Accessible, equitable, responsive and better prioritising the safety of families
To address the challenges identified in Chapter 3, this chapter examines a number of proposals, both outside of the court system and within it. As the chapter will note, these proposals will better ensure that the family law system is accessible, equitable, responsive and prioritising the safety of families.
The chapter first addresses proposals for a new risk assessment tool for use across the entire family law system by all professionals working within the system.
The chapter then examines out of court processes, focussing on improvements that can be made to enhance and extend family dispute resolution to families affected by family violence, as well as recent government announcements for parenting managing hearings.
The chapter also discusses proposed improvements for court‑based processes including suggestions for:
enhanced risk assessment upon filing;
case management and triaging;
information sharing as a way to address jurisdictional fragmentation;
determining family violence allegations earlier in proceedings;
improving the scrutiny required of consent orders;
increasing the exercise of family law jurisdiction by state and territory magistrates; and
greater use of specialist family violence courts, divisions and lists.
The chapter then presents evidence received on the challenges and limitations of obtaining legal representation in family matters, and proposals for extending the information sharing platform attached to the National Domestic Violence Order Scheme to include all family law orders and orders issued by children’s courts.
Lastly, the chapter addresses recent government announcements to increase the availability of legal and non‑legal support to families navigating the family law system.
The Committee’s comment and recommendations appear at the end of this chapter.
A new risk assessment tool across the entire family law system
A key theme in evidence to the inquiry was that, at present, the family law system does not adequately screen for the risks associated with family violence. The importance of risk assessment was identified by Women’s Legal Services Australia who stated:
The identification of risks associated with family violence and other safety concerns is the first step toward supporting families to reduce or at least manage these risks.
Jannawi Family Centre similar noted that appropriate screening and assessment is ‘a critical and important first step, as without it, safety cannot be established and any future orders or arrangements made will inevitably lead to risks escalating or harm being caused’.
To address this, a significant number of participants in the inquiry advocated for a new risk assessment tool that can be used across the system by different professions.
There are a number of existing risk-screening assessment tools, many of which differ by state. For example, the Detection of Overall Risk Screen (DOORS) was commissioned by the Attorney-General’s Department through Relationships Australia, South Australia. Released in 2011–2012, DOORS is:
… a validated, culturally sensitive front‑line common screening and risk assessment tool, framework and associated package and software system that assists separating families and family law professionals to detect and respond to wellbeing and safety risks in families, at the entry point to services, across the family law system. It is particularly focused on risks to families exposed to family violence and child abuse, and assists professionals to develop client safety plans and refer clients to other appropriate services.
Stakeholders indicated that DOORS is not widely used as many professions are not aware of the screening tool, or because it is not sufficiently tailored to each profession working within the family law system.
The Castan Centre for Human Rights Law stated that although DOORS was developed for the federal family law system, ‘it is not used by all family law professionals, especially family lawyers’. This was also the conclusion of the Australian Institute of Family Studies in a 2015 evaluation.
Two other risk assessment tools were raised in evidence. In New South Wales, the Domestic Violence Safety Assessment Tool (DVSAT) provides ‘a standardised set of questions that provide recognised risk indicators’. In Victoria, the Common Risk Assessment Framework (CRAF) is used. Stakeholders identified that the CRAF has ‘the potential to provide a best‑practice model for a validated risk assessment tool which could be used nationally’.
The Castan Centre for Human Rights Law commented that multiple risk assessment tools used across jurisdictions and among different professions ‘creates the dangerous potential for family violence cases to go unidentified or for a lack of responsiveness … creating safety risks for victims and their families’. This was also a finding by the Coroner in the Luke Batty Inquest in Victoria, who noted the problem of risk assessment tools that were not validated, uncoordinated, not uniform in approach, and which were not routinely shared between service providers. The Coroner’s report recommended that national risk assessment tools need to be:
… dynamic, collaborative, comprehensive, and up‑to date. That is, once commenced, a risk assessment considers all the information available to all relevant agencies, is updated and maintained for a family where family violence has been indicated or reported.
In recent years, there have been numerous recommendations made by reviews of the family law system for improved risk assessment screening tools. For example, the Family Law Council recommended improved risk assessment and management in the family law system, as well as a simplified risk identification mechanism.
This recommendation was also central to the recommendations of the Victorian Royal Commission into Family Violence (the Royal Commission). The Royal Commission recommended that the Victorian Government, through the Council of Australian Government pursue the development of a national family violence risk assessment framework with consistent use of this tool by state, territory and federal courts, lawyers, government and non‑government service providers.
These recommendations were echoed in evidence to this inquiry. Women’s Legal Services Australia, for example, recommended the development of a national risk assessment frame that is:
multi‑method, multi‑informant, while placing particular emphasis on the victim’s own assessment of risk;
culturally sensitive; and
supported by appropriate training.
This recommendation was broadly supported by other stakeholders. Legal Aid NSW was of the view that a nationally consistent screening and risk assessment tool would help ensure:
continuity, so that the same risks were being assessed in the same manner and with the same degree of prioritisation;
more accurate identification of risk factors, as well as broader social needs which elevate the risk of family violence (such as drug and alcohol use, mental health and homelessness);
earlier identification of risk factors as well as social welfare needs, resulting in better service referral and safety measures;
greater awareness of risk and urgency;
a flag or common language for all services about safety concerns;
improved communication between services and jurisdictions; and
collection of consistent data.
The Castan Centre for Human Rights Law strongly supported the development of a nationally consistent family violence risk assessment framework, commenting that it should be developed as ‘a matter for urgent priority’.
Women’s Legal Services Australia further recommended adopting an established assessment framework such as the Victorian CRAF or the NSW DVSAT. It also advocated that the risk assessment tool should be used across the family law system by family lawyers and family dispute resolution (FDR) practitioners that is either consistent with or an adapted version of the framework used by the courts. Legal Aid NSW recommended the DVSAT as a model, commenting that it has ‘already demonstrated … great benefits’.
Jannawi Family Centre commented that a process for screening for family violence needed to identify ‘dynamics of control and coercion, an imbalance of power and the presence of fear’. Australia’s National Research Organisation for Women’s Safety (ANROWS) recommended the inclusion of screening tools to detect economic abuse and determine the impact on financial wellbeing.
The Attorney‑General’s Department (the Department) advised that in the ‘short to medium term’, the Australian Government:
is looking to work with the states and territories to improve family violence risk assessment processes within the justice sector, underpinned by the work on the National Risk Assessment Principles.
Under the Third Action Plan of the National Plan to Reduce Violence Against Women and their Children, the Council of Australian Governments has agreed to develop and implement ‘national principles of risk assessment’. This is being led by the Department of Social Services through ANROWS, and will be completed by June 2018.
The Department advised:
The National Principles will establish best-practice and complement work undertaken by the states and territories. Given the multi-disciplinary and diverse nature of services providing assistance, government agreed to the development of national risk principles, rather than a national risk assessment tool. This approach allows for variations in approaches and tools in different jurisdictions that reflect their existing systems and legislation.
Also of note, in 2016 both the Family Court of Australia (the Family Court) and the Federal Circuit Court of Australia (the Federal Circuit Court) announced a new screening approach for family violence cases, including pre‑interview screening in all locations at interim hearings.
Out of court processes
Family dispute resolution
Overview of family dispute resolution and family violence
Compulsory FDR was first introduced in 2006 with the intent of providing a workable alternative to adversarial processes in the courts. The FDR system was described in evidence as a ‘diversionary system’: ‘designed to catch people early, when [they are] beginning their transit through the family law system’.
However, as discussed in Chapter 2, family violence matters are often screened out of FDR due to safety concerns which ‘may limit the opportunity for early resolution’.
Relationships Australia estimates that 70 per cent of families who attend FDR are families who have experienced family violence. Family and Relationship Services Australia similarly reported that the family violence is present in ‘the majority of cases’, with the majority of its member organisations reporting that family violence was present in 60 to 80 per cent of cases at the point of intake.
If family violence is identified, the FDR practitioner may:
issue a 60I certificate for the matter to proceed to the Court; or
continue mediation, where appropriate, whilst continuing to monitor levels of conflict and violence and provide ongoing external support services.
Evidence also suggested that some FDR practitioners are working with legal assistance services to provide legally-assisted mediation once family violence has been assessed, but this does not appear to be a wide spread practice.
Relationships Australia estimated that 80 per cent of those families who are issued with 60I certificates are affected by family violence. Similarly, Interrelate provided data that in 72 per cent of its cases, parties were issued with 60I certificates to proceed to the Court, despite 46 per cent of clients wanting the FDR process to continue. Interrelate reported a 14 per cent increase in the number of 60I certificates being issued in recent years.
Although the majority of cases presenting for FDR include family violence issues, Interrelate reported that of those, only 49 per cent commence proceedings in the Court. Of that 49 per cent, 17 per cent proceed through to final orders. The majority of cases do not formally resolve, leaving many families with informal arrangements for both parenting and property matters following separation.
Improving consistency when identifying violence in FDR
FDR practitioners may become aware of family violence issues at any stage of the FDR process, and ‘their capacity to respond is determined by the information they receive throughout the process’. Interrelate stated that although clients are asked directly about family violence as part of the intake process, ‘unless a client discloses the violence (or other forms of abuse) the FDR practitioners cannot support the client or intervene in regard to the violence’.
Evidence to this inquiry suggests that FDR practitioners’ assessments of family violence may not be consistent across family relationship centres, or appropriately managed. Indeed, although there is a high incidence of families affected by violence using FDR, the Australian Institute of Family Studies (AIFS) has found that FDR practitioners are not appropriately managing family violence during FDR processes.
However, some stakeholders advised that screening for and identifying family violence is challenging work for FDR practitioners. Family and Relationship Services Australia commented:
The challenge of meeting the needs of these clients in potentially volatile situation, and the careful and comprehensive ways in which the family and relationships sector is meeting needs, is not always fully appreciated by people outside the sector. Services have developed comprehensive screening tools and processes that assist them to respond to family and domestic violence. However, despite this, the increasing demand on all parts of the family law system … indicates the need for improvements [in] … support services and an adequate resource base.
If family violence is not identified, either by the parties themselves or FDR practitioners working with the parties, the family may inappropriately proceed to non‑legally assisted FDR. Women’s Legal Services Australia were of the view that ‘this carries with it a significant risk that power imbalances are perpetrated through the process’, which can lead to the parties agreeing to arrangements that ‘do not adequately take into consideration family violence’.
A number of stakeholders supported the development of a common family violence assessment tool for FDR practitioners to ensure consistent screening of families participating in FDR. In 2010, the joint report by the Australian Law Reform Commission and the New South Wales Law Reform Commission (ALRC/NSWLRC report) recommended improving the standards in identification and management of family violence by FDR practitioners, and training in improved risk assessment tools and frameworks for these practitioners.
Relationships Australia also identified that training is needed to ensure that FDR practitioners ask all FDR clients about family violence and that they do so in a way that is likely to elicit disclosure, commenting that FDR practitioners must ‘at a minimum, be able to effectively assess for, and make decisions about, consequent capacity and safety to participate in FDR’. The professional capacity of FDR practitioners is discussed in Chapter 8.
Family and Relationship Services Australia further advocated greater regulation of FDR practitioners to ensure a systematic approach is employed to identify family violence. It recommended:
amendment to Family Law (Family Dispute Resolution Practitioners) Regulations 2008 to extend the obligations of family dispute resolution practitioners to their clients to encompass the following:
preparation of a safety plan and referral to a specialised family violence support service;
referral for legal advice on personal protection orders and options for addressing parenting arrangements;
referral for therapeutic support for affected parents and children; and
referral to behaviour change programs, and other referrals for other support needs including housing, mental health or substance misuse needs.
Relationships Australia was of the view that assessing families for family violence is not, of itself, sufficient and advocated for a model that requires ’all clients assessed as family violence-affected to be referred to a specialist family violence case coordinator (family safety practitioner) who proactively prioritises the safety of [families]’. Under this model, the family safety practitioner would coordinate services by providing key elements such as the joint planning of interventions, facilitate service delivery by a range of agencies or practitioners, with a view to developing a case plan. Referrals to other services would also be made where appropriate. Relationships Australia advocated that if embedded in each family relationship centre, family safety practitioners could ‘provide a first point of contact network across Australia and would be a readily identifiable resource that the courts, community sector … could refer’.
Relationships Australia advised that it is conducting a ‘small pilot’ of this model which will conclude by August 2018.
Box 4.1: Family Dispute Resolution
The following is a selection of responses to the Committee’s questionnaire:
‘The Family Dispute Centre Staff were very kind and understanding of our family’s situation. They helped my ex-husband and I formulate a Parenting Plan that was appropriate to manage the fall-out from what he had done’.
—Respondent from Queensland
‘The mediation organisation … ended up telling me that if they did mediation it would be detrimental to my case and just issued the family dispute resolution certificate, even though I pleaded with them to do mediation, as I couldn’t afford to go through the courts’.
—Respondent from Queensland
‘[Family dispute resolution] attempts didn’t proceed as it was considered not appropriate to proceed and 60i certificates were issued’.
—Respondent from New South Wales
‘Many attempts at Family Dispute Resolution did not address family violence appropriately, with the tick boxing questionnaires and inexperienced staff’.
—Respondent from Queensland
‘Family Dispute Resolution Services are great but there is no consequence to not participating. Getting a certificate to begin a case in the Family Court is wrong. If a court order was made on the same day as the [family dispute resolution] that may work, but waiting for months on end… is terrible for children’s interests’.
—Respondent from Victoria
‘Family dispute resolution was a disaster as the children were interviewed with their father. He became aggressive during the process. The children were traumatised by the process’.
—Respondent from Queensland
Legally-assisted family dispute resolution for matters involving family violence
A number of stakeholders advocated removing the restrictions on families affected by family violence from participating in FDR, with some making specific recommendations for the greater use of legally-assisted FDR to address power imbalances that may exist in the relationship.
Women’s Legal Services Australia advocated that a ‘well‑supported and safe mediation process, with expert lawyers and mediators’ who have a sound understanding of family violence and family law ‘can be an empowering process for a victim’. The Service noted that ‘simply referring a matter into a complex court system rarely results in a good outcome’.
The Law Council of Australia advised that there are some families affected by violence who do wish to participate in FDR but noted that they are not the majority.
Women’s Legal Services Australia identified a number of legally‑assisted FDR processes as models for consideration. This included models where legal assistance services partnered with family relationship centres in a number of sites throughout Victoria and Western Sydney.
A number of participants made specific reference to the Coordinated Family Dispute Resolution (CFDR) pilot, recommending the extension of the pilot. The CFDR was piloted in five sites (Perth, Brisbane, Newcastle, Western Sydney and Hobart) in 2012. It involved an FDR practitioner, specialist family violence professionals for both the perpetrator and victim, and a legal advisor for each party. Children’s consultants were also included where appropriate.
The process was a multi-agency, multidisciplinary setting and aimed to provide a safe, non-adversarial and child-sensitive means for parents to resolve post-separation parenting disputes where there were allegations or findings of family violence. CFDR provided intensive support to parents to ensure that power imbalances resulting from family violence did not impede parents’ ability to participate effectively in the process.
The AIFS evaluated the CFDR pilots in 2012, finding that participants were ‘mostly positive about the process, with some exceptions’. The AIFS concluded that the potential for victims to experience emotional trauma through mediation could ‘not be underestimated’, and cautioned that face-to-face mediation as a first preference in this context ‘is questionable’. However, the AIFS evaluation also found that where CFDR mediation sessions were handled carefully, the parents involved in the evaluation indicated that the process ‘can be safe and can empower parents to make appropriate arrangements for their children’.
In evidence to the present inquiry, Women’s Legal Services Australia noted that CFDR’s ‘extremely positive’ for families affected by family violence.
Other mechanisms were also discussed in evidence. For example, the Law Society of New South Wales operates the Family Law Settlement Service which is a court-supported FDR process for property and parenting matters where parties report back to the Court. The Law Society of NSW commented that the service:
… is a cost-effective service which has the benefit of us reporting to the court. We see that people comply with those orders because they know that we advise the judge’s associate if non-compliance has occurred, and then there can be cost implications to a party if they have not complied.
An FDR-process attached to the Court was supported by law firm Lander & Rogers, who stated that the process ‘is absolutely the future of family law proceedings’.
In another example, Victoria Legal Aid provides legally‑assisted FDR through a series of ‘shuttle conferences’. A shuttle conference is where parties do not have to see or speak to the other party directly. The FDR practitioner speaks to each party and their lawyer separately. They can occur in safe rooms within the same building, or they can occur over the telephone.
Family and Relationship Services Australia advised however that its membership organisations have experienced issues with accessibility of lawyers to act in legally-assisted FDR as two different legal services are required to provide advice to both parties and ‘there is no additional funding to sustain this type of more costly [FDR] service despite its benefit’. Similarly, Interrelate reported existing delays of up to three months before lawyers are available to assist in FDR processes.
Other stakeholders cautioned against this approach due to the inherent power imbalances in relationships where there has been family violence, or the capacity of FDR practitioners to manage these dynamics. For example, Queensland Domestic Violence Services Network cautioned against resolving family law matters involving family violence through FDR, principally due to the ‘significant variation in the screening tools’ used by FDR practitioners. Other stakeholders identified that FDR can even exacerbate family violence as it ‘constitutes another opportunity for coercion from perpetrators’.
For example, the National Family Violence Prevention and Legal Services Forum (NFVPLSF) similarly cautioned that FDR ‘presumes an equal playing field in which both parties have the capacity to put their views forward freely and effectively, without fear of censorship’. The Forum continued, commenting that ‘this is simply not the reality in situations of family violence which inevitably involve power imbalance, coercion and fear’.
The Australian Association of Social Workers similarly commented:
… mediation assumes equal power in the parties that are mediating. For a victim of family violence, that power is not there. It would, as you say, depend on the risk as well. It is a strongly held view that a woman would not sit there and tell the truth about what is going on if she is going back into that house with that perpetrator after the mediation session. It is just not going to happen. The fear will not allow it.
The NFVPLSF stated that FDR, whether legally-assisted or not, is ‘not appropriate nor in the interests’ of Aboriginal and Torres Strait Islander families, though noted that legally‑assisted FDR ‘can be a more attractive prospect than protracted proceedings for some clients’.
As part of the Third Action Plan under the National Plan to Reduce Violence Against Women and Their Children, the Australian Government allocated $6.2 million over three years from 2016–17 for piloting enhanced models of legally-assisted and culturally appropriate FDR. These pilots are to be delivered by Family Relationship Centres. The Committee was informed that the pilots would commence in mid‑2017 and ‘will be evaluated to determine whether they provide a safe and successful alternative to court’ with a particular emphasis on whether they assist Aboriginal and Torres Strait Islander families and culturally and linguistically diverse families. Culturally‑appropriate FDR for Aboriginal and Torres Strait Islander and culturally and linguistically diverse families is discussed further in Chapter 7.
Women’s Legal Services Australia welcomed the funding announcement, however commented:
… it is unclear whether this amount of funding meets the legal need there is for legally assisted dispute resolution in family law, over what period of time this funding will last and whether it is intended that services will be funded beyond the ‘pilot’ stage.
Rather, the Service recommended consideration of the Victoria Legal Aid Family Dispute Resolution Service and its partnership programs between legal assistance services and family relationship centres.
Parenting management hearings
In the 2017–18 Budget, the Government announced $12.7 million to establish two pilots of a new model for resolving less complex family law disputes between self‑represented parties. Parenting Management Hearings (PMH) will be a ‘less-adversarial forum that will support self‑represented parties to resolve their parenting disputes more quickly’. The Department explained:
Unlike the traditional adversarial system, where two opposing sides present their cases, those managing the Hearings will undertake inquiries and gather information to promote informed and safe outcomes for families. The Hearings will be supported by wrap-around services to better support families, for example—financial counselling and drug and alcohol services. The PMH will not deal with matters involving families with complex needs, such as where there are allegations or substantiated claims of family violence.
The Department advised that the key objective of PMH is to ‘divert less complex cases away from the Courts to ease the caseload burden and allow judicial resources to be concentrated on resolution of more complex cases’.
At a hearing, the Department advised that, while the final details had not yet been determined by government, it envisages that PMH will comprise a multidisciplinary panel of one to three members with a range of expertise including in family law, social work, psychology or child development. The panel may also be assisted by an Independent Children’s Lawyer and family consultants when conducting inquiries and fact-finding. After undertaking inquiries, the PMH will make ‘short-form judgements or decisions’.
Although the mechanics of the referral to the PMH are yet to be confirmed, the Department advised that parties may be referred to the PMH through a range of mechanisms, including self‑referrals and from family relationship centres. At time of writing, the Department had not settled a position on whether parties would be required to attend FDR prior to commencing PMH proceedings or whether parties would be required to obtain a section 60I certificate.
The first pilot of the PMH will be located in Parramatta in April 2018, with a second site yet to be announced.
The Department advised that the PMH will include ‘triaging processes and risk identification processes’ to ensure that parties involved in those proceedings are not exposed to further risk. The Department explained that ‘if there were a case that [the PMH panel] did not consider was appropriate for them to consider, [the panel] would be able to refer that out, or not take that matter on, and it would be diverted into the Court system’.
As PMH will be administrative proceedings and not judicial proceedings, families will retain appeal rights to the Family Court to review decisions made by the PMH panel.
The Law Council of Australia expressed concern about families affected by family violence potentially being included in the PMH proceedings. Women’s Legal Services Australia expressed similar views, but were of the understanding that families affected by family violence would not be included in PMH. National Legal Aid stated that it was not clear how family violence considerations will be triaged and managed, though were supportive of mechanisms that ‘free up some of the resources of the family law courts to enable an earlier response to matters involving more complex issues’. Former Commissioner of the Victorian Royal Commission into Family Violence, the Hon. Professor Marcia Neave AO also expressed concern and was of the view that legally-assisted mediation would be a preferable approach.
Professor Patrick Parkinson AM, who originally proposed an inquisitorial, panel‑based mechanism in a paper to the Australian Government, stated:
… the enormous advantage of them, amongst many advantages, I think, is they are outside of Chapter III of the Constitution. Chapter III of the Constitution does, according to previous case law, seem to indicate that an adversarial approach should be normative … But the idea is to give a very structured, inquisitorial process, rather than having self-represented people trying to manage the court systems, the forms and the procedures; a very proactive finding out about what the case is all about early on … You would have a lawyer, but you might well have a paediatrician, a drug and alcohol specialist, a psychologist ... I believe a well set-up panel like that, given two hours, could get far closer to the heart of things than a court hearing taking two days.
Professor Parkinson advocated that matters involving family violence should be included in the PMH pilot, commenting ‘it would be an extraordinary mistake if it didn’t, because that’s 60 per cent or more of the workload’.
The Department advised at a later public hearing that whether the PMH will examine matters involving family violence is pending a final decision by the Australian Government. The evaluation of the PMH pilots will form part of the Australian Law Reform Commission’s review of the Family Law Act 1975 (Cth) (the Family Law Act).
Design and delivery of court processes
Family violence matters form a significant part of the work of federal family courts as well as state and territory courts. Dealing with family violence has been described as ‘core business’ of the federal family courts. Indeed, 50 per cent of matters before the Family Court, 70 per cent of matters before the Federal Circuit Court and 65 per cent of matters before the Family Court of Western Australia, involve allegations of family violence.
It is critical that the courts are appropriately designed around its core activities. This section discusses the design and delivery of a number of court processes that are necessary to better support and protect families affected by family violence. In so doing, it does not examine the specifics of property and parenting matters—these are addressed in separate chapters (Chapters 5 and 6 respectively). This section examines:
introducing mandatory risk assessments upon filing matters in the courts;
the role of case management and triaging within courts and between jurisdictions;
avenues to improve information sharing across jurisdictions;
determining family violence allegations earlier in the proceedings, as well as the way in which evidence can be adduced in court;
strengthening the courts’ review and scrutiny of consent orders;
the role of state and territory magistrates in family law matters; and
the capacity of specialist family violence courts and opportunities for their expansion.
Risk assessment upon filing
Evidence to the inquiry noted that the risk assessment tool as discussed earlier in this chapter should also be used within the Court. As discussed in Chapter 2, a party who makes allegations of family violence or child abuse must file a Notice of Child Abuse or Family Violence. In 2009, Professor Chisholm concluded that the Notice of Risk form, as a risk assessment mechanism, was ‘not working’ and that:
… it would be better to have a system of risk identification and assessment that applies to all parenting cases. This approach would reflect the best available thinking about these issues, and would reinforce a lot of measures that are already being taken by the courts to identify and deal with issues of violence as early as possible.
In a submission to the inquiry, Queensland Law Society advised that the requirement to file a Notice of Risk form may be insufficient in itself to ensure that the Court is made aware of all relevant risk factors. The Society was particularly concerned for self-represented litigants or litigants which may not understand the breadth of the definition of family violence. It also highlighted that the Notice of Risk form is not required to be filed for matters that do not include parenting matters.
In the experience of Women’s Legal Service NSW, formal risk assessments undertaken by the Court often do not take place until the preparation of a family report, further commenting:
This often does not take place until months after the legal proceedings have commenced and often occurs after Interim Hearings have taken place and decisions regarding the children’s contact with a perpetrator, albeit on a temporary basis, have already been made.
Further the Committee was informed that, it is not uncommon for matters to settle via consent orders before a risk assessment is completed, and therefore the Court may make an order without being advised of the risk of family violence.
To improve the risk information available to the Court, Women’s Legal Services Australia recommended amending the Family Law Act and any other supporting legislation, to require that a risk assessment be automatically conducted by family violence specialists embedded within the court registry upon filing of any family law application. It advocated for such a service to be embedded within the Court as opposed to a third party provider as it would ‘give any risk assessment greater credibility’. This recommendation was broadly supported by participants in the inquiry.
Women’s Legal Service NSW was of the view that early risk assessment processes undertaken by an appropriately qualified family violence specialist would ‘significantly increase the safety’ of families.
People with Disability Australia supported the proposal, further recommending that specialists undertaking assessments should also receive disability awareness and competency training to ensure the Court is aware of additional risks of families with parents or children with disability.
The Law Council of Australia recommended that the risk assessment undertaken by the FDR practitioner prior to the filing of applications at the registry, could be incorporated into the court-based risk assessment.
InTouch Multicultural Centre Against Family Violence also recommended that court staff ‘check for the existence of family violence intervention orders prior to the first mention, and, if an intervention order is in place, provide this information to the judge and the parties’.
This reflects previous findings and recommendations from other reports: the ALRC/NSWLRC report made a number of recommendations to improve the information available to the Court to manage risk earlier. The Commissions recommended amendments to initiating application and response forms to:
clearly seek information about past and current family violence protection and child protection orders obtained under state and territory law; and
seek more general information about safety concerns.
Victoria Legal Aid was of the view that ‘simply to provide a family violence worker’s risk assessment to the judicial officer … would not be adequate for the Court to effectively address risk’. Rather, it argued that providing a risk assessment to the Court is less helpful to the judicial officer presiding and present a challenge to the rules of procedural fairness. In this context, it stated that ‘providing a risk assessment to the judicial officer cannot replace judicial decision-making’.
As noted above, the Family Court and the Federal Circuit Court announced the implementation of a new screening approach for family violence cases. This was welcomed by a number of organisations including Women’s Legal Services Australia and Domestic Violence NSW.
Importantly however, ‘risk is not static’. Women’s Legal Service NSW commented:
We also note that risk is not static and that throughout the legal proceedings the risk to victims can change. It is not uncommon for proceedings to continue over several years and for new incidents of violence to occur during the proceedings. Any risk assessment process should include a mechanism for ongoing risk assessment and for parties to be referred back to the specialist embedded family violence support worker if circumstances have changed.
Indeed, to actively manage dynamic risk requires appropriate case management, triage and referrals. This is discussed in the following section.
Case management, triage and referral
Evidence to the inquiry acknowledged that while there has been improvement in courts’ management of high‑risk cases, there was broad recognition that this could be significantly enhanced further. The Hon. Professor Marcia Neave AO, explained the risks where the court system fails to triage and actively manage its case load:
I don’t think courts have been good enough in the past at triaging. They need to be able to identify the cases where there are urgent safety issues and deal with them quickly, but it’s also important to respond quickly to cases that aren’t as bad at the moment but may get worse over time ... For example, if you have an alleged perpetrator of violence who can’t see his children because an interim order is in place or can only see his children in a limited way for weeks or months, that’s a recipe for rage, frustration and the matter becoming worse. That puts his partner and his children at a high risk of harm.
A number of participants in the present inquiry recommended improved case management and triaging processes within each court and between courts of different jurisdictions. Both are discussed below.
Case management and triage within the court
To ensure that the Court responds to the dynamic family violence risk environment identified in the previous section, Women’s Legal Services Australia emphasised the need to triage and case manage matters. This recommendation was supported by multiple participants, including Family and Relationship Services Australia who identified that improved triage would help to ensure that ‘priority is given to children and parents genuinely at risk’. Victorian Women Lawyers provided similar evidence.
Previous reviews have recommended establishing processes of scrutiny and triage that identifies cases that require urgent attention by the courts.
Evidence to the inquiry also advocated for case management system modelled on the Magellan program. Operating only in the Family Court, the Magellan program is a dedicated, fast-tracked pathway for serious cases of child abuse. The program is discussed further in Chapter 6.
The Law Council of Australia identified that improved triaging of cases would require additional resources made available to the courts, specifically more registrars. The Community and Public Sector Union also noted that additional resources would provide for early identification and support more effective responses to family violence.
Case management and referral between jurisdictions
Multiple stakeholders also discussed the need for improved case management between jurisdictions through establishing formalised referral pathways. The referral mechanisms discussed would enable state or territory magistrates, after making orders under state or territory family violence legislation, to refer the matter to the federal family courts for resolution of family law matters that may also provide support and protection for that family.
For example, the Law Council of Australia stated:
At the moment, there is no easy referral process. A magistrate cannot make an order referring a case to the Federal Circuit Court and guarantee that they will get a date within four weeks, for instance. That kind of seamless referral of cases would be fantastic.
The Central Australian Aboriginal Family Legal Unit similarly supported a referral pathway. It proposed a mechanism whereby a state or territory magistrate could issue an order referring the matter directly to the federal family courts that would allow the federal courts to ‘consider the material without further delay’. Under that model, the registries of the federal family courts would then seek to case manage the matter by supporting the parties to progress the matter in that second court. The Unit explained:
[There would be] no expectation then for the client to go off and see another lawyer and prepare a Family Court application; it’s immediately before the Federal Circuit Court, and they have got it in their intake, so they can then start to progress the matter … It’s almost like an invitation [to the parties] … to move on their matter, rather than leaving it at the point that we often see—that is, a domestic violence order has been made, there’s a provision for parenting orders and nothing happens. … It basically streamlines it so that he or the people who are involved, such as the registry, can then allocate where matters go without so much delay.
Springvale Monash Legal Service also recommended an expedited link to the federal family courts from state and territory magistrates courts specifically for matters involving children.
Evidence to the present inquiry noted two recent trials of case management between the courts. The Law Council of Australia advised of a trial in Brisbane whereby matters were referred from a local magistrates court to the local Federal Circuit Court registry. The Council explained:
It was an informal arrangement between the local court in Brisbane and the Federal Circuit Court registry in Brisbane. If a local magistrate thought that someone needed to have an urgent family law order, it was fairly basic. They literally got a slip of paper signed off by the magistrate which they could take to the Federal Circuit Court and say, ‘The magistrate said this case is urgent.’
The Council advised however that the process ‘effectively failed because the Federal Circuit Court could not give the urgent dates that the magistrate thought they needed’. The Council stated that this was due to resourcing implications in the Federal Circuit Court.
In another case management trial, the ALRC/NSWLRC report noted that in Tasmania, the police, the magistrates court and the Tasmanian registry of the Family Court developed protocols to improve pathways between the courts. Under the protocol, if a family court contact order poses a risk to the safety of a victim of family violence, the police prosecutor alerts the magistrate to this concern. The magistrate can suspend the order for a period of days, and make a protection order. The magistrates court file setting out the grounds for the suspension is subsequently transferred to the Family Court for review of the contact order within the period of suspension.
The ALRC/NSWLRC Report recommended that, subject to a positive evaluation of the Tasmania protocols, other states and territories adopt similar cooperative models to address inconsistent coexisting orders.
Information sharing across jurisdictions
As noted in Chapters 2 and 3, no single jurisdiction has sole responsibility for family violence matters; this responsibility is shared or ‘fragmented’. The fragmentation of the family law, family violence and child protection systems (and resulting inconsistencies) were discussed by a large number of stakeholders.
A former Justice of the Family Court, the Hon. Professor Nahum Mushin AM advised of his experiences on the bench:
I was constantly concerned by the dangers of a lack of communication between the various Courts to ensure that everyone had all the relevant information about each matter. For example, if the [Family Court] did not know about the existence of a an intervention order, the consequences for a child in granting the perpetrator contact would be catastrophic. Judges live with that fear constantly … There needed to be a central coordination body, administered at a high level, to ensure the constant flow of information.
Successive inquiries and reviews have proposed that information sharing across jurisdictions is the most effective way to address constitutionally fragmented systems. For example, the Family Law Council’s 2015 interim report identified two central initiatives: the sharing of reports and risk assessments; and the creation of a national database of court orders.
This echoed previous recommendations by ALRC/NSWLRC report. The Commissions also recommended a suite of changes to state and territory legislation to facilitate the provision of confidential information to the family courts and the development of protocols for the exchange of such information.
Evidence to the present inquiry described information sharing as an ‘absolutely imperative’, with a large number of stakeholders identifying opportunities for greater collaboration to ensure risk is responded to appropriately. For example, the Queensland Law Society stated:
A robust information sharing regime between child protection agencies, police and state health authorities would enhance the Court’s capacity to properly assess the risk of family violence. [The Court should be able to] … order a report from [these] relevant authorities… in matters involving family violence which would outline information relevant to the Court’s assessment of family violence.
Similarly, the Victorian Southern Metropolitan Region Integrated Family Violence Executive advocated for the sharing of information between courts of different jurisdictions:
Magistrates Courts and Family Courts needs to be automatically linked and have better communication and automatic alert systems, so that processes can be streamlined and sped up, especially for high risk cases … systems not talking to each other and sharing information puts women and children at greater risk.
The Castan Centre for Human Rights Law commented that information sharing, including access to orders made by other courts, is ‘crucial’ to allowing proper identification and management of family violence risk. The Centre further commented that the current lack of information sharing is often a cause of delay in both state and territory magistrates courts and federal family courts, as matters have to be stood down to allow the Court to determine what orders have been made by other courts. Avenues to improve information sharing about family law, child protection and family violence orders are discussed at the end of this chapter.
Some stakeholders identified that all family law, child protection and domestic and family violence matters should be determined in a single court, ‘ensuring that all relevant information is gathered to inform family law court orders, child protection orders and domestic and family violence orders’. This proposal is also discussed later in this chapter.
Early determination of family violence allegations
There may be many months, ‘sometimes years’ between an allegation of family violence being raised in family law proceedings and the Court making a decision whether violence has occurred. Yet ‘without this finding, decisions … are made without information that is vital to ensuring safety’. For those against whom allegations are made, timely resolution is also vital.
Although the Family Law Act requires the Court to take prompt action in relation to allegations of child abuse or family violence, Victoria Legal Aid advised that ‘this is not by itself resulting in early findings in matters involving family violence allegations’. The Victims of Crime Assistance League NSW commented that ‘the current approach takes too long’ and increases the risk to safety and psychological health. Similarly, Women’s Legal Services Australia commented that delays in determining family violence allegations:
… places victims of violence and their children at considerable risk as they can be pressured to agree to interim time arrangements that a court might well consider inappropriate had a finding actually been made on the allegation of violence or the questions of risk.
Victoria Legal Aid noted that this could be the result of resourcing constraints and the absence of information required to make such a determination early, though it also reflects the ‘culture’ and ‘reluctance’ of the Court to make a determination at an early stage.
A number of stakeholders recommended legislative amendments to allow for early determination of family violence allegations in order to inform any orders made, or negotiations that progress out‑of‑court which run concurrent to court processes. Victoria Legal Aid commented:
This restructuring of court process would place enquiry about safety at the start and centre of the court’s task. Currently safety, although increasingly a court priority, remains the subject of later determination. This diminishes the court’s impact in managing and responding to family violence risk.
It was also identified that early determination of family violence allegations would deliver cost efficiencies and make the family law system safer for families.
Victoria Legal Aid advised that earlier determinations about family violence will require increased resourcing for the Court as well as for the mechanisms the Court has available to it for gathering information about family violence risks, such as family reports and the appointment of Independent Children’s Lawyers.
The Family Court advised that ‘whether, and if so when, it is appropriate to make a finding of fact in relation to family violence is dependent upon the nature of the matter before the Court, and whether there is sufficient material before the Court to allow it to make such a finding’. The Court further noted that this may not occur until the final hearing of a matter.
The Committee heard that providing evidence during either a criminal or family law trial can result in secondary victimisation and trauma.
To address this, evidence to the inquiry recommended that families affected by violence should be able to provide evidence to the Court by audio-visual links into the Court. As noted below, specialist family violence courts often have the infrastructure of provide evidence via video-link into the court, so as to ensure victim’s safety. It was identified that intimidation of witnesses could be minimised by providing evidence from remote locations within or outside court complex during family law proceedings.
The provision of evidence remotely by remote technology was a recommendation of the Royal Commission with respect of family violence intervention order proceedings under that state’s legislation. This recommendation was accepted by the Victorian Government, which advised in a submission to this inquiry that it is progressing with the roll-out of the required technology.
Further, a number of organisations proposed that the Family Law Act be amended to allow the introduction of evidence provided in a different court, such as a criminal court or a children’s court. For example, the Central Australian Aboriginal Family Legal Unit suggested:
If you’re going to be asking clients to re-traumatise themselves and go through the story again and give further affidavit materials, that’s another impediment. They could possibly, if there were more crossover and collaboration, rely upon some of the materials that they have in other courts and have that considered almost as the level of proof that’s required for family violence so that there is no further delay. You shouldn’t have to have clients speak again about their matters and the trauma that’s then attached to that.
This recommendation was also supported by the Central Australian Women’s Legal Service.
InTouch Multicultural Centre Against Family Violence recommended a cross‑jurisdictional analysis be undertaken into ‘ways of adducing evidence that reduce the need for victims to repeat their stories of violence, including where findings of fact have been made in earlier proceedings, with a view to adopting best practice’.
The Alice Springs Women’s Shelter and the Central Australian Aboriginal Family Law Unit encouraged amendments that would allow for evidence to be provided from support services in the development of family reports or directly to the court, on the changing dynamics of risk to families during proceedings.
In a submission, the Family Court responded to a question in writing from the Committee regarding the extent to which a previous conviction could be relied upon the Court. The Court stated in its answer that this ‘depends on the particular case and the material before the Court’.
Court scrutiny of consent orders
As discussed in Chapter 3, consent orders are an opportunity for a quick settlement and offer a legally enforceable negotiated agreement. However, a large number of participants in the inquiry raised concerns about consent orders in matters involving family violence and the level of judicial scrutiny of the agreements reached therein.
In considering the consent orders, the Court must be satisfied that any orders about children are in the best interests of those children before the orders are made. Orders about property must be just and equitable.
Current case law requires judicial scrutiny to be applied to all applications for consent orders. In T & N , the Court held that consent does not displace the obligation of the Court to make orders that are judged to be in the best interest of children.
However, Victoria Legal Aid advised that in its experience there continues to be inconsistent application of this scrutiny from the court, commenting that ‘shortages of judicial time, resources and training no doubt contribute to these inconsistencies’.
To improve judicial scrutiny of consent orders, Victoria Legal Aid recommended a codification of the case law in the Family Law Act:
No matter how a consent order has been negotiated, consistent application of this judicial scrutiny, informed by knowledge of the dynamics of family violence, is vital to ensure any consent orders support the safety of family members who have experienced family violence … VLA suggests that one way to ensure greater scrutiny in the making of consent orders is codification of the case law on this matter.
It argued that including the ruling in T & N would provide a clearer direction to the Court to ‘more closely examine the arrangement agreed to by the parties, on a more consistent basis, ensuring these arrangements are safe’.
Springvale Monash Legal Service also called for improved scrutiny of consent orders, particularly where consent orders are filed for sole parenting responsibility. The Service recommended in such circumstances, the Court hold a hearing to examine whether the orders were consented to freely, and whether family violence has occurred.
Role of state and territory magistrates courts
As noted in Chapter 2, state and territory magistrates courts have jurisdiction to determine certain parenting and property matters under the Family Law Act. However, magistrates have been ‘very reluctant to use those powers’. Evidence suggests state and territory magistrates rarely exercise the jurisdiction, identifying a number of contributing causes, including:
lack of expertise and knowledge of family law, which it acknowledged as complex;
resourcing and a lack of time in busy courts;
structural impediments including:
the requirement that the parties must consent to the state or territory court exercising the family law jurisdiction in parenting matters;
the monetary limit ($20,000) on hearing property division matters; and
a 21 day limit on a state or territory court’s variation of a family law order.
A number of recent reviews recommended supporting state and territory magistrates to exercise their jurisdiction under the Family Law Act to overcome jurisdictional fragmentation so that family violence, child protection and family law matters could be dealt with by a single judge. Most recently, the Royal Commission commented:
Magistrates’ exercise of their power to resolve parenting disputes in the Magistrates’ Court will make it easier for families to resolve such matters without having to navigate both state and federal courts. We believe that magistrates should also be encouraged to exercise their Family Law Act jurisdiction and family law matters should be listed in the Magistrates’ Court, whenever possible. … Some magistrates may lack expertise in family law and are not confident in dealing with these issues. We consider that magistrates should have sound and up-to-date knowledge of federal family law in addition to knowledge and skills in the area of family violence, so that they are equipped to exercise their jurisdiction.
A number of stakeholders to the present inquiry also identified the opportunity for state and territory magistrates to more frequently exercise their family law jurisdiction.
For example, Women’s Legal Service Australia commented:
So while the one stop shop might be a good idea, again, it is a question of resourcing. It would be terrific for people to have their crisis of family violence upon separation, for example, dealt with in the one court that is looking at its intervention order where that same court can make some decisions regarding children. But that would only be if there were adequate resources and adequate time and not people being barrelled through.
The Hon. Professor Marcia Neave AO was of a similar view that if family law matters were resolved concurrent with family violence orders by state and territory courts, the risk of family violence may be prevented from escalating. Professor Neave explained:
The other advantage of that is, if you do it early, you stop the escalation. It means that people aren’t waiting for a long period of time to work out what’s going to happen, you hope. But we don’t know, so we need to have a … demonstration court project.
The Castan Centre for Human Rights Law identified that encouraging state and territory magistrates courts to more regularly exercise family law jurisdiction would also improve access to justice for those who have experienced family violence.
ANROWS informed the Committee of amendments introduced in Queensland that will require state magistrates sitting in the Specialist Domestic Violence Court to consider whether family law orders need to be varied or revoked to ensure the safety of children in those various systems. Specialist domestic violence courts are further examined below.
Women’s Legal Services Australia noted that a referral from a state or territory magistrate to an FDR service, commenting: ‘when somebody is in a violent situation and they leave that relationship, they do not have to jump in and make decisions about their family law picture. That is going to change over time’. However, the Castan Centre for Human Rights Law noted that federally‑funded services such as FDR, are currently ‘oriented to the federal family court system and good links have not generally been established between local [FDR] service providers … and local courts’.
Evidence to the present inquiry suggests that the state and territory magistrates courts would require additional training and resources to adequately and effectively exercise family law jurisdiction. Professor Neave stated, ‘the Australian Government cannot expect the magistrates court do to all this work and not provide it with funding to do this work’. The Castan Centre for Human Rights Law similarly noted:
With busy lists and tight funding for family violence and child protection matters, the additional cost requirements imposed by increase family law load on the local courts will be prohibitive for many jurisdictions. Given that increased exercise of family law powers by the State and Territory courts is expected to reduce the caseload burden on the federal family courts, some form of payment by the Commonwealth is appropriate.
Submissions from the Victorian Government and the Northern Territory Government strongly advocated for additional resourcing to determine family law matters in the state and territory courts. The Northern Territory Government also outlined a number of other impediments to the greater exercise of the jurisdiction in the Northern Territory including the absence of requisite family law expertise among magistrates. Opportunities for improved training of state and territory magistrates is discussed further in Chapter 8.
As noted in Chapter 1, the Australian Government recently released an exposure draft of the Family Law Amendment (Family Violence and Other Measures) Bill 2017 that would, among other things:
expressly enable state and territory children’s courts to exercise jurisdiction under the Family Law Act; and
increase the monetary limit on the total property pool in property division matters; and
remove the 21 day limit on a state or territory court’s variation of a family law order.
Significantly however, and as the accompanying consultation paper acknowledges, it is not the Australian Government’s intention for state courts to become the primary fora to hear family law matters.
Notably, the Law Council of Australia cautioned against encouraging state and territory magistrates courts to exercise jurisdiction under the Family Law Act due to the resourcing and time limitations:
… magistrates are under an enormous amount of pressure … They are already overworked. To add to them the family law work is not sustainable. They could not do it. We also think that the federal courts have more experience to deal with it.
Specialist courts, divisions and lists
The term ‘specialised family violence courts’ is a general description to refer to a division, program, specialised list or a specialist family violence court room within existing state or territory magistrates or local courts set up to deal with family violence. In Australia, family violence courts now operate in New South Wales, Victoria, Queensland, South Australia, Western Australia, and the Australian Capital Territory.
Specialised family violence courts differ significantly in their features and degree of specialisation. However, such courts will typically exhibit some, or all, of the following:
These will include specialised judicial officers, but may also involve specialised prosecutors, lawyers, victim support workers, and community corrections officers. In some cases, these personnel may be chosen because of their specialised skills, or be given specialised training in family violence.
These will include special days in court dedicated to family violence matters (‘dedicated lists’). They may also include ‘case coordination mechanisms’ to identify link, and track cases related to family violence, such as integrated case information systems, or the use of ‘specialised intake procedures’ (specialised procedures that apply when the victim first enters the court system).
Emphasis on specialised support services
There will be someone, employed by the Court or another organisation, available to support family violence victims in managing the court process, and often these workers are responsible for referring victims to other services, such as counselling. There may also be specialised legal advice or representation available for both the victim and defendant.
Special arrangements for victim safety
Some courts will also include specially designed rooms and separate entrances to ensure the safety of victims, and may offer facilities which enable vulnerable witnesses to give evidence remotely.
Some courts have the capacity to order or refer an offender to a program which aims to educate the offender and address personal issues to prevent re-offending, usually through counselling. Some courts have offender support workers to engage and refer offenders to behavioural change programs.
Specialist family violence courts were discussed widely in the evidence to the inquiry. A number of previous reviews and reports have similarly discussed the benefits of specialist family violence courts. For example, in a 2015 report, the Family Law Council has noted the following:
Council also notes the existence and proposed expansion of specialist family violence courts in several states. … These courts provide a ‘one judge, one family’ model, allowing a single magistrate to exercise multiple jurisdictions where appropriate to address the range of legal needs of clients affected by family violence. This includes powers to determine family violence protection matters, criminal matters related to family violence and family law matters.
Three specific specialist courts were discussed during the inquiry:
the current, Victorian Magistrates’ Court Specialist Family Violence Division in Ballarat and Heidelberg courts, and the forthcoming Specialist Family Violence Court;
Queensland’s pilot of the Specialist Domestic and Family Violence Court in Southport; and
the Northern Territory’s recent announcement of a specialist family violence court in Alice Springs.
The Committee was advised however that not all magistrates exercise family law jurisdiction in specialist family violence courts, despite the improved risk management as highlighted by the Family Law Council above.
A number of stakeholders supported the expansion of specialist family violence courts within state and territory magistrates’ courts around Australia as a way to better support and protect families affected by family violence.
At a site inspection of the specialist family violence court division of the Victorian Magistrates’ Court at Heidelberg, the Committee witnessed the importance of co‑located services, and the provision of wrap‑around services integrated into how the Court dealt with matters involving family violence. The importance of co‑location of services and wrap‑around services were also identified in evidence to the inquiry. This will be further discussed in Chapter 9.
Evidence to the present inquiry also discussed proposals to adopt the specialist family violence court model to the federal family courts. Some stakeholders recommended a specialist family violence court for the Federal Circuit Court. Other stakeholders proposed a specialist family violence listing in the Family Court modelled on that Court’s Magellan program. This was discussed above at paragraph 4.93.
Legal representation in family law matters
Access to legal representation
As noted in Chapter 3, the cost of accessing the family law system is prohibitive for most families. Many families simply cannot afford legal representation, and the legal aid system ‘has never been funded at a level that would allow a lawyer appointed for every person who cannot afford one’.
Nationally, in 2015-16 legal aid commissions provided over 2.2 million services, of which one in five were related to family violence, child protection and/or family law matters. In Victoria, 80 per cent of legally aided family law matters involve family violence.
The means tests for financial eligibility for a grant of legal assistance set by each legal aid commission to manage their fixed funding responsibly are ‘quite strict’. Only parents with very minimal financial means qualify for legal aid.
In its recent report Access to Justice Arrangements, the Productivity Commission found that there are more people living in poverty (14 per cent) than are financially eligible for legal aid (8 per cent). The Productivity Commission concluded that funding provided to legal aid commissions is inadequate to fulfil the commissions’ roles, and that additional assistance in civil law areas (including family law) could prevent the costly escalation of disputes. To address the unmet legal need, the Productivity Commission recommended an additional $200 million per year be provided to fund legal assistance services.
A large number of participants in the inquiry discussed the limitations on access to legal assistance, with many making recommendations for increases in funding to legal assistance providers. For example, Queensland Law Society was of the view that ‘to meaningfully engage in family law proceedings’, a party must have ‘capacity to pay for basic litigation costs including filing fees, process server fees, conduct money to issue subpoenas’. The Society noted that these costs can be prohibitive for many families.
Similarly, the Hon. Professor Nahum Mushin AM advised:
The consequences of significant reductions in legal aid funding have serious consequences on Courts, litigants and families, and particularly on children. An unrepresented party in family law proceedings faces unreasonable hurdles which are exacerbated in matters involving family violence.
Women’s Legal Services Australia discussed the ‘missing middle—the gap between clients who are eligible for legal aid and people who can genuinely afford to pay’. It advised that the ‘missing middle’ is a ‘big gap and it is widening’. Similarly, the National Association of Community Legal Centres explained that community legal centres ‘try to meet the need that is not able to be picked up by the Legal Aid Commissions’. The Association stated:
[There] is a middle range of people who are not quite eligible for legal aid but are still earning less than $50,000 or $60,000 a year, and they do not have the ability to pay legal fees of $30,000 or $40,000-plus; it is just not possible for them to be able to engage private solicitors to go through the family law system.
Box 4.2: Access to legal representation
The following is a selection of responses to the Committee’s questionnaire:
‘The biggest issue was facing financial hardship and without being able to get legal aid I needed to self-represent. I still incurred legal costs which drained any funds I had, and I was continually under stress and unable to settle into the employment which I had acquired’.
—Respondent from Queensland
‘For me [the problem is] about finances. It costs a lot for a family court lawyer - I wasn’t entitled to legal aid like my unemployed ex-partner ... I felt like it was a kick in the guts to have to pay out a fortune, especially where I feel like I was doing the right thing by my child at the time’.
—Respondent from Tasmania
‘Because I was working I was advised I couldn’t get Legal Aid so I found a local solicitor and was asked to pay her weekly. I went hungry almost every week to pay her. Her total account was $25,000 and her representation was absolutely abysmal but being in a very small town I didn’t know where else to turn. A few more Legal Aid Solicitors in small areas or townships who could at least steer you in the right direction if need be’.
—Respondent from Queensland
‘Because my partner has a successful business I was turned away by legal aid despite having zero access to money to get legal support’.
—Respondent from Victoria
‘I spent about 18 months in the court system costing me $26,000. I could not receive legal aid because of some equity we had in our home. In the end I had to give up fighting for my children’s safety due to my lack of finances and his endless supply’.
—Respondent from South Australia
‘It’s just too expensive. If you are on a middle income, you get no help, yet you cannot afford the $500 per hour lawyer’.
—Respondent from Queensland
The inquiry also examined whether unmet legal need could be met with greater provision of pro bono services. The Australian Pro Bono Centre advised that while pro bono legal work ‘makes a small contribution to addressing unmet legal need, it is not, and cannot be, a substitute for substantial publicly funded legal assistance … particularly in family law’. The Centre explained that providing pro bono assistance in family law matters is difficult as it requires an appreciation of the unique nature of family law and due to its complexity, rarely involves discrete tasks, which are best suited to pro bono assistance.
Lander & Rogers, a commercial law firm providing pro bono family law services in Melbourne, advised that family law is significantly complex and requires specialisation:
Family law is certainly not an area of law where you can just read a book and become an expert on it ... It is not an area that you can dabble in. It is not an area that you can act in discrete tasks for. If you are doing family law, you need to be doing it every day of the week, and it is dangerous to do otherwise. Giving advice to litigants, particularly vulnerable women, giving advice to them in relation to appropriate parenting arrangements and appropriate property settlements when you do not have expertise in family law is dangerous.
Victoria Legal Aid advised that ‘we are never going to be able to fund everyone to have a lawyer’. Consequently, it advocated that the family law system must be designed to better support self-represented litigants. This is discussed in the following section.
The family law courts have ‘always had to deal with large numbers of people without legal representation’. Indeed, a significant volume of litigants engaged in the family law system are self‑represented.
In 2016-17, 15 per cent of matters before the Family Court involved parties without legal representation at trial, and in 26 per cent of matters only one party had a legal representative at trial. For applications finalised by the Family Court in 2016-17, in four per cent of matters neither party had a legal representative at some point in proceedings, and in 19 per cent of matters only one party had a legal representative. In a submission, the Family Court stated that the percentage of those litigants without representation at trial has been steadily increasing in the period 2012-13 to 2016-17. The Federal Circuit Court did not make a submission to the inquiry, and its Annual Report does not refer to statistics on self-represented litigants.
The statistic is even higher in the Federal Circuit Court where 52 per cent of family law trials in 2014–15 involved at least one party who was unrepresented and in 20 per cent of these cases, both parties were unrepresented. Evidence to this inquiry suggests that the number of self‑represented litigants is growing.
Box 4.3: Self-represented litigants
The following is a selection of responses to the Committee’s questionnaire:
‘Imagine learning to walk for the first time, as an adult, that is what self-representing in court is like but there is not support and no clear understandable rulebook and guidelines. I had no idea what I was doing, it was impossible to get proper legal advice as the free legal services did not have time to go through your case properly and were unwilling to give any firm advice. It was scary being self-represented against ex’s lawyer and then ex himself when he began self-representing. I suffer post-traumatic stress disorder. [My] psychologist and I believe that had I not endured the court process as I did then I would not have [post-traumatic stress disorder], I was already well on the way to recovery from the violent relationship’.
—Respondent from Victoria
‘Due to the cost of legal representation, I was forced to represent myself at the final interim hearing. This was extremely stressful and placed me in front of my ex-husband and his lawyer, unsupported, with the public, and a raft of barristers and other people watching on. I had to navigate the legal process alone, whilst experiencing the visceral triggering that is the legacy of abuse’.
—Respondent from New South Wales
‘I have on numerous occasions decided not to reengage the court system despite ongoing abuse because I simple can’t afford to and don’t wish to self-represent because publically challenging him myself is very risky, scary and asks me to remember terrible violence’.
—Respondent from New South Wales
‘When I represented myself over a broken parenting plan, navigating the whole process [was] extremely challenging. It took hours of my time to research how I needed to respond and what I was able to submit to court. [It] was also incredibly daunting, I felt like I had no opportunity to let the judge know my real feelings’.
—Respondent from Queensland
The Queensland Law Society commented that in matters where one or more parties are self‑represented, it is ‘more difficult for the Court to be provided with all the relevant evidence and hear relevant arguments necessary in making an informed decision’. Victoria Legal Aid noted:
There will always be a number of people who do not qualify for legal aid. Legal aid also does not address when a parent chooses not to have a lawyer so that they can run their family law case on their own. Unfortunately, in a small number of cases this choice is made, including by an abusive party in order to use the legal process to intimidate or harass a victim of family violence. VLA recognises that matters involving self-represented litigants present a challenge for the family law system to manage.
Queensland Domestic Violence Services Network described the disadvantages faced by self‑represented litigants:
Self‑represented litigants are often confused and bewildered by the court system and processes as a whole, and even with guidance, can be overwhelmed with the work that falls on them (tracking dates, developing affidavits, submitting appropriate forms in a timely fashion, communicating with the other party, and so on).
Queensland Domestic Violence Services Network advocated for a ‘less adversarial system employed in the cases of domestic or family violence, particularly where there are also self-represented litigants’. Parenting Management Hearings, as discussed above at paragraphs 4.62-4.72, are intended to provide a less-adversarial approach to parenting disputes for self‑represented litigants.
As judges are limited in the assistance they can provide to self‑represented litigants, a number of stakeholders recommended improving information available to inform self-represented parties of processes and admissible evidence, including family reports. Indeed, two recent ANROWS studies have found that existing arrangements to support self‑represented families before the Court ‘were not effective’.
Salvos Legal Humanitarian recommended the development of plain language, culturally appropriate, accessible guidelines to drafting applications, responses and affidavits in line with established rules of evidence in written or video form. It recommended that such guidelines include the following:
information regarding what type of evidence is admissible in court and how such evidence ought to be presented;
proforma parenting orders;
flow‑charts outlining the stages of common law proceedings, including estimated timeframes of each stage of the proceedings; and
plain language explanations of key sections of the Family Law Act such as section 60CC.
Under current rules, self-represented perpetrators may cross-examine victims during court proceedings and a self-represented victim may also have to cross-examine a perpetrator. Victoria Legal Aid noted that cross‑examination is a ‘way of testing evidence to give the Court confidence it needs to rely on that evidence when making rulings’.
Queensland Domestic Violence Services Network explained that the ability of a perpetrator to cross-examine the target of that violence ‘further traumatises victims, and props up the belief of the perpetrator that he is entitled to his abuse and is supported by the system in committing such abuse’.
Box 4.4: Cross-examination
The following is a selection of responses to the Committee’s questionnaire:
‘It was extremely traumatic being cross-examined by my [ex-partner]. Even having him sit in the courtroom while I was questioned earlier on in the process was enough to make me feel uncomfortable and intimidated - he was laughing and smiling and making comments as I spoke and staring at me the entire time’.
—Respondent from the Australian Capital Territory
‘I felt very sad to be put in that position [of cross-examination]. It’s unnecessary theatre, whoever does the cross-examination’.
—Respondent from New South Wales
‘The cross-examination process makes the victim feel like they are partly to blame, it re‑traumatises the victim and brings up unnecessary history to shame and rattle the victim. This process needs to be treated delicately, not based on smart legal tactics. It needs to be based on a process that can obtain the facts and provide recommendation, not by attacking victims in the witness box’.
—Respondent from Victoria
The ACT Human Rights Commission also commented that this can be as traumatic as the original violence:
For victims of family violence, the experience of being personally cross‑examined by their perpetrator can be just as traumatic as the original violence itself. The current legislative framework is insufficient in ameliorating some of the negative experiences for victims of family violence during family law proceedings and does not protect victims from the effects of being directly confronted by their perpetrator.
Victoria Legal Aid emphasised that although a small number of matters before the Court reach a final hearing, ‘the mere possibility that direct cross‑examination could occur can … cause victims of violence to agree to unsafe consent orders or to abandon [proceedings]’.
The Committee was advised that in criminal matters ‘all jurisdictions now impose restrictions upon the ability of a defendant in sexual offence proceedings to personally cross‑examine the complainant, and some also apply to violence offence proceedings’. For example, Victorian family violence legislation prohibits perpetrators of family violence from cross‑examining their ex-partners in family violence intervention order proceedings. Similarly, Western Australia recently enacted legislation granting the Court discretionary power to prohibit cross‑examination of a victim by the defendant across a range of criminal proceedings.
This issue was addressed in two separate reports: in 2014 the Productivity Commission recommended amending the Family Law Act to include provisions restricting personal cross‑examination by alleged perpetrators ‘along the lines of provisions that exist in State and Territory family violence legislation’. The Commission noted however that adequate funding to legal aid commissions will not address completely the issue of direct cross‑examination in the family law courts.
More recently, the Family Law Council concluded in 2016 that the cross‑examination of unrepresented vulnerable witnesses not only perpetuates the abuse but results in the Court receiving incomplete or poor quality evidence. The Council also found that it raises significant procedural fairness issues.
There are several existing measures available to the Court to manage direct cross‑examination in child-related family law proceedings and limit other potentially abusive behaviours by self‑represented litigants, including:
limiting or controlling in-person cross-examination;
using remote witness facilities; or
making findings as to family violence at an early stage.
Significantly however, Victoria Legal Aid advised that in its experience, these measures are ‘inconsistently applied’ and ‘ultimately inadequate in many cases’. It also advised that there are a number of options available to legal representatives of victims including careful responses to subpoenas, and requesting witness protection like remote evidence facilities. However, it noted that ‘unrepresented survivors are unlikely to be aware of these measures’.
In July 2017, the Australian Government released an exposure draft of the Family Law Amendment (Family Violence and Cross‑examination of Parties) Bill 2017. The exposure draft proposes amendments to the Family Law Act including a legislative ban to prevent an unrepresented party from directly cross-examining, or being cross-examined by, another party if there is an allegation of family violence between them, and one or more of the following are satisfied:
either party has been convicted, or is charged with, an offence involving violence, or a threat of violence, to the other party;
a family violence order (other than an interim order) applies to both parties;
an injunction for personal protection under sections 68B or 114 of the Family Law Act applies to both parties.
The proposed amendments seek to maintain procedural fairness for all parties by allowing self-represented parties to ask questions through an intermediary, appointed by the Court. The only exception to this new proposed subsection would be where the Court grants leave (see below for when the Court can allow direct cross examination to occur). The proposed amendments would apply both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator.
Addressing the ability of perpetrators to cross-examine their victims was strongly supported by the vast majority of participants in the inquiry.
Some participants in the inquiry discussed the mechanism as proposed in the exposure draft, suggesting alternative mechanisms or amendments to the Australian Government’s proposal. A number of participants emphasised the importance of legal representation, with the Law Council of Australia noting that legal representation would be required to implement the intention of the mechanism proposed in the exposure draft.
Similarly, Women’s Legal Services Australia explained:
… we believe the person asking the questions should be legally qualified and that there would, therefore, need to be funding for that. One of the reasons for that is that a legally qualified person has ethical obligations not to ask certain inappropriate questions. So rather than the judicial officer being the sole guard against that kind of harassing questions, if the professional asking those questions is not operating as some kind of a screen for them, you are not doing a great deal to address the underlying concern behind the provision, which is a perpetrator finding a mechanism to re-abuse a victim. So, yes, we think there should be a lawyer and we think there would need to be funding for that.
Legal Aid Victoria cautioned against the use of a court appointed person to ‘simply serve as a mouthpiece for the perpetrator litigant [as] this is unlikely to resolve the problems direct cross‑examination presents’. Rather, Legal Aid Victoria proposed a pilot of a Counsel Assisting role as recommended by the Family Law Council.
In its 2016 report, the Family Law Council noted that a Counsel Assisting role would have a range of benefits:
The use of this model in such cases would assist the court’s determination of the child’s best interests by ensuring that all relevant evidence is identified and collated and that all relevant issues are ventilated before the Court in a coherent and efficient way. Council also notes the potential benefits of a Counsel Assisting model for an unrepresented party who has experienced family violence, including by assisting them to narrow the issues in dispute. Council further notes the potential for this approach to help maintain a focus on the best interests of the child throughout the hearing, which may be otherwise compromised in the context of adversarial proceedings.
People with Disability Australia expressed concern with providing discretion to the Court without sufficient training for the Court to be able to appropriately identify family violence, or applying the restrictions in cases where there is no violence.
Administration and enforcement of court orders
The administration and enforcement of court orders is critical for the protection of families affected by family violence. Two issues were raised in evidence: the need for a national database of family law, family violence and child protection orders; and challenges with breaches and enforcement of family law orders specifically. Both are addressed below.
A national approach
Successive reviews and reports have recommended a database or a national register that includes information about family violence orders, child protection orders and federal family law orders. In 2010, the ALRC/NSWLRC recommended that such information be available to federal, state and territory police, federal family courts, state and territory courts that hear matters related to family violence and child protection, and child protection agencies.
This recommendation was more recently made by the Family Law Council, and the Royal Commission. Both reports recommended the creation of an expanded national database for family violence, child protection and family law orders, judgements, transcripts and other court documents that is accessible to each relevant court as well as child protection authorities and police.
The Council of Australian Governments (COAG) agreed in 2015 to introduce a National Domestic Violence Order Scheme (the National Scheme), so that family violence orders issued in one Australian jurisdiction would be automatically recognised and enforced in all jurisdictions. All states and territories, other than Western Australia, have amended legislation to provide uniform recognition of family violence orders.
The COAG agreement to develop a National Scheme was strongly supported by stakeholders in the present inquiry. The National Scheme entered into force on 27 November 2017. From that date, family violence orders issued in any Australian state or territory will be automatically recognised and enforceable nationwide.
The scheme also includes a national information sharing system between courts and police across Australia which will be operational by the end of 2019. Significantly however, the National Scheme is limited to family violence orders issued under state and territory family violence legislation and does not include family law orders or child protection orders as originally recommended by the ALRC/NSWLRC report, and the subsequent Royal Commission and the Family Law Council reports.
Multiple participants in this inquiry proposed that the information sharing system of the National Scheme be extended to include family law and child protection orders as originally recommended by the ALRC/NSWLRC and the Royal Commission reports. For example, Victoria Legal Aid stated:
A national database of court orders applying to families dealing with parenting disputes, family violence and child protection would make courts more effective in protecting vulnerable children. [Victoria Legal Aid’s] research on clients seeking help for family issues over the five years to June 2014 showed 12,844 people with multiple family law problems requiring legal assistance. Each of these people could have benefitted from a national database making previous orders easily available.
Similarly, Legal Aid NSW was of the view that an expanded information sharing platform would provide the courts with instant access to information that would allow the presence of family violence to be identified and flagged earlier on. It would also allow courts to be aware of orders and proceedings in other jurisdictions that affect the same family, so as to help ensure consistency and the safety of family members.
The Castan Centre for Human Rights Law supported the Royal Commission’s recommendation, commenting that it should be urgently pursued.
Breaches and enforcement of family law orders
A significant body of evidence to the inquiry also identified problems with enforcing family law orders following breaches and contraventions by a party, causing significant frustration, distress and considerable expense. The Committee was advised that contravention proceedings can take up to six months to resolve.
Lander & Rogers advised that ‘there is very little ramification for parties that do not comply with court orders’. To address this, the firm recommended strengthening enforcement and making enforcement applications easier for parties ‘so that [they] do not need to come back to court multiple times to enforce orders that they have already received’.
The Law Society of NSW similarly recommended the greater use of cost orders to ensure compliance with family law orders.
As noted in Chapter 1, the Australian Government released an exposure draft of the Family Law Amendment (Family Violence and Other Measures) Bill 2017 in December 2016. Among other amendments, the exposure draft proposes to amend the Family Law Act to create a new criminal offence for breaching a personal protection injunction issued under the Act.
Currently, a breach of a personal protection injunction is a private law matter between parties that can only be enforced if the aggrieved party brings a civil enforcement action in a family court.
The criminalisation of breaches of orders for personal protection was supported by stakeholders. For example, Women’s Legal Services Australia commented that the amendment ‘would be beneficial for women who see an escalation of violence after the commencement of family law proceedings [and that] … women would not need to go to a new court to obtain and enforceable order’.
The Hon. Professor Marcia Neave AO supported the proposal, though provided the following caution:
I have some reservations about whether it will work in the way that we all hope. There will need to be an agreement between the Federal Police and the state police about who takes responsibility ... The legislation won’t change anything if that isn’t done. It will still be left to the Federal Circuit [Court].
Professor Neave further advised of the need to develop common sentencing practice for breaches of family violence orders under state and territory legislation and breaches of personal protection orders issued under the Family Law Act, commenting:
… it would be most unfortunate if you had sentences being imposed for breach of state orders and people got significant periods of jail time and different sentences were being imposed for breach in the Federal Circuit Court and the Family Court.
This was echoed by Women’s Legal Services Australia who recommended that the Australian Government clarify the interaction between the criminalisation of breaches of family law personal protection injunctions and the information sharing initiative of the National Scheme.
Further, the National Family Violence Prevention and Legal Services Forum recommended that the bill be amended to clarify the interaction between the proposed criminalisation of breaches of personal protection injunctions under the Family Law Act and state and territory family violence orders.
The Victorian Government supported the proposed criminalisation of breaches of personal protection injunctions, describing the proposal as ‘effectively establishing a system of Commonwealth [domestic violence orders]’. The Victorian Government’s support for the proposal is ‘subject to the establishment of’ information sharing arrangements between state and territory and federal courts and police.
At the time of writing, the Family Law Amendment (Family Violence and Other Measures) Bill 2017 is yet to be introduced into the Parliament.
Box 4.5: Personal Protection Orders
The following is a selection of responses to the Committee’s questionnaire:
‘I’m on my 6th Protection Orders. He has breached it over 400 times and i have concrete proof and the police won’t charge him because I have family law orders. They have said so. The children are named on the Protection Order’.
—Respondent from Queensland
‘Each one of the two [protection orders] failed to go through as my abuser would retaliate through the justice system when served with my order and apply for an order himself, [continuing] his abuse of me and the children’.
—Respondent from Victoria
A recent initiative: Family Advocacy and Support Services
A recent initiative of the Australian Government and each state and territory government to address the challenges of self‑representation is the pilot of the Family Advocacy and Support Services (FASS). Funded through a National Partnership between each government, the FASS integrates duty lawyer and family violence support services in family law court registries across Australia. The FASS is a refined program of that recommended by the Family Law Council in 2016.
The FASS is delivered by legal aid commissions. In some locations, legal aid commissions have partnered with local community legal centres to provide legal assistance to both parties.
Launched in May 2017, the FASS operate in 23 family law court registries across Australia. Services are available in most permanent Family Court registries but are not yet funded to extend to all circuit court locations. Victoria Legal Aid advised that the FASS is funded for three years.
legal advice and support to assist clients to engage with family law court processes safely;
preparing notices of risk and applications to assist the Court to make evidence‑based and safe decisions;
trauma‑informed and high quality support services, delivered by appropriately qualified personnel, so that clients’ non‑legal issues, particularly where they elevate the risk of family violence, are identified and responded to alongside legal issues; and
assisting families to transition between, and manage matters across, the federal family law and state and territory family violence and child protection systems.
Victoria Legal Aid, who deliver the FASS in both the Melbourne and Dandenong registries, described the service:
Essentially, it is having the specialist family violence workers at the Court so that when a client comes to the family law courts, they have the ability to cater for not just their legal but also non-legal needs. There is a triage officer, an information referral officer, who will do that initial risk identification. Then the client will go to the non-legal support services as well as the duty lawyer service catering for their needs. So if safety planning is required, that can be done, and a full risk assessment, which looks at things like homelessness. It also links them up with important counselling services and drug and alcohol services.
The Department advised that the FASS will undergo an evaluation at the end of the pilot in 2019 to assist the Australian Government to make future service delivery decisions.
Despite being in its infancy, a number of stakeholders identified clear improvements to the safety of families affected by family violence as a result of the service. National Legal Aid noted that the main function of the FASS is to ‘enable improved risk identification at the family law courts, and risk assessment and safety planning to be undertaken’. The service is also assisting self‑represented litigants to complete necessary documents including the Notice of Risk form.
Further, Legal Aid NSW advised that through the FASS, safer arrangements or orders are being made. Legal Aid NSW provided a case study (see Box 4.1) to demonstrate the impact of the FASS on safety for families:
Box 4.6: Case study – Consent orders and Family Advocacy and Support Service
The following case study was presented to the Committee:
Amanda [not her real name] presented to the FASS duty lawyer the day before her matter was listed for final hearing. The case related to her two children, twins, aged 10. Amanda and her ex‑husband, Tim [not his real name], were both self‑represented.
‘Amanda reported a history of domestic violence perpetrated by Tim. She reported that he was physically violence, intimidating, threatening, and controlling towards her.
‘A family report had been prepared in the matter which recommended on one hand, that Tim spend time with the children for around our nights a fortnight. However, the report indicated that if the court was satisfied that there had been family violence in the relationships, the court would need to assess the level of risk to the children in making a determination about parenting arrangements.
‘Amanda had filed an Amending Initiating Application which proposed that Tim spend time with the children four nights each fortnight. Amanda told the FASS lawyer that she did not want to appear ‘hysterical’ and ‘unrealistic’ by limiting Tim’s time with the children. However, she had concerns about their safety in his care given his history of significant violence. Amanda said that because the violence was not ‘directed towards the children’, but rather towards her, she did not feel that she could suggest that the children were at risk of harm.
‘The FASS lawyer spent time with Amanda advising her about:
the way that the court considers family violence, including the exposure of children to family violence;
the impacts of family violence on children, even when those children are not direct subject of the physical abuse;
the role of the family consultant in providing expert evidence to the court about risks to children and effects of family violence;
the option of changing her application to ensure that the children were safe during their time with Tim, including the possibility of supervision of Tim’s time, or requiring Tim to complete courses or engage in therapy to address his behaviour;
how to use police records that Amanda had subpoenaed (which supported Amanda’s allegations of serious family violence);
ways to ask the family consultant about recommendations regarding safety measures for the children, in the even the court found that the family violence had occurred;
the measures which might be available to Amanda when giving evidence, given that she would be cross‑examined by Time directly, including intervention by the judge to limit harassing questions, and the possibility of giving evidence remotely;
procedural advice about cross‑examination and submissions; and
the considerations for the court when determining what would be in the best interests of the children.
‘The FASS lawyer also referred Amanda to the FASS social support services, including the new safe room, which would be available for her during the hearing. Amanda was very relieved that those supports were available to her. Amanda was encouraged to return to the duty lawyer for further assistance during the course of the hearing as required.’
Subject to a positive evaluation of the FASS, a number of stakeholders recommended the expansion of the program to provide early legal advice and non‑legal support services to families at risk in all family law court locations.
No To Violence/Men’s Referral Service and Family and Relationships Services Australia recommended increasing the scope and capacity of the FASS, as initially recommended by the Family Law Council.
The Family Law Council’s 2016 report discussed an independent family safety service within the non-government sector that could support the family courts and legal practitioners by providing expert family violence‑based risk assessments and safety planning where risks factors could be identified. In its conclusions and recommendations, the Council discussed such a proposal, stating:
Such an agency could be tasked with providing a range of services for client families and family law system professionals, including the courts. Council envisages this including the conduct of risk assessments for clients who are referred to the service by lawyers when risk factors have been identified … as well as parties who are referred by the courts following identification of risk factors in the Notice of Risk. A dedicated family safety service could also effect referrals to and liaison with relevant services, such as parenting courses and men’s behaviour change programs, where the Court orders a person’s participation in these programs.
The Council’s report investigated whether such an agency should be modelled on the United Kingdom’s Children and Family Court Advisory Service (CAFCASS), a non-government organisation with statutory responsibility for child welfare and providing advice to the family courts in family law proceedings. Referring to CAFCASS, the Council commented:
Like [CAFCASS] in the United Kingdom, a family safety service could also be used to monitor a client’s engagement with such services and provide assessment reports to the court. Ideally a family safety service would provide a case worker or support person for the child, and be able to continue working with a family following court proceedings.
The Council was of the view that a family safety service could be co-located within Family Relationship Centres with out-posted services at the courts.
To better support and protect families affected by family violence, the family law system must be accessible, equitable, responsive and prioritise safety. This vision has guided the Committee’s recommendations for reform.
Although still in its infancy, the development of the FASS is a welcome addition in the family law system. Originally a broader recommendation of the Family Law Council, the FASS is providing significant improvements in the family law system, in line with the vision as set out by this Committee.
It is encouraging that evidence received indicates that the FASS is improving safety and assisting families to navigate complex and fragmented jurisdictions. The Committee welcomes these positive indications and recommends that the Australian Government considers extending the FASS program to a greater number of locations including in rural and regional Australia. The Committee is of the view that the pilot of the FASS is a first step towards the broader recommendation of the Family Law Council and as currently operates in the United Kingdom. In making these preliminary comments, the Committee will refer back to the FASS in subsequent chapters of this report.
The Committee recommends that the Australian Government considers extending the Family Advocacy and Support Services program, subject to a positive evaluation, to a greater number of locations including in rural and regional Australia.
The Committee is also concerned by the lack of access to justice where a conflict between law firms arises which can frequently occur in regional areas, as raised in evidence to the inquiry in Alice Springs. The Committee would like to see that there are sufficient legal resources and advice available under such circumstances, which may assist parties to resolve matters out of court.
A new, nationally‑consistent risk assessment tool
First and foremost, the family law system requires a nationally consistent, multi-method, multi-informant, culturally sensitive risk assessment tool. The Committee’s is not the first review to come to such a conclusion. As the Coroner concluded in the Inquest into the Death of Luke Batty, the absence of a common and consistently applied risk assessment tool can lead to devastating outcomes for families.
The tool should be multi method by drawing from a range of existing reports and employ a range of different methodologies in collating that information. Equally, the tool should be multi informant so that a range of persons (including teachers, doctors and other persons associated with the family) may be consulted in the holistic assessment of the risk of family violence.
While the Committee notes the commitments of all Australian federal, state and territory governments to develop a set of nationally‑agreed principles for risk assessment through Council of Australian Governments, the Committee is of the view that this is alone is not sufficient. As recommended by both the (federal) Family Law Council report and the (state-based) Victorian Royal Commission on Family Violence, a consistent risk assessment tool is required for all jurisdictions and all professions working with families affected by family violence.
The Committee adds its voice to those previous recommendations, for a nationally consistent risk assessment tool—not principles—for use across all professions. The Committee is of the view that this is critical to its vision for an accessible, equitable and responsive family law system. As noted throughout this report, families affected by violence have to navigate through a complex and fragmented legal and non‑legal system to find appropriate support and protection from violence. A consistently‑applied risk assessment tool is key to addressing the fragmentation of Australia’s legal system and its shared responsibilities with non‑legal support services.
The Committee recommends that the Australian Government progresses, through the Council of Australian Governments, the development of a national family violence risk assessment tool. The tool must be nationally consistent, multi‑method, multi‑informant and culturally sensitive and be adopted to operate across sectors, between jurisdictions and among all professionals working within the family law system.
Improved risk-screening for family dispute resolution
The Committee is of the view that, once developed, the national family violence risk assessment tool should also provide assistance to family dispute resolution practitioners providing improved screening of families participating in dispute resolution.
Improvements in family violence risk screening are required of family dispute resolution practitioners. If a family is not appropriately screened for family violence, it is possible that the process of family dispute resolution can either continue abuse and coercion, result in unsafe agreements for families, or both. This is no doubt challenging work for family dispute resolution practitioners.
However, an improved tool that assists practitioners to more effectively screen families participating in family dispute resolution, would undoubtedly assist in that difficult work. The Committee notes that this was also a recommendation of the ALRC/NSWLRC report in 2010.
Risk assessment upon filing applications with the Court
The Committee is also of the view that the national family violence risk assessment tool should also be used at family court registries upon the filing of applications to the court. It is concerning that a court may not be provided with the necessary information on the history of family violence or the risk of future violence prior to making interim or consent orders.
The risk assessment process must be embedded within the court registry and the Committee is of the view that it be conducted by a third‑party provider. The third‑party provider must be an appropriately qualified family violence specialist and use the new national family violence risk assessment tool as recommended by this report.
Significantly, the Committee does not view that this risk assessment process would replace judicial decision-making. Rather, the Committee identifies that the risk assessment could aid the court’s management of any particular case and dynamic risk environments to appropriately triage matters before the court.
The Committee makes recommendations regarding early determination of family violence allegations and a process of case management and triage below.
The Committee recommends that the Australian Government introduces to the Parliament amendments to the Family Law Act 1975 (Cth) to require a risk assessment for family violence be undertaken upon a matter being filed at a registry of the Family Court of Australia or the Federal Circuit Court of Australia, using the national family violence risk assessment tool. The risk assessment should utilise the national family violence risk assessment tool and be undertaken by an appropriately trained family violence specialist provider.
Legally-assisted family dispute resolution
The Committee is of the view that legally‑assisted family dispute resolution should be made available to families affected by family violence where appropriate. The Committee notes the concerns of some inquiry participants that the power imbalances between parties that result from family violence, can make family dispute resolution more challenging.
However, the Committee received convincing evidence that where these power imbalances are appropriately addressed—for example, through structural separation such as that provided through shuttle mediation—the process can be an empowering one for families.
The Committee supports the Australian Government’s recent commitment to piloting a new type of legally‑assisted family dispute resolution. The Committee eagerly awaits an evaluation of that pilot.
Opening up family dispute resolution to families affected by family violence will improve the accessibility and fairness of the family law system. At present, almost three‑quarters of all families that present for family dispute resolution are issued with s 60I certificates for the matter to proceed to court, yet only half ever commence proceedings in the court. This may be for a number of complex reasons, but evidence to the inquiry suggests that many families simply cannot afford to go to court.
As such, the Committee is of the view that legally‑assisted family dispute resolution will assist with access to justice, and increase the number of families who resolve their disputes through using the family law system to provide that support and protection.
The Committee recommends, subject to a positive evaluation of the recently announced legally‑assisted family dispute resolution pilot, the Australian Government seeks ways to encourage more legally‑assisted family dispute resolution, which may include extending the pilot program.
Case management and triage
The family law system must ensure that urgent cases or families at greatest risk are appropriately triaged once the matter enters court. The Committee is of the view that, in the context of long court lists and a stretched court system, triage is vital to ensure that families who are experiencing family violence or at risk of family violence, are prioritised by the family courts. Although all family law matters are important, it is fundamental that those at greatest risk are afforded urgent attention so that the family law system can provide the requisite support and protection to those in genuine need.
Notwithstanding the very significant caseload, the Committee is concerned that there has not been appropriate case management and triaging of family violence matters by the federal family courts which is particularly important when matters concern parents and children genuinely at risk. This is made more complex for families when different rules when different rules apply, depending on in which court an application is filed.
The Committee received substantial evidence that triaging of matters through a single point of entry into the federal family courts is necessary.
The Committee is pleased that this issue has recently been recognised by the new Chief Judge of the Federal Circuit Court. In a speech at a recent ceremonial sitting of the Federal Circuit Court on 29 November 2017, that was provided in correspondence to the Committee, Justice William Alstergren recently stated:
There is no doubt that the Court faces challenges. It is, for example, untenable for a single judge of the Federal Circuit Court to have 500 cases in her or his docket at any one time. That results in, among other things, unacceptable delays in getting cases heard, which is inconsistent with the values and aims of this, or for that matter, any court.
Change is needed, and as many of you know, the Court is in the process of embarking on a number of initiatives to make an immediate difference, including:
Major Call Overs in all registries;
Ordering cases to mediation or ADR sooner, not later;
The establishment of a number of case management pilots for new work and
The establishment of a working group to examine how best to use registrars and judicial mediation.
The Court is also working on establishing a series of divisions in general federal law work to emulate the Federal Court. The aim of these steps is to reduce the docket sizes to something like 100 cases per judge and significantly reduce delays.
I am also working with Chief Justice Pascoe to create a single port of entry in both Courts for all Family Law cases and the harmonisation of the rules of both Courts.
In these endeavours, I look forward to the support and cooperation of the profession, particularly the Bars. The Victorian Bar and Victorian Legal Aid have been extremely helpful in the last week with over 280 cases referred to alternative dispute resolution, some on a pro bono basis.
The Committee recognises that too often cases in the federal family courts are subject to ongoing delays and obstruction. The Committee welcomes these commitments of the new Chief Judge and makes recommendations in this report which reflects some of these initiatives.
The Committee is also of the view that there should be improved referral pathways from one jurisdiction to another. Regardless of what gateway a family enters the law system seeking support and protection—whether that be through state and territory magistrates courts or the federal family courts—it is imperative that referrals between jurisdictions provide an integrated and client‑centred response.
A client-centred case management system must therefore be aware of the historical and current dynamics of families navigating the family law system. Significantly, this must also include being aware of, and appropriately responding to, instances of abuse of process and perjury. The Committee is concerned that there is inconsistent and inadequate application of existing penalties and cost orders. The Committee also considers that a stronger regime of penalties and cost orders is required to appropriately address abuse of process. Courts must have available to them appropriate disincentives to reduce the incidence of abuse of process and perjury.
The Committee recommends that the Attorney‑General considers how the Family Court of Australia and the Federal Circuit Court of Australia can improve case management of family law matters involving family violence issues, including:
the adoption of a single point of entry to the federal family law courts so that applications, depending on the type of application and its complexity, are appropriately triaged, and actively case managed to their resolution in an expedited time-frame;
the greater use of mediation or alternative dispute resolution by the federal family courts during proceedings to encourage earlier resolution of matters;
the implementation of more uniform rules and procedures in the two federal family courts to reduce unnecessary complexity and confusion for families;
the establishment of formal and expedited referral pathways between state and territory magistrates courts and the federal family courts; and
the development of a stronger regime of penalties including cost orders to respond to abuse of process, perjury and non‑compliance with court orders.
Improved information sharing
To ensure that the family law system is integrated and responsive to changing risk dynamics, it is imperative that a court has up to date information about matters before it.
The Committee acknowledges the commitments of all Australian federal, state and territory governments to develop an information sharing system as part of the National Domestic Violence Order Scheme, which will be operational in 2019. The Committee is of the view however, as has been recommended by successive inquiries and reviews, that the information sharing system must also include family law orders and child protection orders.
Access to family violence orders, family law orders (including orders for personal protection) and child protection orders would allow courts in any jurisdiction to be aware of proceedings in other jurisdictions, and help ensure consistency in the court’s determinations. The Committee is of the view that this is paramount to prioritising the safety of families and ensuring an integrated, responsive family law system.
The Committee recommends that the Attorney‑General progresses through the Council of Australian Governments an expanded information sharing platform as part of the National Domestic Violence Order Scheme to include orders issued under the Family Law Act 1975 (Cth) and orders issued under state and territory child protection legislation.
Early determination of family violence allegations
The Committee is concerned that there can be years between family violence allegations being made, and the Court making a finding on those allegations. An early determination of family violence allegations can, if decided in the affirmative, be incredibly important for the court’s subsequent consideration of other matters, particularly parenting matters. Equally, however, an early determination is important where false allegations have been made against a family member, causing undue distress within that family and adding further to an already heavy workload for the courts. The Committee also believes that a family law court should be able to refer to findings and evidence presented in other courts where the standard of proof is higher.
The Committee is of the view that early determination of family violence allegations would ensure a more responsive, fairer and safer family law system.
The Committee recommends the Australian Government introduces to the Parliament amendments to the Family Law Act 1975 (Cth) to require a relevant court to determine family violence allegations at the earliest practicable opportunity after filing proceedings, such as by way of an urgent preliminary hearing and, where appropriate, refer to findings made, and evidence presented, in other courts.
The Committee recommends that abuse of process in the context of family law proceedings be identified in the list of example behaviours as set out in section 4AB(2) of the Family Law Act 1975 (Cth).
The Committee was also concerned by reports of medical records being the subject of subpoenas. These records, and the discussions underpinning them, are critical for the long‑term recovery of families affected by violence. It is vital that those families can proceed with greater confidence that medical records will not be inappropriately used in legal proceedings.
The Committee recommends that the Attorney-General develops stronger restrictions in relation to access by other parties to medical records in family law proceedings.
Role of state and territory magistrates courts
Leveraging the capacity of state and territory magistrates courts to determine adjacent family law matters when a family seeks a family violence order has been noted in a number of reviews and commission reports to date. As the federal courts are constitutionally barred from exercising a state court’s jurisdiction, the opportunity for a simplified legal process lies with the state and territory courts.
The Committee is of the view that, especially where a state or territory government establishes a specialist family violence court, it is important that magistrates appointed to that court have the necessary skills, expertise and resources to exercise family law jurisdiction. When conducting a site inspection at the Specialist Family Violence Division of the Victorian Magistrates’ Court at Heidelberg, the Committee identified the significant opportunity that such courts can provide to families in crisis. The Committee was encouraged by the co‑location of legal and non‑legal support services at the court, and the physical design of the Court itself to be able to respond to the very real risks that families face when seeking the protection of the court.
The Committee notes that the Attorney‑General has released an exposure draft of the Family Law Amendment (Family Violence and Other Measures) Bill 2017 which, among other things, seeks to encourage state and territory courts to exercise their family law jurisdiction.
The Committee welcomes the Government’s commitment to addressing some of the structural impediments to integrating family law jurisdiction within the regular practice of state and territory courts. However, the Committee recognises that structural reform will not be enough to achieve the desired outcome, as expressed by this report and so many previously.
To address this, the Committee recommends that the Attorney‑General work through COAG to achieve resourcing agreements with state and territory counterparts. In Chapter 8, the Committee makes further comments and recommendations on developing the appropriate skills and expertise within state and territory courts.
The Committee recommends that the Attorney-General works with state and territory counterparts through the Council of Australian Governments to reach agreements (such as in relation to resources, education and court infrastructure) to encourage state and territory magistrates to exercise family law jurisdiction, particularly in specialist family violence courts and courts which deal with a high number of family violence matters.
The Committee also identifies an opportunity for a trial in one or more specialist family violence courts to enable all family law issues in family violence cases to be determined by the one court. This should also include expedited pathways for breach and enforcement proceedings of both orders made under state and territory legislation as well as family law orders.
The Committee recommends that the Attorney‑General works with state and territory counterparts through the Council of Australian Governments to establish a trial in one or more specialist state or territory family violence courts (including reaching agreement in relation to resources, education and court infrastructure) enabling family law issues in family violence cases to be determined by the one court, including expedited pathways for breach and enforcement proceedings. One of the trial courts should ideally be located in an area of high Indigenous population.
Evidence to the inquiry overwhelmingly supported addressing the capacity for a perpetrator of family violence to cross‑examine a victim of that violence. The Committee is deeply concerned that the Court has not more actively used its existing powers to regulate this practice.
The Committee welcomes the release, during the present inquiry, of an exposure draft of the Family Law Amendment (Family Violence and Cross‑examination of Parties) Bill 2017 which seeks to, among other things, introduce a legislative ban to prevent an unrepresented party from directly cross-examining, or being cross-examined by, another party if there is an allegation of family violence. The Committee strongly encourages the Attorney‑General to introduce the legislation into the Parliament for its urgent passage.
The Committee recommends the Attorney‑General introduces the Family Law Amendment (Family Violence and Cross-examination of the Parties) Bill 2017 into the Parliament for its urgent consideration such that perpetrators of family violence will be prohibited from cross examining the other party including in relation to the qualifications and funding of those appointed to undertake such cross examination.