Screening and risk assessment practices

21.51 A key element of FDR in practice is the process of screening and risk assessment, which is designed to ensure that victims of family violence are not using FDR in inappropriate circumstances, or to identify and mitigate any risk factors where FDR may be appropriate despite family violence or other risks.^[90] Two issues arise in relation to screening and risk assessment. The first is whether FDR practitioners are reliably and appropriately screening and assessing risks of family violence in practice. The second is whether FDR practitioners have taken on the role of ‘gatekeepers’ in the system and are performing a more general screening role in the family law system, especially by providing screening for family lawyers where litigation is contemplated. The first issue is dealt with in this section; the second is dealt with in the following section.

FDR practitioners and screening

21.52 Screening and risk assessment varies across different FDR agencies. For example, the 2008 KPMG report found that a wide variety of FDR practices were evident within the legal aid sector.^[91] The report noted that most screening questions focused on the physical aspects of family violence,^[92] and recommended enhanced screening for non-physical forms of violence. It noted observations of FDR practitioners that screening did not always reveal violence and abuse, and that this could derail the conferencing process.^[93] The report also identified differences in how the various legal aid commissions approached issues of family violence. Nonetheless, the report found that the vast majority of legal aid clients surveyed felt safe or very safe both during and after the conference,^[94] and the majority of FDR practitioners agreed that there were appropriate protocols in place for family violence.^[95]

21.53 The KPMG report made a number of recommendations to strengthen screening and intake processes, including: increasing the experience and knowledge of intake officers, lawyers, and FDR practitioners on particular matters;^[96] using or modifying particular practices, such as interviews and screening questions;^[97] and ensuring better preparation for the FDR process.^[98] The report also recommended establishing protocols for delivering services to marginalised groups;^[99] providing detailed practice guidance on the best interests of the child principle;^[100] examining strategies for providing referral pathways to other support services;^[101] and developing nationally consistent strategies for appropriately managing these issues.^[102]

21.54 Since the KPMG report was published, legal aid commissions have revised their practice standards and risk assessment and screening tools to ensure the safety of participants in FDR. In consultations, National Legal Aid advised the Commissions that there has been extensive sharing of screening tools and risk assessment protocols and best practice methodologies between the various legal aid commissions—largely through the National Legal Aid Dispute Resolution Working Group—to facilitate the ongoing development of a nationally consistent best practice approach. National Legal Aid also noted legal aid commissions’ engagement in ongoing interdisciplinary exchange of information and best practice in the handling of family violence across the wider family pathways network.^[103]

21.55 With respect to screening for FDR, National Legal Aid advised that the dynamics of family violence, as defined broadly, are taken into account. Screening includes questions that focus on emotional or psychological abuse, intimidation, coercion and financial control. National Legal Aid noted that the legal aid sector aims to ensure that clients are able to participate in FDR safely and without disadvantage. To achieve this, legal aid commissions encourage parties to be legally represented at conferences as this assists the FDR practitioner manage the conference to protect vulnerable and disadvantaged parties.^[104]

21.56 Further initiatives by the legal aid sector to deal with referral pathways and the development of protocols for delivery of services to CALD and Indigenous people are discussed below.^[105]

Screening frameworks

21.57 The Australian Government Attorney-General’s Department has published a Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line (Screening and Assessment Framework),^[106] which addresses many of the issues raised in the KPMG evaluation of FDR in the legal aid sector in detail. The framework is an extensive resource available on the departmental website for FDR practitioners. It includes a screening and assessment framework, referral guidelines, and indicators of family violence, child abuse and abduction, and risk of self-harm. It discusses issues of supervision and practice support, and provides a range of resources for practitioners, including sample questions relevant to identification of violence.

21.58 The Victorian Government has similarly produced a comprehensive screening and risk assessment framework for all service providers in family violence.^[107] This sets out a common framework, including six components: a shared understanding of risk and family violence; standardised risk assessment; referral pathways and information sharing; risk management strategies; data collection and analysis; and quality assurance. It also includes three practice guides directed towards different levels of risk assessment processes for different categories of service providers. A common framework has advantages in terms of inter-agency trust and cooperation. The Commissions note that theAustralian Government Attorney-General’s Department is currently developing a national framework to support screening and assessment for family violence across the federal family law system.

21.59 In relation to the issue of screening and risk assessment, the Family Law Council considered that:

appropriate training in screening for family violence issues is essential for family dispute resolution practitioners, and those who refer matters to them. It is essential that practitioners have appropriate responses and options to offer once family violence is identified.^[108]

21.60 The Council recommended that a consistent framework for screening and risk assessment be developed in accordance with principles adopted in the common knowledge base proposed by the Council,^[109] and that frameworks, tools and materials be endorsed by the expert panel and reference group.^[110]

21.61 In the Consultation Paper, the Commissions proposed that the Australian Government should promote the use of screening and risk assessment frameworks and tools for family dispute resolution practitioners through, for example, training, accreditation processes and audit and evaluations.^[111]

Submissions and consultations

21.62 There was significant support in submissions for this proposal.^[112] Domestic Violence Victoria, in a joint submission with other stakeholders, emphasised the importance of screening and assessment going beyond physical violence to explore the range of other behaviours that have the impact of intimidating, controlling and humiliating the victims of violence.^[113] The involvement of the family violence sector in the further development of screening and assessment processes was supported and acknowledged by some submissions.^[114] The screening and assessment tool employed by Victoria Legal Aid’s Round Table Dispute Management program received particular acknowledgement as an effective tool developed in collaboration with the domestic violence sector.^[115] The cross-sectoral collaboration between the Domestic Violence Resource Centre and Relationships Australia Victoria was also mentioned.^[116]

21.63 Training in the use of screening and assessment tools was described in submissions as very important, as was the understanding that screening is a process rather than an event—initial screening should not provide the only point of disclosure.^[117] The many disincentives to disclosing violence may mean that violence is only revealed, for example, after repeated inquiries or after trust in the service provider has been developed.

21.64 The development of screening and assessment tools was also described as not ‘a one-off event’: their continued refinement to reflect best practice is important.^[118] One submission specifically endorsed the recommendation of the Family Law Council (referred to above) that screening and risk assessment frameworks, tools and materials should be endorsed by an expert panel and reference group.^[119] Professor Julie Stubbs submitted that the tools used should be empirically tested and established for use in the Australian context.^[120] AIFS discussed the need for a reliable and validated tool to assist in the making of clinical judgments, and referred to work currently being done in Australia to produce more valid and reliable screening and risk assessment instruments for the family relationship sector. AIFS commented that commitment was required to coordinate these efforts so that a final product could be produced that would be user friendly and achieve a high level of confidence from lawyers and decision makers.^[121]

21.65 The issue of the cultural appropriateness of screening and assessment tools and training in their use was also mentioned in submissions.^[122] The particular barriers to disclosure of family violence for Indigenous women and women who have particular needs because of language, ethnicity, immigration status, disability are also important.^[123]

Commissions’ views

21.66 In view of the strong support for this proposal and the content of the submissions, the Commissions recommend that the Australian Government continue to support and promote: high quality screening and risk assessment frameworks and tools for family dispute resolution practitioners; the inclusion of these tools and frameworks in training and accreditation of FDR practitioners; and their inclusion in the assessment and evaluation of FDR services and practitioners. In this regard, the Commissions note the need, as suggested by AIFS, for coordination of efforts to develop valid and reliable screening and risk assessment instruments.

21.67 The Commissions also commend the work of FDR services in collaborating with the family violence sector to develop screening and assessment frameworks and other tools to improve practice. In the course of this Inquiry, which is focused on the intersections of the complex systems handling family violence, the importance of, and the challenges inherent in, communication and collaboration across divergent perspectives on violence have become very clear. Collaborative practice, integrated services and the closure of the gaps in the system are predicated on this type of work,^[124] and reflect the principles for reform identified in this Inquiry.^[125]

Lawyers as effective referral agents

21.68 Deciding on the appropriate path for clients in cases involving family violence can be a complex task. Section 60I of the Family Law Act, discussed above, requires that parties in dispute must attempt FDR before they can litigate about a parenting issue in a family court. FDR practitioners must provide a certificate under s 60I(8) that the parties did, or did not, attend FDR and made a genuine effort to resolve their parenting dispute. There are exceptions in s 60I(8) for cases that are not appropriate for FDR—these exceptions include cases involving violence. Where there is violence, or a risk of violence, the parties do not need to go to FDR but may go directly to court. A certificate under s 60I(8) is not required in certain circumstances. The circumstances are set out in s 60I(9). They include an exemption where the court is satisfied that there are reasonable grounds to believe that there has been, or there is a risk of, child abuse or family violence.

21.69 The AIFS Evaluation indicated that this legislative scheme may not be working well. One of the identified problems was the way FDR practitioners are being used to issue s 60I certificates. The evaluation conducted by AIFS showed that parents who reported experiencing physical or emotional violence, were ‘much more likely to have attempted FDR’ than parents who did not report experiencing violence.^[126] Of particular relevance is the finding that lawyers appeared to be sending victims of family violence to FDR services as a method of getting a s 60I certificate in order to allow them to proceed to the court. While FRCs did not provide certificates ‘as a matter of course’, some clients or legal advisers nonetheless saw providing certificates as the primary function of FRCs or believed a certificate should be issued as a default option.^[127] Importantly, the AIFS survey also revealed that clients, who clearly fell within the exception to FDR in the legislation were ‘not infrequently referred to the FRCs by lawyers (and to a lesser extent by courts)’.^[128]

21.70 The AIFS evaluation concluded that the rate of issuing of certificates had likely increased, and this was ‘in part connected with an absence of triage by lawyers and other professionals’.^[129] There is a problem if clients who are clearly exempt from FDR are, nevertheless, being referred to FDR in order to get a s 60I certificate. In the Consultation Paper the Commissions expressed the view that FDR services should not be the triage point for family violence and that all personnel in the family law system should be capable of identifying violence and dealing with it appropriately. The extent of violence in the separating and divorcing population is such that violence is likely to be core business for most professionals in the family law system. Further, any agency or professional could be the first port of call for a party who has been the target of violence, and that agency or professional needs to be able to identify, manage or refer cases appropriately.

21.71 In order to be effective practitioners, family lawyers need training on how to identify and make appropriate referrals in cases of family violence. They need to be able to identify when FDR is clearly not appropriate and an application under s 60I(9) is required. All FDR agencies are not the same, and understanding the range of available services may assist in selecting the best match for the client.^[130] There may be cases where a lawyer is not sure whether FDR is appropriate or not, in which case referral may be the best decision so that an FDR practitioner can make a decision in the light of their knowledge of the capacity of FDR and of that service to handle cases involving violence. Appropriate screening and referral for lawyers therefore involves an understanding of family violence and also an understanding of the nature of FDR services and their practices in cases of family violence. The required knowledge and understanding is complex and is almost certainly best acquired through training and education.

21.72 The need for training of lawyers about family violence raises the question of how such training should be provided. Tertiary institutions address family violence issues in courses such as criminal law and especially in family law. However, coverage of family violence may not be sufficiently extensive or specialised to prepare lawyers for effective screening and referral in practice. Students who study family law as part of a law degree may not later practice in that area; lawyers who do practice family law may not have studied it at university.^[131] Professional bodies also provide education in family law and family violence. Some lawyers who practice in this area are specialists and have specialist accreditation, but many do not. Family lawyers may be required to attend professional development seminars, but unless they are Independent Children’s Lawyers, they are not required to have training in child development or family violence in order to practice family law.^[132] Providing education and training in family violence appears likely to involve collaborative relationships between many organisations.

Submissions and consultations

21.73 In the Consultation Paper, the Commissions proposed that Australian governments, lawyers’ organisations and bodies responsible for legal education should develop ways to ensure that lawyers who practise family law are given adequate training and support in screening and assessing risks in relation to family violence.^[133]

21.74 There was strong support for this proposal in submissions.^[134] Some submissions were supportive of further training and support for lawyers because of negative experiences where lawyers did not respond appropriately to violence. Examples were given of cases where lawyers handled cases involving violence in ways that did not provide adequate protection for clients, including some cases involving violence of extreme seriousness.^[135]

21.75 Suggestions about the nature of training for lawyers and its significance were also made. One submission pointed to the broader relevance of family violence training beyond family law:

Education about domestic violence needs to be included as a specific unit within the subject of Criminal law and Family Law at all universities. Further, even if a practitioner does not practise in family law, domestic violence still can have a large impact on other areas – such as credit and debt matter, criminal matters, wills and estates.^[136]

21.76 The Law Society of NSW pointed to the benefits of cross-sectoral training, arguing that:

Solicitors have much to learn from the social sciences. Family Counsellors and FDRPs have much to learn about the legal dynamic.^[137]

21.77 National Legal Aid similarly advocated for training and support beyond the legal sector, and referred to the recent tender by the Attorney-General’s Department for the development of a multi-disciplinary training package in relation to family violence.^[138]

21.78 There were divergent views about the present availability of training on screening and risk assessment. The Magistrates’ Court and the Children’s Court of Victoria argued that there is very little education available to the private profession that would assist them to screen for family violence and assess risk.^[139] However, the Law Society of NSW submitted that ‘a considerable amount of legal education on this topic is currently available.’^[140] The Family Law Section of the Law Council of Australia pointed to its record in the provision of training, including about family violence, and indicated its willingness to continue working with government and other agencies in this regard. The Council emphasised the importance of training in this area: ‘family law is such a dynamic and constantly changing area of law that continuing professional development is an essential part of family law practice’.^[141]

21.79 Submissions and consultations also provided further information on the dynamics of lawyer referral to FDR in cases involving family violence. Two issues were raised: first, whether lawyers refer cases to FDR in order to pass on the job of screening and assessment to FDR services; and second, whether and why lawyers send cases involving family violence to FDR in order to get a certificate under s 60I(8) rather than making an application for an exemption under s 60I(9).

21.80 In relation to the first issue, consultations provided some confirmation of the findings of the AIFS evaluation. The Commissions were told that there are other barriers to lawyers screening for violence. The first barrier is resources—a client may not have the funds to pay for an application to court for an exemption under s 60I(9), so lawyers reportedly send their clients to FDR in order that the exemption will come under s 60I(8) and be free of cost.^[142] The second barrier mentioned was knowledge. Lawyers reportedly do not feel competent to decide if a case is exempt under s 60I(9), so they send clients to FDR because of the expertise of FDR practitioners in this area. Screening for violence was described as too big an onus to place on family lawyers and beyond lawyers’ knowledge base.^[143]

21.81 A further problem identified in consultations arising from the practice of sending cases to FDR for screening and assessment, is the problem of delay. While, in some areas, a rapid response from FDR is possible, in others there is a shortage of services and the resulting delay for clients may be several months. Clients may not realise that there is an option of going straight to court.^[144]

21.82 However, the Women’s Legal Service NSW argued for the desirability of having both options—of exemption from FDR under s 60I(9) and referral to FDR for screening and a certificate under s 60I(8). The Service argued that referring a client to FDR is often a legitimate and cost effective strategy:

Both these processes need to be accessible for clients and, in many cases, seeing a family dispute resolution practitioner for the purposes of obtaining a section 60I certificate is the preferable course: it is usually less expensive; having a certificate rather than not, may have more credence with the court; and the client may have an opportunity to participate in safe family dispute resolution if appropriate to do so.^[145]

21.83 There was also a suggestion in two submissions that the approach of courts to family violence is informing the unwillingness of lawyers to use the exemption provisions in s 60I(9). The Women’s Legal Centre (ACT and Region) submitted:

The attitude of the courts in granting exemptions based upon family violence allegations needs to be clearer for practitioners. We have heard anecdotally of Registries which simply do not allow exemptions and thus lawyers need to send their client to an FDR practitioner to obtain a certificate when it was obvious from initial instructions that FDR was not suitable.^[146]

21.84 The Women’s Legal Service, Queensland asserted that some FDR practitioners accept cases involving violence because they know that the court will send the case back for FDR even if a certificate that the case is not appropriate for FDR is issued.^[147] Further submissions mentioned the impact of the 2006 amendments to the Family Law Act, in particular the disinclination of lawyers to raise family violence in family courts because of the fear of costs orders or that the client alleging violence will be perceived to be an ‘unfriendly parent.’^[148] If lawyers are concerned about the response to violence from family courts they may be inclined instead to refer cases to FDR, thus putting inappropriate pressure on that sector.

21.85 The Commissions note that in commenting on the 2008 KPMG report, and on legal aid commissions’ strategies for referral pathways to other services, National Legal Aid pointed to its development of overarching referral and information sharing protocols. National Legal Aid noted that each Legal Aid Commission has criteria for referrals with their local Family Relationship Centres, including consideration of single referral points.^[149]

Commissions’ views

21.86 The Commissions recognise that family violence is core business for all professionals in the family law system and that all of them should have the knowledge and expertise to identify violence and manage it appropriately. This includes lawyers, who should not assign their role in screening and assessment to FDR practitioners, requiring their clients to tell and re-tell their experiences of violence and possibly involving them in increased costs and delays. Lawyers should have the requisite understanding of the nature and dynamics of family violence and of FDR to act as effective screening and referral agents.

21.87 In the Consultation Paper, the Commissions proposed that Australian governments, lawyers’ organisations and bodies responsible for legal education should develop ways to ensure that lawyers who practice family law are given adequate training and support in screening and assessing risks in relation to family violence.^[150] In view of the responses of stakeholders in consultations and submissions, discussed above, the Commissions would also include FDR practitioners in this list of organisations, given the provisions of s 60I and the significant intersections in practice of lawyers and FDR practitioners in screening and risk assessment.

21.88 The Commissions note National Legal Aid’s development of referral and information sharing protocols. In the Commissions view, organisational strategies, such as the development of protocols for appropriate referral pathways to other services, may be valuable in complementing and supporting training for lawyers on effective screening and referral.