Existing specialised family violence courts in Australia

32.33 As noted above, in Australia there are family violence courts in NSW, Victoria, Queensland, Western Australia, South Australia, and the ACT. All these are part of the local or magistrates court in the relevant jurisdiction. Such a court has recently been recommended for Tasmania. [46] In most of these jurisdictions, the family violence court operates in only one or a couple of locations. In Western Australia, however, specialised family violence courts operate in six locations.[47]

Jurisdiction and elements

32.34 One particularly important way in which specialised family violence courts in Australia differ is in the extent to which they exercise jurisdiction. As noted in Chapter 16, although all state and territory local or magistrates courts have broad jurisdiction over a range of matters—including criminal matters, family violence protection orders, and family law (to the extent that this is conferred)—the full extent of this jurisdiction is not necessarily exercised in specialised family violence courts.[48]

32.35 The extent to which jurisdiction is exercised depends largely on the practical and administrative arrangements of the court. For example, many local and magistrates courts in Australia operate a specialised list for protection orders, where matters are listed and heard on a particular day.[49] Family violence courts in NSW, Western Australia and the ACT follow the ‘criminal model’, in that these lists deal exclusively with criminal matters related to family violence. The South Australian specialised family violence court deals with both criminal matters and applications for protection orders.

32.36 In Australia, only the Family Violence Court Division (FVCD) of the Magistrates’ Court of Victoria exercises jurisdiction over protection orders; summary criminal proceedings; committals for indictable offences; civil personal injury claims; compensation and restitution; and (to the extent conferred upon the Magistrates’ Court) jurisdiction over family law and child support.[50] It can also sit as the Victims of Crime Assistance Tribunal to hear applications for statutory victims’ compensation in family violence cases.[51]

32.37 The following table sets out the elements of each specialised family violence court in Australia.[52] A brief description of the courts in each jurisdiction follows, including any independent evaluations of such courts.

Australian Capital Territory

32.38 The specialised family violence list in the ACT Magistrates Court is one component of the ACT’s integrated response, the Family Violence Intervention Program (FVIP). [53] This deals with criminal charges related to family violence, which are managed pre-trial by a coordinating magistrate. The family violence list does not deal with protection orders.[54] Matters tagged as family violence-related are heard weekly. A practice direction imposes tight time limits and requirements for earlier disclosure of evidence.[55] The court has the benefit of specialised police officers and specialised family violence prosecutors.[56] Victim support services include Police Victim Liaison Officers, a Witness Assistant, and the Domestic Violence Crisis Service, a victim support organisation.[57] The court may refer those convicted of a family violence offence to a family violence offender intervention program run by ACT Corrective Services.

32.39 Independent evaluations of the FVIP indicate that the specialised court has led to earlier finalisation of cases through guilty pleas, with the majority of cases being finalised within 13 weeks.[58] Earlier evaluations also recorded positive responses by the majority of victims to the court process.[59]

New South Wales

32.40 In 2005, two family violence courts were piloted in Wagga Wagga and Campbelltown as part of the Domestic Violence Intervention Court Model (DVICM). These pilots were established by a Memorandum of Understanding between the NSW Attorney General’s Department, NSW Police, the Department of Community Services,[60] the Department of Corrective Services, the Legal Aid Commission of NSW and the Department of Housing.

32.41 The DVICM program focused on improved evidence collection by the police, automated referrals to victim services, and increased information sharing and co-ordination from key agencies through Regional Reference Groups and Senior Officers Groups. The Local Courts implemented a Practice Note requiring early disclosure of evidence.[61] Stakeholder agencies met weekly to update matters before the court. Magistrates could, if deemed appropriate as part of the sentence, place an offender on a perpetrator program run by the Probation and Parole Service in Wagga Wagga and Campbelltown.

32.42 An independent evaluation in 2008 indicated that the pilots did not have any significant impact on the finalisation of cases by early pleas, the withdrawal of prosecutions, the time for finalisation, or penalties.[62] The most successful aspect of the pilot was increased access to victim support.[63] While the DVICM has been made permanent in those locations, there are no plans to roll it out elsewhere in NSW. However, practice directions mandating strict time limits have been issued in other local courts.[64]

32.43 The Commissions heard in consultation with the DVICM in Wagga that the pilots were achieving continued success in terms of improved victim safety and access to victim support services. It was noted that the structures and links of the DVICM had helped to foster relationships, understanding and confidence between individuals and organisations to the benefit of victims. A number of challenges were highlighted including: the need for more resources, training, high level co-ordination and information sharing.[65]

Queensland

32.44 A pilot was developed from 2006 in Rockhampton Magistrates Court, under the leadership of the Chief Magistrate. The pilot included: a specialised police prosecutions team; a dedicated list; domestic violence support officers in court; improved information and referrals to service providers; changes to police procedure; greater communication and liaison through regular stakeholder meetings and co-ordination; and offender programs. While the pilot began without funding,[66] the 2009–10 Queensland family violence strategy indicates that the specialised court program will form part of an integrated response being tested in Rockhampton.[67]

South Australia

32.45 South Australia pioneered the first specialised family violence court in Australia at Elizabeth in 1999. Since then, specialised family violence courts have been added to the Adelaide and Port Adelaide Magistrates Court. Unlike the model used in NSW, Queensland and the ACT, these hear both criminal matters and protection order matters. Where both criminal and civil matters arise in a case, these are heard together. While the courts have specially assigned magistrates, there is no specialised training for judicial officers.[68] The specialised family violence courts are monitored by a steering committee comprised of court staff, magistrates, prosecutors, policy officers, offender-treatment workers, and the Commissioner for Victims’ Rights (South Australia).[69]

32.46 The South Australian model also provides support workers for victims, offenders and children; and can refer offenders to offender programs (known as Violence Intervention Programs).[70]

Victoria

32.47 In the period leading up to 2002, the Magistrates’ Court of Victoria established internal specialist family violence listing protocols, led by a supervising magistrate appointed by the Chief Magistrate.[71] These protocols, along with a family law and family violence steering committee of magistrates and registrars, helped establish better, more consistent family violence listing practices. The Children’s Court of Victoria was also represented on this Committee. All major magistrates’ courts in Victoria run a dedicated family violence list.

32.48 In 2005, the FVCD of the Magistrates’ Court of Victoria commenced sitting at Ballarat and Heidelberg. The Victorian Government committed $5.2 million over four years to the resourcing of the FVCD, with a separate allocation for the associated offender programs.[72] Funding has been continued for those two sites.

32.49 The FVCD differs from other Australian family violence courts in a number of ways. It is the only court that is expressly established by legislation.[73] It is also the only court that exercises jurisdiction over civil compensation claims, statutory compensation claims, and family law and child support matters as well as criminal matters and protection orders.[74] All judicial officers must be formally appointed to the court.[75] The same judicial officer hears related cases, but each case is heard using the applicable standard of proof and procedure. Judicial officers report satisfaction with managing these processes.[76]

32.50 All selected judicial officers and staff received specialised and ongoing training. In addition to specialised magistrates and police prosecutors, the court also has support workers for victims and offenders, family violence outreach support workers, legal aid and community lawyers for victims and defendants, and a specialised registrar. The FVCD is therefore the closest example of a ‘one stop shop’ model for victims of family violence in Australia. As it is a pilot, however, access to the court is available only where victims or offenders are residing in, or the family violence was committed in, postcodes specified by a gazetted notice.[77]

32.51 In addition, there are Specialist Family Violence Service courts operating in Melbourne, Frankston, Sunshine and Werribee. These courts exhibit similar features to the FVCD, with three exceptions: they do not exercise the same combined jurisdiction of the FVCD, specialising instead in hearing family violence protection orders;[78] they do not have power to require a respondent to attend counselling; and they do not have support workers for respondents.[79]

32.52 Victoria also established a Neighbourhood Justice Centre in 2007 as a pilot program. This is a multi-jurisdictional court focused on the neighbourhood of the City of Yarra, which sits as a Magistrates’ Court and Children’s Court, Victorian Civil and Administrative Tribunal (VCAT) and Victims of Crime Assistance Tribunal (VOCAT). Its jurisdiction in relation to family violence is the same as that of the FVCD.[80] In addition, it has jurisdiction over guardianship and administration,[81] residential tenancies (sitting as VCAT) and victims’ compensation claims (sitting as VOCAT). It is a ‘one stop shop’ for a range of services, including counselling, legal advice and representation, mediation, housing support, personal and material aid, and employment and training support. It also includes restorative justice processes.[82]

32.53 The Neighbourhood Justice Centre has an on-site officer from the family law courts on some mornings. The officer can provide forms, contact details for referral agencies, advice on Family Court and Federal Magistrates Court processes, advice on what clients can expect in a court room, and confirms listing dates for matters already before the federal family courts.[83]

Western Australia

32.54 Western Australia has developed the most geographically extensive program of specialised family violence courts in Australia, with courts in Joondalup, Fremantle, Rockingham, Midland, Armadale, and Perth. The plan is to roll out similar courts in all metropolitan areas of Western Australia.[84]

32.55 After Victoria, the Western Australian model has the most features of a family violence court in Australia. While there are variations between the individual courts, in general the courts can deal with criminal matters pre-trial, and have some capacity to deal with trials as well as protection orders. There are specialised magistrates and police prosecutors, support workers, a coordinating committee for strategy and policy, and inter-agency case management for operational matters. Offender programs are available and there is some monitoring of progress by judicial officers halfway through the program. There are customised programs for Indigenous persons and members of other cultural groups.

32.56 The Joondalup court was evaluated in 2000–01. The evaluation found that far more charges were laid as a result of a specialised police family violence investigation unit.[85] Only slightly more offenders were referred to offender programs in the pilot court. More breaches of the requirements of the program were detected and recorded in the pilot court, which may have been the result of case management processes. Case management was seen to be beneficial, and overall the court was described as a ‘qualified success’.[86]

[46] Successworks, Review of the Integrated Response to Family Violence: Final Report (2009), 64–65.

[47] These are courts in Jundaloop, Fremantle, Rockingham, Midland, Armadale, and Perth.

[48] Local and magistrates courts generally have their own legislation, eg, Local Courts Act 2007 (NSW); Magistrates’ Court Act 1989 (Vic); Magistrates Courts Act 1921 (Qld); Magistrates Court Act 2004 (WA); Magistrates Court Act 1991 (SA); Magistrates Court Act 1987 (Tas); Magistrates Court Act 1930 (ACT); Magistrates Act 2009 (NT).

[49] For example, in Victoria, each Magistrates’ Court runs a family violence list on one or more days of the week and internal protocols require the listings to be separate from criminal or other lists.

[50]Magistrates’ Court Act 1989 (Vic) s 4I.

[51] Department of Justice (Vic), Family Violence Court Division—Overview <www.justice.vic.gov.au> at 10 December 2009.

[52] This is based on published information about the courts available as at January 2010, and in some cases there is insufficient information to establish whether the court includes a particular element.

[53] The FVIP is also discussed in Ch 29.

[54] Protection orders are dealt with by the Protection Unit of the Magistrates Court.

[55] Magistrates Court of the Australian Capital Territory, Practice Direction No 2 of 2009.

[56] The ACT ODDP has the longest established family violence prosecution team in the country.

[57] The Domestic Violence Crisis Service offers court support, but it notes that it has been forced to reduce the availability of this service significantly, because of inadequate resources: Domestic Violence Crisis Service (ACT), Annual Report 2008 (2008), 45.

[58] Urbis Keys Young, Evaluation of the ACT Family Violence Intervention Program Phase II (2001). Another evaluation was conducted in 2009 but has not yet been published.

[59] Ibid.

[60] Now known as Community Services.

[61] Local Courts (NSW), Local Court Practice Note No. 1 of 2006.

[62] L Rodwell and N Smith, An Evaluation of the NSW Domestic Violence Intervention Court Model (2008), prepared for the NSW Bureau of Crime Statistics and Research.

[63] Ibid, 55.

[64] Office For Women’s Policy (NSW), Discussion Paper on NSW Domestic and Family Violence Strategic Framework (2008).

[65] Domestic Violence Intervention Court Model Wagga Wagga, Consultation, Wagga Wagga, 13 May 2010.

[66] A Hennessy, Specialist Domestic and Family Violence Courts: The Rockhampton Experiment (2008) <www.archive.sclqld.org.au/judgepub/2008/Hennessy160608.pdf> at 2 October 2009.

[67] Queensland Government, For Our Sons and Daughters: A Queensland Government Strategy to Reduce Domestic and Family Violence Program of Action 2009–2010 (2009), 5.

[68] Deputy Chief Magistrate Andrew Cannon and R McInnes, Consultation, By telephone, 25 September 2009.

[69] Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010.

[70] Courts Administration Authority South Australia, Magistrates Court Violence Intervention Program <www.courts.sa.gov.au/courts/magistrates/index.html> at 16 February 2010.

[71] Anne Goldsbrough was the first supervising magistrate from 2002–2007.

[72] Department of Justice (Vic), Family Violence Court Division—Overview <www.justice.vic.gov.au/> at 16 February 2010.

[73]Magistrates’ Court Act 1989 (Vic) s 4H.

[74] Ibid s 4I.

[75] Ibid s 7(1) provides that the ‘Governor in Council may appoint as many magistrates as are necessary for transacting the business of the Court.’

[76] Magistrate N Toohey, Consultation, Melbourne, 25 January 2010.

[77]Magistrates’ Court Act 1989 (Vic) s 4I(4).

[78] While there is no legislative support for co-listing of cases in the Specialist Family Violence Service courts, this occurs in practice at the direction of judicial officers.

[79] However, the Magistrates’ Court of Melbourne provides Family Violence Applicant Workers who are tasked with providing information, support and referrals to external service providers and community agencies to aggrieved family members and affected children at the court premises.

[80] Department of Justice (Vic), Family Violence Court Division—Overview <www.justice.vic.gov.au> at 10 December 2009.

[81] The Tribunal has original jurisdiction under Part 6 of the Guardianship and Administration Act 1986 (Vic).

[82] Restorative justice processes are discussed in Ch 21.

[83] Department of Justice (Vic), Family Violence Court Division—Overview <www.justice.vic.gov.au> at 10 December 2009.

[84] Law Reform Commission of Western Australia, Court Intervention Programs, Consultation Paper (2008), 132–133.

[85] In 39% of cases as compared to 7.1% in non-specialised districts: Ibid, 131.

[86] Ibid.