Key focus areas for education and training

31.15 The Commissions have, throughout this Report, made recommendations in specific areas where the interaction in practice of legal frameworks may be improved through education and training. This section brings together some of those recommendations, and also considers a number of issues in relation to education and training at a national level.

Nature and dynamics of family violence

31.16 One important aspect of education and training is in relation to the nature, dynamics and effects of family violence, including sexual assault in the family violence context. In Part B, the Commissions recommend a common interpretative framework comprising:

• consistent core definitions of family violence across the relevant legislative schemes—namely, state and territory family violence and criminal legislation, and the Family Law Act 1975 (Cth)—underpinned by a common understanding of the types of conduct that constitutes family violence;^[18] and

• provisions complementing consistent definitions of family violence, including those which address: guiding principles based on a human rights framework; features and dynamics of family violence; purposes of family violence legislation; and grounds for obtaining a protection order.^[19]

31.17 The Commissions consider, however, that this framework should be part of a package of recommendations to facilitate a common understanding of family violence across the legal sector and the community more broadly. In particular, it must be accompanied by ongoing education and training of all professionals in the family violence system—including judicial officers, legal practitioners, police prosecutors and other professionals—about the nature and dynamics of family violence, as recognised in the framework.

31.18 Judicial officers, legal practitioners, police prosecutors and other professionals in the family violence system should receive education and training on a regular basis in conjunction with the recommended legislative changes.

31.19 In addressing interactions between family violence and the criminal law in Part C, the Commissions emphasise the critical importance of, and make recommendations for, relevant education and training for professionals in the criminal justice system about recognising and responding to the nature and dynamics of family violence.^[20] These measures include:

• recognising the pattern-based nature of family violence within the predominately incident-based framework of the criminal law, namely by developing and using appropriate prosecutorial guidelines and education and training programs about the use of representative charges, charge negotiations, and negotiations as to agreed statements of facts;^[21] and

• increasing recognition and understanding of the potential relevance of federal offences committed in a family violence context, including when such offences should be prosecuted or used as a basis for obtaining a family violence protection order.^[22]

31.20 In Part E, in relation to child protection, the Commissions recommend that state and territory child protection authorities and alternative dispute resolution providers should ensure that staff and alternative dispute resolution service practitioners participating in alternative dispute resolution in child protection matters undertake training on: family violence dynamics; and the need for parents, as well as children, who are victims of family violence to have access to appropriate support.^[23]

31.21 In Part G, in relation to sexual assault in the family violence context, the Commissions note that there is often an ‘implementation gap’ between the written law and practice. This is caused in part by some individuals continuing to subscribe to myths and misconceptions surrounding the nature and dynamics of sexual assault. In Chapter 26, the Commissions suggest that training for police, legal practitioners, judicial officers and victim referral and support services should encompass areas such as: the myths and stereotypes surrounding sexual assault; the emotional, psychological and social impact of sexual assault on victims; and the different experiences and needs of particular marginalised victims, such as those with a cognitive impairment, Indigenous people and those from CALD and gay, lesbian, bisexual, transgender and intersex communities.^[24] The Commissions also emphasise the need for prosecution of sexual assault to occur in the context of a legal system which is alive to cultural and linguistic diversity, and the vital importance of culturally appropriate service provision.^[25]

31.22 The Commissions recommend that state and territory governments and relevant educational, professional and service delivery bodies should ensure ongoing and consistent education and training in relation to the substantive law, as well as the nature and dynamics of sexual assault as a form of family violence, including its social and cultural contexts.^[26]

Submissions and consultations

31.23 A number of submissions emphasised the need for greater education in relation to the nature and dynamics of family violence, and its effect on victims and their families, for all those involved in the system. For example, Legal Aid NSW submitted that:

Judicial officers need to undertake significant domestic violence training to ensure that they understand the complexity and the nature of this violence … To enable judicial officers to make educated and informed decisions, they need to understand the dynamics of family violence and the impact of this violence on victims and their children.^[27]

31.24 Similarly, National Legal Aid submitted that:

There is a need for courts and service providers to commit to ensuring that education and training are provided to judicial officers and service providers to facilitate the development of a common language for communication in relation to family violence issues. This will help to ensure the workability of the arrangements. NLA suggests that the nature, features and dynamics of family violence are matters to be addressed in providing comprehensive education, rather than for inclusion in legislation.^[28]

31.25 The Canberra Rape Crisis Centre submitted that:

In developing responses to the various proposals and questions posed in the Consultation Paper, it is clear to us that members of the judiciary need to be included in education initiatives concerning the complexities of family violence and sexual assault and the resulting harm that arises for victims of these crimes … [W]e believe this is essential.^[29]

31.26 Other submissions highlighted the need for education and training on the nature and dynamics of family violence as it relates to children,^[30] women and girls with a disability,^[31] and Aboriginal and Torres Strait Islander peoples.^[32]

Commissions’ views

31.27 As noted above, the Commissions consider that a proper understanding of the nature and dynamics of family violence and its impact on victims better enables those in the system—including judicial officers, legal practitioners, police prosecutors, and other professionals—to support and assist victims. The Commissions note that family violence has a disparate impact on vulnerable groups in the community, such as children, women with a disability, and Indigenous women specifically, and that it is important to ensure that education and training addresses these impacts.

A national bench book for judicial officers

31.28 Family violence may engage a range of overlapping frameworks. Familiarity with, and competence in, these frameworks by legal professionals and judicial officers is therefore vital to ensuring fair and just outcomes for victims. However, there appears to be limited training of judicial officers in Australia—even those in specialised courts—in the area of family violence.^[33] This has been identified as a key concern of those involved in the family law system, and by stakeholders in this Inquiry.

31.29 The Commissions make a number of recommendations in relation to judicial education. In Chapter 16, the Commissions recommend that those involved in protection order proceedings under state and territory family violence legislation be provided training on the courts’ jurisdiction under the Family Law Act.^[34] In Chapter 32, the Commissions make recommendations for regular training on family violence issues for judicial officers in specialised family violence courts.^[35]

31.30 In addition, the issue of a national bench book to assist judges in family- violence related matters in any court or jurisdiction featured prominently in this Inquiry. In the Consultation Paper, the Commissions endorsed the recommendation in Time for Action for the development of a model bench book on family violence and sexual assault issues. The Commissions noted that an excellent comparative example of a bench book dealing with family violence issues had been published in Canada by the National Judicial Institute, titled Domestic Violence and Family Law in Canada: A Handbook for Judges (Canadian bench book). This covers, among other things, the use and misuse of social context information; understanding and assessing family violence; and interpreting victim and offender behaviour.^[36]

31.31 The Commissions also noted various developments in Australia. For example, the Australasian Institute of Judicial Administration has published useful bench books and other resources including, relevantly, the Solution-Focused Judging Bench Book —including an excellent chapter on the nature of family violence—and the Bench Book for Children Giving Evidence in Australian Courts.^[37] The Judicial Commission of NSW and the Judicial College of Victoria have also published other bench books on sexual assault and sentencing issues (including family violence).^[38] The Judicial College of Victoria has made available online its bench books on family violence, sexual assault, and criminal charges.^[39]

31.32 The Commissions make recommendations for the development of a national bench book on family violence, including sexual assault, for judicial officers, as part of a national family violence education and training strategy. These recommendations envisage that the model bench book should be:

• comprehensive, in that it would cover all relevant civil and criminal laws in state, territory and federal jurisdictions;

• additional and complementary to existing bench books in state, territory and federal jurisdictions, in that the development of a national resource should not preclude the ongoing development and use of jurisdiction-specific resources;

• integrated with existing resources in state, territory and federal jurisdictions, in that jurisdiction-specific bench books should cross-refer to provisions in the national bench book; and

• developed by federal, state and territory governments, in consultation with relevant stakeholders to ensure the appropriate identification of, and responses, to the particular impacts of family violence upon persons from specific cultural, linguistic and social groups.

31.33 The Commissions consider that the content of such a national bench book should include the following.

Criminal law

• guidance about the potential relevance of family violence-related evidence to criminal offences and defences—for example, evidence of the pre-existing relationship between parties, including evidence of previous violence;^[40]

• guidance about sentencing in family violence-related matters—including sentencing offenders for breach of protection orders;^[41] and, in particular, how to treat, in sentencing, the consent of a victim to contact with a respondent that is prohibited by a protection order;^[42]

• guidance about the operation of defences to homicide where a victim of family violence kills the person who was violent towards him or her;^[43] and

• identifying the circumstances in which a warning about the danger of convicting on the uncorroborated evidence of a particular complainant or child witness in a sexual assault case is in the interests of justice.^[44]

Family violence legislation and the Family Law Act

• material to assist judicial officers in state and territory courts to understand and exercise their jurisdiction under the Family Law Act. This material should include guidance on the considerations relevant to making protection orders that are inconsistent with current family law orders and options available for resolving such inconsistencies to ensure the safety of victims of family violence.^[45]

Submissions and consultations

31.34 A number of submissions strongly supported the development of a national bench book, noting in particular the Canadian bench book.^[46] The Magistrates’ Court and Children’s Court of Victoria submitted that

this bench book provides a model for a national bench book to assist Australian judicial officers in developing their understanding of the social context of family violence, the complexities of legislation across jurisdictions and identifying and applying those principles to judicial decision-making. While there is ample research in these areas, contribution of a bench book would allow judicial officers access to reliable information and assist them in translating that information into legal practice.^[47]

31.35 Similarly, the Government of Victoria noted that the Canadian bench book is

an example of best practice research undertaken to provide contextual material for judicial officers regarding family violence, and will be invaluable as a model for development of similar specialist tools in an Australian context. It is understood that such a tool has application to family law, family violence, state/territory and Commonwealth jurisdictions.^[48]

31.36 Domestic Violence Victoria and others, in a joint submission, urged the Australian government to find a way to make the resource available to Australian courts for adoption locally, and to the wider family violence sector.^[49]

Commissions’ views

31.37 In the Commissions’ view, the development of a national bench book would be a useful resource for judicial officers in Australia, and should be pursued. In particular, such a book would promote consistency in the interpretation and application of laws across jurisdictions, offer guidance and promote best practice among judicial officers. As noted above, relevant bench books have been published by judicial institutes and bodies in Australia. The Commissions consider that these works could be built upon and, with adequate resourcing, that such bodies could contribute towards the development of a national bench book.

31.38 The Commissions are aware that the Victorian Department of Justice is currently in the process of securing access to the Canadian bench book, and that Victoria and South Australia are exploring a partnership agreement to progress work at a state level in relation to a bench book.^[50] The Commissions consider that there is potential for collaboration between the Australian, state and territory governments to develop a similar bench book in Australia, using the Canadian bench book as a model.

31.39 Lastly, the Commissions note that a national bench book should act as a complement to, rather than a substitute for, quality education and training.

Education of lawyers

31.40 Lawyers represent another key target area for education and training. As noted above, lawyers engaging with issues of family violence need to be more aware of family violence issues, and be equipped to navigate through the different legal frameworks that apply.

31.41 In the Consultation Paper, the Commissions expressed the view that family violence should be addressed in university law courses and in continuing professional development requirements. The Commissions proposed that:

• Australian universities offering law degrees should review their curriculums to ensure that family violence is appropriately addressed; and

• Australian law societies and institutes should review continuing professional development requirements to ensure that legal issues concerning family violence are appropriately addressed.^[51]

Submissions and consultations

31.42 These proposals received broad support.^[52] A number of submissions suggested that family violence should be included in university curricula as a compulsory subject.^[53] Others suggested that curriculums should also cover victim impact.^[54] A number of submissions also suggested that education needs to be linked with practical experience training.^[55] One stakeholder suggested that universities should be encouraged to invite practitioners from the field as guest lecturers.^[56]

31.43 The Magistrates’ Court and Children’s Court of Victoria asked the Commissions to consider a program of national accreditation for legal practitioners in family violence and sexual assault

as a means of promoting interest in these areas of practice and complementing existing specialisation in family law and criminal law. It would be helpful for agencies working with victims and offenders and the parties themselves to be able to identify practitioners who understand the relationship between these areas of practice and can assist their clients to navigate complex judicial processes from start to finish. Such accreditation could promote higher levels of understanding and education in research relating to family violence and its application to legal practice.^[57]

Commissions’ views

31.44 The Commissions’ view is that lawyers engaging with issues of family violence should be provided with targeted education and training to help them to better assist victims and to navigate through the different legal frameworks that apply. The Commissions are of the view that family violence should be addressed in university law courses and in continuing professional development requirements. To ensure that all students are introduced to the nature and dynamics of family violence, these issues should be covered in relevant elective and compulsory subjects, including family law and criminal law.

31.45 The Commissions note the views of the Magistrates’ Court and Children’s Court of Victoria on the merits of a national program of accreditation for legal practitioners in family violence and sexual assault. Accreditation is available for family dispute resolution practitioners under the National Mediation Accreditation System, which ‘relies on voluntary compliance by mediator organisations that agree to accredit mediators in accordance with the requisite standards’.^[58] A number of stakeholders emphasised the need for more rigorous accreditation in the family dispute resolution context.^[59] The Commissions consider that the desirability of accreditation for legal practitioners in family violence and sexual assault should be explored as one element of the national audit of education and training in family violence, discussed below.

Other recommendations

31.46 The need for specific education and training for those working in the family violence, family law, criminal law, and child protection systems is discussed throughout this Report. As noted at the outset of this chapter, a central theme in ensuring that the recommendations for reform of legal frameworks in this Report are effective in improving the safety of victims and their families is through sustained education and training of all individuals working in the area and responding to family violence allegations or incidents.

Sexual assault

31.47 The Commissions identified the issue of responding to sexual assault, including in a family violence context, as an area where legal practitioners might particularly benefit from more education and training. In Chapters 27 and 28, the Commissions make a number of recommendations in relation to government and non-government bodies providing education to practitioners around issues relating to evidence in sexual assault matters, to complement other reforms. These include that practitioners receive:

• education and training about the sexual assault communications privilege and how to respond to a subpoena for confidential counselling communications;^[60]

• education and training about procedural requirements for admitting and adducing evidence of sexual activity;^[61] and

• education about legislation authorising the use of pre-recorded evidence in sexual assault proceedings, and training in relation to interviewing victims of sexual assault and taking pre-recorded evidence.^[62]

31.48 The Commissions also suggest that there may be a need for education concerning: the scope of evidence of sexual reputation;^[63] the nature of sexual assault, including the context in which sexual offences typically occur; the emotional, psychological and social impact of sexual assault in relation to decisions about jury warnings on the effect of delay on the credibility of complainants;^[64] and expert evidence about children’s responses to sexual abuse and their reliability as witnesses.^[65]

Police and prosecutors

31.49 In Chapter 32, the Commissions recommend that state and territory police should ensure that all police—including specialised police units—receive regular education and training consistent with the Australasian Policing Strategy for the Prevention and Reduction of Family Violence. This includes training in communication skills, including cross-cultural communication, to address the different needs and contexts of family violence in the case of marginalised groups.^[66]

31.50 Further, the Commissions make a number of recommendations with respect to education and training of police and prosecutors in relation to nature and dynamics of family violence, and in dealing with family-violence related incidents. These include:

• as part of their training on the dynamics of family violence, police should be trained to clearly identify persons who have used family violence and persons who need to be protected from family violence, and to distinguish one from the other. Guidance should also be given in police codes of practice and guidelines;^[67]

• training police and prosecutors on how the dynamics of family violence might affect the decisions of victims of such violence to negate the existence of family violence or to withdraw previous allegations of violence;^[68]

• training police about the matters which they seek victims of family violence to address in sworn or affirmed ‘statements of no complaint’—in which victims attest to the fact that they do not wish to pursue criminal action;^[69]

• providing guidance to police about charging an offender with breach of a protection order and any underlying criminal offence constituting the breach;^[70]

• reinforcing, through training, police obligations when preparing witness statements in relation to breach of protection order proceedings, including asking victims about the impact on them of breach, and/or advising them that they may wish to make a victim impact statement and about the use that can be made of such a statement;^[71]

• training police and prosecutors about potential federal offences committed in a family violence context, including when such offences should be prosecuted or used as a basis for obtaining a family violence protection order;^[72]

• supporting the execution of police duties to inform victims of bail decisions;^[73] and

• ensuring that police and prosecutors are encouraged by appropriate prosecutorial guidelines and education and training programs, to use representative charges wherever appropriate in family-violence related criminal matters where the charged conduct forms part of a course of conduct.^[74]

Family dispute resolution practitioners

31.51 In Chapter 21, the Commissions recommend that the Australian Government Attorney-General’s Department, family dispute resolution service providers, 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 and making appropriate referrals to other services.^[75]

31.52 In Chapter 22, the Commissions recommend that the Australian Government should co-ordinate the development of education and training (including cross-disciplinary training), for family courts’ registry staff, family consultants, judicial officers and lawyers who practise family law, about the need for screening and risk assessment where a s 60I certificate has been issued indicating a matter is inappropriate for family dispute resolution.^[76] Such training should be developed collaboratively with family courts, lawyers’ organisations and other bodies responsible for the education and training of family courts’ registry staff, family consultants, judicial officers, and legal practitioners.

31.53 The Commissions also recommend that bodies responsible for the education and training of family dispute resolution practitioners and family counsellors should develop education and training to ensure that provisions in the Family Law Act and in state and territory child protection legislation for disclosure of information relating to actual or potential abuse, harm or ill-treatment of children are understood and appropriately acted upon.^[77]

Integrated responses

31.54 In Chapter 29 the Commissions examine the range of responses to family violence across Australia where an attempt has been made to integrate services from different agencies and sectors. Where integration is occurring, there is a need for education about the roles of different players within the system itself. For example, government staff and community workers benefit from understanding the legislation and how the court system works, just as the court system benefits from understanding the social and financial consequences of their decisions.^[78]

31.55 In Chapter 30, the Commissions make recommendations that parties involved in integrated responses including courts, judicial officers, lawyers and practitioners, police and relevant agencies receive ongoing training to ensure that arrangements are effectively implemented.^[79]