FAMILY COURTS REPLACED BY TRIBUNALS OF INQUIRY REPORT OF A PARLIAMENTARY INQUIRY Extract from Parliamentary Inquiry Report 86 INQUIRY INTO CHILD CUSTODY ARRANGEMENTS IN THE EVENT OF FAMILY SEPARATION What can be achieved within the Australian constitution? 4.81 A number of people with whom the committee has discussed a proposal for an administrative tribunal were supportive because of the benefit of moving away from the traditional adversarial processes to something less formal and more user friendly.66 Some expert advice has been that there are limits to what can be achieved by such a body primarily to do with its capacity to enforce its decisions.67 The committee received expert constitutional advice with respect to how a tribunal could be established in a way that would be constitutionally valid. 4.82 It has been suggested by some that such a new body may just add another layer to the system which would just increase the time and costs involved for families and government. … If you had a tribunal that was a decision making tribunal, it would still be part of a formal legal system. Its decisions would still have to be, to some extent, subject to review by a higher authority; it would still be operating within a framework of legal rules. … If it were making decisions about where children should spend their time and with whom, it is hard to see how it would do that without doing it within the framework set by the Family Law Act ...68 4.83 The major constraint of the Constitution is that the judicial power of the Commonwealth – to make enforceable orders – must be exercised by a court established in accordance with the requirements of Chapter III of the Constitution. The judges and magistrates of those courts, and any officers to whom responsibility is delegated, must act judicially. However, the committee has been advised that, while this is the position with respect to decisions about adjusting existing legal rights, decisions which are essentially about adjustment of rights in the future, based on what is in the best interests of the child, can be made administratively. The committee is proposing that this be done by a new Families Tribunal. 4.84 In Chapter 2 of this report the committee has recommended a new framework of post separation parenting responsibilities, at the top of which sits a presumption that parents are jointly responsible for their children, except in circumstances of rebuttal. Those rebuttal circumstances are listed in Chapter 2 and decisions with respect to those issues remain matters for judicial determination. The committee understands that a new Families Tribunal could be given the power by statute to deal with the majority of the parenting decisions that sit beneath the shared responsibility, when parents cannot agree themselves even after mediation. This will include decisions about all matters of shared responsibility including, how much time the child/ren will spend with each parent, education, health, religious and cultural upbringing, relocation and so on. 4.85 The Tribunal would have to be set up by statute and would have defined jurisdiction to make certain decisions under the Family Law Act. The committee believes that there are a number of aspects of the Australian Industrial Relations Commission which could be used as precedent for this new body. The Workplace Relations Act 1996 says that decisions of the Commission are binding and that penalties for breach of those orders or injunctions to enforce them may be granted by a court.69 4.86 Courts would retain a role in matters where the presumption of shared parenting is rebutted as outlined in Chapter 2, in enforcement of Tribunal orders, and in a range of other matters that relate to existing legal rights, such as disputes over parentage. In light of this, ways to modify court processes, to make them less adversarial, simple and straightforward enough to make lawyers the exception rather than the rule should continue to be explored. A key to this work is avoiding the procedural complexities involved in applying the usual rules of evidence and procedure associated with adversarial litigation as far as possible. The court processes should also be as accessible and low cost as the Tribunal. The committee has already noted the work the FCoA is undertaking in this area. Creating a new family law pathway– an outline of the concept 4.87 The committee believes that there is a range of options for reforming the family law system which could minimise adversarial behaviour between parents and assist more of them to reach agreements about their future parenting responsibilities. Some reforms could be built on to existing infrastructure, such as creating a single visible entry point into the system, providing improved contact dispute resolution mechanisms and other post order support70. Using available options which continued to rely on a court as the primary body for decision making when the parties cannot agree, in the committee’s view, would only have a limited impact on adversarial behaviour especially at the early stage. 4.88 The committee has concluded that a completely new infrastructure with a new child inclusive, non adversarial decision making body at its centre would provide a sufficiently radical reform to have a real impact on changing behaviour and expectations for post separation outcomes. The tribunal should be clearly identifiable as the Families Tribunal and be set up with as wide a geographical spread as possible. 4.89 Courts will, firstly, enforce the decisions of the tribunal when they are breached, and secondly deal with cases where the safety of the parties or the children has to be protected and some other matters not within the jurisdiction of the Tribunal. 4.90 In addition, the pathway through the new system must have mandated mediation and this pathway must be widely known. The tribunal process must be simple and lawyers should only be permitted when the Tribunal determines that they are necessary. 4.91 When orders are made by the Families Tribunal they should be recorded in a parenting plan. The Tribunal will also have power to amend its orders if subsequent changes in the circumstances of the family so require. 4.92 When orders are breached, the first step should be to return to the Tribunal to consider whether the dispute involved in the breach can be resolved by a variation in the order, such as awarding extra parenting time to make up for what has been lost. Subsequent breaches, where the tribunal concluded that further variation was not going to address the behaviour of the party in breach, would be referred to a court for enforcement action. 4.93 The statute which creates the Families Tribunal would make it clear that orders made by the Tribunal are to have binding effect. The statute would also confirm the Tribunal’s ability to vary its own orders on the basis of changes in circumstances. The courts’ enforcement processes would then be confined to determining whether there had been a breach of the Tribunal’s order and imposing a penalty when appropriate. 71 . A NEW FAMILY LAW PROCESS 89 4.94 There is considerable scope for the Parliament to allow judges and magistrates to dispense with the rules of evidence and procedural complexity if it thought fit. The constitutional constraint is that judges and magistrates (and anyone exercising delegated authority) should act judicially. This allows room for the government to work with the FCoA and FMC to explore different ways of acting judicially in dealing with the parenting cases remaining within their post Families Tribunal jurisdiction, including the enforcement role. This would allow for non-adversarial and more user-friendly processes across the whole range of parenting disputes. To act judicially does not require courts and judges to operate in the usual manner dictated by common law tradition if Parliament legislates to allow different approaches. 4.95 Clearly any significant reshaping of the family law system will require careful and detailed consideration by governments and by other stakeholders. The committee has not developed all the detail of its vision but outlines its conclusions about what are the key characteristics for a system to achieve the objectives it is seeking. The legislation necessary to support the objectives will need to identify the legal and constitutional details to ensure a properly integrated and valid solution. aph.gov.au/…/house_of_representatives_committees…
Posted on: Mon, 05 Jan 2015 22:53:07 +0000
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