Essential elements of integrated responses

29.86 Integrated responses offer clear benefits for service delivery to victims, including—importantly for this Inquiry—improving the experience of victims involved in multiple proceedings across different legal frameworks. For example, fax-back protocols between police and victim support services, and co-location of services, facilitate victims’ access to a range of options and referrals. Another benefit is that such responses enable networks to be formed across services and government departments at a local level, fostering collaboration and communication between key players in different legal frameworks, and providing ongoing improvements to practice and understanding.

29.87 As discussed above, a number of Australian jurisdictions have either implemented, or are in the process of implementing, various forms of integrated responses. Some of these are quite comprehensive, while others are smaller in scale, for example, liaison arrangements between police and victim support services.

29.88 In the course of the Inquiry, the Commissions sought feedback on what key features were required to ensure the success of an integrated response. The elements that emerged most clearly from consultations and submissions, which are discussed below, are: common principles and objectives; mechanisms for inter-agency collaboration; and provision of victim support, including legal representation. Information sharing, which is another essential element of integrated responses, is discussed separately in Chapter 30. Specialised courts and offender programs, which may also be features of integrated responses, are discussed in Chapter 32.

Common principles and objectives

29.89 One of the first steps in developing any integrated response is for key players to agree upon shared principles and objectives, which are sometimes set out in legislation.^[88] The Safe at Home program in Tasmania is based on the following principles:

• family violence is a crime and where evidence exists that it has been committed arrest and prosecution will occur;

• police are responsible for providing immediate intervention to secure victim safety and manage the risk that the offender might repeat or escalate the violence;

• the safety of victims is paramount;

• the victim does not determine the response of the justice system;

• wherever possible, victims should be able to choose to remain in or return (as soon as possible) to their own homes; and

• the criminal justice response to family violence should be seamless and the roles and responsibilities of each participating agency and service should be clear.^[89]

29.90 The objectives of the Program are to:

• achieve a reduction in the level of family violence in the medium to long term;

• improve safety for adult and child victims of family violence; and

• change the offending behaviour of those responsible for the violence.^[90]

29.91 Principles and objectives are sometimes set out in state and territory strategic plans or responses to family violence. For example, similar principles and objectives have been stated as part of the NSW Strategy to Reduce Violence against Women; Queensland’s whole of government response to family violence, released in July 2009;^[91] South Australia’s statement on the Women’s Safety Agenda;^[92] and Western Australia’s strategic plan for family violence.^[93] At the time of writing, both Victoria and the Northern Territory were preparing similar strategic plans. It is likely that these will also include shared principles and objectives, as in other state and territory plans or strategies.

29.92 Ensuring a shared understanding of the nature of family violence is a foundational step in ensuring integration. 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.^[94] In addition, in Chapter 18, the Commissions examine the need for a common approach to risk assessment for family violence based on that common definition. The Commissions consider the Victorian framework for common risk assessment to be a good model, and 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.

29.93 In the Commissions view, this shared understanding of the nature of family violence and shared approach to risk assessment must then be reflected in the objectives and principles that underpin state and territory strategic plans and inter-agency programs. In the Consultation Paper, the Commissions proposed that integrated responses should be underpinned by common policies and objectives.^[95]

Submissions and consultations

29.94 The Sydney Women’s Domestic Violence Court Advocacy Service submitted that:

A common set of domestic and family violence policies and objectives be adopted Australia-wide, emphasising the criminal nature of domestic and family violence; the safety of victims and accountability for perpetrators; and the need for a coordinated and integrated response to domestic and family violence which emphasises victim support.^[96]

29.95 The joint submission from Domestic Violence Victoria and others noted that the Victorian family violence integrated model is based on a whole of government approach in which five ministers—the Attorney-General, the Minister for Housing and Local Government, the Minister for Police and Emergency Services, the Minister for Community Services, and the Minister for Women’s Affairs and Children and Early Childhood Development—and their departments work within a single policy framework. The Family Violence Ministers Group meets quarterly, provides leadership and oversees family violence reforms:

Multi-ministerial responsibility provides a holistic approach to addressing the issue and encourages mutual accountability. Within this model Victoria has benefited from high-level leadership and the weight this carries in driving reform.^[97]

29.96 The National Association of Services Against Sexual Violence noted that in the ACT a ‘Wraparound’ Charter had been developed to provide an underpinning set of standards for the FVIP and expressed the view that the Charter and program represented best practice in this area.^[98]

29.97 The NPY Women’s Council Domestic and Family Violence Service noted that it was particularly important to the work of that Service that Western Australia, South Australia and the Northern Territory have common policies and objectives.^[99]

29.98 The Aboriginal Family Violence Prevention and Legal Service Victoria (AFVPLS Victoria) stated that integrated family violence responses were critical. Importantly, any such response required dedicated Aboriginal and Torres Strait Islander strategies and services to be developed, but then incorporated into mainstream strategy. Developing dedicated strategies and services provides an opportunity for Indigenous communities to participate and lead change. The submission indicated, however, that incorporating such strategies and services into the mainstream was likely to strengthen the response of mainstream agencies to Indigenous victims of family violence.^[100]

Commissions’ views

29.99 Where organisations work together to develop and deliver integrated responses to family violence—whether this involves just two organisations or many more—there is value in coming to an agreement about the principles and objectives that are to underpin the response. In Chapters 5 and 6, the Commissions discuss the importance of developing a shared understanding of what amounts to family violence across the different legal frameworks considered in this Report, to help close gaps between the systems. The Commissions are also of the view that developing common principles and objectives when integrating the work of different agencies and organisations in response to family violence will help to ensure that all the parties involved in the integrated response understand what they are working together to achieve.

29.100 The Commissions note that the process of developing common principles and objectives should involve all the agencies and organisations that are to be involved in the integrated response, including those working with Aboriginal and Torres Strait Islander communities, CALD communities and the disability sector. As noted by the AFVPLS Victoria, the development process itself is an important point of contact and empowerment for those involved. It may also provide a basis for ongoing and active collaboration between the parties, which is essential to the success of any integrated response. Inter-agency collaboration is discussed further below.

29.101 The Commissions note that there are a number of ways in which the Australian, state and territory governments may foster the development and dissemination of common principles and objectives to underpin integrated responses to family violence. These include developing strategic plans and creating regional, state and territory or national steering committees. Any such process should, however, involve close consultation with relevant stakeholders to ensure that the principles and objectives of any particular integrated response mechanism accurately reflect and respond to the diversity of local conditions and needs.

Inter-agency collaboration

29.102 Inter-agency collaboration is an essential feature of integrated responses. The need for collaboration between agencies, including the courts, is one of the most important issues raised in this Inquiry. In particular, the need to share information in appropriate circumstances to ensure that people do not fall into gaps between the family law, family violence and child protection systems is discussed in detail in Chapter 30. That discussion canvasses issues including the impact of privacy legislation on the sharing of agency information; information sharing protocols and MOUs; and the development of a national database.

29.103 In this chapter, the Commissions consider other issues that arise in relation to inter-agency collaboration. These include the advantages and challenges of collaboration, as well as some of the methods of collaboration.

Advantages of collaboration

29.104 The way government services are delivered tends to follow the structure of government. For example, services for child protection are typically delivered by a different department from that responsible for crime and justice. Similarly, the delivery of legal services reflects both jurisdictional divisions and different governing legal frameworks.

29.105 These divisions are convenient for those administering the services, but are less convenient for those receiving services. For these reasons, there has been an increasing trend towards coordination and integration of services, by either co-locating or by integrating services delivered to a particular category of ‘client’.^[101] The advantages of integration have been described as follows:

In essence there are three main sets of arguments for improved integration: improved access for consumers; increased efficiency, achieving more from the use of limited resources; and enhanced effectiveness, resulting in enhanced outcomes for consumers and funders.^[102]

29.106 More specifically in the context of this Inquiry, the advantages of inter-agency collaboration include:

• ensuring that victims of family violence are referred to appropriate services wherever and whenever they are brought into contact with government agencies or services;

• minimising elements of duplication or inefficiencies arising from the delivery of multiple services by multiple agencies, such as through the sharing of information;

• increasing the capacity of services and legal systems to manage complex cases through networks of information and services, and improving the decisions made by agencies and courts as a result;

• ensuring that victims of family violence do not fall into gaps between agencies and legal systems working in isolation from each other; and

• avoiding or reducing the prospect of conflict between measures or policies adopted by different agencies.

Challenges of collaboration

29.107 Despite these advantages, caution needs to be exercised in the promotion of inter-agency collaboration for its own sake. While inter-agency collaboration has a number of advantages,

what is required … is not the promotion of the goal of service integration as an end in itself, but a more differential approach. Clear evidence of the nature and extent of problems in particular spheres of service provision together with evidence of the value of specific initiatives to address these difficulties is necessary before an ongoing commitment is made to new initiatives.^[103]

29.108 Not all services need to be integrated for all people, and services may have such different approaches or philosophies that they ought not to be integrated. For this reason, recommendations and suggestions for specific inter-agency collaboration are discussed in the specific contexts in which they arise in this Report.

29.109 It is also important to recognise a number of challenges of inter-agency collaboration. One of these is the need for adequate resourcing, training and support. Inter-agency collaboration ‘costs before it pays’: it requires resourcing for staff and support systems, services, and start up costs.^[104] There is also often a need for cultural change within organisations and the development of trust between organisations. Staff may experience a certain amount of pressure, and be required to undertake ‘tasks of greater complexity requiring more training and expertise, time and effort, if their resources do not expand’.^[105] Another key challenge is ensuring that the mechanisms of collaboration are flexible enough to meet the respective needs of the different partners, and yet stable enough to endure.

Methods of collaboration

29.110 As discussed above, there are different mechanisms of collaboration. At the level of policy, agencies may collaborate in establishing overarching policy bodies or steering committees and agreeing upon common principles and objectives.

29.111 At an operational level, key ways in which agencies may collaborate include:

• developing inter-agency networks and contact points, including placing liaison officers from one agency in another agency;

• sharing information obtained by agencies;

• sharing knowledge by agencies (such as joint training);

• referring victims to different agencies;

• developing protocols for communication and working together; and

• establishing collaborative decision making mechanisms, such as joint case management conferences.

29.112 Collaboration between agencies and other actors is discussed at various points in this Report. For example, information sharing between agencies—including the courts—and the development of protocols that set out procedures for working together and for exchanging information are discussed in Chapter 30. The need for joint training is discussed in Chapter 31. Joint case management, including the Magellan project is discussed above. Cooperation between federal family courts and state and territory courts dealing with family violence is discussed in Chapters 15 to 17. Cooperation in the context of child protection and family law is discussed in Chapter 19 and in the context of child protection and the criminal law, in Chapter 20.

Submissions and consultations

29.113 The joint submission from Domestic Violence Victoria and others noted that the Victorian integrated response is supported by the Family Violence Statewide Steering Committee, which convenes quarterly and provides advice to ministers. The Committee includes representatives from both government and non-government sectors, such as the police, courts, family violence crisis and recovery services, community legal services and men’s behaviour change programs. The Committee focuses on the development of integrated, multi-agency responses to family violence.

29.114 The submission noted that close collaboration and consultation with non-government service providers is important to ensure that the work of the Committee is informed by the expertise of individuals working in the community, so that it is grounded in practical experience. In addition, these stakeholders submitted that it was critical to include those working with the most vulnerable individuals, for example, Indigenous women, CALD women, and women with disabilities. The submission also noted the importance of clear information sharing arrangements and inter-agency protocols.

29.115 National Legal Aid noted in relation to the inter-agency agreement and MOU between the Family Court of Western Australia, the Department of Child Protection (DCP) and Legal Aid WA, that:

To facilitate the operation of the MOU, DCP has located a DCP worker at the Family Court. The worker represents the values, practices and concerns of DCP in problem solving and client management processes, increasing the court and DCP’s knowledge and understanding of each other, their respective roles and their shared responsibility for the welfare of children.^[106]

29.116 National Legal Aid also noted that the MOU commits the parties to share information and resources as far as is practicable and permissible pursuant to provisions of the relevant legislation in order to achieve the best possible outcomes for children. It also commits the parties to ensuring that information and training are provided to agency staff to ensure the workability of the arrangements and to meeting regularly to monitor the operation of the MOU and to address any case management issues that are identified.^[107]

29.117 As noted above, the AFVPLS Victoria was supportive of integrating dedicated Aboriginal and Torres Strait Islander strategies and services into the mainstream in order to strengthen the response of mainstream agencies to Indigenous victims of family violence. The submission also indicated that, in Victoria, there was a need to better integrate broader criminal justice initiatives with family violence initiatives because the two are often interrelated. In addition, the submission expressed strong support for Aboriginal and Torres Strait Islander liaison officers to be placed in federal family courts.^[108]

Commissions’ views

29.118 In Chapter 30 the Commissions discuss the importance of establishing information-sharing arrangements between agencies and organisations to facilitate communication and a more integrated approach—based on common objectives and principles—in the family law, family violence and child protection systems. However, as discussed above, such arrangements, protocols and MOUs cannot stand alone and are dependent on the knowledge and involvement of officers and staff. Simply putting such arrangements in place is not sufficient. They must be given an ongoing profile among court and agency officers; they must form the basis of an ongoing and responsive relationship between the parties and must be supported and implemented in practice.

29.119 In Chapter 30, the Commissions recommend ongoing training for parties to protocols and MOUs to ensure that the arrangements are well known and understood and that the arrangements are effectively implemented.^[109]

29.120 The Commissions also note stakeholder feedback that other mechanisms are important to support effective collaboration. Consultations and submissions noted the importance of personal contact between officers and staff in agencies and organisations working together, in particular, the importance of regular meetings. Such meetings provide an opportunity for parties to discuss the advantages and challenges of the relationship, and to address operational issues on an ongoing basis.

29.121 Finally, stakeholders noted that designated contact people within agencies, and the use of liaison officers from one agency placed in another agency or organisation were of assistance. Such individuals provide an accessible and knowledgeable point of contact, and establish bridges between agencies and organisations that can help them to understand each other and work together more effectively.

Victim support services

29.122 Victim support is also an important element of integrated responses, because victim support workers play a pivotal role in ‘integrating’ the system for victims by helping them to navigate between the different legal frameworks. In addition, and as discussed in detail in Chapter 26, relevant and timely support for victims of sexual assault may help to reduce attrition rates in the criminal law context.^[110] Victims who are supported make better decisions and are more likely to use both the legal system and available government services. In consultations, stakeholders repeatedly emphasised the importance of victim support services as the key mechanism of integration from the point of view of victims.

29.123 In each state and territory, victim support services offer some or all of the following:

• assistance to understand the legal process and court procedures;

• tours of courts to familiarise clients;

• support during court attendance;

• information on the responsibilities and rights of witnesses and victims;

• information on the status and progress of proceedings;

• liaison between clients and prosecutors or police;

• provision of, or referral to, appropriate welfare, health, counselling and other support services;

• assistance with victims’ compensation claims; and

• assistance with the preparation of victim impact statements.

29.124 Victim support may be provided at different points of entry into the legal system. Support may be offered at, or soon after, a family violence incident, for example, where the police have been called to attend. Support may also be provided later by telephone or at centres where victims call for advice and information. Support is also important in the lead up to a court appearance and on the occasions the victim attends court.

29.125 The ACT’s model of victim support delivery was widely recognised among stakeholders as a leading model, although not necessarily feasible in larger jurisdictions.

29.126 In the ACT, the DVCS has an MOU with the Australian Federal Police (AFP). This provides that police should offer the services of DVCS at the time of a family violence incident to all parties present at the incident, except those taken into custody. Approximately 85% of people accept this suggestion.^[111] DVCS crisis workers are informed by the police if the parties wish to use their services, and typically arrive at the scene where police brief the workers. The MOU is implemented and administered by a management committee constituted jointly by the AFP and DVCS. As noted above, ‘fax-back protocols’ also operate in other areas and enable close collaboration between police and victim support services, and early delivery of victim support.

29.127 The DVCS is also an approved crisis support organisation under the Domestic Violence Agencies Act 1986 (ACT).^[112] Under s 18 of that Act, a police officer or staff member of the AFP,^[113] on suspicion of past or future commission of a ‘domestic violence offence’, may disclose ‘any information that is likely to aid the organisation in rendering assistance to the person or to any children of the person’. The DVCS also offers 24-hour telephone support and court support (although not court advocacy) services. It also acts as an advocate with government agencies including child protection agencies.

29.128 Another aspect of victim support is court assistance schemes. In NSW, for example, the Legal Aid Commission operates 33 Women’s Domestic Violence Court Assistance Schemes. Support workers can provide information about protection orders, act as a support person in court, explain the court process, and refer victims to other services. Victim support workers are also provided as part of the Domestic Violence Intervention Court Model (DVICM) in NSW. Notably, an independent evaluation indicated that victim support was by far the most successful element of the DVICM.^[114]

29.129 While court support workers cannot themselves provide legal advice, they may be able to organise lawyers to provide legal advice in a particular case.^[115] The Women’s Family Law Support Service also provides court support and information at the Sydney and Melbourne registry of the Family Law Courts,^[116] and a similar service—the Women’s Information Service Family Court Support—is provided in South Australia.

29.130 Victim support is a key aspect of the Victorian specialised family violence courts, discussed in Chapter 32. An on-site victim support worker is available during the court days allocated to family violence hearings. In a joint submission with a number of other stakeholders, Domestic Violence Victoria noted that:

In Victoria a number of regions are currently establishing Crisis Advocacy Response Services (CARS). This multi-agency model is premised upon a sexual assault crisis model and offers women the opportunity to explore the full range of options for safety without necessarily being dislocated from their home and community. The CARS model typically involves participation by family violence agencies, the central statewide crisis intake and referral agency and Victoria Police. This twenty-four- hour, seven-day-per-week program differs from the ACT’s Family Violence Intervention Project (FVIP) model in that a support worker does not accompany the police to the incident. Instead they meet soon after (within forty minutes) at a safe place (eg police station, hospital, motel or safe unit) where the woman is provided with a focussed intervention at the point of crisis. She is provided with face-to-face crisis counselling, information about legal options, information about material aid, referrals, advocacy and support. Preliminary findings through a CARS pilot in metropolitan Melbourne demonstrate that a majority of women assisted have been able to return home with an exclusion order in place and a range of support options available to them.^[117]

29.131 The importance of victim support has also been recognised in the United Kingdom’s national strategy for reducing family violence, which includes as a core element the funding of Independent Domestic Violence Advisors (IDVAs) and Independent Sexual Violence Advisors (ISVAs). The role of these advisors is to ‘help victims navigate their way through various systems; for example, the criminal justice system … the civil court system, and other systems such as housing, health, and education’.^[118] They are especially associated with the specialised family violence courts in the United Kingdom and Multi-Agency Risk Assessment Conferences (MARACs), which provide multi-agency responses to very high-risk victims.

29.132 In 2009, an independent evaluation of IDVAs in the United Kingdom found:

The IDVA role offers a unique opportunity to provide independent, objective advice to victims about their options, and one that is not duplicated by any other worker. IDVAs navigate multiple systems and are crucial contributors to multi-agency initiatives, especially MARACs. Their specialist skills and ability to provide both individual and institutional advocacy are very highly valued.^[119]

29.133 The evaluation found strong support for the work of the advisors in court support, citing one victim as follows:

To have that support, it just gives you the strength to go and give evidence. I could have backed out many times because I was afraid to stand up and go against my ex-husband but having [the Advisor] there, she gave me the strength to go on with it. It is a hard thing to do, but having someone there to talk to you and listen to you, to reassure you everything will be ok, it did really help.^[120]

29.134 The evaluation also noted that partner agencies

were quick to comment on the importance of providing support to victims, as they were sympathetic to the stress involved in a court case. In fact, IDVA support was viewed as a necessary precursor to having successful court outcomes; for example, reducing retraction, giving better evidence, and obtaining convictions.^[121]

Submissions and consultations

29.135 The Magistrates’ Court and Children’s Court of Victoria expressed the view that it was important to have victim support services available at various stages in the legal process, in particular, when a victim first attends court to apply for a protection order. The submission also noted the importance of support for respondents, stating that victims will not be safe unless steps are taken to address the respondents’ underlying issues, which may include alcoholism, drug addiction, mental health and accommodation issues.^[122]

29.136 A number of stakeholders underlined the importance of victim information and support in reducing the attrition rate in sexual assault cases, including those arising in a family violence context.^[123]

29.137 The Sydney Women’s Domestic Violence Court Advocacy Service noted that in the United States, Canada, the United Kingdom and New Zealand, victim advocates are an integral feature of domestic violence courts. The submission noted that the most critical feature of the specialised family violence courts in Manitoba, Canada is reported to be the in-house Women’s Advocacy Program, consisting of three social workers and one lawyer with ‘access to all information including that provided to the court and who provide information, support and advocacy for family violence victims and have particular regard to safety plans and safety measures for victims’. The Service submitted that:

State and territory governments should, to the extent feasible, make victim advocates available at family and domestic violence-related court proceedings, and enable advocates access to all relevant information including that provided to the court.

In this regard, SWDVCAS agrees with the Commissions’ statement that the NSW Domestic Violence Court Advocacy Service is a useful precedent for productively mainstreaming across all courts dealing with domestic and family violence.^[124]

29.138 The joint submission from Domestic Violence Victoria and others noted that:

While provision of Magistrates’ and Family Court support is recognised as an important, indeed best practice element of the work undertaken by family violence refuge and outreach services as part of their case management practice, many agencies are unable to meet demand for court support to their clients due to funding constraints that do not allow agencies to release staff to attend court hearings. While some agencies do have dedicated court support staff, DV Vic, the peak body for specialist family violence services in Victoria, has heard of numerous instances of agencies unable to provide this service, or forced to cease an existing service to its clients due to lack of capacity.^[125]

29.139 In addition, even where integrated systems are more navigable for women generally, the submission noted that some high risk groups still have difficulty accessing services. In Victoria, funding for Intensive Case Managers has gone some way to addressing this issue. Based regionally, Intensive Case Managers provide extra support for women with disabilities and women from CALD communities to assist them to access services. The submission expressed the view that, where such positions are well resourced, they have the potential to greatly enhance an integrated system.^[126]

29.140 The Julia Farr Association also noted that it was important to ensure that

there is adequate provision of augmented victim support for people living with disability who may require additional communication, advocacy and decision-making support because of their circumstances.^[127]

29.141 The AFVPLS Victoria discussed the importance of dedicated Aboriginal and Torres Strait Islander victim support services, in particular, after hours crisis support for victims, including children:

Significant problems remain with respect to contact between ATSI people and police. Appropriate support at the point of crisis intervention is more likely to lead to safer outcomes in the short and long term. Significant decisions are required to be made at the point of crisis when women are traumatised and generally ill-equipped to make considered decisions. Mistrust of police and legal processes by ATSI women compound these difficulties. Attendance of workers with police at family violence incidents should be trialled. In large rural areas this may not be practical however offering an ATSI family violence victim the option to contact a dedicated ATSI crisis service by telephone would be an improvement. The service could assist in communicating/negotiating with police.^[128]

29.142 The submission noted that, anecdotally, Aboriginal and Torres Strait Islander women were not accessing mainstream after hours crisis support services in Victoria in significant numbers:

It is the experience of FVPLS Victoria that ATSI women are more likely to seek assistance in relation to family violence and sexual assault from an ATSI service. Culturally appropriate and trusted legal representation is key to ATSI women engaging with and sustaining legal processes. The role of paralegal support workers working alongside solicitors and providing broader holistic support to women who are experiencing multiple layers of disadvantage has also proved highly successful at FVPLS Victoria. ATSI women must be given options as to whether they prefer to access an ATSI or mainstream service.^[129]

29.143 The submission noted that the Australian Government did not provide funding for the Family Violence Prevention Legal Service (FVPLS) program in metropolitan areas, so that Indigenous women and children in urban areas had to rely on mainstream services. FVPLS Victoria noted that it had secured state government funding for metropolitan services but that no formal agreement between the state and federal governments had been reached about funding the service.

29.144 The NPY Women’s Council Domestic and Family Violence Service noted that:

The clients that the Service works with are often under immense pressure from the perpetrator’s family, the community and sometimes even their own family to drop the charges. Clients often are blamed for the perpetrator being in gaol and want to get the perpetrator out of gaol to stop that blame. Clients need ongoing support from the time charges are laid, when the matter is heard in court and even while the perpetrator is serving a gaol sentence.^[130]

29.145 Another stakeholder also emphasised the need for specialised Aboriginal and Torres Strait Islander, CALD and disability victim support services.^[131]

29.146 The Shoalcoast Community Legal Centre discussed the domestic violence intervention service operating out of the Shoalhaven Local Area Command, sponsored by the YWCA NSW. The submission noted that it was very expensive and difficult to sustain a service in which victim support workers are available 24 hours a day to accompany police to family violence incidents. The submission expressed the view that a more sustainable model is one in which police are trained to deal appropriately with incidents and victim support is provided at other points in the process.^[132]

29.147 One stakeholder noted that there was a degree of service duplication across NSW and that this situation required review and analysis to determine which existing services were working effectively and where better integration and other improvements could be made.^[133]

29.148 There was significant support expressed for the proposal that court support services for victims of family violence should be available at federal family courts.^[134] A number of stakeholders noted that funding would be necessary to support such a service.^[135] FVPLS Victoria suggested that, in relation to specialised support services in federal family courts for Indigenous women, this could be implemented through the FVPLS program or through a national Aboriginal and Torres Strait Islander women’s legal service.^[136]

Commissions’ views

29.149 There is strong evidence that victim support provided at the time of, or shortly after, an incident to which the police are called, in the lead up to a court appearance and at court, and at other key times during the legal process is an important measure that can improve the ability of victims to navigate between legal frameworks, make better decisions and achieve better outcomes. There is also evidence to suggest that appropriate support can help reduce attrition rates in sexual assault cases.

29.150 In the Commissions’ view, one of the most practical methods of improving the interaction in practice of the family law, family violence and child protection frameworks is through strengthening and supporting victim services. Although extra resourcing would be required, it is likely that this would ultimately be one of the most cost-effective measures for improving victim satisfaction and safety.

29.151 There is much to be said for the delivery of victim support at the time the police are called out to an incident, although the Commissions note stakeholder comments about the difficulties of sustaining such services. A number of fax-back protocols have been initiated between police and victim support services that ensure that victims are put in contact with appropriate services soon after an incident occurs. This may be a more cost-effective practice in some jurisdictions.

29.152 Victim support is also particularly important leading up to and during court appearances. The Commissions note that, while victim support workers are a feature of specialised courts, this service need not be limited to such courts. Indeed, this is one element that the Commissions believe could be productively mainstreamed across other courts. The NSW Domestic Violence Court Assistance Scheme provides a useful precedent. The family court support schemes in NSW, Victoria and South Australia could also be extended nationally across the family court system.

29.153 The Commissions note stakeholder feedback on the difficulties faced by victims from vulnerable communities and sectors and acknowledge the pressing need for specialised Indigenous, CALD and disability victim support services. The Commissions recommend that federal, state and territory governments prioritise the provision of, and access to, culturally appropriate support services for victims of family violence, including enhanced support for victims in high risk and more vulnerable groups.

Legal advice and representation

29.154 One important practical aspect of victim support is access to legal advice and representation in both family violence and family law proceedings. The role of legal representation and, in particular, the role of legal aid, in ensuring this access was discussed in detail in Richard Chisholm’s report, Family Courts Violence Review (the Chisholm Review).^[137]Chisholm recommended that careful consideration should be given in the funding and administration of legal aid to the serious implications arising from parties, especially children, being legally unrepresented.^[138]

29.155 The National Council to Reduce Violence against Women and their Children also highlighted the importance of ensuring that

adequate funding for legal aid and advocacy services is provided by the Australian Government, over and above State/Territory funding, to recognise the significant focus given to domestic and family violence in the 2006 amendments to the Family Law Act 1975.^[139]

29.156 The Commissions have heard that the limited availability of legal aid and community legal services often result in family violence victims being unable to obtain legal advice and representation, or needing to obtain separate representation for family law and protection order proceedings.

Submissions and consultations

29.157 In a joint submission, Domestic Violence Victoria and others noted that funding shortfalls in the area of family violence legal services mean that the most vulnerable members of the community—including victims of family violence and their children—are not able to access legal advice and representation. The submission noted that in Victorian family violence protection matters, particularly in the specialised courts, it is community legal centre (CLC) lawyers that usually represent applicants, while Victoria Legal Aid generally assists the respondent:

The most recent Victorian data suggests that in 40% of intervention cases, the police are the applicant. This therefore means that CLC duty lawyers are largely responsible for representing the other 60% of applicants. In addition, CLCs will often provide legal assistance, where capacity allows, to affected family members in police applications.^[140]

29.158 The submission also noted that legal aid and CLC lawyers not only provide legal advice and assistance in relation to protection order proceedings, but also provide or refer the client to legal assistance for family law matters.^[141] The submission included an extract from the Federation of Community Legal Centres (Victoria) State Budget Submission 2010–2011:

In 2005, Darebin and Central Highlands CLCs were funded to establish full-time family violence applicant duty lawyer positions servicing the Family Violence Court Division at Ballarat and Heidelberg Magistrates Courts. In July 2007, the Victorian Government and Victoria Legal Aid provided funding to 10 CLCs across Victoria to establish 6 full-time and 4 half-time specialist family violence lawyer positions. These funding initiatives have been welcome, however many CLCs continue to provide family violence duty lawyer services without any dedicated funding, or without sufficient funding relative to demand …

Additional family violence duty lawyer positions, supported by 0.5EFT administration support, will cost $150,000 per position in recurrent funding. New positions should be focussed on the un-funded and underfunded services with the highest demand.^[142]

29.159 Legal Aid NSW also noted the importance of providing victims with access to duty lawyers, and the need for lawyers to be better educated about working with family violence victims.^[143] The Magistrates’ Court and Children’s Court of Victoria stated that the issues that arise in family violence protection order proceedings can be complex—often involving family law and criminal law matters—and that legal advice for both victims and respondents was important.^[144]

29.160 The Sydney Women’s Domestic Violence Court Advocacy Service (WDVCAS) agreed that access to legal services for both victims and defendants was crucial and noted that in NSW:

Legal Aid funds the Domestic Violence Solicitor Scheme (DVSS) which operates in conjunction with WDVCAS at a number of NSW Local Courts. The DVSS uses private solicitors who are rostered to attend court on AVO list days to represent WDVCAS clients in private ADVO applications at mentions and at hearings through a grant of legal aid, and to provide legal advice to women in police initiated ADVOs. The DVSS solicitor can also provide advice on ancillary legal matters, for example, family law matters. At courts with a WDVCAS, but where there is no DVSS, the WDVCAS Coordinator is generally able to refer eligible clients to private solicitors who are willing to represent the client for the grant of legal aid.^[145]

29.161 The WDVCAS submitted that all victims of family violence in NSW should be provided with access to legal advice in family-violence related court proceedings, through the expansion of Legal Aid’s DVSS. The Service also submitted that victims in other states and territories be provided with access to legal advice through a service similar to the DVSS.^[146]

29.162 The AFVPLS Victoria noted that, in Victoria, legal services are not well incorporated into the family violence integrated strategy and that this could be improved.^[147]

29.163 A number of stakeholders indicated the need for specific legal services for Indigenous women victims of family violence.^[148] The Immigrant Women’s Support Service noted the importance of providing interpreting and translating services for all legal appointments.^[149]

Commissions’ views

29.164 In Equality before the Law: Justice for Women (ALRC Report 69), the ALRC highlighted the need for specialised legal advice and representation for Indigenous women noting that:

Most Aboriginal and Torres Strait Islander legal services do not currently benefit women and men equally. This is a result of the combined effect of two common practices. First, most services implement a policy of not acting for either party in a matter between two Indigenous clients. Second, most legal services give priority to defending criminal cases over other matters. On their face these practices appear gender neutral, but their effect is to indirectly discriminate against Indigenous women. Like most groups of women, Indigenous women often need legal assistance in relation to matters of family violence and family law. For most Indigenous women such disputes are with other Indigenous people. The outcome of precluding women from receiving assistance for such matters is that Indigenous women are disadvantaged compared to Indigenous men and compared to other women.^[150]

29.165 In relation to women from CALD communities the ALRC stated that:

People of non-English speaking background are particularly in need of legal assistance. For many the Australian legal system differs markedly from that in their country of origin. Those from countries with a civil law system may not be aware of the way the Australian system works and the role of lawyers where the parties have to present all the evidence and arguments. For those reasons and because of language difficulties, many women of non-English speaking background find it difficult or even impossible to represent themselves even in very routine matters.^[151]

29.166 The Commissions consider that access to legal advice and representation is crucial to ensuring an effective response to family violence. In Chapter 31, the Commissions express the view that lawyers engaging with issues of family violence should be provided with targeted education and training to help them to better assist victims and recommend that Australian law societies and institutes review continuing professional development requirements to ensure that legal issues concerning family violence are appropriately addressed.^[152]

29.167 In addition, the Commissions support the recommendations of both the National Council and the Chisholm Review in relation to the provision of legal advice and representation. The Commissions recommend that federal, state and territory governments should prioritise the provision of, and access to, legal services for victims of family violence, including enhanced support for victims in high risk and more vulnerable groups such as Indigenous women, women with disabilities and women from CALD communities.

Victims’ compensation

29.168 Family violence often has a significant impact on the financial security of victims.^[153] Victims of family violence may incur medical, counselling, legal and housing expenses, and may have been subject to economic abuse as an element of family violence.^[154] Financial compensation assists victims to meet expenses and may play a practical role in improving victim safety by providing, for example, access to funds to meet relocation expenses or to change locks.^[155]

29.169 In the Consultation Paper, the Commissions identified statutory victims’ compensation schemes—funded by state and territory governments—as the principal method of financial redress for most victims of family violence.^[156] However, the Australian Domestic and Family Violence Clearinghouse has identified a key problem with victims’ compensation in the context of family violence:

like the criminal law, [victims’ compensation schemes] are premised on a ‘stranger violence model’. The schemes assume that the victim does not know the assailant, that the violence is a random act and that the victim is not dependent on the assailant. … As such, many schemes have historically included—and in some cases continue to include—specific requirements that discriminate against women who experience domestic violence.^[157]

29.170 The Commissions identified a number of provisions in victims’ compensation legislation that did not adequately recognise the nature and dynamics of family violence and, as a consequence, have the potential to discriminate unfairly against victims of family violence. These provisions relate to the following areas:

• criminal acts and injuries;

• related acts or injuries; and

• advantage or benefit to the offender.

Criminal acts and injuries

29.171 Generally speaking, legislation links victims’ compensation to the commission of specific criminal acts of violence and the suffering of criminal injuries. This typically has the effect of under-compensating victims of family violence, for several reasons. First, acts of family violence may not be recognised as criminal,^[158] and in some jurisdictions only specified offences can trigger compensation.^[159] Secondly, there is a need to prove each discrete ‘incident’ and ‘injury’, which poses problems in the context of the patterns of abuse that typically constitute family violence.^[160]

29.172 Another issue is that, generally, the definition of ‘injury’ emphasises physical injury and does not include the psychological harms typical of family violence. In addition, this restrictive definition does not necessarily recognise the ‘differing impact of violence and sexual abuse on the variety of cultures and communities that make up Australian society’.^[161]

29.173 These limitations have been addressed in NSW and the Northern Territory, where the victims’ compensation legislation defines domestic violence as a specific injury.^[162] The NSW legislation also defines ‘sexual assault’ as a specific compensable injury.^[163] Further, victims of family violence can elect to claim a specific (listed) physical, psychiatric or psychological injury, or claim for ‘domestic violence injuries’ or an injury of ‘sexual assault’.^[164] In Victoria, awards may be granted not only in respect of ‘injuries’, but also in respect of ‘significant adverse impacts’,^[165] including ‘grief, distress, [or] trauma’.^[166] In Queensland the definition of adverse impacts in relation to sexual offences is more specific and extensive.^[167]

29.174 In the Consultation Paper, the Commissions proposed that state and territory victims’ compensation legislation should:

(a) provide that evidence of a pattern of family violence may be considered in assessing whether an act of violence or injury occurred;

(b) define family violence as a specific act of violence or injury, as in the Victims Support and Rehabilitation Act 1996 (NSW) and the Victims of Crime Assistance Regulation (NT); or

(c) extend the definition of injury to include other significant adverse impacts, as is done in respect of some offences in ss 3 and 8A of the Victims of Crime Assistance Act 1996 (Vic) and s 27 of the Victims of Crime Assistance Act 2009 (Qld).^[168]

Submissions and consultations

29.175 A large number of submissions supported this proposal.^[169] The Australian Domestic and Family Violence Clearinghouse noted its support for

all the above options, particularly option (b). The experience of New South Wales indicates that the introduction of an offence based award for domestic violence can significantly improve women’s access to compensation. Based on previous discussion with stakeholders, we understand that there is strong support within the women’s and community legal sector for the introduction of similar provisions in Victoria.^[170]

29.176 This was confirmed in submissions from Domestic Violence Victoria and others, and the AFVPLS Victoria.^[171] However, Women’s Legal Services NSW expressed concern that ‘including a list of “adverse effects” in legislation could result in more restrictive interpretations, rather than broadening the range of matters to be taken into account when assessing injuries’.^[172]

Related acts or injuries

29.177 All Australian jurisdictions also have provisions deeming that related acts of violence or related injuries should be treated as one claim, or reducing the amount available for related acts or injuries.^[173] These provisions have been criticised for failing to adequately recognise the continuing and repetitive pattern of family violence.^[174]

29.178 The scope of these provisions varies across the jurisdictions. In Queensland, South Australia and the Northern Territory, the definition of related acts encompasses acts committed by the same person or group of persons, so all incidents within a pattern of family violence are likely to be deemed a single act.^[175]Moreover, the interpretation by courts of whether an act is ‘related’ varies both within, and between, the jurisdictions.^[176] In 2009, for example, the Supreme Court of New South Wales ruled that over 500 sexual assaults committed over 11 years by a member of a foster family were not ‘related’ acts for the purpose of compensation legislation.^[177] In Victoria and Queensland, there are provisions requiring that the applicant be given an opportunity to object to the treatment of claims as related.^[178]

29.179 In the Consultation Paper, the Commissions proposed that state and territory victims’ compensation legislation should provide that:

• acts are not ‘related’ merely because they are committed by the same offender; and

• applicants should be given the opportunity to object if multiple claims are treated as ‘related’, as in s 4(1) of the Victims of Crime Assistance Act 1996 (Vic) and s 70 of the Victims of Crime Assistance Act 2009 (Qld).

Submissions and consultations

29.180 This proposal received strong support.^[179] For example, the Wirringa Baiya Aboriginal Women’s Legal Centre Inc submitted that:

It is grossly unfair and unjust that a victim of multiple acts of violence should be disadvantaged by the fact that her offender happens to be the same person, as opposed to another applicant who was the victim of different acts of violence committed by different offenders.^[180]

29.181 Similarly, the AFVPLS Victoria submitted that:

Victim’s assistance legislation must acknowledge and appropriately compensate the often repetitive nature of family violence and sexual assault offending. At present, too much discretion and uncertainty prevails … Specific legislation or practice directions are required to clarify determination of family violence/or sexual assault applications where there are multiple acts of violence and which recognises the serious impact of long term multiple offending upon victims.^[181]

Advantage or benefit to the offender

29.182 In Victoria, Western Australia and the Northern Territory, victims’ compensation schemes may exclude claims on the basis that the offender might benefit from the claim.^[182] This has the effect of excluding most victims of family violence—especially where the victim continues to reside with the offender—and fails to take into account the fact the compensation award may be used to leave the offender.^[183]

29.183 However, in jurisdictions such as Victoria and Queensland, where compensation is generally paid on the basis of expenses incurred, the potential for awards to benefit the offender is limited. Another option may be to restrict offenders’ access to funds.^[184] For example, in Queensland, prior to the replacement of its legislation in 2009, the administrative unit referred cases to the Public Trustee where victims might be at risk of psychological or emotional abuse by an offender who stood to benefit from an award.^[185]

29.184 The Commissions proposed in the Consultation Paper that state and territory victim’s compensation legislation should not exclude claims on the basis that the offender might benefit from the claim.^[186]

Submissions and consultations

29.185 A significant number of submissions supported this proposal.^[187] For example, Domestic Violence Victoria and others, in a joint submission noted:

Excluding claims on this basis fails to reflect the nature and dynamics of family violence, particularly where the victim has an ongoing relationship with the offender. Financial circumstances are a critical factor in women’s decisions about whether to leave or stay in violent relationships. Many women choose to remain in violent situations rather than risk homelessness, uprooting their children and living in poverty.^[188]

29.186 Other submissions, however, stressed the importance of ensuring that the offender does not have access to the compensation.^[189] National Legal Aid submitted that

if victims continue their relationship with perpetrators, they may suffer further violence, with the compensation being taken from them forcibly by the perpetrator and used for such purposes as the purchase of drugs and alcohol.^[190]

Commissions’ views

29.187 The Commissions consider that victims’ compensation schemes are an important element of victim support, assisting victims to meet medical, legal and other expenses. Compensation also allows victims to take safety measures, such as changing locks, where the victim remains in the same home; or securing emergency accommodation, where the victim leaves.

29.188 In the Commissions’ view, victims’ compensation legislation across Australia can be improved to ensure that victims of family violence are not disadvantaged. First, the Commissions recommend that victims’ compensation legislation should define an ‘act of violence’ or injury to include family violence. The Commissions make recommendations in Chapter 5 in relation to the definition of family violence.

29.189 Secondly, the Commissions agree with stakeholders that to treat all incidents of family violence as if they constituted a ‘single’ incident discriminates unfairly against victims of family violence. Legislation should provide that acts are not related merely because they are committed by the same person. Further, legislation should allow a victim to object if claims are to be treated as ‘related’.

29.190 Lastly, the Commissions are of the view that excluding compensation on the basis that it would advantage or benefit the offender discriminates against victims of family violence who remain in relationships with offenders. However, the Commissions note that a range of mechanisms is available, including making payments on the basis of expenses incurred, to ensure that offenders cannot access victims’ compensation awards. The Commissions’ view is that victims’ compensation legislation should make provision for such mechanisms, rather than exclude claims on the basis that compensation would benefit the offender.

Maintaining momentum

29.191 In the course of the Inquiry, stakeholders commented that it was often a challenge to sustain the momentum and resourcing of integrated responses. Such responses often depend on the energy, enthusiasm and expertise of the people originally involved, and sustaining integrated responses when those people move on is a key challenge.

29.192 One key aspect for retaining momentum is leadership. The Commissions have heard from stakeholders that committed leadership is necessary to drive integrated responses forward. One model, used in the ACT, provides for a statutory position of coordinator. The ACT Victims of Crime Coordinator chairs the FVIP in the role of Domestic Violence Project Coordinator under the Domestic Violence Agencies Act 1986 (ACT).^[191] This model has the benefit of ensuring that one person has statutory responsibility and access to resources for driving the integrated response forward, and ensuring a degree of continuity and victim-focused leadership.

29.193 A separate issue is whether integrated responses themselves should have a legislative basis. The FVIP, like other integrated responses in Australia, does not have a legislative basis. In the Consultation Paper, the Commissions sought feedback from stakeholders on whether legislative support for integrated responses is desirable and, if so, what such legislation should address.

Submissions and consultations

29.194 The Domestic Violence Prevention Council (ACT) expressed the view that enshrining the ACT FVIP in legislation is critical to its continued development. The submission stated that the program should be convened by a statutory office holder and that the legislation should make provision for reporting obligations including key outcomes and interventions.^[192] A number of other stakeholders agreed that integrated responses should be recognised in legislation and coordinated by statutory office holders.^[193]

29.195 The Education Centre Against Violence was of the view that responsibility for coordinating integrated responses should be placed with a statutory office holder or agency head and that clear governance structures and accountability mechanisms should be put in place.^[194]

29.196 The National Association of Services Against Sexual Violence submitted that one agency should be given overall responsibility for coordinating an integrated response to family violence, but was unsure whether this needed to be a statutory office holder:

The ACT experience is that the AFP currently performs the coordinating function and does so well. All stakeholders communicate and meet regularly to ensure processes are efficient. An overarching program development group with decision makers from each stakeholder undertakes this role. This ensures that there is ‘buy-in’ from all agencies.^[195]

Commissions’ views

29.197 The Commissions have come to the view in the course of the Inquiry, and as discussed in detail above, that the success of integrated responses to family violence relies to a large extent on strong and visionary leadership, shared principles and objectives, clear inter-agency arrangements, and an ongoing and responsive relationship between the parties. All of these elements can be put in place without a legislative basis.

29.198 In addition, the Commissions’ view is that enshrining integrated responses to family violence in legislation may restrict the flexibility of such arrangements. Integrated responses need to be sensitive to the needs and strengths of existing institutions and frameworks in a particular area, and these contextual factors may change over time. Legislation may restrict the capacity of integrated responses to evolve as part of an ongoing process of feedback. The Commissions’ view is that integrated responses to family violence are better established and maintained on an administrative, rather than a legislative, basis and so make no specific recommendation in relation to this matter.