18.33 Family violence cannot be considered by a court unless it is aware of the fact of the violence, and the circumstances. Risk assessment is a key way in which courts, police, and others who provide services to victims of family violence can identify and respond to family violence.
18.34 Risk assessment involves identifying and evaluating any risks to the safety of a person or child which arise as a result of family violence. All service providers involved in protection order proceedings under family violence legislation and family law proceedings must, to some extent, identify and manage the risk of family violence for their clients. However, the degree to which risk assessment is a formalised process, and the types of risk assessment practices used by different participants in the legal system, varies across courts and jurisdictions.
18.35 Risk assessment can occur at a number of points in the family violence system, including when a person: accesses a family violence service; applies to a state or territory court for a protection order; discloses family violence during family law proceedings; seeks legal advice; or when police are involved in a family violence incident. Risk assessment is also an ongoing process—first, because it should not be assumed that risk assessment has already occurred elsewhere in the system; and secondly, because risk may change over time, particularly as a victim’s circumstances change through the taking of steps such as separation or legal action. Further, over time a person may be willing to disclose more, as trust is built, if they continue to deal with the same service provider; or if they are feeling supported more generally by the system. The difficulties experienced by victims in disclosing sexual assault provide a key example of why this repeated approach is necessary.
Risk assessment in state and territory courts
18.36 Many organisations, such as family violence service providers, police services and legal aid commissions have developed risk assessment policies and procedures to screen and assess family violence.
18.37 The Victorian Government has developed a state-wide risk assessment and management framework that applies to all service providers. By incorporating common language, definitions of family violence and risk assessment and management procedures, the Victorian framework is intended to ‘significantly increase the ability of the service system to respond in an integrated and coordinated way’ to family violence.
18.38 The framework includes three practice guides directed towards different levels of risk assessment for different categories of service providers. The first practice guide deals with identifying family violence and assists mainstream service providers who may encounter people who are victims of family violence, such as medical practitioners or teachers. The second practice guide, regarding preliminary assessment, assists professionals who work with victims of family violence but for whom it is not their only core business, such as police, court staff and community legal centres. The third practice guide involves a comprehensive assessment for specialist family violence professionals working with victims of family violence.
18.39 The risk assessments in these practice guides combine three elements to determine the level of risk of family violence:
the victim’s view of their level of risk;
the presence of evidence-based risk indicators; and
professional judgment that takes into account all other circumstances for the victim, child and person who has used violence.
18.40 The framework also provides for appropriate referral pathways and information sharing between service providers; risk management strategies including ongoing case management; data collection; and quality assurance strategies. The provision of training aimed at building capacity and consistency in risk assessment and management across service providers, is an integral part of the framework.
18.41 The practice guides are flexible, and particular service providers, such as Victoria Police, have developed their own risk assessment processes, based on the common framework.
Risk assessment in family courts
18.42 Some participants in the family law system already undertake formal risk assessment. In particular, a key element of family dispute resolution (FDR) practice is screening and risk assessment for family violence, which is designed to ensure that FDR is not used in inappropriate circumstances, and to identify and mitigate any risk factors in cases where FDR is considered appropriate.
18.43 The Australian Government Attorney-General’s Department and the Australian Catholic University have published a Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line, which includes a screening and assessment framework, referral guidelines and indicators of family violence and child abuse and risk of self-harm. It discusses issues of supervision and support, and provides a range of resources for practitioners, including sample questions to identify family violence.
18.44 The Chisholm Review and the Family Law Council’s report on improving responses to family violence in the family law system both made recommendations about risk assessment by federal family courts.
18.45 The Family Law Council makes a number of recommendations about family violence ‘if and when it becomes visible in the family law system in Australia’. In particular, it considered that it is essential that all people involved in the family law system screen for matters likely to impact on children and parenting, including, amongst other things, family violence. The Family Law Council also recommended that a consistent framework for screening and risk assessment be developed in accordance with principles adopted in the common knowledge base.
18.46 The Chisholm Review recommended that the Family Law Act should require federal family courts to conduct a risk identification and assessment. It considered that the current approach, in which parties file a notice that allegations of family violence or child abuse have been made (Form 4 notice) was ‘not working’. The Review stated 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.
18.47 The Chisholm Review recommended that the Australian Government consider the most appropriate ways of conducting this kind of risk assessment, having regard to the resources available to the courts, and to the possibility of arranging for an external agency to conduct some or all of the risk assessment.
18.48 In a submission to this Inquiry the Attorney-General’s Department noted the development of several measures to improve the way in which the family law system responds to family violence and child abuse, including a national framework to support screening and assessment for family violence across the family law system. It submitted that:
The main purpose of screening is to identify clients who are at risk of harm, including the currency and extent of the risk. In the first instance, it is envisaged that all clients entering the family law system will be screened consistently, and at a general level to identify risk of harm at the earliest stage. Further and more comprehensive risk assessment may follow depending on the path taken in the resolution of the client’s dispute. Assessing client needs will follow on from screening and focus on the needs of the client and the type of service that may be required. The common screening and risk identification framework will ensure that regardless of their entry point, clients receive access to the range of information and referral options that are available to meet their needs. It is anticipated that all practitioners will be trained in the consistent use of the framework.
Submissions and consultations
18.49 Some stakeholders commented on the importance of risk assessment procedures, particularly in federal family courts. Women’s Legal Service Queensland, for example, considered that:
A risk assessment and risk management framework, similar to the one introduced in Victoria, should be developed and applied across Government agencies and funded services dealing with matters involving domestic and family violence, including police and courts and related services. This would help ensure there is a clear, transparent and standardised approach to the risk management and the assessment of safety and risk in each family coming into contact with services.
18.50 Domestic Violence Victoria and others in a joint submission expressed the view that a common approach to risk assessment would improve the evidence given to support claims of family violence in court:
We would argue that a shared understanding of risk factors and shared approaches to assessing risk helps in gathering evidence that can be used in applications for protection orders through state courts, and parenting orders through federal courts. Good evidence is contained in the woman’s story about the violence—it helps her to identify and think about possible witnesses, others she’s told, others who have seen and documented her injuries etc. We know from research that women usually tell someone at a point of crisis.
Shared frameworks for supporting a woman to tell her story, and clear practice directions about asking questions about violence can assist her to tell her story more clearly, regardless of where she first presents for support. The flow on is that greater clarity and more detail about the violence that is available to the court will usually lead to good evidence to support the allegations.
18.51 In Chapters 5 and 6, the Commissions recommend a common definition of family violence across state and territory family violence legislation, the Family Law Act and other legislation. The Commissions recommend that family violence be defined as violent or threatening behaviour or any other form of behaviour that coerces or controls a family member or causes that family member to be fearful; and the definition sets out non-exhaustive examples of the types of physical and non-physical behaviour that may constitute family violence.
18.52 The Commissions consider that a common definition of family violence, together with a shared understanding of particular conduct that may comprise family violence, would provide the groundwork for a common approach to risk assessment for family violence. Across all jurisdictions a common approach to risk assessment would mean that the needs of victims of family violence are consistently understood and addressed by all service providers, including specialist family violence services, courts, police, lawyers and mainstream service providers such as education and health care providers.
18.53 How to ensure proper screening to identify family violence and child abuse was a significant theme in the Family Law Council’s report on improving responses to family violence in the family law system. The issue was also considered in the Chisholm Review, which emphasised ‘that family violence must be disclosed, understood, and acted upon’. Given the attention to risk assessment in both reviews, any consideration in this Report to such initiatives complements, rather than duplicates them.
18.54 While this work has not been duplicated, taking into account the recommendations in these reviews and the submissions and consultations in this Inquiry, the Commissions consider the Victorian framework for common risk assessment to be an instructive model. The Commissions suggest that other state and territory governments consider the development of similar frameworks to assess and manage the risk of family violence in their jurisdictions.
18.55 Work is currently underway to develop a national framework to support screening and assessment for family violence across the federal family law system. In order to promote consistency in understanding and identifying family violence across jurisdictions, it would also be desirable if the federal framework currently being developed was consistent with the overarching risk assessment and management frameworks that apply in states and territories.
 See Ch 26.
 Department of Human Services (Vic), Family Violence Risk Assessment and Risk Management Framework (2007).
 Ibid, 19.
 Ibid, 8.
 Ibid, 7.
 L Eltringham, ‘The Craf Train(ing): Building a Common Approach to Risk Assessment and Management’ (2010) Issue 1 DVRCV Quarterly 10.
 Victoria Police, Code of Practice for the Investigation of Family Violence (2005).
 Australian Catholic University and Australian Government Attorney-General’s Department, Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line (2008), 13.
 R Chisholm, Family Courts Violence Review (2009), Recs 2.3, 2.4, 2.5; Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), Rec 8.2.2.
 Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), 7.
 Ibid, 42–3.
 Ibid, 43. The Family Law Council also recommended that the federal Attorney-General facilitate the establishment of an expert panel and reference group to develop, maintain and promote a family violence common knowledge base for those involved in the family law system: Rec 6.1.
 R Chisholm, Family Courts Violence Review (2009), Rec 2.3.
 Ibid, 6.
 Ibid, Rec 2.4.
 Australian Government Attorney-General’s Department, Submission FV 166, 25 June 2010.
 See, eg, The Australian Association of Social Workers, Submission FV 224, 2 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Confidential, Submission FV 184, 25 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; D Bryant, Chief Justice of the Family Court of Australia and J Pascoe, Chief Federal Magistrate of the Federal Magistrates Court of Australia, Submission FV 168, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; C Humphreys, Submission FV 131, 21 June 2010; P Easteal, Submission FV 40, 14 May 2010.
 Women’s Legal Service Brisbane, Submission FV 223, 2 July 2010.
 Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.
 Rec 5–1.
 Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009).
 R Chisholm, Family Courts Violence Review (2009), 5.