Resolution and adjudication processes

165       Most families manage their separation without recourse to the family law system. Many, however, seek assistance from one or more of the family law system’s services, such as a FDR service or by engaging a lawyer. While less common, some families approach the courts to resolve their dispute. This section considers what improvements can be made to the system’s processes for resolving and adjudicating family law disputes. The ALRC asks what changes to court processes could be made to provide more timely and affordable resolution of matters and to better manage risk to children. It also asks about the place of alternative dispute resolution processes, as well as how people might be further assisted to resolve matters on their own or with minimal involvement from professionals.

166       There is now clear evidence that many of the people who approach the family law system for assistance today have complex support needs, including in relation to family violence and other safety concerns for children, and that these disputes often involve a co-occurrence of risk issues, such as drug and alcohol misuse or mental health concerns.^[199] In light of this evidence, the ALRC asks what processes, including alternative dispute resolution models and less adversarial decision-making approaches, might be used to assist families with complex needs, as well as how support could be best provided to the parties involved in these matters. The ALRC also asks how misuse of process in family law matters might be prevented.

Timely and cost-effective resolution of litigated disputes

167       Early consultations for this Inquiry revealed significant concerns about the delays currently associated with litigated proceedings in the family courts. These included calls for changes in how cases are managed by the courts and a greater use of orders diverting litigants to low-cost dispute resolution options outside the courts.

168       The SPLA Committee reported in 2017 that ‘delays of nine to 24 months between filing an application and commencement of a trial’ are occurring in some  Family Court and Federal Circuit Court registries,^[200] and that delays may be even longer in regional and remote areas of Australia.

169       Reforms to the Family Law Act in 2006 require parents to attempt a FDR process to settle arrangements for their children before initiating court proceedings, unless one of a number of statutory exemptions applies.^[201] This reform led to a significant reduction in court applications for final orders in children matters.^[202] However, children’s matters continue to dominate the workload of the family courts.^[203] AIFS research indicates that many of these cases involve concerns about family violence or other issues of risk to the child,^[204] and that these matters are more likely to involve lengthy resolution timeframes than less complex cases.^[205]

170       Stakeholders raised a number of concerns associated with the present delays for  families, including:

• the potential for children and parents to spend long periods living in limbo while waiting for trial;
• the safety risks to parties and children arising from delayed resolution of disputes that involve protective concerns;
• the scope for delay and uncertainty to exacerbate conflict;^[206] and
• the potential for clients to consent to outcomes that fall short of the security and protection a court order could provide.^[207]

171       Recent reports and initial consultations raised a number of reform strategies for consideration, including:

• the development of a triage approach to court applications, to ensure that urgent cases are identified and dealt with expeditiously and that families are referred to a resolution pathway that is appropriate to their needs;^[208]
• a more streamlined case management model within the courts, such as the use of a teamed docket system that pairs judicial officers and registrars and possibly family consultants;
• increased use of practice directions and notes to support efficiency and safety. Examples provided in initial consultations were Practice Direction No 2 of 2017 (Interim Family Law Proceedings) in the Federal Circuit Court limiting affidavits in interim proceedings to ten pages and annexures to five;
• greater leadership from the bench to address delays caused by parties and/or their legal advisers failing to meet court deadlines, including through the setting of budgets for matters;
• a greater use of orders diverting litigants to mediation or other dispute resolution services after the commencement of litigation;^[209] and
• limiting the availability of appeals from interim orders.

172       The ALRC seeks stakeholder input about the possibilities for enhancing the timely and cost-effective resolution of disputes that reach the courts.

Small property claims

173       Preliminary consultations for this Inquiry and a number of recent reports have raised concerns about the ‘one pathway for all’ approach to court proceedings and emphasised a need to ensure the availability of dedicated dispute resolution pathways that are appropriate to the nature and complexity of the issues involved.^[210] Particular concerns have been raised in this context about the limited availability of less formal and lower cost dispute resolution options for property matters that involve small asset pools,^[211] including the implications of this limitation for women who have experienced family violence.^[212]

174       These concerns reflect the increasing recognition of economic and financial abuse as an aspect of family violence, and the obstacles faced by those who experience family violence in obtaining fair financial settlements.^[213]

175       A number of suggestions for change to address these problems have been made. These include:

• a recommendation by the Productivity Commission that the requirement in s 60I of the Family Law Act to attempt FDR prior to lodging an application for children’s orders be extended to financial matters;^[214]
• recommendations by the SPLA Committee and Women’s Legal Service Victoria that the family courts promote early resolution of small property disputes through a streamlined case management process with simplified procedural and evidentiary requirements;^[215]
• recommendations by the Victorian Royal Commission into Family Violence,^[216] the Family Law Council,^[217] and the SPLA Committee,^[218] that state and territory magistrates be encouraged to increase the exercise of their Family Law Act powers in relation to property when parties with family law needs are already before the court;
• the implementation of a small claims list in the Federal Circuit Court^[219] along the lines used by the Federal Circuit Court in claims of up to $20,000 under the Fair Work Act 2009 (Cth) and claims up to $40,000 under the National Consumer Credit Protection Act 2009 (Cth); and
• the roll out of an arbitration process for small property claims along the lines of Legal Aid Queensland’s arbitration model,^[220] which is available to legally aided clients for resolution of property disputes of between $20,000 and $400,000.

176       The ALRC seeks stakeholder input in relation to this issue.

Appropriate dispute resolution for cases involving family violence

177       Recent reports have pointed to client concerns about the adversarial nature of court processes and its potential impact on parties who have experienced family violence or abuse.^[221] In particular, the SPLA Family Violence Report noted stakeholder views that the adversarial approach ‘mirrors the dynamic of abusive relationships’,^[222] and concerns that engagement with court processes can re-traumatise people who have experienced family violence.^[223]

178       These views reflect the growing recognition of the negative effects of adversarial processes on people who have experienced trauma,^[224] and the potential adverse implications of this for their parenting capacity.^[225]

179       Alongside the emergence of this knowledge has been a growing awareness of the need for trauma-informed approaches to service delivery in the family law system.^[226] A description of this model of service delivery is provided above in the section that defines the terms used in this Issues Paper.

180       Given the concentration of multiple and complex issues facing many of the families who engage with formal dispute resolution pathways, there is a significant likelihood that parents and children may be affected by trauma arising from exposure to family violence or abuse.^[227]

181       For some groups, trauma may arise from a constellation of long-standing and contemporary issues. For example, any trauma-informed response must incorporate an understanding of the specific experiences of trauma of Aboriginal and Torres Strait Islander peoples, including intergenerational trauma.^[228] In relation to culturally and linguistically diverse groups, depending on culture of origin and migration history, trauma—including from circumstances that have led to forced migration— may be pertinent. Intergenerational trauma may also play a role.^[229]

182       The Family Courts’ Family Violence Best Practice Principles recognise these concerns and exhort judicial officers to manage their courtroom in a way that seeks to reduce the potential for re-traumatisation of parties who have experienced family violence.^[230] This includes through directions or orders about how particular evidence is to be given and orders limiting or not allowing cross-examination of a particular witness.

183       However, a number of stakeholders have suggested the need for greater support for litigants who have experienced family violence or abuse and/or for the development of appropriately designed alternative dispute resolution processes to reduce the potential for re-traumatisation.

184       A key suggestion for addressing the trauma concerns of litigants has centred on recommendations for embedding specialist family violence workers in the family courts, along the lines employed in some state and territory magistrates’ courts, so as to provide support for parties who have experienced family violence.^[231]

185       An alternative proposal made to the SPLA Inquiry was for the expansion of legally-assisted FDR processes. The SPLA Family Violence Report notes in this regard the submission from Women’s Legal Services Australia that a ‘well-supported and safe mediation process, with expert lawyers and mediators’ who have a sound understanding of family violence and family law, can be an ‘empowering’ process for a parent who has experienced family violence, particularly when compared to the traditional court process, which Women’s Legal Services Australia submitted ‘rarely results in a good outcome’.

186       Legally-assisted FDR typically involves a collaborative partnership approach between a family dispute resolution service provider and two legal services. It is designed to ensure that each party is both legally represented and supported during the dispute resolution process. In this way, agencies are able to provide a service to clients in cases that might otherwise be assessed as not suitable for FDR, such as cases involving family violence.

187       The ALRC notes that the Attorney-General’s Department has recently expanded funding to support pilot programs in enhanced, legally-assisted FDR, particularly for Aboriginal and Torres Strait Islander clients and culturally and linguistically diverse clients.^[232] These will be evaluated. The SPLA Committee recommended that, subject to a positive evaluation of these pilots, the Australian Government should expand the availability of legally-assisted FDR.^[233]

188       The ALRC invites stakeholder input about ways of addressing the safety and support needs of litigants at court and the development of alternative dispute resolution options for parties who have experienced family violence or abuse.

Misuse of process

189       The Terms of Reference ask the ALRC to consider the need for reform in relation to ‘family violence and child abuse, including protection for vulnerable witnesses’. A further term of reference asks the ALRC to consider the ‘mechanisms for reviewing and appealing decisions’. An issue that is central to these questions is the potential for court proceedings and other family law system processes to be misused to maintain a dynamic of abuse.^[234]

190       Research conducted by AIFS has shown that patterns of violence involving multiple types of abuse—especially financial abuse, social isolation and threats of self-harm and harm against children—are associated with higher court use and higher rates of unsuccessful engagement with FDR.^[235] Research^[236] and analysis^[237] over a long period of time has highlighted a range of behaviours that can occur in this context, including:

• instigating and re-instigating legal proceedings in multiple courts, including applications for final orders and for enforcement of parenting orders in the family courts;^[238]
• prolonging court proceedings by requiring adjournments and challenging interim and procedural determinations, sometimes with the intent to and effect of exhausting legal funding (legal aid or private resources), also known as ‘burning off’;^[239]
• approaching multiple legal practitioners for advice, particularly in regional, rural and remote communities, to ensure that potential sources of legal advice of the former partner are ‘conflicted out’ of providing advice;^[240]
• making cross-applications in proceedings for personal protection orders;
• using processes in one court to obtain an advantage in another, for example, using family court processes to gain evidence that is also relevant to a criminal matter;
• self-representing in court to create opportunities to personally cross-examine victims about family violence, sexual abuse allegations and other sensitive issues;
• using evidence gathering processes, including subpoenas, to obtain access to sensitive personal material such as the victim’s therapeutic counselling records or sexual assault service records;
• making multiple notifications to child protection agencies;
• challenging and appealing child support determinations;
• deliberately not engaging or delaying engaging with FDR services to delay resolution;
• non-disclosure of income and assets in property and financial matters; and
• attempting to fraudulently gain access to Centrelink benefits.

191       A number of suggestions for reform have been proposed in this area. This includes the SPLA Committee’s recommendation, noted above in the section, ‘Legal principles in relation to parenting and property’, that the definition of family violence in the Family Law Act be amended to include ‘abuse of process’ in the list of examples of behaviour that might come within the definition.^[241] The Committee also recommended strengthening penalties, including costs orders, to respond to instances of misuse of court processes.^[242]

192       In relation to the issue of misuse of subpoenas, the Family Law Council’s 2016 report noted Practice Direction 2 of 2011 issued by the Family Court of Western Australia as a possible response to this concern. This Practice Direction provides that a subpoena directed to a family counsellor will not be issued unless the subpoena ‘is accompanied by a letter certifying that reasonable efforts have been made’ to discuss the ‘possible consequences of compliance with the subpoena, including the impact on the family or children involved’ with the person against whom the subpoena is directed.^[243]

193       Other recent developments in this area include the Australian Government’s recent draft of legislative amendments to protect vulnerable witnesses from direct cross-examination by self-represented litigants in circumstances where allegations of family violence are involved.^[244] The SPLA Family Violence Report recommended that this legislation be introduced into Parliament as a matter of urgency.^[245]

194       Further provisions in this draft legislation are intended to ‘clarify and modernise the powers of the Family Court of Australia exercising jurisdiction under the Family Law Act to summarily dismiss applications without merit’.^[246] If implemented, these changes would bring the relevant provisions in the Family Law Act broadly into line with the powers available to the Federal Court of Australia and the Federal Circuit Court.^[247] They would allow a court to issue decrees in circumstances where it is satisfied that applications or responses to applications have ‘no reasonable prospect of success’ (in whole or part),^[248] and would also allow a court to dismiss proceedings (in whole or part) if satisfied they would be frivolous, vexatious or an abuse of process. This aspect of the amendments goes further than the current relevant provisions of the Act, which do not refer to abuse of process.

195       An additional suggestion made during preliminary consultations involves limiting excessive use of litigation by restricting appeals from interim decisions to cases dealing with questions of law or by requiring leave of the court.

196       The Family Law Council’s suggested trial of a Counsel Assisting model was also intended to address concerns in this area, as this mechanism would limit the opportunities for cross-examination of vulnerable parties by self-represented litigants.^[249]

197       The ALRC seeks stakeholder input about ways of addressing the issue of misuse of process.

Alternative dispute resolution processes

Conciliation and FDR

198       In addition to effecting changes to court processes, stakeholders and recent reports have suggested the need to expand and adapt the family law system’s range of alternative dispute resolution options to facilitate speedier and less costly settlements for client families.^[250]

199       As noted above, reforms to the Family Law Act in 2006 require parents (with some exceptions) to attempt a FDR process to settle arrangements for their children before initiating court proceedings.^[251] Among the dispute resolution options provided by the family law system, FDR is the formal pathway most often used by parents to settle arrangements for children in the 18 or so months after separation.^[252] However, FDR is not currently mandated for property and financial matters prior to filing an application.

200       Another option, discussed above, is legally-assisted FDR. Legal aid commissions and a small number of community sector FDR providers offer legally-assisted FDR processes for children’s matters and for a limited number of property and financial matters, and this process reportedly has a very high rate of settlement.^[253] The registrars of the Federal Circuit Court also refer some matters to Relationships Australia Victoria for privileged conciliation.^[254]

201       In privately funded matters, lawyer-led negotiation is involved in a substantial proportion of property and financial matters, as well as in settling arrangements for children. Diversion to conciliation and mediation services is also available for both children’s and property matters to a limited extent after proceedings have been initiated.^[255]

202       The ALRC is interested in receiving input from stakeholders about the opportunities for developing the range of non-court dispute resolution processes that might be used to assist families to achieve timely and cost-effective resolution of disputes about children and property.

Arbitration

203       During early consultations for this Inquiry, a number of stakeholders suggested that arbitration^[256] processes may offer significant potential to reduce the costs and delays associated with litigated proceedings, particularly in relation to property and financial matters. At present, consensual arbitration services, which are provided for in property and financial matters under the Family Law Act,^[257] are not widely used in Australia.^[258]

204       The Productivity Commission’s Access to Justice Arrangements Report recommended the implementation of strategies to increase the use of arbitration. It noted the example of Legal Aid Queensland’s arbitration model.^[259] This service is available to legally aided clients for resolution in relation to property disputes of between $20,000 and $400,000. The cost is deferred until the process is over and Legal Aid Queensland recovers lawyers’ fees and half the value of its outlay. The arbitrators are specialist family lawyers with training in arbitration.

205       The ALRC is interested in hearing from stakeholders about the potential role of arbitration in resolving family law disputes.

Technology-assisted mechanisms to support client-led resolution

206       Preliminary consultations for this Inquiry revealed a concern to ensure the availability of accessible information and dispute resolution processes for clients with less complex needs, and the importance of providing processes that enable separating families to sort out their issues without incurring significant legal costs. Stakeholders also emphasised the importance for families with less complex needs of being able to manage their separation in a way that maximises their own control over the process.

207       In the family law system, steps in this direction have already been taken with the implementation of Family Relationships Advice Line, Family Relationships Online and the Telephone Dispute Resolution Service.

208       Early consultations revealed an interest in the further development of online resources in this context. Several stakeholders noted the availability of online legal information and assistance services in relation to other legal issues that might be adapted for the family law system’s purposes, such as the FineFixer tool,^[260] developed by Moonee Valley Legal Service in Victoria. This site provides a free online information and advice service for people who receive a fine.

209       Two online tools that were noted in relation to family law matters are the United States It’s Over Easy divorce settlement program, and the Dutch-based Justice42 dispute resolution platform.^[261] The Justice42 tool, developed by the Hague Institute for Innovation in Law (HiiL), was designed to provide separating couples with access to an affordable dispute resolution process. The process includes an initial face-to-face intake process that is designed to ensure cases involving family violence or other safety concerns for parties or children are screened out of the program. The program itself guides separating couples through a series of conversations on family law related issues. If the parties reach an agreement on any of these issues, the agreement will be checked by a lawyer with family law expertise who has agreed to charge a set fee for Justice42 users. If the parties are not able to reach agreement, they are referred to a mediation service.

210       The ALRC invites stakeholder input about the use of online resources as a way of reducing costs and enhancing client control over the resolution of family disputes.

Problem solving decision-making processes

211       The Terms of Reference ask the ALRC to consider ‘whether the adversarial court system offers the best way to support the safety of families and resolve matters in the best interests of children, and the opportunities for less adversarial resolution of parenting and property disputes’. In addition, the ALRC is asked to have regard to the need for reforms to address the issues facing ‘families with complex needs, including where there is family violence, drug or alcohol addiction or serious mental illness’.

212       The SPLA Family Violence Report raised a number of concerns about the adversarial nature of current court processes for families with complex needs, particularly for parties who have experienced violence or abuse. Preliminary consultations for this Inquiry also questioned the appropriateness of the single event model of civil litigation for disputes about the care of children^[262] where parents have complex needs, particularly where there is ongoing conflict and risks to children. These concerns reflect the empirical evidence that a significant number of client families engage in repeated use of the family courts,^[263] particularly when the matter involves issues of family violence or other safety concerns for children. The limitations of the single event model of litigation for these kinds of matters have also been noted by the courts.^[264]

213       Some stakeholders suggested that this circumstance highlights the need to develop a more iterative approach to decision making that can better support the management of risk to children over time, particularly where the protective capacities of the parents have been compromised and the matter does not meet the threshold for intervention by the state child protection system.^[265] In such cases, judicial officers may need to consider ways of reducing the level of risk to the child by enhancing the safe parenting capacity of one or both parties, such as by linking them to trauma recovery, mental health, behaviour change and/or drug and alcohol rehabilitation services.^[266]

214       Such problem-solving approaches are now a familiar feature of state and territory children’s courts and specialist lists of magistrates’ courts, such as drug courts,^[267] mental health lists,^[268] and Koori and Murri courts for Aboriginal and Torres Strait Islander young people.^[269] A problem-solving approach aims to address behavioural problems and risk issues that underlie the dispute, with a view to achieving a more sustainable resolution of the conflict.^[270] The process harnesses the authority of the court to effect change and build capacity in two ways; first by connecting parties to relevant rehabilitation and support services, and second, through judicial oversight of the person’s progress in making behavioural change, typically through the use of part- heard proceedings.^[271]

215       Some stakeholders suggested that the framework in Division 12A of Part VII of the Family Law Act, which was enacted in 2006, could support the development of a problem-solving approach by the family courts in children’s matters. Division 12A contains a set of principles that require judicial officers to conduct children’s cases in a way that considers ‘the needs of the child concerned’ and promotes ‘child-focused parenting’.^[272] In furtherance of these principles, it exhorts judges to ‘actively direct, control and manage’ the hearing process,^[273] including determining the evidence to be called and the manner in which the hearing is to be conducted. It also allows judges to determine children’s matters in stages, through the use of part-heard proceedings,^[274] and permits them, where the court considers it appropriate, to encourage parties to attend a counselling service.^[275]

216       However, the preliminary consultations for this Inquiry suggest that the consistent use of Division 12A powers and the Less Adversarial Trial case management approach applied in the Family Court has waned over time. A number of stakeholders expressed a strong desire for the courts to reinvigorate the Division 12A approach, or to otherwise move towards a more problem-solving approach in appropriate cases.

217       Some stakeholders noted the recent development of an Indigenous List in the Federal Circuit Court in Sydney, which employs a problem-solving approach in parenting matters involving Aboriginal and Torres Strait Islander children.^[276] This model brings together representatives from the Wirringa Baiya Community Legal Centre, the Family Advocacy and Support Service, Relationships Australia and the Men’s Shed in matters involving an Aboriginal or Torres Strait Islander child.

218       On the other hand, some stakeholders suggested that the Division 12A approach is too time consuming for judicial officers to manage in the context of the current hearing delays.

219       The capacity of federal judicial officers to engage in problem-solving approaches is also limited by the requirements of Chapter III of the Australian Constitution and the High Court’s decision in R v Kirby; Ex parte Boilermakers’ Society of Australia, which require federal judges to limit their work to the exercise of a judicial power or a function that is sufficiently ‘incidental or ancillary to it’.^[277] In light of this constraint, judicial monitoring of a party’s behavioural change progress over time may well raise procedural fairness concerns, and is unlikely to be regarded as compatible with the federal judicial role.^[278]

220       Stakeholders in early consultations suggested two alternative approaches to developing a problem-solving approach to decision making for suitable cases. These were:

• A hybrid model, in which the court transfers the role of monitoring the parties’ engagement with services to a registrar of the court or to a community-based family relationships agency.
• An administrative model, such as a non-judicial tribunal. A version of this approach is embodied in the recently developed Parenting Management Hearing Panel, a consent-based inquisitorial style process to support self-represented parties that will be piloted in Parramatta and one other location.^[279]

221       The ALRC seeks stakeholder input regarding the opportunities for developing problem solving decision-making processes within the family law system.

Family inclusive decision-making processes

222       Another non-adversarial model that has been proposed for assisting families to settle arrangements for the care of children is the Family Group Conference (FGC) process, also known as Family Led Decision-Making (FLDM). In response to submissions from Aboriginal and Torres Strait Islander organisations, the Family Law Council’s 2016 report suggested that this process should be considered for family law matters involving Aboriginal and Torres Strait Islander children, given its potential to offer a culturally-safe and family inclusive approach to determining care arrangements for children.^[280] The FLDM process is currently used in child protection systems around Australia to engage members of the child’s extended family in planning and decision making about the child’s care where there are concerns for the child’s safety or wellbeing.^[281] For this purpose, the process has been defined as:

A decision-making and planning process whereby the wider family group makes plans and decisions for children and young people who have been identified either by the family or by service providers as being in need of a plan that will safeguard and promote their welfare.^[282]

223       The Family Law Council’s discussion of FGCs focused in particular on its benefits for Aboriginal and Torres Strait Islander children.^[283] The Council also recommended that FGCs be developed in the family law system for families from culturally and linguistically diverse backgrounds in appropriate matters to allow children to be cared for within their own families and communities wherever possible.^[284]

224       However, the FGC/FLDM process is applied more widely than this within the child protection system context,^[285] and stakeholders have suggested that the model may offer a more appropriate process than traditional court proceedings for matters involving family violence.^[286] The idea of expanding the use of FGCs to family law cases involving family violence was mooted by (then) Judge Boshier of the New Zealand Family Court in 2006, who noted in relation to children affected by family violence that:

[I]t is often a victim’s family who keeps them safe. The [legal] process needs to take this into account, and possibly the best way to do that is to involve those people who have a significant connection with the victim when deciding the best way to provide protection.^[287]

225       The ALRC seeks stakeholder input about the potential use of family inclusive decision-making processes in the family law system.

226       In this section the ALRC asks questions about how integrated services models can be further developed to assist family law clients with complex needs, how the need for families to engage with more than one court to address safety concerns for children can be reduced, and how collaboration and information sharing between the family courts and state and territory child protection and family violence systems can be improved.

Integrated services and partnerships

227       The ALRC has been asked to report on the need for reforms in relation to ‘the protection of the best interests of children and their safety’ and to support ‘collaboration, coordination, and integration between the family law system and other Commonwealth, state and territory systems, including family support services and the family violence and child protection systems’.

228       The 2012 Legal Australia-Wide Survey: Legal Need in Australia report revealed that individuals with family-related legal needs often have a co-occurring range of non-legal support needs,^[288] such as housing needs, financial needs and therapeutic support needs. AIFS research has shown that for many family law system clients, these needs arise out of the experience of family violence or other behaviours that raise safety concerns for their children and/or themselves, such as parental mental illness or drug or alcohol dependency.^[289]

229       Addressing these needs may require family law system clients to engage with a range of different services, which may include legal assistance services, housing and employment services, (mental) health services, drug and alcohol rehabilitation programs, counselling services, parenting courses and/or behaviour change programs. Previous reviews suggest that navigating between these different services can pose significant difficulties for client families. Some reports, for example, have pointed to problems associated with the siloed nature of service provision,^[290] and the lack of information sharing between agencies.^[291] A related problem is the fragmented character of the wider justice system that governs the protection of children and families in Australia, in which the family law, family violence and child protection jurisdictions operate independently of one another.^[292]

230       Recent reports have also highlighted a number of safety and wellbeing issues for children and their families resulting from this fragmentation,^[293] including the potential for:

• the risk of harm to children or parents to be underestimated or ineffectively responded to, with negative impacts on their safety and wellbeing;^[294]
• perpetrators of family violence to be able to exploit this jurisdictional fragmentation because ‘the systems are not working as “one whole entity”’;^[295]
• a child to ‘fall through the cracks’ between the different systems and services and be left unprotected;^[296]
• re-traumatisation of a person who is required to recount their experiences of family violence or abuse to multiple service providers;^[297] and
• a client disengaging from services due to the frustrating and time-consuming process of being referred to multiple services, which may leave people with little faith in the ability of available services to assist or protect them.^[298]

231       In response to these concerns, recent reports have emphasised the value of integrated services models, where service providers with mutual clients work together as a team to address the client’s multiple needs in a coordinated way.^[299] Previous reports have also stressed the importance of developing effective collaborative relationships and information-sharing protocols between agencies to the success of these models.^[300]

232       There are a number of existing integrated services models operating in the family law system, including models that are case managed by agencies in the family relationships sector and court-based integrated services models.

233       The Family Safety Model (FSM), developed and delivered by Relationships Australia Victoria, is currently attached to Relationships Australia Victoria’s men’s behaviour change programs and, as a pilot, to its FDR services. The FSM takes an integrated, whole-of-family approach to working with families affected by family violence by working with those who use violence and those who experience it, including children.^[301] Central to the model is the Family Safety Practitioner (FSP), who conducts an initial safety assessment (which is revised throughout the family’s engagement with the service) and identifies service needs with each family member. The FSP also facilitates warm referrals and supports the family members with transitions to these services—which might include referrals for legal advice, counselling, financial planning and/or housing assistance—and monitors the family’s engagement with these services and their ongoing needs. ^[302]

234       In contrast, the Family Advocacy and Support Service (FASS), which was launched in response to a recommendation of the Family Law Council,^[303] is a court-located model. It is currently operating on a pilot basis in 23 family law registries across each Australian state and territory. The FASS model combines the services of duty lawyers and specialist family violence support workers for clients affected by family violence who seek assistance at the court. It is delivered and coordinated by legal aid commissions and takes a team-based warm referral approach to delivering both legal and non-legal support services to families affected by family violence.^[304] While the service is based within the family courts, it aims to address jurisdictional fragmentation by providing clients with information and advice in relation to state and territory family violence and child protection matters, as well as family law matters, and the interactions between them. Like the FSM employed by Relationships Australia Victoria, the FASS model provides an initial risk assessment, safety planning and warm referrals to relevant support services, such as counselling and/or drug and alcohol services, as well as the duty lawyer service.^[305]

235       The FASS pilot is funded until 2019, at which time an evaluation process will assist the Australian Government to make future service delivery decisions.^[306] The SPLA Committee has recommended that, subject to the pilot receiving a positive evaluation, the FASS program be expanded to a greater number of locations, including in rural and regional Australia.^[307] The SPLA Committee also recommended the FASS program be extended to include a child safety service attached to the family courts,^[308] and that it be broadened to include collaboration and referral pathways to other specialist support services for families with complex needs, including Aboriginal and Torres Strait Islander specific services and services for culturally and linguistically diverse families and parents or children with disability.^[309]

236       During initial consultations for this Inquiry, some stakeholders suggested other models of integrated services to address safety concerns for children and parents in the family law system, including an expansion of existing health justice partnerships^[310] to include greater involvement of family law services.

237       One suggestion was for the development of Children’s Advocacy Centres (CACs), a model that currently operates in the United States. CACs use a multidisciplinary team approach, bringing together representatives from the police, child protection departments, a public prosecutor, a child psychologist and a child advocate to conduct, observe and report on forensic interviews with children who have experienced abuse. A key aim of this model is to reduce the need for children to re-tell their story to multiple professionals and services. The SPLA Committee, in its recent report, recommended that the Attorney-General—through COAG—consider the adoption of such multidisciplinary approaches to assist the family courts to determine issues of risk to children.^[311]

238       There have been a number of recent recommendations for the further development of integrated services models, including by the Family Law Council,^[312] the COAG Advisory Panel on Reducing Violence Against Women and their Children,^[313] and the SPLA Committee.^[314]

239       The ALRC seeks comment about the possibilities for expanding existing integrated services models and/or developing further integrated services programs to support client families with multiple and complex needs. The ALRC is also interested in comment on how these models might be better supported to function effectively.

Engaging with multiple courts

240       The preamble to the Terms of Reference notes the jurisdictional intersection of the federal family law and state and territory family violence and child protection systems in protecting children from harm, and ‘the desirability of ensuring that, so far as is possible, children’s matters arising from family separation are dealt with in the one proceedings’.

241       The Family Law Council’s 2015 report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems revealed that many families engage with the family law system following proceedings for family violence-related orders in a state or territory court or, to a lesser extent, after contact with a state or territory child protection department or children’s court.^[315] The extent of client crossover between these systems is not known. However, data provided to the Family Law Council suggested that thousands of families each year receive legal assistance for multiple court proceedings.^[316]

242       The Family Law Council identified a number of problems affecting safe outcomes for children and their families as a result of this situation, including the impact of:

• difficulties experienced by families in negotiating the different legal frameworks, terminology and procedural rules across the different jurisdictions;
• the need for parents and children to re-tell their story and re-litigate the question of risk in different forums;
• the limited capacity for federal judicial officers to address a family’s multiple legal needs by exercising the protective jurisdictions of state and territory courts as a result of the High Court’s decision in Re Wakim;^[317] and
• barriers inhibiting access to the family courts by family members who are encouraged to seek family law orders by a state or territory child protection department, including barriers associated with the relative cost, pace and formality of family law proceedings by comparison with those of state courts, barriers that can be particularly acute for Aboriginal and Torres Strait Islander families and grandparent carers.^[318]

243       The federal family courts also have no power to compel the intervention of child protection authorities in family law proceedings to assist families with complex needs where there are risk concerns for children.

244       However, state and territory courts of summary jurisdiction are vested with federal jurisdiction under Part VII of the Family Law Act to make consent parenting orders and to determine parenting matters with the consent of the parties. Previous work by the ALRC suggests that this jurisdiction is rarely exercised.^[319] However, in light of the significant constitutional barriers affecting the ability of federal courts to exercise the powers of state and territory courts, the Family Law Council suggested that the best opportunity for realising a ‘one court’ model is to support state and territory courts of summary jurisdiction to exercise their family law powers where parties with family law needs are already before the court.^[320] The Victorian Royal Commission into Family Violence made a similar recommendation in relation to Victorian magistrates.^[321] These recommendations are currently being progressed by the Council of Attorneys-General Family Violence Working Group.^[322]

245       Despite this progress, some stakeholders have raised continuing concerns about the resource and time capacity implications for state and territory courts of taking on additional family law work, as well as concerns about the capacity of children’s courts, where proceedings involve prosecution-style applications by the state, to determine private law inter partes disputes.

246       Several stakeholders suggested alternative solutions to the problems facing families with multiple legal needs. These included:

• vesting federal judicial officers with dual commissions;
• developing a national family and child protection system; and
• developing digital hearing processes to reduce the need for families to physically attend court hearings in different locations.

247       The ALRC invites stakeholder input about changes that might be made to reduce the need for families to engage with more than one court to address safety concerns for children.

Cross-jurisdictional collaboration

248       Recent reports and early consultations have also revealed concerns about the limited extent of collaboration and information sharing between the family courts and state and territory children’s courts and family violence courts and with state and territory child protection systems. The Family Law Council’s recent reports identified a number of existing practices along these lines. These include the Family Court’s Magellan list, which provides a coordinated multi-agency approach to the resolution of cases involving allegations of serious harm, and the co-location of child protection department practitioners in family court registries in Victoria and Western Australia.

249       The Family Law Council made a number of recommendations designed to enhance collaboration and information exchange between the federal family law and state and territory systems, including:

• the development of a national database of court orders from the family courts and state and territory children’s courts and magistrates’ courts that can be accessed by each court;
• the expansion of the co-located child protection worker model to all family court registries;
• increasing the circuiting of FCC judicial officers and locating family court registry staff in state and territory magistrates’ courts, including specialist domestic violence courts; and
• the development by the National Judicial College of Australia of a continuing joint professional development program for judicial officers from the family courts and state and territory courts in which judicial officers preside over matters involving family violence.

250       A number of similar recommendations were made by the Victorian Royal Commission into Family Violence and the COAG Advisory Panel on Reducing Violence against Women and their Children.^[323] The Royal Commission also recommended the Victorian Government pursue amendments to the Family Law Act to provide that a breach of a personal protection injunction made under the Family Law Act is a criminal offence, so as to facilitate the prosecution of breaches of Family Law Act protection orders by state police.^[324]

251       The Council of Attorneys-General Family Violence Working Group is currently progressing work on a number of these recommendations, including the development of a national information-sharing regime and the provision of joint training for judicial officers across the family law and state and territory systems.^[325]

252       Preliminary consultations for this Inquiry, however, revealed some gaps and ongoing concerns in relation to information sharing between the courts. These included:

• a desire for state and territory child protection departments to adopt a consistent approach to responding to family court requests for information under s 69ZW of the Family Law Act, and concerns about the extent of redaction of child protection files in some jurisdictions; and
• concerns about the potential impact of information-sharing regimes on client privacy.

253       The ALRC invites input from stakeholders about the opportunities for enhancing collaboration and information sharing between the family courts and state and territory child protection and family violence systems.

254       In this section, the ALRC asks how children’s involvement in the family law system might be facilitated, and the best ways to ensure children’s views can be heard in both court processes and FDR. The ALRC also asks how any risks to children from involving them in family law disputes can best be managed.

Children and young people and the courts

255       The Family Law Act recognises the rights accorded to children and young people under the Convention on the Right on the Rights of Child (the CRC). These include participation rights, which afford children the right to freedom of expression (Article 13), access to information (Article 17), and to make their views known and participate in processes relevant to their care (Articles 9 and 12).

256       In furtherance of these rights, the Act requires the family courts to have regard to the views of the child when deciding their best interests.^[326] This requirement is qualified by a stipulation that children are not required to express their views.^[327]

257       There are several ways in which the courts may receive information about the child’s views. One mechanism is through the appointment of an Independent Children’s Lawyer, whose role is to represent the child’s best interests and ensure any views expressed by the child are put before the court. Another commonly used mechanism involves the preparation of a report for the court by a Family Consultant or external report writer. Family Consultants/report writers are required to ascertain the child’s views and include these views in the report. A third mechanism provided for in the Family Law Act involves the judicial officer meeting directly with the child. This mechanism is rarely used. However, two recent reports have recommended the development of guidelines for judicial interactions with children and young people where judicial officers wish to do this.^[328]

258       Evidence gathered by AIFS has indicated that in many matters where an application for final orders is filed, resolution (either by judicial determination or consent before or during trial) occurs without the court having received any independent information about the views of the child or young person.^[329] This means that in some matters, a final decision may be made about the parenting arrangements for a child without that child having had an opportunity to participate through any of the currently available mechanisms outlined above.

259       In cases where children have an Independent Children’s Lawyer appointed, research conducted by AIFS and others indicates varied practice in relation to meetings with children and young people and facilitating their participation in proceedings.^[330] The AIFS research found that Independent Children’s Lawyers were greatly valued, particularly by judicial officers, for their role in evidence gathering and litigation management, through which they were seen to bring a child focus to proceedings that may otherwise be lacking.^[331] However, this and other research has also reported significant disappointment among children and young people in relation to their experience of having an Independent Children’s Lawyer represent them.^[332] Among other concerns, children and young people interviewed for the AIFS study indicated a need for more interaction with the Independent Children’s Lawyer representing their interests, including for the purpose of explaining court outcomes and how their views are fed into the court’s decision-making process.^[333]

260       The AIFS research, reports that followed it,^[334] and early consultations for this Inquiry, have revealed concerns about the existing mechanisms for ascertaining children’s views for court proceedings and called for reforms to these mechanisms and/ or the development of new mechanisms to ensure a positive experience of participation from the perspective of the child or young person. Proposals to the SPLA Inquiry called for the appointment of a children’s advocate,^[335] or the development of a model of representation for children that combines legal representation with a therapeutic/clinical approach.^[336]

261       Other proposals have included the development of a new agency to ‘oversee the provision of child representation [and] investigatory and expert report writing’,^[337] the adoption of a multidisciplinary team approach to child representation,^[338] along the lines used by the Children and Family Court Advisory Service (Cafcass) in the UK and the Ontario Office for Children’s Law in Canada,^[339] and adoption of a mechanism along the lines of the Scottish F9 Form, which provides an opportunity for children to write directly to the Sheriff (judicial officer) about their views on their future care.^[340]

262       The ALRC invites stakeholder input on improvements that might be made to how children are enabled to participate in family court proceedings.

Children and young people and FDR

263       There is no statutory obligation to consider the views of the child in FDR processes. However, both child-focused and child-inclusive practice models are used by many FDR providers. Child-focused practice aims to incorporate the practitioner’s knowledge of the research literature on children’s development into the negotiation process.^[341] Child-inclusive approaches, on the other hand, incorporate the views of the particular child who is subject to the process through the involvement of a specialist child consultant.^[342]The child consultant speaks to the child about their experiences and views and feeds this information back to the parents during the dispute resolution process to assist them in focusing on their child’s needs and best interests in their negotiations.^[343]

264       Apart from initial positive evaluation evidence about the child-inclusive approach,^[344] there is little systematic empirical research about its application in the system currently. Some information suggests that child-focused practice occurs more often and child-inclusive practice less often, possibly because of the resource intensive nature of the latter approach.^[345]

265       Victoria Legal Aid includes a child-inclusive element, called Kids Talk, in its legally-assisted FDR program.^[346] An internal evaluation of the program has found that, where its use was appropriate, Kids Talk provided children and young people with a ‘voice’ in the FDR process and was successful in focusing the attention of parents and lawyers on the child’s needs and perspectives.^[347] Kids Talk is only used in matters in which parents are assessed as ‘willing and able’ to take their children’s perspectives into account.^[348] This approach is in line with research findings that support assessment of parental capacity to take their children’s views on board as the deciding factor in determining the suitability of child-inclusive practice in any matter.^[349] While screening of this nature may be necessary for protecting the safety of children in matters where their parents or carers lack this capacity, it raises further questions about how these children might also be supported to participate in the FDR process.

266       The ALRC invites stakeholder input about the use and benefits of child-inclusive FDR processes, including culturally appropriate models.

Children’s participation and risks to children

267       Cases involving family violence or other safety concerns for children raise particular issues in relation to children’s participation in court proceedings and dispute resolution processes. As noted above, the participation of children in family law proceedings gives effect to Australia’s obligations under the CRC. However, complicating the child’s right to participate is a concern for children whose ability to exercise agency may be highly constrained by their family circumstances, such as environments characterised by violence or abuse.^[350] This circumstance creates a difficult ‘balancing act’ for practitioners in the context of both court proceedings and dispute resolution processes, between upholding the child’s right to participate, and protecting the child from harm that may be caused through participation.^[351]

268       Concerns about how to support children’s safe participation in legal proceedings have gained prominence in policy debates in several jurisdictions in recent years.^[352] Reflecting this concern, some lawyers use specialist counselling services, which have dedicated domestic violence child therapists, to speak with children.^[353]

269       This issue has also affected the practices of Independent Children’s Lawyers. Some Independent Children’s Lawyers are wary of speaking to children in this context, so as to avoid eliciting information that might mean they need to become a witness in the case, and out of concern that the child or a parent might suffer retaliation by the parent who has used violence if the child discloses the violence. A related concern is that children in such cases may be overburdened or further traumatised by being interviewed by too many professionals. Other Independent Children’s Lawyers, however, consider that children and young people who have been exposed to family violence or subjected to abuse have a particularly acute need to exercise agency through participation.^[354]

270       A similar contention is evident in the field of child-inclusive practice in FDR services when matters involve family violence.^[355] Some practitioners have argued that child-inclusive practice has a significant role to play in this context, emphasising that children and young people are important sources of information about their circumstances, including the presence of risk.^[356] Other practitioners hold the view that the application of child-inclusive practice in these circumstances may intensify the pressures on the child and expose them to retribution from the perpetrator for speaking out.

271       While these concerns tend to focus on matters involving family violence, consideration of methods to facilitate children’s safe participation in court proceedings and dispute resolution processes are relevant to all matters in which a child is the subject of a dispute. Exposure to ongoing parental conflict in the post-separation period can have significant negative impacts on a child’s development and wellbeing.^[357] Children’s safety and wellbeing may also be put at risk where their participation occurs in the context of protracted legal proceedings or repeated parenting applications.^[358] This may occur in the context of misuse of process, discussed above in the section, ‘Resolution and adjudication processes’.

272       The ALRC seeks stakeholder input about best to manage any risk to children from involving them in decision-making or dispute resolution processes.

Barriers to children’s involvement in the family law system

273       Early consultations indicated a view that any reforms aimed at improving children’s experiences of participation in the courts and other dispute resolution processes should be sensitive and responsive to the fact that, like adults, the needs of individual children differ. This issue is particularly pertinent for children who may require culturally-specific support, such as Aboriginal and Torres Strait Islander children and children from culturally and linguistically diverse communities,^[359] and for children with disability.

274       Children may be affected by the same barriers in accessing services that apply more broadly in their communities (see discussion above in the section, ‘Access and engagement’). For example, research has revealed that, like adults with disability, children with disability can face particular barriers in seeking assistance to deal with abuse.^[360] Children may also have needs and experiences that are unique from those of their parents and carers. For example, the Koorie Youth Council notes that the role of an Aboriginal child or young person in their family or community may differ from that of a child under a western cultural framework, and that this may lead to inappropriate assumptions or assessments of their needs or experiences if applied by mainstream services lacking cultural competency.^[361] Children in newly arrived migrant families may face unique challenges to their participation in circumstances where they have adapted more quickly to life in Australia than their parents, for example by learning English, which can affect the power dynamic between children and their parents^[362] and lead to intergenerational conflict.^[363]

275       The ALRC is interested in comment on changes that might be needed to ensure that all children who wish to participate in the family law system are supported to do so.

Learning from the experiences of children and young people

276       Existing research suggests that the reflections and insights of children about their experiences of family law and child protection systems can be critical to informing the design of services and policy.^[364] Stakeholders to this Inquiry stressed the need to listen to and learn from the perspectives of children and young people who have experienced the family law system in developing any reforms to support the involvement of children in family law processes.

277       In considering how best to learn from the perspectives of children and young people, the ALRC notes the Family Justice Young People’s Board (FJYPB) in the UK. The FJYPB is a group of over 50 children and young people who have either had direct experience of the family justice system or have an interest in children’s rights and the family courts. These children and young people support the work of the Family Justice Board in seeking to improve the family justice system from a child-centred and child-inclusive perspective.^[365]

278       The ALRC seeks stakeholder input about using the perspectives of children and young people to inform developments in the family law system.

279       In this section, the ALRC asks questions about the appropriate skills and core competencies of professionals in the family law system, as well as how professional wellbeing for those working in family law might be supported.

Core competencies and training

280       The ALRC has been asked to report on the need for reform regarding ‘the skills, including but not limited to legal, required of professionals in the family law system’. The preamble to the Terms of Reference for this Inquiry also identifies ‘the benefits of the engagement of appropriately skilled professionals in the family law system’ as an underlying principle.

281       Recent reports^[366] and preliminary consultations for this Inquiry have identified significant concerns about the skills and knowledge of family law system professionals in a number of areas. These include deficiencies and gaps in relation to:

• understanding the nature and dynamics of family violence and child sexual abuse and their impact on children, including knowledge of the ways in which perpetrators of family violence can use the family law system to continue abuse;
• understanding the impacts of trauma on clients and an ability to practice in a trauma-informed way;
• the capacity to identify risk, including the risk of family violence and risk of suicide;
• cultural competency, including an understanding of Aboriginal and Torres Strait Islander kinship systems and child rearing practices and the particular experiences of family violence of Aboriginal and Torres Strait Islander peoples, and an understanding of the experiences and access to justice barriers affecting clients from culturally and linguistically diverse backgrounds, parents and children with disability, and LGBTIQ clients and families; and
• knowledge of the intersections of the family law, child protection and family violence systems.

282       Other recent reviews and early consultations have also raised concerns about the competency or practices of particular professional sectors. These include concerns about:

• the level of knowledge of some private family report writers and judicial officers in relation to family violence and child sexual abuse;^[367]
• the competence of some legal practitioners with respect to knowledge of family violence and/or commitment to trauma-informed practice;^[368]
• the practices of some lawyers that operate to extend the conflict between the parties;^[369]
• the skills of some Independent Children’s Lawyers in regard to child-inclusive practice;^[370] and
• the limited knowledge of family law and family violence among interpreters who assist family law clients.^[371]

283       Recent reports and early consultations have also recommended or called for the development of dedicated training and accreditation programs or professional standards to address these gaps. These have included proposals for:

• modules on family violence and child sexual abuse to be included in the National Family Law Specialist Accreditation Scheme and/or continuing professional development requirements;^[372]
• joint professional development and training for family law, child protection and family violence sector professionals;^[373]
• greater training around family violence in the accreditation process for FDR practitioners to improve consistency of practice;^[374]
• the development of a national accreditation program for family consultants;^[375]
• a greater focus in legal training and professional development on non-adversarial and non-court options for dispute resolution;^[376]
• training in risk identification for family lawyers;^[377]
• improved training for Independent Children’s Lawyers to enhance skills in working with children;^[378]
• training for interpreters to improve their understanding of family law^[379] and family violence;^[380] and
• professional development for judicial officers in family violence, cultural competency, trauma-informed practice and the impacts of family violence on children and their attachment relationships.^[381]

284       The use of training to address perceived gaps in the knowledge of judicial officers is limited by the principle of judicial independence, as judicial officers cannot be compelled to attend or participate in training following appointment to the bench.^[382] Against this backdrop, the SPLA Committee,^[383] and some early consultations, have called for appointments to the family courts to occur only where judicial officers already have family law and family violence expertise.

285       The ALRC notes the National Domestic and Family Violence Bench Book, developed in response to a recommendation of the Australian and New South Wales Law Reform Commissions to assist judicial officers presiding over matters involving family violence.^[384] The SPLA Committee reported mixed responses to the National Bench Book, with some stakeholders supporting it is a valuable resource for judicial officers, while others argued that it does not provide sufficient detail or training, particularly in relation to the impact of trauma, cultural competency and disability.^[385]

286       The ALRC also notes that National Legal Aid has been funded to redevelop the National Training Program for Independent Children’s Lawyers,^[386] the design of which is currently underway, and the submission from the Attorney-General’s Department to the SPLA Inquiry advising that a training package for judicial officers covering the nature and dynamics of family violence is currently being developed.^[387]

287       The ALRC seeks stakeholder input about the skills and competencies that should be required of all family law system professionals and how these can be maintained. The ALRC is also interested in stakeholder views about the particular competencies that should be possessed by any new professionals that may be introduced to the family law system, such as ‘navigators’ (discussed above in the section, ‘Access and engagement’).

Professional wellbeing

288       The possible negative impacts on the health and wellbeing of practitioners, such as family law system professionals, who work with clients who have experienced family violence or abuse, are well recognised.^[388] These include the risk of vicarious trauma,^[389] which can mirror the effects of trauma on those who experience it first hand, and may include anxiety, depression, disturbed sleep, hyper-vigilance, and disruptions in interpersonal relationships.^[390]

289       The risk of vicarious trauma to individual practitioners also raises concerns around the flow-on effects it may have on co-workers and the ability of the practitioner’s organisation to provide high-quality services.^[391]

290       It has been suggested that the particular needs and behaviours of clients who have experienced trauma, coupled with the possible impact of vicarious trauma on a legal practitioner’s ability to provide quality services to meet those needs, may go some way to explaining the high number of complaints made against lawyers practicing in the area of family law.^[392] Whether or not this is the case, Legal Service Commissions around Australia consistently report high numbers of complaints received in relation to family law matters.^[393]

291       It is important to note that complaints against legal practitioners may be legitimate in many cases, and that complaints mechanisms play an important role in ensuring accountability and transparency. This issue is discussed further below in the section, ‘Governance and accountability’. However, stakeholders identified the making of unreasonable complaints as a factor that negatively affects professional wellbeing. Complaints against Independent Children’s Lawyers, the other party’s legal representative, or other professionals, may be used by another party as a form of control or abuse of process.^[394] Often this occurs in matters where that person has a history of using violence or other controlling behaviours. In some cases, these people may also use intimidating, threatening or violent behaviour towards legal practitioners.^[395] The issue of abuse of process is discussed above in the section, ‘Resolution and adjudication processes’.

292       In its recent report, the SPLA Committee acknowledged the possible impact of vicarious trauma on judicial decision making, noting that the

high workload of judges and the nature of family law cases involving family violence may lead to judges experiencing vicarious trauma or burnout which, in turn, can impact appropriate decision making in family law cases involving family violence.^[396]

293       Research has also identified a lack of effective supervision and large or unmanageable caseloads as factors that can increase the risk of vicarious trauma,^[397] and pointed to the need for this issue to be addressed at the organisational, rather than individual level. The literature suggests that this might call for the provision of:

• training on how to identify and manage vicarious trauma;
• effective supervision, which includes making workers feel safe to express their fears, concerns and difficulties;
• caseload management;
• staff and peer support;
• support programs to build resilience and emotional wellbeing;
• ensuring safe workplaces, including safety from firsthand abuse or aggression in the course of service delivery; and
• building a workplace culture that encourages self-care and work-life balance.^[398]

294       Examples of organisational-level wellbeing programs include the ‘Well at Work’ program developed by the Royal Commission into Institutional Responses to Child Sexual Abuse in recognition of the Royal Commission’s duty of care to staff who would be working directly with survivors of abuse. The program included training for all staff on how to identify and manage workplace stress, compassion fatigue and vicarious trauma; regular wellbeing checks with qualified counsellors; in-house de-briefing sessions as required; and the provision of wellbeing activities.^[399]

295       The ALRC seeks stakeholder input about ways of enhancing the safety and wellbeing of family law system professionals and judicial officers in the family law system.

296       In this section, the ALRC considers how public understanding and confidence in the family law system can be improved. To that end, it asks what reform might be needed to improve the transparency of court processes. The ALRC also asks what changes could be made to governance and regulatory processes to improve public confidence in the family law system.

Transparency and privacy

297       Early consultations for this Inquiry revealed stakeholder concerns about the operation of the privacy provisions of the Act.^[400] Section 121 of the Family Law Act makes it a criminal offence to publish or otherwise disseminate to the public an account of any family law proceedings that identifies a party or witness to the proceedings without the permission of the court. The prohibition is subject to a number of exceptions, including communications with child welfare authorities, legal aid bodies, legal professional regulators, and where the court authorises publication.

298       The enactment of s 121 in the 1970s was driven by a desire to eliminate the indignities associated with the former fault-based divorce regime, where the names of co-respondents to adultery petitions were often reported in the tabloid press.^[401] The aim in enacting this provision was to protect the privacy of parties and their children. However, this protection is qualified by the principle of ‘open justice’, which is fundamental to ensuring that courts remain transparent and accountable for their decisions.^[402] Section 121 was designed to balance these principles (of privacy versus open justice) by allowing reporting of family law proceedings provided that the parties cannot be identified. In accordance with this requirement, for example, the Family Court publishes judgments in children’s matters in an anonymised format.^[403] This allows scrutiny of judicial decision making without compromising the privacy of parties.

299       In recent years, however, a number of stakeholders have raised concerns about the balance struck in s 121, arguing that it does not provide adequate scope for individuals who use the family courts to share their experiences publicly. For example, in its submission to the ALRC Freedoms Inquiry, the National Association of Community Legal Centres suggested that s 121 prevents ‘victims and survivors of violence from speaking openly of their experiences of the family law system’.^[404]

300       On the other hand, others have cautioned that the existing restrictions on the publication of court proceedings provide an important safeguard for protecting the privacy of families and children, and should be maintained, particularly for parenting matters.


301       Recent evidence to parliamentary inquiries suggests that s 121 has also created uncertainty about the information that regulators of professional bodies, such as bodies that govern the practices of psychologists and social workers, may access for the purposes of investigating alleged misconduct by their members. Although a dedicated exemption is provided to allow legal professional regulators to investigate the conduct of lawyers, this is not the case for other professions. The Australian Psychological Society’s Family Law and Psychology Interest Group considers that production of family law files and reports to regulators would be constrained by s 121.^[405] Similarly, the Australian Association of Social Workers considers that it cannot investigate complaints against its members relating to family law proceedings due to the requirements of s 121.^[406] Women’s Legal Services Australia has suggested that the Family Law Act be amended to provide an exception for disclosures under the Health Practitioner Regulation National Law.^[407]

302       Initial consultations revealed a number of proposals for responding to these issues, including:

• relaxation of the s 121 prohibition in relation to proceedings that do not involve children (while maintaining the prohibition on publication of proceedings that would identify a child);
• enactment of a ‘whistle-blower’ exception to s 121, to allow press reporting on matters of genuine public interest; and
• providing exceptions to s 121 to clarify that information may be shared with professional regulators to facilitate their investigatory functions.

303       The ALRC invites comment on whether changes are needed to make the operation of the family law system more transparent, including changes to s 121 of the Family Law Act, and how the privacy of client families and children should be protected.

Accountability and governance

304       As other recent inquires have highlighted, a critical focus for instilling public confidence in an organisation or system is the nature of its governance practices.^[408] This includes questions about institutional leadership, complaints handling mechanisms, regulatory measures, arrangements for monitoring and review of services and practices, and capacity building and cultural change processes.^[409] Preliminary consultations for this Inquiry, as well as recent reviews, have revealed significant concerns about these issues in relation to the family law system.

305       One issue that was raised in early consultations centres the current complaints processes of the family courts. Consistent with the independence of the courts, decisions of a judicial officer may be overturned only through the appeal process. An appeal against the decision of the court often involves considerable expense and will focus (largely) on questions of law. Where a person wishes to lodge a complaint about the conduct of a Commonwealth judicial officer, this is dealt with by the Chief Justice or Chief Judge of the relevant court.^[410]

306       This process contrasts with those established in other Australian jurisdictions, where independent judicial commissions have been created to investigate complaints about the conduct of state judicial officers. In New South Wales, for example, the Judicial Officers Act 1986 (NSW) provides a process for people to seek an independent investigation of complaints about the ability or behaviour of state judicial officers (but not their decisions). Investigations are conducted by the Judicial Commission of NSW, which has power to ‘initiate such investigations into the subject-matter of the complaint as it thinks appropriate’.^[411] A similar independent Judicial Commission process exists in Victoria, with power to examine complaints about the conduct or capacity of state judicial officers, including complaints about inappropriate remarks from the bench.^[412]

307       A number of stakeholders also suggested the need for more sensitive handling of complaints made by people who have used the system’s services, with some recounting negative experiences of engaging with existing complaints mechanisms. The recent report of the Royal Commission into Institutional Responses to Child Sexual Abusehighlights the importance of organisational responses to complaints about negative experiences of services, noting that these ‘have the potential to either significantly compound or help alleviate’ the impact of the person’s experience.^[413]

308       As described above in the section, ‘Resolution and adjudication processes’, many of the family law system’s clients have experienced family violence or abuse, and research indicates that engagement with the legal system, and particularly adversarial processes, can exacerbate trauma.^[414] Sensitive and well-managed complaints procedures, on the other hand, can in some cases improve mental health outcomes for people who have experienced violence.^[415]

309       As noted above in the section, ‘Professional skills and wellbeing’, recent reviews have also revealed consumer concerns about the quality of some professional services within the family law system, particularly with respect to practitioners’ knowledge of family violence. In response, recent reports have suggested the need for strengthened regulatory mechanisms and/or accreditation requirements.^[416] For example, the SPLA Committee received a number of submissions raising concerns about the family violence and child sexual abuse competency of family report writers.^[417]

310       Family consultants who are employed by the courts have their performance and conduct directly managed by the court, which advises that ‘the appropriate venue’ for addressing concerns about the methodology and content of family reports is cross-examination in court. Complaints that cannot be addressed in cross-examination can be directed to a Regional Dispute Resolution Coordinator or senior Family Consultant.^[418]

311       Family consultants and external report writers are often members of regulated professions, and as such may be subject to professional and ethical standards and regulation by their professional associations.^[419] However, initial consultations suggest that these associations may be reluctant to investigate professional conduct in the context of family law matters, for fear of breaching privacy provisions or interfering with active court proceedings. The SPLA Committee recommended the development of a formal complaints mechanism for family consultants.^[420]

312       Preliminary consultations also revealed concerns about the lack of a system-wide governance structure for the family law system. In particular, stakeholders suggested there should be a single governance body that can provide leadership in shaping the development of the system, with responsibility for monitoring performance, ensuring there are transparent and accessible complaints mechanisms, promoting ethical practices, and fostering learning and innovation, including the development of new methods of service delivery to meet evolving client needs.

313       Early consultations indicated a range of views about how the governance of the family law system might be strengthened to improve public confidence. These included the following proposals:

• The creation of an overarching governance body which performs regulatory functions for the family law system, including supervising the administration of the system, investigating and taking action on complaints, and making recommendations to government about how to improve the system.^[421]
• The redevelopment of the Family Law Council to vest it with responsibility for taking a more active role in shaping the system along the lines of the role performed by the Independent Advisory Council (IAC) under the National Disability Insurance Scheme Act 2013 (Cth), which provides the NDIS Board with advice about how the National Disability Insurance Agency should perform its functions.
• Strengthening institutional leadership within the system to encourage cross-sector collaboration, promote habits of ethical practice,^[422] internally monitor and review performance, and translate the findings of review processes into improved service design.
• The introduction of a death review process, similar to those used by state and territory child protection systems and coronial processes, to make recommendations for change.^[423]
• The creation of a Commonwealth Judicial Commission to conduct independent investigations of complaints of judicial misconduct.^[424]

314       The ALRC invites comment on how governance arrangements and professional regulation in the family law system could be improved.

Question 1            What should be the role and objectives of the modern family law system?

Question 2            What principles should guide any redevelopment of the family law system?

Question 3            In what ways could access to information about family law and family law related services, including family violence services, be improved?

Question 4            How might people with family law related needs be assisted to navigate the family law system?

Question 5            How can the accessibility of the family law system be improved for Aboriginal and Torres Strait Islander people?

Question 6            How can the accessibility of the family law system be improved for people from culturally and linguistically diverse communities?

Question 7            How can the accessibility of the family law system be improved for people with disability?

Question 8            How can the accessibility of the family law system be improved for lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people?

Question 9            How can the accessibility of the family law system be improved for people living in rural, regional and remote areas of Australia?

Question 10          What changes could be made to the family law system, including to the provision of legal services and private reports, to reduce the cost to clients of resolving family disputes?

Question 11          What changes can be made to court procedures to improve their accessibility for litigants who are not legally represented?

Question 12          What other changes are needed to support people who do not have legal representation to resolve their family law problems?

Question 13          What improvements could be made to the physical design of the family courts to make them more accessible and responsive to the needs of clients, particularly for clients who have security concerns for their children or themselves?

Question 14          What changes to the provisions in Part VII of the Family Law Act could be made to produce the best outcomes for children?

Question 15          What changes could be made to the definition of family violence, or other provisions regarding family violence, in the Family Law Act to better support decision making about the safety of children and their families?

Question 16          What changes could be made to Part VII of the Family Law Act to enable it to apply consistently to all children irrespective of their family structure?

Question 17          What changes could be made to the provisions in the Family Law Act governing property division to improve the clarity and comprehensibility of the law for parties and to promote fair outcomes?

Question 18          What changes could be made to the provisions in the Family Law Act governing spousal maintenance to improve the clarity and comprehensibility of the law for parties and to promote fair outcomes?

Question 19          What changes could be made to the provisions in the Family Law Act governing binding financial agreements to improve the clarity and comprehensibility of the law for parties and to promote fair outcomes?

Question 31          How can integrated services approaches be better used to assist client families with complex needs? How can these approaches be better supported?

Question 32          What changes should be made to reduce the need for families to engage with more than one court to address safety concerns for children?

Question 33          How can collaboration and information sharing between the family courts and state and territory child protection and family violence systems be improved?