Improving practice is based upon a number of inter-related elements: specialisation; appropriate and regular education and training; the development of a national family violence bench book; integrated practice; improved police and prosecutorial practice; improved information flow and the establishment of a national register.
In the course of this Inquiry, the Commissions have concluded that the specialisation of key individuals and institutions is crucial to improving the interaction in practice of legal frameworks governing family violence, and sexual assault in the family violence context. Chapter 32 considers ways to foster and improve the effectiveness of specialised family violence courts and specialised police units with the aim of producing safe, fair and just outcomes for victims and their families.
Specialised family violence court
The term ‘specialised court’ can be used to refer to a number of things. For example, the term can be used to refer to separate stand alone courts that deal only with a particular subject matter—such as the Family Court of Australia, which ‘specialises’ in matters under the Family Law Act.Children’s courts, similarly, may be considered as specialised courts dealing with child-related matters. There are, however, no stand alone specialised family violence courts in Australia.
In courts that deal with a range of subject matters, there can be a division or special program embedded within existing court structures that deals with a particular subject matter. For example, in Victoria, there is the Family Violence Division of the Magistrates’ Court of Victoria. In other instances, a court may operate a ‘specialised list’, in which certain categories of cases are heard on certain days of the week, often by dedicated judicial officers. Both these types of ‘specialised courts’ are common in the Australian legal system.
Many specialised courts simply operate as a matter of practice, and their structures are established through administrative mechanisms. However, some specialised courts may be expressly established by legislation.
Specialisation can help to ensure that victims have contact with those in the system—including judicial officers, lawyers, prosecutors, police and family dispute resolution practitioners—who have the best understanding of the nature, features and dynamics of family violence. This knowledge and understanding allows these individuals better to assist victims in navigating the legal, social and health systems by connecting legal frameworks and social services.
Specialisation can also operate to improve the system as a whole. As many stakeholders have emphasised, attitudinal and behavioural change—although highly desirable—can be slow to achieve. Specialisation acts both as a way of attracting those with an interest and aptitude for family violence work, and allows education, training and other resources to be focused upon a smaller group for more immediate results and improved outcomes. Specialists can help to promote attitudinal change if they are given opportunities to share information with, and to contribute to, the education and training of those in the general system.
Specialisation can improve consistency and efficiency in the interpretation and application of laws, as a result of shared understandings and the awareness and experience of a smaller number of decision makers. Specialists can identify and solve problems more quickly and effectively and can develop and promote best practice that can then be mainstreamed to drive change in the system more generally.
In the long run, the efficiency gains through specialisation may produce better outcomes that result in substantial savings elsewhere in the system—for example, earlier and more effective legal intervention may result in fewer cases requiring child protection agencies to intervene, and fewer demands on medical and psychological services. For these reasons, specialists are more likely to be effective in addressing family violence, and in their ability to make the system more efficient as a whole.
The Commissions received significant support for the proposal that specialised family violence courts should be more widely established in Australia. The experiences of Australian and overseas jurisdictions provide evidence of the value of specialised family violence courts in terms of improving the interaction in practice of legal frameworks relevant to this Inquiry. These benefits include:
greater sensitivity to the context of family violence and the needs of victims through the specialised training and skills of staff;
greater integration, coordination and efficiency in the management of cases through identification and clustering of cases into a dedicated list, case tracking, inter-agency collaboration, and the referral of victims and offenders to services;
greater consistency in the handling of family violence cases both within and across legal jurisdictions;
greater efficiency in court processes;
development of best practice, through the improvement of procedural measures in response to regular feedback from court users and other agencies; and
better outcomes in terms of victim satisfaction, improvement in the response of the legal system (for example, better rates of reporting, prosecution, convictions and sentencing in the criminal context), better victim safety, and—potentially—changes in offender behaviour.
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.
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.
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. 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.
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.
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 access to legal services, for victims of family violence, including enhanced support for victims in high risk and vulnerable groups.
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 Family Violence Court Division. At a minimum, training should be provided to the following key participants: judicial officers, prosecutors, lawyers and registrars.
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 the Australian, 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 groups.
Lastly, 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.
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, as noted in Chapter 1.
Police play an important role in responding to, intervening in, and preventing family violence, and are the first point of contact for many victims. Police are responsible for recording incidents, interviewing victims and collecting evidence to support criminal charges and—as discussed in Chapter 9—applying for protection orders in the civil system. It is well recognised that initial positive police response is vital not only to victim safety, but also to whether victims report any further victimisation, or seek engagement with the legal system more generally. In Chapter 32, the Commissions make a number of recommendations about improving police and prosecutorial practice.
Although there is little information or research available on the role and value of specialised police units in Australia, a significant number of stakeholders reported positive experiences with such units. The Commissions concluded that there is substantial merit in the use of specialised police in family violence, sexual assault and child protection matters. Liaison officers provide an important early point of contact for victims and assist them in navigating the legal system. Specialised police at all levels provide contact points for inter-agency collaboration, and may form a key element of integrated responses. Further, monitoring and supervision by specialised police is likely to improve consistency in the application of laws in the context of family violence.
The Commissions recommend that state and territory police should ensure, at a minimum, that:
- specialised family violence and sexual assault police units are fostered and structured to ensure appropriate career progression for officers and the retention of experienced personnel;
- all police—including specialised police units—receive regular education and training consistent with the Australasian Policing Strategy on the Prevention and Reduction of Family Violence;
- specially trained police have responsibility for supervising, monitoring or assuring the quality of police responses to family violence incidents, and providing advice and guidance in this regard; and
- victims have access to a primary contact person within the police, who specialises, and is trained, in family violence, including sexual assault issues.
Education and training
A central and critical theme in this Report is the need for effective education and training of individuals—including judicial officers, lawyers, prosecutors, police, family dispute resolution practitioners and victim support services—working in the family law, family violence, criminal justice and child protection systems. A proper appreciation and understanding of the nature and dynamics of family violence, and the overlapping legal frameworks is fundamental in practice to ensuring the safety of victims and their families.
A key set of recommendations in this Report focus on education and training for all participants in the various systems dealing with family violence, beginning with law curriculums and extending to judicial officers. The recommendations, interwoven throughout the Report, are drawn together in Chapter 31 of Part H, and form a major plank in the reform recommendations. They express a commitment to embedding an understanding of the nature and dynamics of family violence across the various legal systems dealing with this issue. The Commissions recommend that the Australian, state and territory governments and educational, professional and service delivery bodies should ensure regular and consistent education and training for participants in the family law, family violence and child protection systems, in relation to the nature and dynamics of family violence, including its impact on victims, in particular those from high risk and vulnerable groups.
This is reinforced and complemented by further recommendations in Chapter 22 in relation to lawyers who practice family law; in Chapter 29, for government staff and community workers; and in Chapter 30, for parties involved in integrated responses—including judicial officers, legal practitioners, police and staff of relevant agencies.
National family violence bench book
Family violence may engage a range of overlapping frameworks and familiarity with, and competence in, these frameworks by judicial officers and legal professionals is vital to ensuring fair and just outcomes for victims. The Commissions recommend the development of a national bench book—again, complemented by quality education and training—to promote consistency in the interpretation and application of laws across jurisdictions, and offer guidance and promote best practice among judicial officers and legal professionals.
Relevant bench books have been published by judicial institutes and bodies in Australia and these could be built upon and, with adequate resourcing, such bodies could contribute towards the development of a national family violence bench book. The Victorian Department of Justice is currently in the process of securing access to the Canadian family violence bench book, and Victoria and South Australia are exploring a partnership agreement to progress work at a state level in relation to a bench book.
The Commissions consider that there is potential for collaboration between the Australian and state and territory governments to develop a similar bench book in Australia, using the Canadian bench book as a model. The Commissions therefore recommend, in Chapter 31, that the Australian, state and territory governments should collaborate with relevant stakeholders to develop and maintain a national bench book on family violence, including sexual assault, having regard to the Commissions’ recommendations throughout this Report in relation to the content that should be included in such a book.
In particular, the Commissions make a number of recommendations in Chapters 12 and 13 about the guidance that a national family violence bench book should provide on sentencing for family violence matters, including for breach of protection orders. In addition, in Chapter 14, the Commissions recommend that the bench book contain a section that provides guidance on the operation of defences to homicide where a victim of family violence kills the person who was violent towards him or her.
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, co-location of services facilitates 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.
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, including for example, liaison arrangements between police and victim support services.
Features of an integrated response may include:
- common policies and objectives;
- inter-agency collaboration and information sharing, including possibly: coordinated leadership across services and resources; sharing of resources and protocols; and inter-agency tracking and management of family violence incidents;
- involvement of, and recognition of the need for, victim support;
- commitment to ongoing training and education—discussed in Chapter 31;
- ongoing data collection and evaluation, with a view to system review and process improvements discussed in Chapter 31; and
- specialised family violence courts, lists, and offender programs for those who engage in family violence—discussed in Chapter 32.
While a comprehensive integrated response has all of these features, not all features are required for a project to be considered an integrated response.
In Chapter 29, the Commissions review the range and diversity of integrated responses to family violence in Australia. In Chapter 30, the Commissions express the view that information-sharing protocols and Memorandums of Understanding (MOUs) are important, but cannot stand alone, and are dependent on the knowledge and involvement of officers and staff. Simply putting protocols in place is not sufficient. In the same way, integrated response arrangements are not simply formal arrangements between agencies. 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 be supported and implemented in practice. Therefore, the Commissions recommend that integrated responses include a set of common policies and objectives; mechanisms for inter-agency collaboration—including information-sharing protocols, regular inter-agency meetings and liaison officers—and provision for victim support. Chapter 31 acknowledges the importance of ongoing education and training programs.
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.
The Commissions note that the process of developing common principles and objectives should involve all the agencies and organisations that are part of the integrated response, including those working with Indigenous communities, CALD communities and the disability sector. 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, essential to the success of any integrated response.
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.
Improving police and prosecutorial practice
The Commissions make a number of recommendations aimed at improving police practice, ensuring that victims of family violence obtain an effective criminal justice response. In Chapter 9, the Commissions recommend that police should have a duty to investigate family violence where they believe family violence has been, is being, or is likely to be committed; and record when they decide not to take further action and their reasons for not taking further action. Police should also be able to better identify persons who have used family violence and persons who need to be protected from family violence, and to distinguish one from the other. In Chapter 12, the Commissions make recommendations towards improving police decision making about charging an offender with breach of a protection order and any underlying criminal offence constituting the breach; in relation to breach of protection order proceedings, to require police, when preparing witness statements, to ask victims about the impact of the breach, and advise them that they may wish to make a victim impact statement; and as to the appropriate content of ‘statements of no complaint’ in which victims attest to the fact that they do not wish to pursue criminal action.
Chapters 8, 12, 13 and 31, make complementary recommendations focused on the training of police and prosecutors.
The Commissions make a number of recommendations aimed at improving the exercise of prosecutorial discretion and decision making. These include education and training about: potential federal offences committed in a family violence context; the use of representative charges in family violence related criminal matters, where the charged conduct forms part of a course of conduct; and how the dynamics of family violence might affect the decisions of victims to negate the existence of family violence or to withdraw previous allegations. Importantly, the Commissions have also recommended that any decisions to prosecute victims of family violence with any public justice offences—such as conspiracy or attempts to pervert the course of justice—where the conduct alleged to constitute such offences is essentially conduct engaged in by a victim to reduce or mitigate the culpability of an offender—should only be approved by directors of public prosecution.
Throughout the course of this Inquiry, the Commissions have heard about the problems that arise because of the gaps in information flow between the family law system, the family violence system and the child protection system. In many circumstances, important information is not being shared among courts and agencies and this is having a negative impact on victims, impeding the ‘seamlessness’ of the legal and service responses to family violence. There are many recommendations throughout this Report directed towards improving the flow of information, including: clarifying initiating application forms; amending legislation that regulates the disclosure of information in relation to parenting orders, family violence orders and child protection orders; providing state and territory courts with access to the Commonwealth Courts Portal and establishing information sharing protocols and MOUs between courts, agencies and organisations working in these areas.
Chapter 30 contains recommendations to improve information flow between critical elements of the family violence system, including courts, relevant government agencies and other people and institutions involved in the family violence, family law and child protection systems. These include improving the way information is collected from parties and shared between courts—including the establishment of a national register of relevant court orders—some changes to confidentiality and privacy legislation, and the development of information sharing protocols and MOUs. The intention is to avoid, as far as possible, victims falling into gaps between the various systems due to lack of relevant information.
Information sharing is also one element of an integrated response to family violence, considered in Chapter 29.
The 2009 report of the National Council to Reduce Violence against Women and their Children, Time for Action, identified privacy laws as one of the obstacles to an integrated and effective response to family violence. Many stakeholders consulted in this Inquiry agreed that they encounter difficulties sharing information because of actual or perceived limits imposed by privacy and secrecy laws. Implementation of the model use and disclosure principle set out in For Your Information: Australian Privacy Law and Practice (ALRC Report 108) would address some of the issues identified.
In particular, the Commissions recommend, in Chapter 30, that Australian, state and territory governments should ensure that the privacy principles applicable in each jurisdiction permit the use or disclosure of personal information where agencies and organisations reasonably believe it is necessary to lessen or prevent a serious threat to an individual’s life, health or safety. Given the high level of involvement of private sector service providers in the areas of family violence and child protection, this exception should apply to both government agencies and private sector organisations. The threat should not have to be imminent. Agencies and organisations should be able to share information in order to intervene early in family violence and child protection situations to prevent a serious threat from manifesting.
In Secrecy Laws and Open Government in Australia (ALRC Report 112) the ALRC recommended that secrecy laws should generally include an exception for disclosures in the course of an officer’s functions or duties. The recommendations in ALRC Report 112 were limited to Commonwealth secrecy laws, because that was the extent of the Terms of Reference for that Inquiry. The Commissions consider that the principles underlying the ALRC’s recommendation that Commonwealth secrecy laws should include an express exception for disclosure in the course of an officer’s functions and duties is a principle of wider application.
If this approach were adopted by Australian, state and territory governments, it would ensure that, where an officer disclosed information, for example, in accordance with the provisions of state and territory family violence or child protection legislation, or in accordance with an information-sharing protocol or MOU, the officer would not breach the relevant secrecy law. The Commissions therefore endorse the relevant recommendations in ALRC Report 112 in relation to Commonwealth secrecy laws, and recommend that state and territory governments consider amending secrecy laws that regulate the disclosure of government information to include an express exception to allow the disclosure of information in the course of an officer’s functions and duties.
These recommendations complement the provisions in relation to permitted disclosures by child protection agencies in Chapter 19, and those in Chapter 22, in relation to family counsellors and family dispute resolution practitioners to permit disclosures where reasonably necessary to prevent or lessen a serious threat to a person’s life, health or safety.
The Commissions note that databases in some jurisdictions facilitate the sharing of information between agencies working together, particularly in the area of child protection. Such databases provide a useful mechanism to help ensure that agencies are aware of the fact that other agencies are working with a particular child or family, and to prevent the duplication of services. It would be logical, for example, to establish a shared database where family violence or child protection legislation expressly provides for the disclosure of certain information from one agency to another. The Commissions note, however, that such databases raise significant privacy concerns. The Commissions recommend, therefore, that in developing any such databases, the Australian, state and territory governments should ensure that appropriate privacy safeguards are put in place.
The Commissions’ recommendations in Chapter 30 are intended to ensure that legislative provisions do not prevent the sharing of information in circumstances where there is a risk to an individual’s life, health or safety. In addition, the Commissions recommend that family violence and child protection legislation should clearly set out which agencies and organisations may use and disclose information and in what circumstances. This will provide clarity for individual officers and staff and will ensure that where information is shared it does not breach privacy or secrecy laws.
Protocols and MOUs
Information-sharing protocols and MOUs between the courts and relevant agencies and organisations have a valuable role to play in facilitating communication and information exchange between parties in the family law, family violence and child protection systems.
At present, there are few information-sharing protocols in the context of family violence. In Chapter 30, the Commissions recommend that federal family courts, state and territory magistrates courts, police, and relevant government agencies should develop protocols for the exchange of information in relation to family violence matters. The recommendations in Chapter 30 are complemented by additional recommendations in Chapters 19, 20 and 29. The development of information-sharing protocols in the context of family violence is consistent with the views expressed in Time for Action.
The capacity for family violence protection orders to be enforced across jurisdictions is essential to the safety of victims, especially given that it is common for victims of family violence to seek to move to escape violent relationships. Currently, in most jurisdictions, a protection order that has been obtained in one state or territory is not automatically enforceable in another state or territory. Rather, the victim of family violence or some other person must register the ‘external protection order’ in the second jurisdiction.
The Australian Government has committed to the development of a national scheme for the registration and recognition of family violence protection orders. The Commissions consider that this is an excellent development that should be supported as a constructive step towards improving the protection available for victims of family violence. It will allow victims of family violence to move seamlessly from one jurisdiction to another without the need to take action to register a family violence order in the second jurisdiction. It will also help to ensure that police in the second jurisdiction are aware of the existence of the order.
The Commissions consider that a national register of this kind also provides an opportunity for a formalised exchange of information relevant to proceedings involving family violence more broadly. While the initial proposal is to include information about family violence protection orders, there is scope to extend the ambit of the register to include, for example, child protection orders made under state and territory child protection legislation, and information about parenting orders and family violence related injunctions made under the Family Law Act. The Commissions are also of the view that the Australian Government Attorney-General’s Department—as the Central Authority for the Hague Convention on Civil Aspects of International Child Abduction (Hague Convention)—should give future consideration to including conditions and non-molestation undertakings made in Hague Conventioncases on the national register. While registration would not affect the enforceability of undertakings and conditions, it would ensure that police officers, state and territory courts and federal family courts are aware that they exist, and may take them into consideration, where appropriate, in protection order or parenting proceedings.
A related issue is the persons and entities that may access information on the national register. The Commissions’ view is that—at a minimum—access should be available to federal family courts, state and territory courts that deal with matters related to family violence and child protection, child protection agencies and the police.
The Commissions agree with the Office of the Privacy Commissioner that a national register of this kind needs to be accompanied by a comprehensive privacy framework and recommend that a privacy impact assessment be prepared as part of developing the register.