742. Item 78 would insert "or the determination" after "a parenting order" in
subsection 70NAE(6) of the Act.
743. This item, when read with item 77, would expand the provision so that a breach made
for the purpose of protecting the health and safety of a person would apply to either a breach
of a parenting order or a parenting determination.
Item 79--At the end of section 70 NAE
744. Item 79 would insert new subsection (8) into section 70NAE of the Act to provide an
additional circumstance for when a person would be taken to have a reasonable excuse for
breaching a parenting determination.
745. Under new section 11PM(5), a person must not hinder or prevent another person from
discharging their responsibility if the determination allocates them with parental
responsibility for the child.
746. New subsection 70NAE(8) would enable a person to argue that they believed on
reasonable grounds that the breach was necessary to protect the health and safety of a person.
Item 80--after subsection 70NAF(2)
747. Item 80 would insert new subsection (2A) after subsection 70NAF(2) of the Act.
748. Under subsection 70NAF(1), the court would generally apply the civil standard of
proof, the balance of probabilities, in considering matters in proceedings under Division 13A
of Part VII of the Act. This is subject to subsection 70NAF(3), which provides that a stricter
standard applies to orders being considered under the more serious contravention applications
that may incur a criminal penalty (under provisions in Subdivision F of Division 13A of
Part VII of the Act).
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749. Subsection 70NAF(2) clarifies that the court would apply the civil standard when
determining whether a person had a reasonable excuse for having contravened an order
affecting a child under this Act. This approach should mean that it is easier for many less
serious contraventions to be dealt with by the court as they will not need to be treated as a
quasi-criminal proceeding.
750. Similarly, new subsection 70NAF(2A) would clarify that the court would apply the
civil standard of proof when determining whether a person had a reasonable excuse for
having contravened a parenting determination. This is appropriate based on the type of
contraventions the court would be dealing with.
Item 81--Subdivision B of Division 13A of Part VII (heading)
751. Item 81 would repeal the current heading for Subdivision B of Division 13A of
Part VII of the Act ('Court's power to vary a parenting order') and substitute it with the
heading 'Court's power to vary parenting orders and set aside parenting determinations'.
752. This reflects the changes that would be made to Subdivision B by this Bill (as per the
amendments below) to enable the court to set aside parenting determinations.
Item 82--Section 70NBA (heading)
753. Item 82 would repeal the current heading for section 70NBA ('Variation of parenting
order') and substitute it with the heading 'Variation of parenting orders'.
Item 83--Before subsection 70NBA(1)
754. Item 83 would insert new subsection (1A) to section 70NBA of the Act. It would
provide that the section does not apply to a primary order that is a parenting determination
(including a parenting determination as varied).
755. This would clarify that the court does not have jurisdiction under the Act to make an
order varying a parenting determination that is a primary order. The court would be given the
jurisdiction under new section 70NBAB to make an order to set aside a parenting
determination (see item 84 below).
Item 84--After section 70NBA
756. Item 84 would insert new section 70NBAB titled 'Setting aside parenting
determinations'. This provision would give the court the jurisdiction to make an order setting
aside a parenting determination.
757. Similar to the policy rationale for section 70NBA of the Act, section 70NBAB would
address the situation where a contravention application is made to the court because
circumstances have changed and the determination is no longer appropriate.
758. The provision makes it clear that the court has the power to make an order setting
aside the parenting determination whether it is a matter where a contravention is not
established or where there is a serious contravention and the court is making orders imposing
criminal type penalties.
759. Subsection 70NBAB(1) would set out when a court may make an order setting aside a
parenting determination. A court may make an order setting aside a parenting determination
where contravention proceedings are brought in relation to that parenting determination and it
is alleged that a person has contravened the determination. The court may do so whether or
not it finds that a contravention has been committed. This flexibility is appropriate as the
dispute about the contravention may highlight the fact that the parenting determination is no
longer suitable due to a change in the child's circumstances. In such a case, it is important
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that the court have the power to set aside the parenting determination regardless of whether or
not a contravention has been committed.
760. Subsection 70NBAB(2) provides that if there is a more serious contravention, that
would otherwise be dealt with under Subdivision F, then the court must take account of
certain considerations if it decides to set aside the parenting determination under
subsection 70NBAB(1). These considerations are set out in paragraphs 70NBAB(2)(a) and
(b). Firstly the court must regard the best interests of the child as the paramount
consideration. Secondly, the court must take into consideration if the person who contravened
the order did so after having attended, refused or failed to attend, or been found unsuitable to
take any further part in, a post-separation parenting program, or that there was no such
program that the person could attend. The court must also consider whether it would not be
appropriate for a person to attend such a program or part of a program because of the
behaviour of the person who contravened the order.
761. New subsection 70NBAB(3) empowers the court to make any orders it considers
appropriate if the court makes an order setting aside a parenting determination under
section 70NBAB. This would provide the court with the discretion to make any relevant
orders, which may for example, include ordering the person to attend a post-separation
parenting program or making a compensatory order.
762. New subsection 70NBAB(4) provides that in deciding whether to make an order
under section 70NBAB, the court must take into account any considerations that it would
take into account when determining whether to vary or set aside an order under the Act
affecting children. This is to ensure that a parenting determination is only set aside on the
same basis as a parenting order.
Item 85--Section 70NBB (heading)
763. Item 85 would repeal the heading to section 70NBB ('Effect of parenting plan') and
insert a new heading, 'Parenting orders and effect of parenting plan'.
764. This amendment would help clarify that the provision applies where a parenting order
has been made in relation to a child and a subsequent parenting plan is made that deals with
the matter. This heading would help to differentiate the provision from new section 70NBBA
which would be titled 'Parenting determinations and effect of parenting plan' (see item 86).
Item 86--After section 70NBB
765. Item 86 would insert new section 70NBBA after section 70NBB of the Act.
766. New section 70NBBA would deal with parenting determinations and the effect of a
parenting plan. Section 70NBBA would require the court to have regard to the terms of a
parenting plan that parents have made subsequent to a parenting determination, when it is
considering whether to make an order adopting (with or without modification) some or all of
the provisions of the parenting plan.
767. Subsection 70NBBA(1) sets out that the section applies to situations where a
parenting determination is made about a child, and after that determination was made, the
parents made a parenting plan that dealt with a matter that was covered by the parenting
determination.
768. Subsection 70NBBA(2) requires the court, when exercising its powers to set aside a
parenting determination under section 70NBAB, to consider the terms of the parenting plan
and whether to make an order setting aside the parenting determination to include some or all
of the provisions of the parenting plan, with or without modification. Section 70NBBA gives
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greater importance to parenting plans made after parenting determinations, in order to
provide maximum flexibility for parents to come to agreement even if there is a parenting
determination in effect.
769. The provision would allow the court to consider the type of arrangements that the
parties may have considered and which have not worked for them. The parenting plan may be
very relevant if the reason that one party has technically contravened a parenting
determination was because they thought they had a formal agreement with the other party.
The court is not bound by the subsequent parenting plan--it is simply to be taken into
consideration.
770. Section 70NBBA would only be relevant for the enforcement of parenting
determinations that do not have a clause as allowed by new subsection 11PE(2). The effect of
new section 11PE is that a parenting determination would be unenforceable to the extent it is
inconsistent with a subsequent parenting plan. This is appropriate on the basis that the
framework in the Act encourages people to resolve issues by agreement where possible rather
than through the courts (or the new parenting management hearings).
Item 87--Subparagraph 70NCB(2)(b)(ii)
771. Item 87 would insert a reference to "70NBAB" after the reference to "70NBA" in
subparagraph 70NCB(2)(b)(ii) of the Act.
772. Section 70NCB provides that the court may order that the person who brought
contravention proceedings pay some or all of the costs of the other party or parties to the
proceedings.
773. The court must consider making such an order if:
the applicant has previously brought contravention proceedings in relation to the
primary order (or another primary order), and
on the most recent occasion in which the person brought the proceedings, the
court was not satisfied that a contravention had been committed or was satisfied
that a contravention had been committed but did not make an order under
section 70NBA, 70NDB, 70NDC, 70NEB or 70NFB (these are the sections under
which the court has the power to make orders dealing with contraventions that it
finds).
774. The intention is to deter people from making repeated contravention applications
which aim to harass or inconvenience the other party.
775. This amendment would expand the list of sections under which the court has the
power to make orders dealing with contraventions, to include a reference to new
section 70NBAB (which empowers the court to make an order setting aside a parenting
determination following a contravention allegation).
Item 88--Paragraph 70NDB(1)(a)
776. Item 88 would insert "or a parenting determination" after the reference to "parenting
order" in paragraph 70NDB(1)(a) of the Act.
777. Section 70NDB provides that if a person has contravened a parenting order and the
result of the contravention is that another person did not spend time with the child or that the
child did not live with another person for a particular period, the court must consider making
an order which compensates the person for the time they did not spend with the child or did
not have the child living with them. Section 70NDB applies if the court is satisfied that a
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person has committed a contravention of a primary order, but that the person had a reasonable
excuse for the contravention
778. This allows for the court to order make-up time even where the person who
committed the contravention had a reasonable excuse. This is appropriate given that the
original parenting order was made in the best interests of the child, that contact with both
parents is an important aspect of ensuring that a child maintains a meaningful relationship
with both parents and that parents are able to fulfil their parental responsibilities in relation to
their child.
779. This amendment would expand this provision to empower the court to compensate a
person for lost time if the contravention was in relation to a parenting determination as well
as a parenting order.
Item 89--Paragraph 70NDB(1)(c)
780. Item 89 would remove the text "a further parenting" and insert the word "an" into
paragraph 70NDB(1)(c).
781. Paragraph 70NDB(1)(c) provides that the court may make a further parenting order
that compensates a person for lost time following a contravention of a parenting order.
782. This amendment would broaden the application of this power so that the court may
make an order (not limited to a parenting order) given the section would now apply when
there has been a contravention of either a parenting order or a parenting determination (see
item 88).
Item 90--Subsection 70NDB(1) (note)
783. Item 90 would insert a reference to ", (1)(ba)" after the reference to "70NEB(1)(b) in
the note to subsection 70NDB(1) of the Act.
784. The note to subsection 70NDB(1) is a signpost for readers directing them to the
sections of Subdivisions E and F of Division 13A of Part VII of the Act under which the
court has the power to make an order compensating a person for time lost. Unlike
Subdivision D, these Subdivisions apply where a person does not have a reasonable excuse
for a contravention. In those cases, the court has a number of other options, as well as
ordering make-up time.
785. This amendment would include a reference to new paragraph 70NEB(1)(b) which
would be inserted by item 92 below. It would be another provision under which the court
could compensate a person for lost time when they do not have a reasonable excuse for the
contravention.
Item 91--Subparagraph 70NDC(2)(b)(ii)
786. Item 91 would insert a reference to "70NBAB" after the reference to "70NBA" in
subparagraph 70NDC(2)(b)(ii) of the Act.
787. Section 70NDC of the Act provides that if the court does not make an order under
section 70NDB compensating a person for lost time, the court may order that the person who
brought the contravention proceedings pay some or all of the costs of the other party or
parties to the proceedings. The court must consider making such an order if the applicant has
previously brought contravention proceedings about the primary order (or another primary
order) and, on the most recent previous occasion on which the person brought the
contravention proceedings, the court was not satisfied that a contravention had been
committed, or was satisfied that a contravention had been committed but did not make an
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order under section 70NBA, 70NDB, 70NEB or 70NF dealing with the contravention. The
intention of this provision is to deter people from making repeated contravention applications
which aim to harass or inconvenience the other party.
788. This amendment would expand the list of sections referenced so that the court must
consider making a cost order if it was satisfied that a contravention had been committed but
did not make an order under new section 70NBAB (which empowers the court to set aside a
parenting determination if a contravention is alleged--see item 84).
Item 92--After paragraph 70NEB(1)(b)
789. Item 92 would insert new paragraph (ba) after paragraph 70NEB(1)(b) of the Act.
790. Section 70NEB is within Subdivision E of Division 13A of Part VII of the Act.
Subdivision E applies if a person has committed a contravention of a primary order with no
reasonable excuse, and the contravention is of a less serious nature.
791. Section 70NEB sets out the powers of the court where these types of contraventions
have been committed. These powers include, for example, the power to direct a person who
has contravened an order to attend a post-separation parenting program; to make an order to
compensate a party for lost time with their child; to impose a bond; to order a person to
compensate another person who incurred expenses as a result of the contravention.
792. New paragraph 70NEB(1)(ba) would expand the list of powers available to the court
to include a power in circumstances where the current contravention is a contravention of a
parenting determination. The power would enable the court to:
make an order that compensates a person for lost time with their child, or
with the consent of the parties, adjourn the proceedings to allow one or more of
the parties to apply for a further parenting determination under new Part IIIAA of
the Act that discharges, varies or suspends the determination or revives some or
all of an earlier determination.
793. The intention is to deter people from making repeated contravention applications
which aim to harass or inconvenience the other party.
Item 93--After paragraph 70NEB(1)(e)
794. Item 93 would insert new paragraph (ea) after paragraph 70NEB(1)(e) of the Act.
795. New paragraph 70NEB(1)(ea) would expand the list of powers available to the court
where a person has committed a contravention of a primary order with no reasonable excuse,
and the contravention is of a less serious nature.
796. This new power would be available if the current contravention is a contravention of a
parenting determination in relation to a child, and it resulted in another person having lost
time with the child, and the person reasonably incurs expenses as a result of the
contravention. The court is able to make an order that the person who committed the
contravention to compensate the other person for some or all of the expenses.
797. The intention is to deter people from making repeated contravention applications
which aim to harass or inconvenience the other party.
Item 94--After subsection 70NEB(4)
798. Item 94 would insert new subsections (4A) and (4B) after subsection 70NEB(4) of the
Act.
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799. New subsection 70NEB(4A) would provide further details about the application of
new subparagraph 70NEB(1)(ba)(i) which would allow the court to make an order
compensating a person for time the person did not spend or live with the child due to a
contravention of a parenting determination. This is appropriate as it may ensure the child
benefits from time with the other person that they have missed out on.
800. This subsection would provide that the court must consider making a compensatory
order under paragraph 70NEB(1)(ba)(i) where a contravention of a parenting determination
has occurred which has resulted in a person not spending time with, or living with, a child.
801. However, new subsection 70NEB(4B) would provide that the court must not make a
compensatory time order under subparagraph 70NEB(1)(ba)(i) if it would not be in the best
interests of the child to do so.
Item 95--After subsection 70NEB(6)
802. Item 95 would insert new subsection (6A) after subsection 70NEB(6) of the Act.
803. New subsection 70NEB(6A) would provide further details about the application of
new subparagraph 70NEB(1)(ba)(ii) which would provide that the court may adjourn the
proceedings to allow the parties to apply for a further parenting determination. In deciding
whether to adjourn proceedings, the court would be required to have regard to whether the
parties were represented in the parenting management hearing by a legal practitioner, the
timeframe between the making of the parenting determination and the current contravention,
and any other matters the court thinks relevant.
Item 96--Subparagraph 70NEB(7)(b)(ii)
804. Item 96 would amend subparagraph 70NEB(7)(b)(ii) of the Act to replace the
reference to "70NDB, 70NDC, 70NEB, 70NFB or 70NBA" with a reference to "70NBA,
70NBAB, 70NDB, 70NDC, 70NEB or 70NFB".
805. Subsection 70NEB(7) requires the court to consider making an order under
paragraph 70NEB(1)(g) of the Act (which empowers the court to order that the person who
brought the proceedings pay some or all of the costs of the person who committed the current
contravention) if certain circumstances are met. That is, the court must consider making such
an order if the applicant has brought proceedings for a current contravention and has
previously brought contravention proceedings in relation to a primary order and, on the most
recent occasion on which the person brought the proceedings, the court was not satisfied that
a contravention had been committed or was satisfied that a contravention had been committed
but did not make an order under section 70NDB, 70NDC, 70 NEB, 70NFB or 70NBA (these
are the sections under which the court has the power to make orders dealing with
contraventions).
806. This amendment would expand the list of sections referenced to include new
section 70NBAB, which empowers the court to set aside a parenting determination if there is
an alleged contravention of a parenting determination (see item 84 for further detail).
807. The intention is to deter people from making repeated contravention applications
which aim to harass or inconvenience the other party. It is only applicable where the court
has considered the issue and decided that no orders are appropriate.
Item 97--At the end of subsection 70NEF(1)
808. Item 97 would insert new paragraph (c) after paragraph 70NEF(1)(b) of the Act.
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809. Section 70NEF of the Act provides that evidence of anything said, or of any
admission made, by a person attending a post-separation parenting program is not admissible
in a court or any proceedings before a person authorised by a law of the Commonwealth or of
a State or of a Territory, or by the consent of the parties, to hear evidence.
810. The amendment would extend the operation of this provision to parenting
management hearings to ensure that such evidence may not be relied on by the Panel in
making a parenting determination. This is to clarify the position in respect of parenting
management hearings (which are not required to apply the rules of evidence--new
section 11LD) and to ensure consistency with other types of proceedings.
Item 98--At the end of section 70NEF
811. Item 98 would insert a new subsection (3) at the end of section 70NEF.
812. Current subsection 70NEF(1) provides that evidence of anything said, or any
admission made, by a person attending a post-separation parenting program is not admissible
in any court, or any proceedings. However, subsection 70NEF(2) provides that evidence in
the form of an adult's admission of abuse or risk of abuse to a child under 18 years, or a
disclosure by a child that he or she has been abused or is at risk of abuse, is not excluded by
operation of subsection 70NEF(1).
813. Item 97 (above) clarifies that subsection 70NEF(1) operates in respect of parenting
management hearings. Item 98 inserts a new subsection 70NEF(3) which largely replicates
subsection 70NEF(2) to provide that evidence in the form of an adult's admission of abuse or
risk of abuse to a child under 18 years, or a disclosure by a child that he or she has been
abused or is at risk of abuse may be relied on by the Panel in making a parenting
determination despite the operation of subsection 70NEF(1). This would ensur consistency
with other types of proceedings.
Item 99--After paragraph 70NFB(2)(c)
814. Item 99 would insert new paragraph (ca) after paragraph 70NFB(2)(c) of the Act.
815. Section 70NFB of the Act provides the court with powers where a person has
committed a serious contravention of a primary order with no reasonable excuse.
Subsection 70NFB(2) provides a list of orders that are available to be made by the court.
816. New paragraph (ca) would enable the court to make a compensatory order for the time
a person did not spend with the child as a result of the contravention of a parenting
determination. The court cannot make such an order if it would not be in the best interests of
the child concerned to do so.
Item 100--Subparagraph 70NFB(2)(f)(i)
817. Item 100 would insert a reference to "or a parenting determination" after the reference
to "a parenting order" in subsection 70NFB(2)(f)(i).
818. Subparagraph 70NFB(2)(f)(i) enables the court to order the person who contravened a
parenting order to compensate another person who incurred expenses as a result of the
contravention. The expenses incurred must be reasonable expenses. This provision is
intended to cover situations where airfares or other tickets purchased are wasted as a result of
a person, for example, not making the child available for time with the other parent under a
parenting order.
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819. This amendment would expand this provision so that the court may make such an
order for compensation when the current contravention is either a contravention of a
parenting order or a parenting determination.
Item 101--After subsection 70NFH(1)
820. Item 101 would insert new subsection 70NFH(1A) after subsection 70NFH(1) of the
Act.
821. Section 70NFH of the Act explains the relationship between Subdivision F of the Act
and other laws. It applies where a person has breached a parenting order under the Act and
committed an offence, and provides that if the person is prosecuted for that offence, the court
in which proceedings have been brought under section 70NFB of the Act (in relation to a
breach of the order), must adjourn those proceedings until the prosecution has been
completed or dismiss those proceedings. The person cannot be punished twice for the same
act or omission.
822. The amendment would provide that the section also applies where an act or omission
by a person constitutes a contravention of a parenting determination, and is also an offence
against any law. This means that if proceedings are brought under section 70NFB of the Act,
and the person is being prosecuted for the act or omission which constitutes the
contravention, the court must adjourn or dismiss the proceedings brought under
section 70NFB.
Item 102--At the end of subsection 94AAA(1)
823. Item 102 would insert new subsection (c) at the end of subsection 94AAA(1) of the
Act.
824. Subsection 94AAA(1) of the Act provides that an appeal lies to the Family Court
from a decree of the Federal Circuit Court.
825. This amendment would expand subsection 94AAA(1) so that an appeal would also lie
to the Family Court from a decision of the Federal Circuit Court under new section 11Q. New
section 11Q would allow a party to a parenting management hearing to appeal to the Federal
Circuit Court on a question of law, from any decision or determination of the Panel in that
hearing.
Item 103--Subsection 94AAA(4)
826. Item 103 would remove the reference to "and (10)" in subsection 94AAA(4) of the
Act and replace it with ", (10) and (10A)".
827. This amendment, when read with item 104 below, would have the effect of overriding
the 'default' position in subsection 94AAA(3) of the Act which provides that the jurisdiction
of the Family Court in relation to an appeal under subsection (1) [and (1A)] of the section is
to be exercised by a Full Court unless the Chief Judge considers that it would be appropriate
for a single Judge to hear the appeal.
Item 104--After subsection 94AAA(10)
828. Item 104 would insert new subsection 94AAA(10A) to provide that the jurisdiction of
the Family Court in relation to an appeal under paragraph 94AAA(1)(c) is to be exercised by
a single Judge; or a Full Court if the Chief Justice considers that appropriate.
829. This means that appeals to the Family Court from a decision of the Federal Circuit
Court under new section 11Q (on a question of law in relation to a parenting determination or
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decision of the Panel) would ordinarily be heard by a single Judge rather than the Full Court
of the Family Court.
830. When hearing an appeal, new section 11Q enables the court to make an order
affirming the decision or determination of the Panel or an order setting aside the decision or
determination and remitting the matter back to the Panel to be decided or determined again. It
is appropriate that these appeals generally be heard by a single Judge rather than Full Court.
Item 105--Subsection 94AAA(13)
831. Item 105 would remove the reference to "and (10)" in subsection 94AAA(13) of the
Act and replace it with ", (10) and (10A)".
832. This amendment would provide that the single Judge of the Family Court hearing an
appeal from a decision of the Federal Circuit Court under new section 11Q (on a question of
law in relation to a parenting determination or decision of the Panel) does not need to be a
member of the Appeal Division of the Family Court. This provides the Family Court with
flexibility in allocating judicial resources to appeal work.
Item 106--After paragraph 109A(1)(b)
833. Item 106 would insert new paragraph (ba) in subsection 109A(1) of the Act.
834. Section 109A of the Act extends the power of the Court to make rules under
section 123 of the Act to include rules in relation to the enforcement of certain matters,
including an order under the Act affecting children.
835. New paragraph (ba) would expand this provision to include a reference to a parenting
determination. This would empower the Court to make Rules of Court in relation to the
enforcement of parenting determinations.
Item 107--After paragraph 117A(1)(a)
836. Item 107 would insert new paragraph (aa) in subsection 117A(1) of the Act.
837. Section 117A of the Act empowers the court to order a person to make reparation to
the Commonwealth or to another person in relation to certain losses and expenses related to
children, including when a person has breached a parenting order, for example, by failing to
deliver a child to another person.
838. The inclusion of new paragraph (aa) would empower the court to make a reparation
order where it has found for the purposes of Division 13A of Part VII of the Act that there
has been a contravention of a parenting determination. This would require there to have been
a contravention by way of a person taking a child away or refusing or failing to deliver a
child to another person to the extent to which the determination provides that a child is to live
with, spend time with or communicate with a person.
Item 108--Paragraph 117A(1)(b)
839. Item 108 would insert a reference to new sections 11PP and 11PQ in
paragraph 117A(1)(b) of the Act.
840. New sections 11PP and 11PQ would make it an offence for a person to take or send a
child overseas when an application for a parenting determination has been made but not
finally determined, or an appeal on a question of law in relation to a parenting determination
has been instituted but not yet finally determined, unless an exception provided in
sections 11PP and 11PQ applies (for example, if each party to the parenting determination
consents in writing).
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841. The inclusion of these section references within paragraph 117A(1)(b) of the Act
would empower the court to make a reparation order where a person has been convicted of an
offence against new sections 11PP and 11PQ.
Item 109--After paragraph 123(1)(sg)
842. Item 109 would insert new paragraphs (sh) and (si) in subsection 123(1) of the Act.
843. Section 123 empowers the Judges, or a majority of them, to make Rules of Court in
relation to a range of matters listed. New paragraph 123(1)(sh) would expand that list of
matters to enable Rules of Court to be made which provide for or in relation to making orders
under section 13L. Section 13L would be inserted by item 27 above and would empower the
Court to refer proceedings under Part VII of the Act to the Parenting Management Hearings
Panel. The Rules of Court may then provide for how these referrals would be made, for
example.
844. New paragraph 123(1)(si) would expand the list of matters to enable Rules of Court to
be made for, and in relation to, matters transferred to court under the Panel rules made for the
purposes of paragraph 11SB(2)(b). Proposed new subsection 11SB(2) provides for the
Minister to make rules in respect of the transfer to a court having jurisdiction under this Act
of matters to which applications have been dismissed under this Part relate.
Item 110--Paragraph 125(1)(ca)
845. Item 110 would insert a reference to "or the Panel" after the reference to "a court" in
paragraph 125(1)(ca) of the Act.
846. Section 125 empowers the Governor-General to make Regulations. This amendment
would expand one of the listed matters for which regulations may be made in relation to, that
is, to enable regulations to be made which prescribe fees payable for services provided by the
Family Court in circumstances other than where a court or the Panel orders or directs the
provision of the services.
Item 111--After paragraph 125(1)(e)
847. Item 111 would insert three new paragraphs in subsection 125(1) of the Act.
848. Section 125 empowers the Governor-General to make Regulations and includes a list
of matters for which regulations can be made in relation to. This amendment would enable
regulations to be made to:
prescribe fees payable for parenting management hearings on or after 1 July 2021
(new paragraph 125(1)(ea))
exempt particular classes of persons from paying those fees
(new paragraph 125(1)(eb)), and
provide for the refund of those fees in particular circumstances
(new paragraph 125(1)(ec)).
Part 2--Consequential Amendments
849. Part 2 would provide for the consequential amendments necessary as a result of
introducing parenting determinations which will be enforceable by a court and have a similar
effect to parenting orders. Other consequential amendments will be required to reflect the fact
that the Parenting Management Hearings Panel will be an independent statutory authority
hosted by the Federal Court of Australia.
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A New Tax System (Family Assistance) Act 1999
Changes to definition of 'care arrangement'
Item 112--Subsection 3(1) (paragraph (c) of the definition of care arrangement)
850. Item 112 would remove the word "orders" from the list as a parenting determination
is not an order.
Item 113--Subsection 3(1) (after subparagraph (c)(i) of the definition of care arrangement)
851. Section 3 of A New Tax System (Family Assistance) Act 1999 provides for the
definition of "care arrangement". Care arrangement is picked up through the Act to determine
percentages of care (and therefore percentages of family tax assistance/child care benefit and
rebate). As a parenting determination may determine time spent with each parent it will be
relevant in this context. Therefore, parenting determinations are appropriately added to this
definition.
852. Item 113 would insert a reference to "a parenting determination within the meaning of
section 11JG of that Act" into the definition of "care arrangement".
Item 114--Subsection 3(1) (after paragraph (b) of the definition of family law order)
853. Section 3 provides for the definition of "family law order". "Family law order" is
referenced in paragraph 22(5)(b) of the Act which is about determining legal responsibility
for a child. It is appropriate to include 'parenting determination' in this list alongside other
parenting type orders.
854. Item 114 would insert a reference to "a parenting determination within the meaning of
section 11JG of that Act" into the definition of "family law order".
Australian Citizenship Act 2007
Items 115 and 116--Paragraph 6(1)(a) and Paragraphs 6(1)(b) and (c)
855. Section 6 of the Australian Citizenship Act 2007 defines who is a "responsible parent"
for the purposes of the Act. The definition is used in several sections, including in section 46
which sets out the requirements to apply for citizenship for children under 16. "Responsible
parent" is defined using terms and concepts from the Family Law Act 1975, including a
reference to "parental responsibility" as defined by that Act and references to the effect of
various parenting orders. As such, it is appropriate to include references to "parenting
determination" which will have similar effects to parenting orders.
856. Item 115 would amend paragraph 6(1)(a) after the word "orders", to insert "or a
parenting determination".
857. Item 116 would make two amendments in paragraph 6(1)(b) and (c) after the word
"parenting order", inserting "or a parenting determination".
Australian Passports Act 2005
Item 117--At the end of subsection 11(1)
858. Section 11 of the Australian Passports Act 2005 provides that the Minister must not
issue an Australian travel document to a child unless each person who has parental
responsibility for the child consents to the issuing of a passport unless otherwise permitted by
a court order. This is subject to the exceptions set out in subsection 11(2).
859. Item 117 would add at the end of subsection 11(1) "; or (c) a parenting determination
(within the meaning of the Family Law Act 1975) permits: (i) the child to have an Australian
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travel document; or (ii) the child to travel internationally; or (iii) the child to live or spend
time with another person who is outside Australia." As a parenting determination may deal
with these matters in a similar way to a court order, it is appropriate to add them to this
subsection.
Item 118--Subparagraph 11(5)(a)(ii)
860. Subsection 11(5) defines "parental responsibility" for the purposes of this section by
reference to terms in the Family Law Act 1975 and court orders. Item 118 would amend
subparagraph 11(5)(a)(ii) after the word "an order", inserting "or a parenting determination".
As a parenting determination may also displace parental responsibility in certain
circumstances, similarly to a parenting order, it is appropriate to add them to this
subparagraph.
Item 119--Paragraph 11(5)(b)
861. Item 119 would amend paragraph 11(5)(b) after the word "order", inserting "or a
parenting determination (within the meaning of the Family Law Act)". As a parenting
determination may also deal with who a child is to live with or who has parental
responsibility for a child it is appropriate to add them to this paragraph.
Federal Circuit Court of Australia 1999
Item 120--At the end of section 87
862. Section 87 of the Federal Circuit Court Act 1999 provides for Rules of Court to be
made.
863. Item 120 would enable the Rules of Court to provide for making orders under
section 13L of the Family Law Act 1975 (when the court is referring proceedings to the
Parenting Management Hearings Panel) and matters transferred from the Parenting
Management Hearings Panel to the Federal Circuit Court under the Panel rules made for the
purposes of paragraph 11SB(2)(b) of the Family Law Act 1975 (inserted by Schedule 1).
Federal Court of Australia Act 1976
Item 121--Subparagraph 18ZB(a)(xiii)
864. Item 121 would amend subparagraph 18ZB(a)(xiii) of the Federal Court of Australia
Act 1976 to omit the word 'and'. This is a technical amendment consequential to the addition,
by item 122, of an additional subparagraph at the end of paragraph 18ZB(a).
Item 122--At the end of paragraph 18ZB(a)
865. Section 18ZB sets out the application of the finance law to the federal court single
administrative entity, of which the Panel is a part. Paragraph 18ZB(a) sets out the
composition of the entity. Item 122 would insert two subsections (xiv) and (xv) which would
provide for staff assisting the Parenting Management Hearings Panel and assisting
consultants to be included as listed entities for the purposes of the finance law.
Item 123--After subparagraph 18ZB(e)(ii)
866. Section 15 of the finance law requires accountable authorities to govern the entities
for which they are responsible in a way that is financially responsible and that promotes the
achievement of the entity's purposes.
867. Paragraph 18ZB(e), in conjunction with section 15 of the finance law, requires the
Federal Court CEO, as the accountable authority for the courts administrative entity, to take
steps to facilitate the key functions of the Family Court and Federal Circuit Court CEOs to
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assist their heads of jurisdiction in managing the administrative affairs of their courts. This
would include making relevant delegations under the finance law and Public Service Act
1999.
868. Item 123 would insert new subsection (iia) to insert a reference to the functions of the
Federal Court CEO as specified under new section 11WA. Proposed section 11WA provides
that the Federal Court CEO is to assist the Principal Member of the parenting management
hearings in the management of administrative affairs. It is intended that the Principal Member
will not be responsible for matters relating to the finance law and the Public Service Act and
accordingly, the proposed amendment would provide for the Federal Court CEO to be the
responsible and accountable authority.
Item 124--Subparagraph 18ZE(2)(b)(ii)
869. Section 18ZE establishes the Federal Court CEO as the head of the statutory agency
for the purposes of the Public Service Act 1999. The statutory agency currently includes the
Federal Court CEO as the agency head, APS staff of the three courts and of the National
Native Title Tribunal. Item 124 would omit "section 38N" and substitute "sections 11WD
and 38N", thereby including the APS staff assisting the Panel as part of this statutory agency.
Item 125--At the end of subsection 18ZI(1)
870. Subsection 18ZI(1) provides staffing powers to the Federal Court CEO in respect of
engaging consultants for the Federal Court, the Family Court, the Federal Circuit Court or the
National Native Title Tribunal. Item 125 would add the Parenting Management Hearings
Panel to this list, enabling the Federal Court CEO to appoint consultants to assist the Panel.
Migration Act 1958
Item 126 --Subsection 192(8)
871. Section 192 provides for the detention of visa holders whose visas are liable to
cancellation. The Migration Act 1958 provides that a detainee must be released from
detention within 4 hours after being detained unless certain circumstances apply. In assessing
whether 4 hours has passed, any time that the questioning is suspended or delayed to allow
the detainee to communicate with a guardian is disregarded. Subsection 192(8) defines a
guardian as including a person who is responsible, under a parenting order (within the
meaning of the Family Law Act 1975), for the detainee's long-term care, welfare and
development. Item 126 would expand this definition to include a reference to a parenting
determination. As parenting determinations may also deal with long-term care, welfare and
development, it is appropriate to refer to them within the definition of 'guardian'.
My Health Records Act 2012
Item 127 --Section 5 (subparagraph (a)(ii) of the definition of parental responsibility) and
Item 128 --Section 5 (subparagraph (b) of the definition of parental responsibility)
872. Section 5 sets out the definitions used in the My Health Records Act 2012, including
that of "parental responsibility" for a healthcare recipient. The Act defines "parental
responsibility" by reference to the effect of parenting orders under the Family Law Act 1975.
As parenting determinations will have the same effect as parenting orders in relation to
displacing parental responsibility or determining if a child is to live with a person, spend time
with a person or be responsible for the long-term care, welfare and development, it is
appropriate to refer to them in this definition.
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873. Items 127 and 128 insert references to parenting determinations into the definition of
parental responsibility in section 5.
National Disability Insurance Scheme Act 2013
Item 129 --Paragraph 75(1)(a) and Item 130 -- Paragraph 75(1)(b)
874. Part 4 of Chapter 4 of the National Disability Insurance Scheme Act 2013 deals with
Children. Section 75 sets out the definition of "parental responsibility" for the purposes of the
Act. The Act defines "parental responsibility" by reference to the effect of parenting orders
under the Family Law Act.
875. Items 129 and 130 would include a reference to parenting determination. As parenting
determinations will have the same effect as parenting orders in relation to displacing parental
responsibility or determining if a child is to live with a person, spend time with a person or be
responsible for the long-term care, welfare and development, it is appropriate to refer to them
in this definition.
Item 131 -- At the end of section 75
876. Item 131 would include a definition of "parenting determination", making it clear that
it has the same meaning as in the Family Law Act 1975. This is a technical amendment in
order to reflect the changes made by items 129 and 130.
Public Interest Disclosure Act 2013
Item 132 --Section 8 (before paragraph (a) of the definition of designated publication
restriction)
877. Section 8 (definitions) of the Public Interest Disclosure Act 2013 includes a definition
of "designated publication restriction". The definition is relevant for setting out exceptions
for a range of designated publication restrictions, many of which aim to protect an
individual's personal information, which will not be able to be disclosed publicly under the
public interest disclosure scheme. This definition currently includes section 121 of the Family
Law Act 1975.
878. Item 132 would expand this to include section 11RA of the Act, as section 11RA is
based on section 121. Proposed section 11RA sets out offences for publishing identifying
accounts of a parenting management hearing or publishing identifying lists of the hearings.
Information protected by this section requires a high degree of protection and should not be
able to be disclosed publicly under the public interest disclosure scheme.
Social Security Act 1991
Item 133 -- Subsection 23(1) (after paragraph (b) of the definition of family law order) and
Item 134 -- Subsection 23(1)
879. "Family law order" is defined in section 23 of the Social Security Act 1991 as
including a "parenting order". This definition is used in other sections (for example
section 1067G-B3AA and section 1068-B1B) and affects how rates for certain allowances are
calculated if children are dependent children in the recipient's care for a minimum period of
at least 14 per cent of the time.
880. Item 133 would expand the definition of family law order to include a "parenting
determination" and item 134 would include a definition for parenting determination to have
the meaning given by new section 11JG of the Family Law Act 1975. It is appropriate that
this definition should also now include reference to a "parenting determination" which has
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the same effect as other family law orders (parenting orders) and may deal with a child living
with or spending time with a person.
Item 135 -- Paragraph 197F(3)(a)
881. Section 197F deals with "Qualification-exchanged care of children" and allows a
person who does not have constant care of children under family law arrangements to qualify
for a carer payment. Paragraph 197F(3)(a) states that (provided other criteria are satisfied) a
carer can still qualify for a carer payment if "under one or more registered parenting plans,
parenting plans or parenting orders that are in force, the care receiver is to live with, or spend
time with the carer and the care receiver's other parent (whether or not the care receiver is to
live with, or spend time with, someone else)".
882. Item 135 would omit "or parenting orders", and substitute ", parenting determinations
or parenting orders". This change would reflect the inclusion of parenting determination as
provided for by Item 134.
Social Security (Administration) Act 1999
Item 136 -- Section 123TC (after paragraph (b) of the definition of family law order)
883. "Family law order" is defined in section 123TC of the Social Security
(Administration) Act 1999 and includes "a parenting order within the meaning of section 64B
of the Family Law Act 1975".
884. Item 136 would expand the definition of "family law order" to include a parenting
determination within the meaning of section 11JG of the Family Law Act. It is appropriate to
include "parenting determination" within the definition of "family law order" as they will
have the same effect as other parenting orders or parenting plans. This definition is used in
section 123UH in the definition of an "eligible care child" which refers to a "family law
order, registered parenting plan or parenting plan that is in force during the eligible care
period". "Eligible care child" is used in various sections to determine whether a person is
subject to the income management regime. 'Section 124B also uses this definition of "family
law order" to determine who is a "schooling requirement child".
Part 3 -- Application provisions
885. Part 3 sets out the application provisions necessary to support the commencement of
the amendments within the proposed Act. The application provisions should be read in
conjunction with Clause 2 of the Bill which provides for the commencement of each
provision of the proposed Act.
Item 137 -- Application of amendments
886. Subitem 137(1) would provide for the application of the amendments made to
section 11A. This amendment extends the role of family consultants to include the function
of providing services in relation to parenting management hearings. The application
provision specifies that the amendments apply in relation to family consultants whether
engaged before or after the commencement of the Schedule. This would ensure that family
consultants can provide services to parenting management hearings regardless of when they
were engaged. For the purposes of the pilot of parenting management hearings, the Panel will
utilise family consultants engaged under proposed section 11WD (see item 21 of Schedule 1,
and section 11WD).
887. Subitem 137(2) would provide for the application of proposed subsections 11NA(7)
and (8). These subsections provide that the Panel must dismiss an application for a parenting
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determination in relation to a child if court proceedings are instituted in relation to the child,
unless the proceedings were referred to the Panel by the court. The application
provision specifies that the new subsections would apply whether proceedings were instituted
before or after the commencement of this Schedule. This would have the effect that, unless
the exception in subsection 11NA(8) applies, the Panel will be required to dismiss an
application for a parenting determination if court proceedings are on foot in relation to the
child, regardless of when they were instituted. For example, if a court proceeding was
instituted prior to the commencement of the Act, and was still on foot when a person applied
for a parenting determination in relation to the child, the Panel would be required to dismiss
the application.
888. Subitems 137(3) and (4) would provide for the application of proposed
subsections 11NA(9), (10) and (11). These subsections provide for when the Panel must
dismiss an application for a parenting determination if a parenting order is in force in relation
to the child. The application provision provides that these new subsections apply in relation
to parenting orders regardless of whether they were made before or after the commencement
of this Schedule. However, this is subject to subitem 137(4) which provides that the Panel
must dismiss an application for a parenting determination if there is a parenting order in force
that was made before the commencement of the Schedule, and included a provision that the
order (or a specified provision of the order) is only to be varied by a subsequent court order
rather than a subsequent parenting plan. Such an order can only be made if exceptional
circumstances exist under existing subsection 64D(2). In such circumstances, the court would
not have had the benefit of new subsection 64E(2) which would empower them to provide
that a court order may not be varied by a subsequent parenting determination. As such, it may
be inappropriate to allow the order to be varied by a parenting determination, and the Panel
will instead be required to dismiss the application.
889. Subitem 137(5) would provide for the application of proposed subsection 11NA(12).
This subsection provides that the Panel must dismiss an application for a parenting
determination if a registered parenting plan is in force in relation to the child.
890. Subitem 137(6) would provide for the application of proposed subsection 11NA(13).
This subsection provides that the Panel must dismiss an application for a parenting
determination if an overseas child order is registered in relation to the child. The application
provision specifies that the new subsection applies regardless of whether the overseas child
order was registered before or after the commencement of this Schedule.
891. Subitem 137(7) would provide for the application of proposed section 13L, which
provides for court referral of Part VII proceedings to the Parenting Management Hearings
Panel. The application provision specifies that the new section applies in relation to
proceedings whether instituted before or after the commencement of the Schedule. This
would ensure that a court could refer a matter to the Panel even if the proceedings were
instituted prior to the establishment of the parenting management hearings.
892. Subitem 137(8) would provide for the application of proposed section 64E, which
provides that parenting orders are subject to later parenting determinations unless the order
provides that this must not occur. The application provision specifies that the new section
applies in relation to parenting orders made after the commencement of the Schedule.
893. Subitems 137(9) and (10) would provide for the application of the amendment of
existing section 65D and of proposed section 65DABA. These provisions would ensure that a
court must consider existing parenting determinations when making parenting orders. The
application provisions specify that the amended section 65D and the proposed
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section 65DABA apply to proceedings for a parenting order whether instituted before or after
the commencement of the Schedule.
Schedule 2 - Contingent amendments
Part 1 - Amendments contingent on the Civil Law and Justice Legislation Amendment
Act 2017
894. The Civil Law and Justice Legislation Amendment Bill 2017 (CLJLA Bill) would, in
part, amend the Family Law Act to strengthen Australia's response to international parental
child abduction, clarify the range of persons who may perform the powers of the Registry
Managers in the Family Court of Australia or any other court, improve the consistency of
financial and other provisions for de facto and married couples, assist the operation of the
family law courts, and make minor and technical amendments, including clarifying
definitions and removing redundant provisions.
895. The Bill would also update the Marriage Act 1961 to remove outdated concepts and
ensure consistency with the Family Law Act in relation to parental consent for the marriage
of minors.
896. These amendments proposed in the CLJLA Bill would have flow-on effects for the
operation of some parts of the Family Law Amendment (Parenting Management Hearings)
Bill; these effects are set out below. The amendments proposed in Part 1 of Schedule 2 to the
Family Law Amendment (Parenting Management Hearings) Bill would only take effect after
the commencement of the relevant provisions of the CLJLA Bill (see table items 3--5 of the
Commencement table in Item 2).
Family Law Act 1975
Item 1 - Paragraph 10B(c)
897. Existing section 10B of the Family Law Act defines 'family counselling' as a process
in which a family counsellor helps people deal with personal and interpersonal issues in
relation to a marriage, or people affected by separation or divorce to deal with personal and
interpersonal issues relating to the care of children. Item 4 of the CLJLA Bill would expand
the definition of family counselling to also include a process by which a family counsellor
helps people who may apply for a parenting order under section 65C to deal with issues
relating to the care of children. This is intended to ensure that the definition is sufficiently
broad so that family counselling applies to all family arrangements--for example, parents
who have never lived together or been married, and therefore cannot be said to be affected by
separation or divorce.
If that amendment commences, item 1 of Schedule 2 to the Family Law Amendment
(Parenting Management Hearings) Bill would expand the definition of family counselling
further to also include a process by which a family counsellor helps people who may apply
for a parenting determination made under section 11K.
Item 2 - Subparagraph 10F(a)(ii)
898. Existing section 10F of the Family Law Act provides a definition of family dispute
resolution as a process in which an independent family dispute resolution practitioner helps
people affected, or likely to be affected, by separation or divorce to resolve disputes. Item 5
of Schedule 6 to the CLJLA Bill would substitute a broader definition so that in addition to
an independent family dispute resolution practitioner helping people affected by separation or
divorce, it would include an independent family dispute resolution practitioner helping people
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who may apply for a parenting order under section 65C to resolve some or all of their dispute
relating to the care of children.
899. Item 2 of Schedule 2 to the Family Law Amendment (Parenting Management
Hearings) Bill would expand the definition to also include an independent family dispute
resolution practitioner helping a person who may apply for a parenting determination under
section 10F. This is to ensure consistency in the application of family dispute resolution to
parenting orders and parenting determinations.
Item 3 - Subsection 11LN(3)
900. Item 3 of Schedule 2 would repeal and replace proposed subsection 11LN(3).
Subsection 11N(3) refers to the admissibility of communications to the Panel or Panel
members in relation to a parenting management hearing, and is modelled on section 11C of
the Family Law Act, which provides similarly for the admissibility of communications with
family consultants for court hearings.
901. The CLJLA Bill proposes to repeal and replace subsection 11C(3) of the Family Law
Act. Existing subsection 11C(3) provides that, despite subsection 11C(2), a thing said or
admission made by a family consultant performing the functions of a family consultant, or
professional to whom a family consultant refers a person, is admissible where an adult
indicates that a child under 18 has been abused or is at risk of abuse, or if a child under 18
indicates that the child has been abused or is at risk of abuse. These exceptions apply unless,
in the opinion of the court, there is sufficient evidence of the admission or disclosure
available to the court from other sources.
902. The introductory paragraph of the existing and new subsection 11C(3) are identical,
and provide that a thing said or admission made may be admissible despite subsection 11C(2)
in certain circumstances. The relevant circumstances are outlined in paragraphs 11C(3)(a)
and (b) of both the existing and new subsections.
903. Existing paragraph 11C(3)(a) provides that a thing said or admission made is
admissible despite subsection 11C(2), where it is an admission by an adult that indicates that
a child under 18 has been abused or is at risk of abuse. Existing paragraph 11C(3)(b) provides
the same for a disclosure by a child under 18 that indicates that the child has been abused or
is at risk of abuse.
904. New paragraph 11C(3)(a) combines and broadens the effect of existing
paragraphs 11C(3)(a) and (b). The existing paragraphs only extend to a disclosure by a child
if that disclosure is about the child. In other words, if a child were to make an admission that
another child is being abused or at risk of abuse, existing subsection 11C(3) would not apply
to make that admission admissible. New paragraph 11C(3)(a) would extend
subsection 11C(3) so that it applies to an admission by any person (including a child)
indicating that a child is being abused or at risk of abuse. This would include an admission
by a child that indicates they are being abused or at risk of abuse.
905. The change in language from 'disclosure' in existing paragraph 11C(3)(b) to 'thing ...
said or the admission' in new paragraph 11C(3)(a) reflects the increased scope of the
provision and is not intended to otherwise change the interpretation of the paragraph.
906. New paragraph 11C(3)(b) clarifies that a thing said or admission made that was
obtained due to, or as a consequence of, impropriety or a contravention of Australian law
would not be made admissible solely because it comes within the operation of
paragraph 11C(3)(a). Such information would have to satisfy the rules for admissibility
contained in section 138 of the Evidence Act.
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907. Section 138 of the Evidence Act provides that improperly or illegally obtained
evidence is not admissible unless the desirability of admitting the evidence outweighs the
undesirability of admitting the evidence. The court is not limited in the matters it may take
into account to make this decision but may, for example, consider the probative value of the
evidence and the importance of the evidence in the proceeding.
908. The addition of new paragraph 11C(3)(b) is not intended to change the interpretation
of existing subsection 11C(3), but to clarify that the subsection operates as outlined in
Hazan v Elias (2011) 255 FLR 338.
909. Item 3 of Schedule 2 to the Family Law Amendment (Parenting Management
Hearings) Bill would, if the CLJLA Bill were to commence, repeal and replace
subsection 11LN(3). This would ensure that section 11LN remains consistent with
section 11C.
Item 4 - Application of amendment
910. Item 4 of Schedule 2 would provide the circumstance in which the amendment made
by Item 3 of that Schedule to proposed subsection 11LN(3) of the Family Law Act applies. It
would provide that the amendment would apply to things said or admissions made if the thing
or admission is to be admitted into proceedings after item 4 of Schedule 3 commences,
regardless of whether the proceedings are instituted before or after the amendment
commences.
Item 5 - Section 11PP (heading)
911. Item 5 of Schedule 2 would repeal and substitute the heading to proposed
section 11PP which deals with obligations if certain parenting determinations have been
made. Proposed section 11PP is based on existing section 65Y of the Family Law Act. The
CLJLA Bill would make amendments to section 65Y which should also be reflected in
proposed section 11PP. This amendment is consequential to the insertion of proposed
section 11POA by Item 6 of Schedule 2. The current title of section 11PP is "Obligations if
certain parenting determinations have been made" which, after the insertion of
section 11PPA, would be misleading as section 11PPA will also contain obligations that
apply if certain parenting determinations have been made.
912. The new title substituted by this item would be "Obligations if certain parenting
determinations have been made: taking or sending a child outside Australia". This more
specific title better clarifies the purpose and effect of section 11PP.
Item 6 - At the end of section 11PP
913. Item 6 of Schedule 2 would insert a new subsection (4) to add a defence of fleeing
family violence to an offence under section 11PP. Specifically, new subsection 11PP(4)
would provide that subsection 11PP(2) does not apply if a party takes or sends a child from
Australia to a place outside of Australia because the person believes the conduct is necessary
to prevent family violence and the conduct is reasonable in the circumstances as the person
believes them. This aligns with the amendment which would be made by the CLJLA Bill to
section 65Y, on which proposed section 11PP is based.
914. The CLJLA Bill would insert a new subsection (4) to provide that subsection 11PP(2)
does not apply if a party takes or sends a child from Australia to a place outside of Australia
because the person believes the conduct is necessary to prevent family violence and the
conduct is reasonable in the circumstances as the person believes them. This aligns with the
amendment which would be made by the CLJLA Bill to section 65Y, on which proposed
section 11PP is based. The Bill would add a defence of fleeing family violence that would
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apply to the existing offence under section 65Y of unlawfully taking or sending a child from
Australia to a place outside Australia in cases where certain parenting orders have been made.
The proposed defence of fleeing from family violence is modelled on the defence of
self-defence under section 10.4 of the Criminal Code. Similar to self-defence, the proposed
defence includes both a subjective and an objective element. The defence would be satisfied
if it was reasonable to have carried out the conduct constituting one of the offences (of
removing or retaining a child overseas) (the objective element) in response to the defendant's
own perceptions that it was necessary to take the action they did to prevent family violence
(the subjective element). It is appropriate that this defence should also apply to proposed
section 11PP.
915. Item 6 of Schedule 2 would also include a note to section 11PP stating that a
defendant bears an evidential burden in relation to the matter in this subsection (relevant to
subsection 13.3(3) of the Criminal Code).
Item 7 - After section 11PP
916. Item 7 of Schedule 2 would insert a new section 11PPA after section 11PP. This
reflects the amendment proposed by item 45 of Schedule 6 to the CLJLA Bill which would
insert new section 65YA in the Family Law Act 1975. New section 11PPA would align with
this new section and provide that a person commits an offence where:
a parenting determination is in force in relation to a child, and
that child has been taken or sent from Australia to a place outside Australia, by or
on behalf of a party to the hearing in which the parenting determination was
made:
- with the consent in writing (authenticated as prescribed) of each person in
whose favour the parenting determination was made, or
- in accordance with an order of a court made, under this Part or under a law
of a State or Territory, at the time, or after, the parenting determination was
made, and
the person retains the child outside Australia otherwise than in accordance with
the consent or order (whether or not the person took or sent the child as
mentioned), and
the person was a party to the hearing in which the parenting determination was
made, or is retaining the child on behalf of, or at the request of, such a party.
917. Section 11PPA would also specify that the penalty for an offence against new
section 11PPA is 3 years imprisonment. This penalty is identical to the penalties specified for
the similar offence against section 11PP and the proposed penalty for an offence against new
section 11PPA.
918. Proposed subsection 11PPA(3) would add a defence of fleeing family violence that
would apply to the offence in subsection 11PPA(2), along the lines of the defence added by
Item 6.
Item 8 - Section 11PQ (heading)
919. Item 8 of Schedule 2 would repeal and substitute the heading to section 11PQ.
Proposed section 11PQ is based on existing section 65Z of the Family Law Act. The CLJLA
Bill would made amendments to section 65Z which should also be reflected in proposed
section 11PQ. This amendment is consequential to the insertion of section 11PQA by item 10
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of Schedule 2. The current title of section 11PQ is "Obligations if application for parenting
determination has been made etc." After the insertion of section 11PQA, the current title
would be misleading as section 11PQA will also contain obligations that apply if an
application for a parenting determination has been made.
920. This item would substitute the new title "Obligations if application for parenting
determination has been made etc.: taking or sending a child outside Australia". This more
specific title better clarifies the purpose and effect of section 11PQ.
Item 9 - At the end of section 11PQ
921. Item 9 of Schedule 2 would insert a new subsection (4) to provide that
subsection 11PQ(2) does not apply if a party takes or sends a child from Australia to a place
outside of Australia because the person believes the conduct is necessary to prevent family
violence and the conduct is reasonable in the circumstances as the person perceives them,
along the lines of the defence added by item 6 of Schedule 2. It also reflects the proposed
insertion of a similar defence into section 65Z of the Family Law Act by the CLJLA Bill.
922. Item 9 would also include a note to section 11PQ stating that a defendant bears an
evidential burden in relation to the matter in this subsection (relevant to subsection 13.3(3) of
the Criminal Code).
Item 10 - After section 11PQ
923. Item 10 would insert a new section 11PQA after section 11PQ. This new section
reflects the proposed insertion of new section 65ZAA by the CLJLA Bill. Both new sections
are intended to remedy an identified gap in the existing legislation, that is, the lack of
offences for retaining a child outside Australia in similar circumstances to the existing
offence of taking a child outside Australia found in section 65Z (and proposed section 11PQ)
of the Family Law Act.
924. Section 65Z currently makes it an offence to remove a child in relation to whom
proceedings for a parenting order are pending. If there is no relevant court order or consent in
writing from other parties, a person does not currently commit an offence if they retain a
child beyond the expiry of that order or consent. New subsection 11PQA would provide that
section 11PQA applies when:
an application for a parenting determination in relation to a child has been made
but not yet finally determined, or
an appeal on a question of law in relation a parenting determination has been
made but not yet finally determined, and
the parenting determination provides, or would provide, that:
- a child is to live with a person; or
- a child is to spend time with a person; or
- a child is to communicate with a person; or
- a person is to have parental responsibility for a child.
925. Where section 11PQ would apply, new subsection 11PQ(2) would provide that a
person commits an offence if:
a parenting management hearing for the making, in relation to a child, of a parenting
determination is pending; and
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the child has been taken or sent from Australia to a place outside Australia by or on
behalf of a party to the parenting management hearing:
o with the consent in writing (authenticated as prescribed) of each other party to
the hearing; or
o in accordance with an order of a court made, under the Family Law Act or
under a law of a State or Territory, after the application for a parenting
determination was made; and
the person retains the child outside Australia otherwise than in accordance with the
consent or order (whether or not the person took or sent the child as mentioned in the
previous dot point); and
the person is a party to the hearing, or is retaining the child on behalf of, or at the
request of, such a party.
926. New subsection 11PQA(2) would also specify that the penalty for an offence against
the subsection is 3 years imprisonment; this penalty is identical to the penalty specified or
proposed to be specified for the similar offences against sections 65Y and 65Z and proposed
sections 11PP, 11PPA, 11PQ, 65YA and 65ZAA.
927. Item 10 would provide that subsection 11PQA(2) does not apply if the person retains
the child because the person believes the conduct is necessary to prevent family violence and
the conduct is reasonable in the circumstances as the person perceives them, along the lines
of the defence added by Item 6. This reflects the similar defences proposed to be applied to
the various Family Law Act offences of international parental child abduction by the
CLJLA Bill and Schedule 2 of the Family Law Amendment (Parenting Management
Hearings) Bill.
928. Item 10 would also include a note to section 11PQA stating that a defendant bears an
evidential burden in relation to the matter in subsection 11PQA(2) (relevant to
subsection 13.3(3) of the Criminal Code).
Items 11 and 12 - Paragraph 11PU(a) and Paragraph 11PU(b)
929. Items 11 and 12 of Schedule 2 would add references to "retained" or "retaining" in
proposed paragraphs 11PU(a) and 11PU(b). Section 11PU preserves the operation of state
and territory laws which stop children leaving Australia. These are technical amendments to
reflect the addition of new section 11PQA by item 10 of Schedule 2 which makes it an
offence to unlawfully retain a child outside Australia otherwise than in accordance with the
consent or order (whether or not the person took or sent the child as mentioned).
Item 13 - After section 11PU
930. Item 13 of Schedule 2 would insert new section 11PUA. Section 11PUA would
provide that section 15.4 of the Criminal Code (extended geographical jurisdiction -
category D) applies to an offence against any of sections 11PP to 11PS (taking, sending, or
retaining a child outside Australia).
931. The gravity of the effects of wrongful retention on a child's wellbeing, irrespective of
who commits the offence or in which country the child is retained, can be devastating and
long-lasting. The new offences contained in new sections 11PPA and 11PQA (inserted by
items 7 and 10 of Schedule 2 respectively) are intended to be a deterrent to the wrongful
retention of a child and apply to any person (regardless of whether they have Australian
citizenship or residency) who wrongfully retains a child, irrespective of whether there is an
equivalent offence in the law of the local jurisdiction where the child is being retained.
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932. Item 13 would also ensure that there is no doubt that offences provisions contained in
proposed sections 11PPA and 11PQA apply to conduct taking place both within Australia
and overseas.
Item 14 - Paragraph 117A(1)(b)
933. Existing section 117A of the Family Law Act allows a person or the Commonwealth
to apply for a court order that another person make reparations for certain losses and
expenses relating to recovering a child and returning a child to a person. Item 14 would
extend this so that paragraph 117(1)(b) also requires a person convicted of an offence under
new sections 11PP, 11PPA, 11PQ or 11PQA on the order of the court, to pay reparations for
the recovery and return of the child.
934. The proposed offences included in new sections 11PPA and 11PQA (based on new
sections 65YA and 65ZA as proposed in the CLJLA Bill) are offences related to retaining a
child outside Australia. They would complement the offences proposed in new sections 11PP
and 11PQ--where the offences under proposed 11PP and 11PQ deal with circumstances
where a person has unlawfully removed a child from Australia, the proposed offences would
deal with the circumstance where a person has lawfully removed a child from Australia and
has then unlawfully retained that child outside Australia.
935. When a child is retained outside Australia, similar costs and losses would be incurred
to recover the child as when the child is unlawfully removed from Australia, and it is
appropriate that the person who is responsible for the removal or retention of the child is
liable to pay reparations to a person or the Commonwealth when costs or losses have been
incurred in recovering or returning the child.
Item 15- Application of amendments
936. Item 15 relates to when the amendments proposed in Items 5--14 (which would
amend or insert new sections 11PP, 11PPA, 11PQ and 11PQA) to the Bill would apply.
937. The amendments would apply in relation to children taken or sent from Australia to a
place outside Australia without consent, or in contravention of a parenting determination, on
or after the commencement of the amendments or before the commencement of the Part if the
period specified in the consent or order in accordance with which the child was taken or sent:
ended after that commencement; or
was extended so that it ended after that commencement.
Marriage Act 1961
Items 16 - 20--Schedule 1
938. The existing Schedule to the Marriage Act 1961 provides a list of who may give
consent under section 14 for the marriage of minor (that is, a person aged 16 or 17 years of
age). The Schedule, which was written in the 1960s and last amended in 1988, provides
different rules for giving consent, based on outdated considerations such as whether a minor
was adopted, or whether the minor's parents were married. The Schedule also uses concepts
and terminology, such as 'custody', which are not used in family law today.
939. Item 42 of the CLJLA Bill would amend the Schedule to ensure it reflects current
terminology and principles of family law as provided in the Family Law Act 1975. New
Item 1 of Schedule 1 to the Marriage Act 1961 would comprehensively set out who must
consent to a marriage.
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940. Schedule 1 provides the specified persons as referred to in section 14 of the Marriage
Act 1961 to whom may provide consent for a minor to marry. Such persons include the
parents of the child, guardians or parties to whom have parental responsibility of a child
under a court order. As a parenting determination may also deal with the issue of parental
responsibility, Items 16--20 would make amendments to include references to "parenting
determinations" as appropriate alongside the references to "court orders".
Part 2 - Amendments contingent on the Family Assistance and Child Support
Legislation Amendment (Protecting Children) Act 2017
941. In the context of child support and the Family Tax Benefit (FTB), a dispute can occur
when care is not occurring in accordance with a current care arrangement and one of the
parents disagrees with the care that is actually occurring. Currently, child support and FTB
can continue to be calculated based on the care arrangement for an "interim period" as long
as the person with reduced care is taking reasonable action to have the care arrangement
complied with. In special circumstances, the interim period can be extended up to 26 weeks.
Once the interim period ends, child support and FTB are calculated based on the actual care
that is occurring.
942. The Family Assistance and Child Support Legislation Amendment (Protecting
Children) Bill (Family Assistance Bill) would, in part, amend the Child Support (Assessment)
Act 1989 and the A New Tax System (Family Assistant) Act 1999 to extend the interim period
that applies for recently-established court-ordered care arrangements, and provide incentives
for the person with increased care to take reasonable action to participate in family dispute
resolution where a care dispute relates to an older court order, a parenting plan or a written
agreement.
943. The amendments that would be made by items 21--30 below would insert a reference
to a parenting determination alongside a reference to court orders, to ensure that the
amendments that would made by the Family Assistance Bill would apply in the context of
care occurring under a parenting determination (as well other care arrangements, including a
court order).
944. Items 21--30 would only commence on commencement of the Family Assistance and
Child Support Legislation (Protecting Children) Act 2017 (see table item 6 of the
Commencement provision in item 2).
A New Tax System (Family Assistance) Act 1999
Item 21 -- Subsection 3(1) (after paragraph (a) of the definition of maximum interim period)
945. Item 4 of the Family Assistance Bill would insert a definition of "maximum interim
period" into subsection 3(1) of the A New Tax System (Family Assistance) Act for the
purposes of a determination under section 35A or 35B of the A New Tax System (Family
Assistance) Act.
946. The new definition would provide that for a determination of an individual's
percentage of care for a child under section 35A or 35B, the maximum interim period that
can apply begins on the change of care day (as defined in subsection 3(1)) and, for a
determination relating to a court order, it ends on the later of the period of 52 weeks starting
on the day the court order first takes effect, or the end of the period of 26 weeks starting on
the change of care day. For a determination relating to a written agreement or parenting plan,
the maximum interim period ends at the end of the period of 14 weeks starting on the change
of care day.
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947. Item 21 of the Bill would insert a new paragraph (aa) into subsection 3(1) to provide
that the maximum interim period in relation to care under a parenting determination is the
same as that for a court order (ends on the later of the period of 52 weeks starting on the day
the court order first takes effect, or the end of the period of 26 weeks starting on the change
of care day).
Item 22 -- Subsection 3(1)
948. Subsection 3(1) is the definition section for the A New Tax System (Family
Assistance) Act.
949. Item 22 of the Bill would insert a definition of parenting determination into
subsection 3(1) to provide that a parenting determination has the "meaning given by
section 11PA of the Family Law Act 1975".
Item 23 -- Subsection 35FA(1) (table item 1, column headed "If the following conditions are
met", paragraph (a))
950. The Family Assistance Bill would insert a new section 35FA to provide for the
meaning of "interim period" upon which the period begins and ends for determinations under
sections 35A and 35B of the A New Tax System (Family Assistance) Act. The table at
subsection 35FA(1) would set out six sets of circumstances providing for the interim period
to end at different times (ranging from four to 52 weeks) depending on whether the care
arrangement is a court order, written agreement or parenting plan, whether and when the
person with increased care of the child began taking reasonable action to participate in family
dispute resolution (and whether this action was continuous), and whether the Secretary is
satisfied that special circumstances exist.
951. Item 23 of the Bill would insert "parenting determination" after "court order" in table
item 1, column headed "If the following conditions are met", paragraph (a) in order to reflect
the changes made by items 21 and 22, and ensure that care arrangements under a parenting
determination are treated consistently with those under a court order.
Item 24 -- Subsection 35FA(1) (table item 1, column headed "If the following conditions are
met", paragraph (c))
952. Item 24 would insert "or determination" after "court order" in table item 1, column
headed "If the following conditions are met", paragraph (c) in order to reflect the changes
that would be made by items 21 and 22.
Item 25 -- Subsection 35FA(1) (table item 2, column headed "If the following conditions are
met", paragraph (a))
953. Item 25 would insert "parenting determination or interim parenting determination"
after "court order" in table item 2, column headed "If the following conditions are met",
paragraph (a) in order to reflect the changes that would be made by items 21 and 22.
Child Support (Assessment) Act 1989
Item 26-- Subsection 5(1) (after paragraph (a) of the definition of maximum interim period)
954. Item 25 of the Family Assistance Bill would insert a new subsection 5(1) into the
Child Support (Assessment) Act to provide for the definition of "maximum interim period"
for a determination under section 49 or 50. For a determination of a responsible person's
percentage of care for a child under section 49 or 50, the maximum interim period that can
apply begins on the change of care day (as defined in subsection 5(1)) and, for a
determination relating to a court order, ends on the later of the period of 52 weeks starting on
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the day the court order first takes effect, or the end of the period of 26 weeks starting on the
change of care day. For a determination relating to a written agreement or parenting plan, the
maximum interim period ends at the end of the period of 14 weeks starting on the change of
care day.
955. Item 26 of the Bill would insert a new paragraph (aa) into subsection 5(1) to provide
that the maximum interim period in relation to care under a parenting determination is the
same as that for a court order (ends on the later of the period of 52 weeks starting on the day
the court order first takes effect, or the end of the period of 26 weeks starting on the change
of care day).
Item 27 -- Subsection 5(1)
956. Item 27 of the Bill would insert a definition of parenting determination into
subsection 5(1) to provide that a parenting determination has the "meaning given by
section 11JG of the Family Law Act 1975".
Item 28 -- Subsection 53A(1) (table item 1, column headed "If the following conditions are
met", paragraph (a))
957. Item 31 of the Family Assistance Bill would repeal existing section 53A and replace it
with a new section 53A which incorporates the concept of "maximum interim period", and
provide the meaning of interim period upon which the period begins and ends respectively for
determinations under sections 49 and 50. The table at subsection 53A(1) sets out six sets of
circumstances providing for the interim period to end at different times (ranging from four to
52 weeks) depending on whether the care arrangement is a court order, written agreement or
parenting plan, whether and when the person with increased care of the child began taking
reasonable action to participate in family dispute resolution (and whether this action was
continuous), and whether the Registrar is satisfied that special circumstances exist.
958. Item 28 of the Bill would insert "parenting determination" after "court order" in table
item 1, column headed "If the following conditions are met", paragraph (a) in order to reflect
the changes made by items 26 and 27, and ensure that care arrangements under a parenting
determination are treated consistently with those under a court order.
Item 29 -- Subsection 53A(1) (table item 1, column headed "If the following conditions are
met", paragraph (c))
959. Item 29 would insert "or determination" after "court order" in table item 1, column
headed "If the following conditions are met", paragraph (c) and is a technical amendment in
order to reflect the changes that would be made by items 26 and 27.
Item 30 -- Subsection 53A(1) (table item 2, column headed "If the following conditions are
met", paragraph (a))
960. Item 30 would insert "parenting determination" after "court order" in table item 2,
column headed "If the following conditions are met", paragraph (a) and is a technical
amendment in order to reflect the changes made by Items 26 and 27.
Part 3 - Amendments contingent on the Family Law Amendment (Family Violence and
Other Measures) Act 2017
961. The Family Law Amendment (Family Violence and Other Measures) Bill 2017 would
enhance the capacity of the family law system to provide effective outcomes for people who
are experiencing family violence. In particular, it aims to reduce the need for families to
interact with multiple courts across the federal family law and state or territory family
violence and child protection systems.
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Family Law Act 1975
Item 31--Paragraph 68T(1)(c)
962. The Family Law Amendment (Family Violence and Other Measures) Bill would
amend section 68T of the Family Law Act, which puts a time limit on a state or territory
court's ability to revive, vary or suspend a parenting or other related order to the extent to
which that order provides for a child to spend time with a person. The courts have this power
under section 68R when making a family violence order. This power is designed to protect
children by avoiding any inconsistency between family violence orders and family law
orders. However, when making an interim family violence order, there is currently a 21 day
time limit on the court's amendment of a family law order.
963. In the event that the proposed amendment commences, item 31 of the Bill would also
amend new section 68T(1)(c) by inserting the term "determination," to ensure that state and
territory courts can utilise their powers under section 68T in relation to parenting
determinations. Item 54 of Schedule 1 would also amend section 68.
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