Professional skills and wellbeing

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.