Integration and collaboration

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.