Expanding specialised family violence courts in Australia

32.57 In the Consultation Paper, the Commissions expressed the preliminary view that specialised family violence courts should be more widely established in Australia.^[87] There was significant support for this proposal in submissions and consultations, and the Commissions remain of the view that such courts are of value and should be more widely established in Australia.^[88] However, a variety of views was expressed on the minimum, desirable features of such courts and the range of matters they should consider.

Jurisdiction of specialised family violence courts

32.58 A preliminary question for the establishment of specialised family violence courts concerns the range of matters that such courts should consider. In the Consultation Paper, the Commissions proposed that state and territory governments should ensure that specialised family violence courts determine matters relating to protection orders and criminal proceedings related to family violence.^[89] It was further proposed that state and territory governments should review whether specialised family violence courts should also be responsible for handling related claims for civil and statutory compensation, child support and family law matters, to the extent such jurisdiction is conferred in the state and territory.^[90] This position closely mirrors the model in the Victorian FVCD.

32.59 In the Consultation Paper, the Commissions did not propose that specialised family violence courts should be asked to exercise jurisdiction in relation to child protection matters. The Commissions noted that in all states and territories there are specialised children’s courts that have jurisdiction related to the care and protection of children and young people, and also criminal cases involving young people. In the Tasmania, the ACT and the Northern Territory, the Children’s Court is presided over by a magistrate. In NSW, Victoria, Queensland, Western Australia and South Australia, the head of the court is a specialist judge of the District Court.^[91] Most states have specialist children’s courts operating in capital cities. Outside these areas, the local magistrate can convene a children’s court when necessary.^[92]

Submissions and consultations

32.60 There was strong support for the proposal that specialised courts should determine matters relating to family violence protection orders and criminal proceedings related to family violence.^[93] For example, the Australian Domestic and Family Violence Clearinghouse submitted that:

Where they do not embrace a multi-jurisdictional capacity, specialist courts do not address the secondary victimisation which victims experience when required to present evidence in multiple court proceedings. The value of specialised courts is predicated on the extent to which they address victim needs and enhance safety of victims, so where they do not address this, they are less effective … It is the ‘one court, one family’ capacity of the Victorian model that ensures it is exemplary in the Australian context. The value of state and territory courts using their 68R Family Law Act power is also noted as facilitative of jurisdictional capacity in this regard. ^[94]

32.61 Consultations with one of the magistrates at the Ballarat FVCD in Victoria also indicated that the ‘one stop shop’ model was beneficial for victims, who had the advantage of familiarity with the court throughout related proceedings.^[95] Other submissions highlighted that specialisation would diminish inconsistencies in the interpretation and implementation of legislation between different magistrates.^[96]

32.62 However, a number of submissions raised concerns about the challenges and practicability of allowing specialised family violence courts to exercise jurisdiction in relation to a wide range of matters.^[97] The Victorian Aboriginal Legal Service queried whether

the FVCD is appropriately situated to attend to other matters such as compensation … This may decrease the effectiveness of the specialist court such as the Division by: diminishing the acute specialisation in family violence expertise; clouding family violence issues in consideration of other complex matters simultaneously; and diluting the identity and purpose of the Division when changing hats between concerns oriented towards the victim, the perpetrator and the best interest of the child.^[98]

32.63 Similarly, the Women’s Legal Service NSW submitted that such a proposal ‘would need careful consideration, as different functions are being carried out, for example, criminal jurisdiction, civil jurisdiction for compensation and federal family law jurisdiction’.^[99]

32.64 The Children’s Court of NSW did not support sharing its specialist jurisdiction with a specialised family violence court:

To direct criminal cases involving juveniles and the care and protection cases away from specialist Children’s courts on the basis that a particular case involves issues of domestic violence, would clearly not be the optimum use of the accumulated knowledge and expertise of a specialist Children’s Court … The Children’s Court is of the view that instead of conferring part of the court’s criminal and care and protection jurisdictions on a specialist domestic violence court, the jurisdiction of the Children’s Court should in certain areas be expanded. ^[100]

32.65 The Court noted that this may require parties to attend both the Children’s Court and the proposed specialised family violence court. However, this could be managed by:

the provision of community-based support persons to accompany a party to the separate courts and to offer them assistance and support along the whole legal journey. Alternatively, a centralised support service could be established to which referrals could be made by all courts dealing with family violence issues, and the role of which would be to provide assistance, information and support to all the parties.^[101]

Commissions’ views

32.66 As noted above, all state and territory local or magistrates courts have broad jurisdiction over a range of matters—including criminal matters, protection orders, and family law (to the extent that this is conferred)—although the full extent of this jurisdiction is not necessarily exercised.^[102]

32.67 In Chapter 16, the Commissions set out a framework for reform of the jurisdictions of courts that deal with issues of family violence to address the gaps arising as a result of the interaction between different legal systems. The local or magistrates court is the first port of call for many victims of family violence and their families. The Commissions consider that state and territory magistrates courts should be in a position to address, at least on an interim basis, the range of issues that commonly arise in family violence matters. A system in which one court is able to deal with most legal issues—and where it cannot, is able to facilitate the transfer of the matter to another court—will go some way towards reducing the impact of inconsistencies between the legal systems, and better ensure the protection and safety of victims of family violence. The Commissions consider that these benefits are best leveraged in a specialised family violence court.

32.68 In relation to the exercise of family law jurisdiction, state and territory magistrates courts have no power when making or varying a protection order, to make a parenting order.^[103] The Commissions recommend that, when making or varying a protection order, state and territory courts should also be able to make parenting orders ‘until further order’.^[104] The exercise of this power would mean that magistrates can deal proactively with family law issues, such as when a parent can spend time with a child, which may otherwise exacerbate a situation involving family violence.

32.69 The Commissions also recommend that state and territory magistrates courts should be required to consider using s 68R of the Family Law Act to amend inconsistent parenting orders to protect victims of family violence. This alleviates the need for a victim of violence to go to a federal family court to seek an amendment to the parenting order as well as a state or territory magistrates court to seek a protection order, and ensures that the issue is considered by judicial officers.^[105]

32.70 The Commissions received little by way of substantive submissions on whether specialised family violence courts should also consider related claims for civil and statutory compensation, and child support matters, but note the concerns expressed by some stakeholders in relation to asking specialist courts to exercise a wide range of divergent jurisdictions. The Commissions make no recommendations in relation to this issue, but note the current review of the FVCD of the Magistrates’ Court of Victoria may provide further feedback.^[106] State and territory governments may wish to review this matter in establishing or expanding specialised family violence courts, in light of the results of the Victorian review.

32.71 In relation to child protection matters, the Commissions are mindful that such issues are already dealt with in specialised children’s courts in all states and territories. In Chapter 20 the Commissions make recommendations for the expansion of the jurisdiction of state and territory children’s courts to be able to make protection orders.^[107] In the Commissions’ views, this will help to reduce the gaps in protection and enable families to have a number of issues promptly resolved.

32.72 A further option would be to expand the jurisdiction of specialised family violence courts to enable them to consider child protection matters. The Commissions do not have sufficient information or feedback to make a recommendation on this issue. As noted above, in Chapter 16 the Commissions recommend that state and territory courts making family violence protection orders should be able to make parenting orders ‘until further order’.^[108] The Commissions note that allowing specialised family violence courts to make interim child protection orders, until the matter can be considered by a children’s court, may yield similar benefits for victims and their families.

32.73 The Commissions agree with the NSW Children’s Court that specialised family violence courts and children’s courts should establish appropriate referral arrangements and support mechanisms to help victims navigate between the two courts. The role of a dedicated liaison officer appears to be desirable in this regard. The Commissions also emphasise the importance of information sharing arrangements between the courts. For example, the Commissions recommend in Chapter 30 that both family violence protection orders and child protection orders are included in the national database, to ensure that all courts are aware of existing orders made in relation to a particular family.^[109]

Elements of specialised family violence courts

32.74 In the Consultation Paper, the Commissions proposed that family violence courts should include a minimum set of features.^[110] The Commissions did not include specialised prosecutors in the proposed list, as it did not have sufficient information upon which to base a proposal.^[111] The Commissions noted, however, that there may be significant value in specialised prosecutors dealing with family violence issues, including cases of sexual assault.

32.75 For example, the ACT Office of the Director of Public Prosecutions (ODPP) has for several years had specialised family violence prosecutors assisted by three witness assistants as part of the FVIP.^[112] The ODPP states that:

Having specialist prosecutors allows for a consistency of approach and for continuity for victims. Specialisation also enhances the relationships with other essential agencies—the police, the Office of Children and Youth and Family Support, the Domestic Violence Crisis Service and Victims Support ACT.^[113]

32.76 Victoria has established a Specialist Sexual Offence Unit in the Office of Public Prosecutions (OPP), including a regional office in Geelong. The OPP reports that:

The work of the OPP’s Specialist Sexual Offences Unit … has proven that the co-location of specialist prosecutors and solicitors under the leadership of an experienced Crown Prosecutor can produce significant improvements in the handling of such sensitive and traumatic prosecutions.^[114]

32.77 In the US, specialised family violence prosecutors are more common. The National Institute of Justice has helpfully summarised the research available in the US on the effectiveness of specialised prosecutors. It notes that the research is limited and because of the variation of programs and their co-existence with specialised courts in many cases, it is ‘difficult to pinpoint what works and what does not’.^[115] However, ‘in general, the research suggests that these programs work well on a number of levels’.^[116] There is evidence of increased victim satisfaction; significant increases in prosecution and conviction rates; and more robust outcomes that are better monitored and enforced.^[117]

32.78 In the Consultation Paper, the Commissions proposed that specialised family violence courts should, as a minimum, include the following features:

• especially selected judicial officers;

• specialised and ongoing training on family violence issues for judicial officers, prosecutors, registrars and police;^[118]

• victim support workers;

• arrangements for victim safety; and

• mechanisms for collaboration with other court agencies and non-government organisations.^[119]

32.79 The Commissions also proposed that state and territory governments should, to the extent feasible, make victim support workers and lawyers available at family violence related court proceedings.^[120]

Submissions and consultations

32.80 The Magistrates’ Court and the Children’s Court of Victoria noted in relation to the proposed list of minimum features that:

the experience of the court … in relation to the Family Violence Court Division and Family Violence Specialists Services is that the features identified in this proposal, to the extent that they exist, have worked very effectively in improving all aspects of the courts’ processes.^[121]

32.81 The Australian Domestic and Family Violence Clearinghouse supported the proposal on the proviso that such courts

have a range of response strategies and support strategies available to them … These supports would include free legal representation as well as victim support services, including access to family law advice and representation in relation to parenting matters …

They need to have support and oversight of a leading judicial officer to ensure consistency between courts and provide advice and support to judicial officers. In addition, judicial officers need to be trained and gazetted.^[122]

32.82 The Magistrates’ Court and the Children’s Court of Victoria also submitted that ‘an essential part of the model is legal representation for victims and offenders and a support worker for offenders’.^[123] Deputy Chief Magistrate Cannon of the South Australian Magistrates Court, submitted that in his view, ‘providing victim support is the single most useful thing that can empower victims, followed by a special list that ensures that they are dealt with respectfully and consistently’.^[124]

32.83 A number of submissions expressed support for the proposal that state and territory governments should, to the extent feasible, make available lawyers at family violence related court proceedings.^[125] Domestic Violence Victoria and others, in a joint submission noted:

Given the often complex family law issues that can arise out of protection order proceedings, it is essential for victims to have access to legal advice and representation at their first mention date through duty lawyer services. These services not only provide legal advice and assistance around the protection order proceedings, but also connect the client to legal assistance for family law matters.^[126]

32.84 A number of submissions expressed the view that it was also important to ensure adequate legal advice and representation for defendants.^[127] Other submissions stressed the importance of adequate funding for duty lawyers, through Legal Aid or Community Legal Centres.^[128]

32.85 A number of submissions pointed to the value of specialised prosecutors as a minimum and desirable feature of specialised courts.^[129] The Office of the Director of Public Prosecutions NSW submitted that:

Specialised family violence courts which include specially selected judges and specialised prosecutors and other agencies represent best practice and must be considered desirable if these matters are to be dealt with expeditiously, sensitively and professionally.^[130]

32.86 Similarly, the Queensland Commission for Children and Young People and Child Guardian submitted that specialised prosecutors share a common understanding with specialist magistrates, police and victim support workers.^[131] They play a specific role in—among other things—prosecuting offences at a high level, preparing briefs of evidence, ensuring appropriate charges have been laid, and encourage victim participation and attendance at court.^[132]

32.87 Submissions also highlighted a number of challenges facing specialised courts, including the need for adequate resourcing, and accessibility for those in regional and remote communities.^[133] The Sydney Women’s Domestic Violence and Advocacy Service submitted that:

considering the resources required—the establishment of nation–wide specialised domestic and family violence courts is not currently an immediate or feasible option and that—at far less cost—existing courts could be immediately developed to deal with domestic violence related protection orders, associated criminal charges, family law matters and child protection matters.^[134]

Commissions’ views

32.88 In the Commissions’ view, specialised family violence courts with certain minimum core features, including specialised prosecutors, would enhance the efficacy and effectiveness of the courts in dealing with family violence. The Commissions’ recommendations envisage, where possible, the creation of specialised family violence courts—being divisions, programs, lists or a specialised court room—within existing state and territory local and magistrates courts with a number of essential support features. The Commissions are not recommending the establishment of a separate stand alone court.

32.89 First, all judicial officers in a family violence court should be especially selected for their roles. The attitude, knowledge and skills of judicial officers are critical to the success of such a court, and it is important that selection be based on such criteria.^[135] As noted above, the adoption of specialised lists and specialised practices may attract judicial officers who have experience, and are interested in working in family violence. This is an important step in building a leadership cohort, who can drive reform and promote attitudinal change within the system.

32.90 Secondly, there was strong support for the role of specialised prosecutors as an essential feature of specialised family violence courts. The Commissions agree with the majority of submissions that specialised prosecutors—working in cooperation with magistrates, police and victim support workers—can play an important role in achieving consistent and quality outcomes for victims of family violence.

32.91 Thirdly, the Commissions are of the view that the provision of specialised, free and timely legal advice and representation would enhance the effectiveness of specialised family violence courts. In Chapter 29, 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 vulnerable groups.^[136]

32.92 Fourthly, specialised and ongoing training on family violence issues is critical to ensuring a shared understanding of family violence within the court. Ideally, this training should be provided to all staff, as was done with the Victorian FVCD. At a minimum, training should be provided to the following key participants: judicial officers, prosecutors, lawyers and registrars.

32.93 Fifthly, victim support workers play a key role in ensuring the success of such courts. Such workers may be employed directly by the court or a community organisation may be funded to provide the service. In Chapter 29, the Commissions recommend that federal, state and territory governments should prioritise the provision of, and access to, culturally appropriate victim support services for victims of family violence, including enhanced support for victims in high risk and vulnerable groups.^[137]

32.94 Finally, family violence courts should also have special arrangements for victim safety at court, such as separate waiting rooms for victims, separate entrances and exits, remote witness facilities and appropriately trained security staff. The provision of interpreters is also essential.

32.95 The Commissions are also of the view that specialised family violence courts should have arrangements in place to liaise with, and cooperate with, other relevant agencies. Integrated responses to family violence are discussed in Chapter 29.

32.96 The Commissions acknowledge the establishment or further development of specialised family violence courts will be dependent on mechanisms such as funding, programs of action, policy and operational support from inter-agency committees, and political support across those departments affected. The Commissions refer to the relative success achieved by the cross-government approach in Victoria as an illustrative model. The cost of establishing or further developing specialised family violence courts needs to be considered in light of the cost of family violence to the Australian community.^[138]

Offender programs

32.97 In the Consultation Paper, the Commissions expressed the view that offender programs are resource-intensive and, to date, the evidence of their effectiveness is equivocal.^[139] A number of submissions suggested that offender programs are largely ineffective in reducing violence, especially when the offender does not attend voluntarily.^[140] The Commissions also received a number of submissions in favour of offender programs where such programs are specifically designed to address family violence.^[141]

32.98 The Commissions are aware that offender programs currently exist in all Australian jurisdictions. The Commissions note, and endorse, the Australian Government’s response to Time for Action, which proposes to invest $3 million in research on offender treatment programs in consultation with the states and territories and experts in the treatment field.^[142] The Commissions are of the view that the place of offender programs as an essential feature of specialised family violence courts should be reconsidered in light of the proposed research.