8.1
The family law system can only be as effective as the calibre of professionals upon which it relies. Families involved in the family law system interact with a range of family law professionals including judicial officers, registrars and other court staff, family consultants, independent children’s lawyers and family dispute resolution practitioners.
8.2
In order for the family law system to be accessible, equitable, responsive and prioritise the safety of families impacted by family violence, it is critical that all family law professionals have a strong understanding of family law and the complexities of family violence. Further, achieving such a system will require improved resourcing capacity to respond to critical risks and changing family dynamics.
8.3
This chapter examines the evidence relating to capacity, both as it relates to skills and expertise as well as resourcing. First, the chapter discusses options for improving the general capacity of family law professionals, before examining each of the specific professions separately. This chapter then discusses resourcing issues as they relate to the capacity of the family law system particularly the Court, to effectively respond to cases involving of family violence.
8.4
The Committee’s comment and recommendations appear at the end of the chapter.
Improving skills and expertise across the system
8.5
Whilst there are skilled and highly competent family law professionals within the family law system, evidence to the current inquiry identified significant broad-based concern about the current lack of family law and family violence training provided to professionals working within the family law system.
8.6
For example, Victoria Legal Aid advised that the current capacity of some family law professionals is lacking to the point of compromising the safety of families affected by family violence, and argued that improved understanding of family violence is ‘vital’. Similarly, Jannawi Family Centre stated that ‘there is a lack of training and there are also quite judgemental … approaches within the culture of the family court system’.
Box 8.1: Improving skills and expertise across the system
The following is a selection of responses to the Committee’s questionnaire:
‘It is imperative they [family law professionals] be educated about the patterns of power/coercion and control and [that] this is entirely different from any other marital/relational disagreement. There are recognisable patterns and the impact on the victim is severe. The gross injustice occurs when this differentiation is ignored’.
—Respondent from New South Wales
‘Everybody involved in the court process must be extensively trained in family violence and trauma and perform and pass family violence training every year’.
—Respondent from Queensland
‘Better communication with compassion. Educate the people who work in the system to understand exceptional circumstances’.
—Respondent from South Australia
‘[Family law professionals] need to be educated about what family violence actually is. It is not just the physical violence, but the emotional abuse as well. They need to stop minimising the violence that women experience and they need to understand that a father who is domestically violent towards his wife, is not a safe person to be allowed unsupervised time with a child. They should all have to undergo not only training from specialised professionals on domestic violence but also hear firsthand case studies of victims of domestic violence, including children. It needs to become real to them’.
—Respondent from Western Australia
‘Educate [family law professionals] in the dynamics of family domestic violence and the affects and trauma it has on victims. Make them support those whom are self-representing and make sure they know the true facts of behind the scenes’.
—Respondent from Queensland
‘The [family law] professionals need education through [a] domestic violence service to [understand family violence] and have an understanding what it feels like to be in court’.
—Respondent from Queensland
‘The people who work in the family court need to be more supportive and informed about the effects of family violence on children and protective parents. This would come with education and training in family violence’.
—Respondent from Victoria
8.7
A number of submissions also noted the existing training packages available to family law professionals, such as the Addressing Violence: Education Resources and Training (AVERT) package, released in 2011-12. AVERT is a multi-disciplinary training package providing all professionals within the family law system with a thorough understanding of family violence, including its impact, appropriate responses, and an understanding of collaboration across services within the family law system. The National Family Violence Bench Book was also acknowledged by some stakeholders as an ‘excellent initiative’, and ‘great addition’ for ongoing training for family law processionals.
8.8
Although stakeholders provided examples of good practice, others identified a lack of consistency in considered, appropriate responses to family violence within the family law system. Indeed, stakeholders indicated that the standard of service delivery is ‘far from uniform’, and varies considerably by profession, as well as within each profession. To address this, a large number of participants recommended improved and ongoing training and development of all family law professionals in family violence and trauma-informed practice.
8.9
This evidence echoes a number of previous reports and inquiries that have all recommended improved family violence training and professional development. For example, in 2016 the Family Law Council recommended the development of a learning package for all professionals working the family law system. Such a training package would provide minimum competencies and in-depth knowledge on family violence and trauma for a range of family law professionals.
8.10
Junction Australia and Jannawi Family Centre recommended that all family law professionals receive training in the Safe and Together Model to improve understanding of the impacts of family violence. The Safe and Together Model is a model for working with child protection and family violence, which emphasises the patterns of abuse in family violence, the behaviours of non-offending parents, the impact of family violence on children, and holding the perpetrator to account.
Skills and expertise in specific professions
8.11
In addition to the above recommendations for general improvement in the capacity of family law professionals, evidence to the inquiry also discussed the current capacity, and recommendations for improved capacity, of certain professions within the family law system including:
registrars and other court staff;
independent children’s lawyers; and
family dispute resolution practitioners.
8.12
Each is discussed below.
Judicial officers
8.13
Family violence is considered ‘core’ business of the Court. Over 50 per cent of cases before the Family Court of Australia, the Federal Circuit Court, and the Family Court of Western Australia involve allegations of family violence, with this figure rising to 70 per cent for the Federal Circuit Court alone. It is therefore essential that judicial officers have the requisite expert knowledge of family law and family violence.
8.14
However, a number of stakeholders expressed concern about the level of expertise of judicial officers in family violence as well as family law. These concerns related to both the federal courts and state and territory magistrates’ courts exercising their jurisdiction under the Family Law Act 1975 (Cth) (the Family Law Act).
Family violence training and expertise
8.15
Multiple submissions commented that there is a need for improved family violence training for judicial officers. Whilst family violence is involved in the majority of family law cases, training in family violence is not mandatory.
8.16
The Domestic Violence NSW survey of domestic and family violence practitioners and services found that practitioners rated judicial officers as ‘having the poorest understanding of [domestic and family violence]. Some stakeholders noted that the knowledge and understanding of family violence amongst judicial officers can be ‘less than adequate’, for example regarding financial and abuse of process.
8.17
The Judicial College of Victoria (JCV) currently provides training to judicial officers to try to fill such gaps. Whilst the College presently conducts two-day family violence education for magistrates in Victoria, the JCV advised it anticipates that the development of additional family violence training will be a strong focus of the college in the future. This renewed focus is as a result of the recommendations of the Victorian Royal Commission into Family Violence that more comprehensive family violence education should be provided to all judicial officers and other family law professionals in Victoria.
8.18
A particular concern among stakeholders regarded judicial officers’ understanding of how family violence can impact children. Family violence has a significant and unique impact on the emotional, psychological and physical wellbeing of children, and inappropriate, ill-informed decision making can result in children being further exposed to family violence. For example, understanding how a child can be coerced to misrepresent their experience is vital to making appropriate decisions; however few family law professionals possess this ability.
8.19
Knowledge about family violence and its impacts is constantly evolving and improving, and training should reflect these developments to keep all family law professionals, including judicial officers, informed on current best practice. Many submissions not only express that there is a need for improved training, but specify that this training needs to be both ongoing and mandatory.
Family law training and expertise
8.20
Family law is ‘a complex and specialist’ area of law. Many stakeholders submitted that judicial officers practicing in the Federal Circuit Court, or those state and territory courts exercising jurisdiction under the Family Law Act, require more training in family law. The Law Council of Australia explained:
We talk about the need for an expert response, yet the background of many of the judges … is that they have not come from a background of practising in family law … they need to have an extra level of experience in family law to properly respond to the [complex] needs of those families.
8.21
Under the Family Law Act, judges cannot be appointed to the Family Court unless they are deemed suitable to preside over family law matters ‘by reason of training, experience and personality’. However, judges appointed to the Federal Circuit Court do not need to meet the same requirements because the Court exercises jurisdiction in general federal law matters, despite the fact that 87 per cent of the total family law workload is heard in that court.
8.22
Magistrates’ ability to exercise federal jurisdiction in family law matters is also underutilised. The Australian Law Reform Commission (ALRC) has commented that ‘one of the greatest barriers’ contributing to this underutilisation is insufficient knowledge of family law and, by extension, family violence. The Judicial College of Victoria has attempted to address these problems amongst Victorian magistrates, and have developed a number of family violence and family law training initiatives, including:
comprehensive family violence training run;
a series of workshops with presentations and practical exercises to help improve magistrates’ ability to make appropriate and effective decisions with complex cases;
online Family Law Manual to assist Magistrates’ to exercise federal jurisdiction in family law related decisions.
8.23
However stakeholders have noted that this manual requires updating urgently and regularly, and advocated for federal funding to undertake the necessary updates.
Recent training initiatives for judicial officers
8.24
To address these identified challenges, the ALRC recommended in 2010, the development of a national family violence bench book to assist judicial officers to preside over family law matters involving family violence.
8.25
The Australian Government accepted this recommendation and funded the Australasian Institute of Judicial Administration and the University of Queensland to develop the National Domestic and Family Violence Bench Book (the National Bench Book), which is a national online resource for judicial officers.
8.26
The Attorney-General’s Department (the Department) advised:
The [National] Bench Book promotes best practice and consistency in judicial decision making in cases involving family violence. The Bench Book includes information about the dynamics of domestic and family violence, guidelines for courtroom management, information about referrals for those affected by family violence and perpetrators, and other matters judicial officers may wish to consider.
8.27
The first stage of the National Bench Book was launched in August 2016, and the final stage was made available in June 2017. The full National Bench Book now includes advice on family law proceedings to assist all judicial officers with jurisdiction under the Family Law Act.
8.28
The Department advised a training package for judicial officers will be rolled out in 2017–18, covering the ‘nature and dynamics of family violence, and the specific matters [judicial officers] should consider in dealing with these cases’. This package was developed in response to recommendations by the Senate inquiry into domestic violence in Australia.
8.29
The Department further advised that training for judicial officers on parenting matters and property matters has been funded in response to the Family Law Council’s 2016 report recommendation to develop a continuing joint professional development program in family law for judicial officers. It is expected that this training could assist state and territory magistrates to effectively exercise family law jurisdiction when necessary.
8.30
The National Bench Book was noted by the Family Court as being an important resource for building the capacity of judicial officers working with family violence, along with the Family Court’s own Best Practice Principles. The Court also noted that professional development opportunities are provided to judicial officers of the Family Court in relevant areas and referenced a one-day family violence training course provided by the National Judicial College of Australia.
8.31
The Judicial College of Victoria also provides a separate Family Violence Bench Book for Victorian judicial officers, which discusses family violence issues and the interaction of family law and family violence in relation to the Family Violence Protection Act 2008 (Vic).
8.32
Whilst multiple submissions expressed support for the introduction of the National Bench Book as a much needed resource for judicial officers, others argued that it does not provide sufficient training, and is overly simplistic, particularly in relation to the impact of trauma on adults and children, cultural competency, and disability awareness.
Registrars and other court staff
8.33
General court or registry staff may be one of the first points of contact with the family law system. Court and staff are responsible for supporting court-users to access the courts, and for providing appropriate advice on court processes and procedures. The actions and advice of court staff may have significant impact on the perception of the court process for families accessing the court system. It is therefore important for court staff to be able to quickly and effectively identify family violence, be aware of the intricacies and dynamics of family violence, and know how to respond appropriately.
8.34
In a submission, the Family Court advised that it provides an eLearning family violence package, which contains content aimed at strengthening the ‘awareness, knowledge and skills’ of staff when working with families impacted by family violence. However, multiple stakeholders were of the view that improved understanding and responses to family violence by court staff are critical to improving risk assessment as well as collaboration and referral between courts and other support services. It is particularly important for training for court staff to include:
recognising family violence;
conducting appropriate family violence screening and risk assessment;
appropriate responses to support families impacted by family violence;
how to implement any proposed family law amendments;
disability awareness; and
Family consultants
8.35
Family consultants, also known as family report writers, are usually social workers or psychologists who provide judicial officers with independent assessments in the form of family reports. These reports are considered to contain independent, expert advice to inform judicial officers on how best the best interests of the child could be served in post-separation parenting arrangements.
8.36
Family consultants may be employed by the family courts or engaged privately by the family courts under Regulation 7 of the Family Law Regulations 1984. These private family consultants are often used when court-based family consultants cannot meet the demand for family reports.
8.37
As noted in Chapter 6, family reports are extremely influential documents. Family reports not only provide recommendations to judicial officers about parenting arrangements, but can be used as tools in dispute negotiations, and to determine whether a grant of legal aid is appropriate for one party. Importantly, these reports can hold a privileged position over other evidence such as evidence from the non-perpetrating parent, the child or children, therapists, child protection officers and police.
8.38
Despite the critical role that family reports can play in the outcome of family law proceedings, family consultants are not required to undertake formal training, accreditation or evaluation. If untrained family consultants are providing recommendations to judicial officers who may also be untrained in family violence, the consequence is that the safety of children and families is put in jeopardy. Numerous submissions to this inquiry referred to the limited training of family consultants, and expressed significant concern as to the impact of this on practice.
Box 8.2: Family consultants
The following is a selection of responses to the Committee’s questionnaire:
‘The family report writing process was absolutely critical and the children’s independent legal representation was vital for giving them a voice in the whole process. These additional services led to the best possible result for the children’.
—Respondent from Victoria
‘Training and education of family consultants in particular in family violence. They cause a lot of trauma to protective parents [when] they get their assessment wrong … More people from various backgrounds need to be involved in the decision making process working alongside the family consultant to reduce bias from the family consultant and determine the truth of a family violence matter’.
—Respondent from Victoria
‘Family consultants need to understand family violence and the impacts. They blamed me for allowing the violence and abuse to occur and to the children. They state that as I was no longer in the relationship the violence would stop and I needed to stop living in the past even though he was still doing the same things’.
—Respondent from Victoria
‘A family report writer sees the family for one or two hours. This is insufficient time to see what is really going on in the family. I don’t think the answer lies in further training of family violence—it lies in a better interaction between mental health professionals and family law professionals’.
—Respondent from Victoria
‘There is also a problem of family reporters opinions being taken as ’gospel’ even when they only spend very limited time with each person involved. This is not ok. Therefore it is imperative that family reporters are thoroughly trained in family violence/abuse. They need to know how to recognise the ‘red flags’ in short space of time as well as the different effects on different children. There is too much ignorance around this subject’.
—Respondent from Victoria
8.39
The following sections will outline three key issues raised in evidence regarding family consultants: training and accreditation, how consultants are employed, and the monitoring of consultants.
Training and accreditation
8.40
Currently family consultants must have a tertiary qualification in the social sciences—usually psychology or social work—and a minimum of five years’ practice experience. At present, family consultants are not required to undertake formal family violence training.
8.41
Limited understanding of the dynamics of family violence by family consultants can result in increased risk of harm due to:
consultants invalidating violence by minimising disclosure of violence, suggesting the violence is inconsequential, believing violence in the past is not relevant, determining that coercive control is ‘not that serious’;
making recommendations based on the legislative presumption of equal shared parental responsibility without understanding the exception to this presumption;
using inappropriate practices in interviews and assessments, such as silencing or misrepresenting children’s voices, believing children are coached by their protective parent, requesting to meet with each parent at the same or a similar time, or at inappropriate locations;
a lack of cultural competency and understanding of the cultural forms of family violence; and
a lack of disability awareness and understanding.
8.42
For example, a number of submissions noted that if family consultants, and indeed other family law professionals, do not have an understanding of trauma and the impact of trauma on behaviour, then trauma can be misinterpreted and the related behaviours considered a reflection that the person is unfit to parent. This can result in the family report recommending that the child spend time with the perpetrator of violence. Similarly, People with Disability Australia reports that when family consultants do not have expertise working with disability they can write a report that may ‘cast the parent with disability in a less favourable light’ due to biases against people with disability or towards the perpetrator (who is often the carer), potentially resulting in the child being placed with the perpetrator.
8.43
To address these problems, multiple submissions recommended the development of national, consistent, compulsory, comprehensive training for family consultants. It was recommended that such training would include the nature and dynamics of family violence, the impact of family violence, trauma-informed practice, cultural competency, and disability awareness.
8.44
Dr Jeffries and Dr Menih recommended that training should be delivered by a range of family violence experts on topics including: the nature of family violence, working with perpetrators, working with victims of family violence, and trauma and trauma behaviours in both adults and children.
8.45
Further, a number of submissions emphasised that in addition to training, an accreditation process and minimum standards needed to be developed to ‘get some expertise into the report writing’. Women’s Legal Service Victoria stated that the Family Dispute Resolution (FDR) practitioner accreditation framework has some ‘very good competency standards’ around family violence, and suggested that it could be ‘a useful framework’ to model accreditation processes for family consultants. This suggestion was also echoed by other submissions to the inquiry.
8.46
Concern about training and professional development for family consultants has also been expressed by court-employees. For example, in feedback to the Community and Public Sector Union, family consultants and registrars reported a lack of opportunity and time provided to attend professional development activities.
Monitoring and review process
8.47
A formal monitoring and feedback process for family consultants does not exist.
8.48
Both the Family Court and the Federal Circuit Court websites advise that ‘the appropriate venue’ for complaints about, and challenges to, the contents of family reports is via cross-examination during the hearing process. If the complaint is about family consultant conduct and is not addressed via cross-examination, it can be directed to a Regional Dispute Resolution Coordinator, or senior family consultant. If the matter is before the Court, there are no other opportunities to make complaints.
8.49
In many cases, families experiencing family violence are self-represented, and challenging the contents of a family report through cross examination can prove very difficult, particularly when standing up against trained professionals such as psychologists or doctors. Most self-represented litigants do not have the training or knowledge that is required to cross-examine effectively and objectively.
8.50
The complaints process outside of the courts may be just as difficult. The Australian Association of Social Workers (AASW) specifies that they are unable to receive or respond to complaints about social worker if those complaints relate to the proceedings of the Family Court or Federal Circuit Court, or to the content of a report prepared for court proceedings. The AASW further explains that if the complaint is not directly related to the content of the report then it can be addressed by the AASW, but any complaint relating to report contents should be addressed through the court processes.
8.51
The Family Court and Federal Circuit Court provide the Australian Standards of Practice for Family Assessment and Reporting, and Family Violence Best Practice Principles to provide minimum standards and best practice guidelines for family reports. The Best Practice Principles state that they are ‘a voluntary source of assistance’ for decision makers in the Court, to be used at the professional’s discretion. Similarly, the Standards of Practice are not binding for family consultants. The language used indicates that the standards are recommendations and advice for appropriate practice, rather than obligations.
8.52
A key concern regarding family consultants is the lack of an official monitoring process. To address this, Women’s Legal Services Australia recommended the establishment of an oversight mechanism and complaints process, to monitor and review family consultants. Similar recommendations were made by a number of other submissions. Monash University Castan Centre for Human Rights suggested the establishment of a non-court complaints process.
Box 8.3: Monitoring of family consultants
The following is a selection of responses to the Committee’s questionnaire:
‘Any report writer must be an expert in domestic and family violence and have to pass courses each year before they can write any reports’.
—Respondent from Queensland
‘Make family reporters more accountable for … errors in their reports. Our most recent report states [that] I ’demonised’ the father, with no evidence given for this. It also states [that] I said things that I absolutely did not say and that are inflammatory to the father … She was paid $6,600 for a report that was rushed, full of errors and inaccuracies’.
—Respondent from New South Wales
‘Court report writers and family consultants [should be] held accountable for their reports and a new set of guidelines be established to govern over these reporters so that they must only report on fact and evidence’.
—Respondent from Victoria
8.53
As noted in Chapter 6, some evidence to the inquiry suggested that family consultants should be employed by courts only, to ensure consistency in reports, to regulate costs for families accessing the courts, and as it is more cost effective for the courts. It has been suggested that the quality of reports by external family consultants can vary significantly and that court-based family consultant reports ‘tend to be of higher quality’, as the Court is responsible for the standard of family reports written by its own employees. Ms Rathus expressed support for this suggestion, stating that this would be ‘the most controlled system’.
Independent children’s lawyers
8.54
Under section 68 of the Family Law Act, an Independent Children’s Lawyer (ICL) is required to represent the child’s best interests in parenting arrangement matters. ICLs are requested by the courts, and appointed by the respective state or territory Legal Aid Commission. The ICL then independently investigates the best interests of the child for the Court, and may include meeting with the child/young person, seeking relevant evidence and assisting in case management and settlement negotiations.
8.55
Each Legal Aid Commission requires that ICLs have completed the Independent Children’s Lawyer Training Program. Additionally, the Guidelines for Independent Children’s Lawyer state that the ICL is ‘expected to be familiar with’ family violence provisions in the Family Law Act, the Family Law Rules, and the Family Violence Best Practice Principles. However, this training does not appear to be mandatory. Further, apart from the initial national training program, ICLs are not always required to complete ongoing professional development. This is decided by the state and territory Legal Aid Commissions. Currently, Victoria is the only state or territory that requires ICLs to attend ongoing ICL training.
8.56
Given that the caseload of an ICL is generally ‘dominated by concerns about family violence and child abuse’, stakeholders expressed concern that no formal or ongoing training is required regarding family violence and the impact on children, particularly in relation to child responses to family violence, including the impact of trauma.
8.57
Significantly, a recent report by the Australian Institute of Family Studies (AIFS) found that most ICLs expressed a need for more ongoing training and felt that ‘they did not have sufficient training to elicit, and more importantly, interpret children’s views’.
8.58
Training for ICLs was included in the Family Law Council’s recommendation that learning packages provide for minimum competencies and in depth content. A number of submissions referred to and supported the recommendation. It was suggested that such training include the impacts of family violence, how family violence affects parenting ability, trauma in children, and all types of abuse.
8.59
The Department advised that, in response to the AIFS report finding that there were inadequate training and development arrangements in place for ICLs, funding has been provided for National Legal Aid to redevelop the National Training Program for ICLs. The program will comprise nine modules and one day of face-to-face training, and will include updates and improvements to the family violence module. The training will remain a pre-requisite for applying to join ICL practitioner panels.
Family dispute resolution practitioners
8.60
As mentioned in Chapter 4, separating families are required to attend FDR before applying for parenting orders in court. FDR practitioners assist families to resolve disputes relating to the separation process, through a process of mediation.
8.61
A high number of families presenting to FDR have experiences of family violence. For example, Relationships Australia estimates that across their family relationship centres providing FDR, at least 50 per cent of families presenting for FDR have family violence involved in their case. Given the high likelihood of family violence impacting a family, it is important for FDR practitioners to be well‑trained in understanding the dynamics of family violence including its unique forms, how to assess for family violence, the impact on the family, and the potential risks involved with proceeding with FDR.
8.62
FDR practitioners must be accredited under the Family Law (Family Dispute Resolution Practitioners) Regulations 2008. The accreditation process includes holding a degree in social science or the law, and the completion of a Graduate Diploma in Family Dispute resolution, or equivalent, a component of which is family violence related.
8.63
Although the mandatory training for FDR practitioners includes a core competency in family violence, evidence to the inquiry suggested that ongoing and more in depth training would be beneficial. Such training would include a deeper understanding of the ‘nature and dynamics’ of family violence, assessing family violence and eliciting disclosure, abuse of process, cultural awareness, and how to determine when family violence could be emerging during the mediation process.
Resourcing
8.64
Resourcing of the family law system was a key theme in evidence to the inquiry, with some stakeholders identifying that the system is ‘overburdened and under resourced’ causing significant delays for families in family law proceedings. These concerns were particularly directed at resourcing of the courts to hear matters, and resourcing for family consultants and independent children’s lawyers to provide expert advice to the Court in determining matters.
Box 8.4: Resourcing
The following is a selection of responses to the Committee’s questionnaire:
‘The law system needs more people and more time. Everything is so rushed that small but important issues for the parents and children are being dismissed. I have a disability, and just getting into the courts was a nightmare. Finding carparks close by, and sitting for hours waiting for your case to be called up is overwhelming’.
—Respondent from South Australia
‘More family consultants and court writers need to be available to reduce wait times, the longer these things take the more angst builds’.
—Respondent from New South Wales
‘The Courts … need more judges, magistrates and support staff to minimise time frames it takes to get a matter heard and dealt with’.
—Respondent from New South Wales
‘There needs to be greater resourcing of the Courts so matters can be resolved earlier. Financial hardship in part is caused by the length of the matters. More judges and judges with expertise in family law and family violence need to be appointed. I also think there is some merit in an expedited small property pool scheme and the division of some property early/ spousal maintenance based on an allegation of [family violence] rather than a finding’.
—Respondent from New South Wales
‘The majority of the problems posed in the system at the court end could be addressed by additional resourcing’.
—Respondent from the Australian Capital Territory
The Courts
8.65
The Law Council of Australia reported that across the capital cities in Australia, there are delays of nine to 24 months between filing an application and commencement of a trial in the Family Court and the Federal Circuit Court. The result of such long delays is that families experiencing family violence can be placed at an increased risk of harm.
8.66
At the same time, however rushing family violence matters through the family law system can also place families at greater risk of harm. National Family Violence Legal Services Forum explained:
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] crisis situation is [not] the right time to be making decisions that have a long-term impact.
8.67
A number of submissions suggested that the delays in the courts arise from a lack of judges, and delays in replacing retiring judges. It was further advocated that there are insufficient judges to meet the workload of the courts, leading to significant delays for families seeking support and protection. This was acknowledged by the Family Court, which stated in a submission to the inquiry that ‘it is vitally important that the courts have adequate resources to enable them to deal with cases in a timely way’.
8.68
As a result of resourcing implications, families often have limited time before a judge, and the pressure on judges to make hurried decisions on cases increases. When judges need to make decisions quickly, ‘family violence matters cannot be given the attention they require’. Stakeholders were of the view that, in such circumstances, the ability of judges to review cases thoroughly and make appropriate responses is reduced. In addition, the high workload of judges and the nature of family law cases involving family violence may lead to judges experiencing vicarious trauma or burnout which, in turn, can impact appropriate decision making in family law cases involving family violence.
8.69
To address these concerns, multiple submissions recommended appointing more judicial officers and ensuring timely replacements for resigning or retiring judicial officers. However, Professor Patrick Parkinson AM suggested that appointing more judges may not be practical or sufficient to alleviate the problem. Rather, Professor Parkinson recommended procedural reform to reduce the number of matters that proceed to court, as noted in Chapter 4.
Family consultants and Independent Children’s Lawyers
8.70
A lack of sufficient family consultants and independent children’s lawyers can lead to delays, which result in families being within the court system for longer periods and at greater risk of harm. Importantly, National Legal Aid were of the view that increased ICL appointments, alongside more family consultants, could help to facilitate early and appropriate investigation in family law cases.
8.71
Some stakeholders reported that long delays can exist for families who need to see family consultants for a family report. Workload pressures, caused by a limited number of available family consultants, can affect the family consultant’s ability to respond effectively to matters involving family violence. As noted in Chapter 6, family consultants often have high caseloads, and limited time to complete the assessments and report for each case. The Community and Public Sector Union reported that it is ‘not uncommon’ for family consultants to work on multiple cases at the same time. This leaves little capacity for family consultants to conduct appropriate assessments, read relevant documents such as subpoenas, reflect on current best practice, or attend professional development opportunities.
8.72
Multiple stakeholders suggested that these issues may be alleviated by the provision of more family consultants. This could reduce time pressures on family consultants and allow time for proper risk assessment, proper interviewing of families, and reading relevant documents.
8.73
Some submissions recommended that additional funding be made available for more ICLs. The Law Council of Australia explained that Victoria Legal Aid applies a quota for ICLs every month, and that there have been times when ‘the quota of the number of ICLs that would be funded would be filled in the first week’, resulting in some cases involving family violence and child abuse not receiving an ICL at all.
Committee comment
Skills and capacity
8.74
The Committee is of the strong view that a better family law system that supports and protects families from family violence will only be as effective as the capacity of the professionals that work within that system.
8.75
The Committee was provided with a number of examples where the capacity, skills and knowledge of family law professionals has made a significant difference in protecting and supporting families recover from family violence. However, the Committee also received evidence that indicates there are gaps in the capacity of some family law professionals which is compromising the safety of families.
8.76
The recommendations made below will be vital to achieving a family law system that is accessible, equitable, responsive and prioritises the safety of families.
8.77
Although the most serious cases of child sexual or physical abuse or family violence are reserved for the Family Court, the presence of child abuse or family violence is not always identified early in a case. This is compounded by data that indicates the vast majority of family law matters are heard in the Federal Circuit Court. It is therefore particularly concerning that judges appointed to the Federal Circuit Court may not have expertise in family law or identifying the presence of family violence or child abuse, prior to presiding over such cases.
8.78
The Committee notes that judicial officers cannot be compelled to attend or participate in training once appointed. It is therefore critical that judges with family law and family violence expertise are appointed to the federal family courts, and for current and up-to-date training to be made available to judicial officers. Given the high family law caseload in the Federal Circuit Court, it is fundamental that the professional experience of the judicial appointees to the Federal Circuit Court possess sufficient expertise to reflect that caseload.
8.79
The Committee welcomes the additional resourcing for training for judicial officers to complement the National Bench Book, and suggests that both the National Bench Book and accompanying training are reviewed regularly to ensure that best practice is adopted in guidance and training. The Committee additionally recommends that the AVERT training program be evaluated, with consideration of its content, format, uptake, reach and effectiveness.
8.80
The Committee is also encouraged to learn about two family law specific training packages for state and territory magistrates, covering parenting matters and property matters. The Committee also welcomes the current redevelopment of the national training program for Independent Children’s Lawyers.
8.81
Nevertheless, the Committee is concerned about the inconsistencies in the capacity of family law professionals to work with families experiencing family violence. The Committee recognises that the majority of stakeholders have linked these inconsistencies to a lack of training of professionals and have advocated to this inquiry that improved training is necessary for all family law professionals.
8.82
The Committee recommends that the Australian Government develops a national and comprehensive professional development program for judicial officers from the family courts and from states and territory courts that preside over matters involving family violence. The Committee recommends that this program includes content on:
the nature and dynamics of family violence;
working with vulnerable clients;
trauma informed practice;
‘The Safe and Together Model’ for understanding the patterns of abuse and impact of family violence on children.
8.83
The Committee recommends that the Australian Government develops a national, ongoing, comprehensive, and mandatory family violence training program for family law professionals, including court staff, family consultants, Independent Children’s Lawyers, and family dispute resolution practitioners. The Committee recommends that this program includes content on:
the nature and dynamics of family violence;
working with vulnerable clients;
trauma informed practice;
the intersection of family law, child protection and family violence; and
‘The Safe and Together Model’ for understanding the patterns of abuse and impact of family violence on children.
8.84
The Committee recommends the Australian Government undertakes an evaluation of the Addressing Violence: Education, resources and training (AVERT) family violence training program, with consideration of its content, format, uptake, reach and effectiveness.
Accreditation system for family consultants
8.85
The Committee is deeply concerned by the significant body of evidence to the inquiry that highlighted the substantial inadequacies of many family consultants. Often family reports are the key piece of evidence that a judge can use to make recommendations about parenting arrangements, and the Committee was deeply concerned to hear that family consultants are not required to have training in family violence, or meet minimum accreditation standards. The Committee is also concerned by the lack of monitoring of family consultants, and the barriers to appealing the content of a family report.
8.86
The Committee recognises the recommendations of a large number of stakeholders for family consultants to be trained appropriately and subject to accreditation and monitoring processes, and understands the need for these processes. The Committee believes that the current accreditation system for family dispute resolution practitioners can provide an effective model for an accreditation system for family consultants.
8.87
The Committee recommends that the Australian Government develops a national accreditation system with minimum standards and ongoing professional development for family consultants modelled on the existing accreditation system for family dispute resolution practitioners. This system should include a complaints mechanism for parties when family consultants do not meet the required professional standards.
8.88
The Committee also appreciates the substantial concerns of families who are provided with inaccurate family reports. The Committee identifies that its previous recommendation for the abolition of private practitioners developing family reports, and for family consultants to only be engaged in‑house by the courts, will provide an appropriate mechanism for the Court to ensure the quality and processes employed to develop family reports.
Resourcing
8.89
The Committee acknowledges that the family courts are overburdened, and that this results in long delays for families within in the court system. The Committee understands that for families experiencing family violence, such delays can increase the risk of harm and cause further trauma. The Committee also acknowledges that the time pressures placed on family law professionals within the family law system can compromise the quality of service delivery, and can lead to suboptimal decisions that place families experiencing family violence at risk of harm.
8.90
The Committee welcomes the recent announcement by the Attorney-General of new judicial appointments to replace outgoing judicial officers, and the provision of $10.7 million for the family courts to engage additional family consultants.
8.91
Notwithstanding, the Committee is very concerned about the current backlog in the federal family courts and believes that additional resources are required to address this situation as a matter of priority.
8.92
The Committee recommends that the Australian Government considers the current backlog in the federal family courts and allocates additional resources to address this situation as a matter of priority.
8.93
The Committee notes evidence to the inquiry about other recent announcements, including the Family Advocacy and Support Services and the pilot of parent management hearings will assist to alleviate these challenges. The Committee will monitor with interest the impact of these additional resources. The Committee also notes the importance of judicial appointments which reflect the diversity of the communities they serve.
8.94
While access to justice is determined by a number of factors in the family law system, such as case management, the Committee is concerned that the family law system must be appropriately funded to provide access to justice in a timely matter. Resourcing of the Courts, including an appropriate number of judicial officers, appropriate funding of legal aid and community legal centres should be continually reviewed. The Committee also notes that it has received evidence about the importance of replacing all judicial officers in a timely manner upon their retirement or cessation of their appointment.