Family Law Council – Families with Complex Needs and the Intersection of Family Law and Child Protection – Interim Report (2015) and Final Report (2016)
Interim Report recommendations
Recommendation 1
1
That section 69J and section 69N of the Family Law Act be amended to remove any doubt that children’s courts, no matter how constituted, are able to make family law orders under Part VII of the Family Law Act in the same circumstances that are currently applicable to courts of summary jurisdiction.
2
That the government consider the appropriate process of appeal from family law decisions made by state and territory courts.
Recommendation 2
That Part VII of the Family Law Act be amended to provide a simplified decision‑making framework for interim parenting matters.
Recommendation 3
That the Family Law Act be amended to enable judicial officers to deliver ‘short form’ judgements in interim proceedings.
Recommendation 4
That the Government implement the relevant part of Recommendation 16—5 of the Australian and New South Wales Law Reform Commissions’ 2010 report, namely that:
Section 68T of the Family Law Act 1975 (Cth) should be amended to provide that, where a state or territory court, in proceedings to make an interim protection order under state or territory family violence legislation, revives, varies or suspends a parenting order under section 68R […] that parenting order has effect until:
a.
the date specified in the order;
b.
the interim protection order expires’ or
c.
further order of the court.
Recommendation 5
The Attorney‑General raise the following matters at the COAG level:
1
The development of a national database of court orders to include orders from the Family Court of Australia, the Family Court of Western Australia, the Federal Circuit Court of Australia, state and territory children’s courts, state and territory magistrates courts and state and territory mental health tribunals, so that each of these jurisdictions has access to the other’s orders.
2
The convening of regular meetings of relevant stakeholder organisations, including representatives from the children’s courts, child protection departments, magistrates courts, family courts, legal aid commissions, and the Attorney‑General’s Departments, to explore ways of developing an integrated approach to the management of cases involving families with multiple and complex needs.
3
Amending the prohibition of publications provisions in state and territory child protection legislation to make it clear that these provisions do not prevent the production of reports prepared for children’s court proceedings in family law proceedings.
4
The entry into Memoranda of Understanding by state and territory child protection agencies and the federal family courts to address the recommendations of Professor Chisholm’s reports.
5
The co‑location of state and territory child protection department practitioners in federal family court registries.
6
The development of dual competencies for Independent Children’s Lawyers to achieve continuity of representation for children where appropriate.
Recommendation 6
1
The Family Law Council has previously made recommendations in relation to a number of issues that are covered by the present terms of reference in its 2009 report, Improving Responses to Family Violence in the Family Law System. These include
The adoption of consistent terminology in orders relating to children across relevant State and Commonwealth legislation so that orders are more readily understood by parents and carers of children and those working in family law and child protection, including law enforcement.
The Attorney‑General facilitate the development of protocols for the collaborative exchange of information between the family courts and child protection departments, police and mental health services.
Council recommends that these matters be placed on the COAG agenda.
2
The Family Law Council has previously made recommendations in relation to the issue of Aboriginal and Torres Strait Islander family liaison officers in its 2012 report, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients. These include:
The Australian Government provides funding for further positions for Indigenous Family Consultants and Indigenous Family Liaison Officers (identified positions) to assist the family law courts to improve outcomes for Aboriginal and Torres Strait Islander families.
Council recommends the Government implement this recommendation.
Final Report
Recommendation 1: Family safety services
The Australian Government consider ways incorporating the expertise of specialist family violence services into the family law system to improve responses to families where there are issues of family violence or other safety concerns for children. This may include a combination of:
1
Funding family violence services that provide embedded services in state and territory courts to continue to support clients with family violence issues when they move to the family law system to seek parenting or other orders;
2
Embedding workers from specialist family violence services in the family courts and Family Relationship Centres; and
3
Creating a dedicated family safety service within the family law system.
Recommendation 2: Early whole of family risk assessments
Having regard to the issues of abuse, neglect and family violence and the need for such evidence to be broadly available to protect children, the Australian Government should incorporate a whole-of-family risk assessment process into the family law system that is non-confidential and admissible.
Recommendation 3: Family lawyers and risk identification
The Australian Government consult with the Family Law Section of the Law Council of Australia, legal practitioner regulation bodies, including National Legal Aid, and family law practitioners more broadly, to support the development of:
1
A simplified risk identification mechanism or parents and children for use by the legal profession;
2
Protocols and guidelines to assist practitioners to utilise strategies to ensure that risk is identified and managed effectively, including through warm referrals to specialised family violence services;
3
The development of a strategy to support the implementation of these measures among legal practitioners who practice family law in the context of their professional obligations to their clients, their ethical responsibilities as legal practitioners and the professional indemnity issues that responses to risk raise.
Recommendation 4: Family dispute resolution practitioners and risk management strategies
The Australian Government consult with key stakeholders, including Family and Relationship Services Australia, to identify how best to support a systematic approach to meeting client needs once an assessment that family dispute resolution should not proceed is made or risk is identified. The following options should be considered:
1
An amendment to Regulation 25 of the Family Law (Family Dispute Resolution Practitioners) Regulation 2008 to extend the obligations of family dispute resolution practitioners to their clients to encompass the following steps as required:
a.
preparation of a safety plan and referral to a specialised family violence support service;
b.
referral for legal advice on personal protection orders and options for addressing parenting arrangements;
c.
referral for therapeutic support for affected parents and children;
d.
referral to a men’s behaviour change program and other referrals in relation to other support needs, such as housing, mental health or substance misuse needs.
2
Amendments to relevant funding agreements to support this extension of obligations.
Recommendation 5: Judicial risk assessments and court ordered programs
The Family Law Act 1975 be amended to facilitate the making of court orders for observational assessment reports where the court orders a party to attend a post‑separation parenting program or a men’s behaviour change program.
Recommendation 6: A court-based integrated services model
1
To provide evidence and a better structured system in a more child-focused way, the Australian Government should consider establishing a client-centred integrated service model to trial collaborative case management approaches to families with complex needs, to be piloted initially in one court registry and evaluated pending further roll out. Part of that trial should include the development of effective information sharing protocols.
2
In order to support the development of effective information sharing protocols, Council recommends the government clarify the confidentiality status of family dispute resolution intake assessments.
Recommendation 7: Case managed integrated services in the family relationships sector
To better address the complex nature of children’s disputes, the Australian Government consult with Family & Relationship Services Australia with a view to further developing a case managed integrated services approach attached to family dispute resolution and men’s behaviour change programs across the whole family relationship sector.
Recommendation 8: Self-represented litigants with complex needs
The Australian Government explore the viability of piloting a Counsel Assisting model in cases with self-represented litigants and allegations of family violence or other safety concerns for children.
Recommendation 9: Support services for families in rural and regional areas
Given the needs in regional areas for access to courts and court services:
1
The Australian Government provide funding to the family courts and family relationship services for improved technology to enable more video appearances and conferencing.
2
The Australian Government provide increased funding to the Federal Circuit Court and state and territory magistrates courts to enable the Federal Circuit Court to expand its regional circuits.
Recommendation 10: Collaboration between family law and state and territory courts
The Australian Government explore through COAG or LCCSC the possibilities for increasing circuiting of Federal Circuit Court judicial officers and registry staff in state and territory magistrates courts, including specialist family violence courts and community justice centres.
Recommendation 11: Family violence competency
The ability of professionals working in the family law system to understand family violence dynamics be strengthened by training programs and, more specifically:
1
The Australian Government develop, in partnership with other stakeholders, a learning package for professionals working in the family law system that provides both minimum competencies and in-depth and technical content designed for a range of roles, including family dispute resolution practitioners, family report writers and family lawyers.
2
There should be a specific family violence and child sexual abuse modules in the National Family Law Specialist accreditation scheme at the examination phase, professional development phase and re-accreditation phase as a compulsory requirement of being accredited.
3
That Legal Aid Commissions across Australia shoulder consider requiring their in-house lawyers as well as all legal practitioners on their family law practitioner panels to demonstrate a sound awareness of family violence, trauma informed practice and an ability to work with victims of family violence.
Recommendation 12: Joint professional development
1
To ensure there is a consistent and national training, the National Judicial College of Australia develop 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 to strengthen understanding of family law and family violence and the impact of trauma.
2
The Australian Government engage with relevant professional bodies within the child protection, family law and family violence systems with a view to encouraging collaboration in designing and delivering joint training opportunities aimed at strengthening cross-professional understanding.
Recommendation 13: Children’s views and experiences
1
The Australian Government establish a young person advisory panel to assist in the design of child-focused family law services that build on an understanding of children’s and young people’s views and experiences of the family law system’s services.
2
The Australian Government consult with children and young people as key stakeholders in developing guidelines for judges who may choose to meet with children in family law proceedings.
Recommendation 14: Family dispute resolution and confidentiality
1
The Australian Government consider ways to improve understanding among family dispute resolution practitioners of the nature of their confidentiality and admissibility obligations in order to reduce any perceived barriers to information sharing.
2
The word ‘imminent’ be removed from section 10H(4)(b) of the Family Law Act 1975.
3
The Australian Government clarify the admissibility status of family dispute resolution intake assessments.
Recommendation 15: State and territory courts exercising family law jurisdiction
1
The National Judicial College of Australia develop continuing joint professional development program in family law for judicial officers from the family courts and state and territory children’s courts and magistrates courts.
2
If the Australian Government accepts Recommendation 15.1, then Council recommends amendment of the Family Law Act 1975 to increase the monetary limit for property division by courts of summary jurisdiction.
3
Council recommends an increase in Commonwealth funding to state and territory courts of summary jurisdiction to enable them to take on more family law work.
Recommendation 16: Aboriginal and Torres Strait Islander families
1
The Australian Government implement the recommendations made by the Family Law Council in its 2012 report, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients.
2
Part VII of the Family Law Act 1975 be amended to provide for the preparation of Cultural Reports, which may be included in Family Reports for Aboriginal and Torres Strait Islander children where a cultural issue is relevant, and for the Family Report to include a cultural plan which sets out how the child’s ongoing connection with kinship networks and country may be maintained.
3
The Australian Government implement a process, including through amendments to the Family Law Act 1975, to support the convening of family group conferences for Aboriginal and Torres Strait Islander families in appropriate family law matters to assist informed decision‑making in the best interests of the child, to allow them to be cared for within their own families and communities wherever possible, based on the Aboriginal and Torres Strait Islander Child Placement Principles.
4
The Australian Government consider a pilot of a specialised court hearing process in family law cases that involve an Aboriginal or Torres Strait Islander child to enhance cultural safety for Aboriginal and Torres Strait Islander families, including through the participation of Elders or Respected Persons who can provide cultural advice to the Court in relation to the child or young person and a specially reconfigured courtroom design.
5
The Australian Government consult with Aboriginal and Torres Strait Islander representative institutions in the development of any reforms arising from Council’s work that affects Aboriginal and Torres Strait Islander children.
Recommendation 17: Culturally and linguistically diverse families
1
The Australian Government implement the recommendations made by the Family Law Council in its 2012 report, Improving the Family Law System for Clients from Culturally and Linguistically Diverse Backgrounds.
2
The Australian Government ensure that workers from Culturally and Linguistically Diverse‑specific services are incorporated into the development of any court‑based and family relationship sector‑based integrated services model as recommended by Council in Recommendations 6 and 7.
3
The Australian Government implement a process, including through amendments to the Family Law Act 1975, to support the convening of a family group conferences for families from culturally and linguistically diverse backgrounds in appropriate family law matters to assist informed decision‑making in the best interests of the child, to allow children to be cared for within their own families and communities wherever possible.
Recommendation 18: Court support workers
The Australian Government increase funding and resources to provide family violence trained court support workers, including workers from, or who have been appropriately trained to work with, Aboriginal and Torres Strait Islander and Culturally and Linguistically Diverse clients.
Recommendation 19: Self-represented litigants and misuse of process
1
The Australian Government commission research that would support an understanding of how and to what extent the intentional and unintentional misuse of legal processes, such as the request for subpoenas, and other agencies and services relevant to family breakdown (family law services and courts, the child support system, child protection systems and civil family violence protection order systems) occurs and how this may be prevented.
2
The Australian Government commission research that would support an understanding of the extent, experience and dynamics of self‑representation in family law matters involving families with complex needs, including matters where there are family violence and mental health issues.
Recommendation 20: Crossover cases
The Australian Government commission research to examine the extent to which the client bases of state and territory police and justice systems overlap those of the family courts to support the development of strategies to respond to these cases more effectively.
Recommendation 21: Consent parenting orders
The Australian Government commission research to examine the dynamics of matters that resolve by consent, including the extent to which the arrangements consented to respond to any matters of risk that have been raised prior to the consent orders being made, and the extent to which orders made by consent are followed by further litigation.
Recommendation 22: Legislative reform
The Australian Government instigate a review of Part VII of the Family Law Act 1975 with a view to supporting expeditious decision‑making in matters involving risk to the child or other complex characteristics.
Victorian Royal Commission into Family Violence (2016)
In February 2015 the Victorian Government launched the Royal Commission into Family Violence (Royal Commission). The Royal Commission was tasked with finding effective ways to prevent family violence, better support victim survivors, and make perpetrators accountable.
The Royal Commission’s final report included 227 recommendations for improvements to the way Victoria responds to family violence. The recommendations included endorsements of, and ways to improve, existing strategies to address family violence, as well as new approaches. The key recommendations relating to federal jurisdiction are reported below.
Recommendation 69
The Victorian Government, through the Council of Australian Governments Law, Crime and Community Safety Council, pursue the expansion of resourcing for legal services including Victoria Legal Aid and community legal centres, to resolve the current under-representation by and over-burdening of duty lawyer services in family violence matters [within 12 months].
Recommendation 105
The Victorian Government, through the Council of Australian Governments, encourage the Commonwealth Government to consider a Medicare item number for family violence counselling and therapeutic services distinct from a general practitioner mental health treatment plan. In the longer term consideration should be given to establishing a Medicare item number or a similar mechanism that will allow medical practitioners to record a family violence-related consultation or procedure and so more accurately ascertain the public cost of family violence [within 12 months].
Recommendation 108
The Victorian Government, through the Council of Australian Governments, encourage the Commonwealth Government [within 12 months] to:
1
Amend the National Credit Code to include family violence as a ground for financial hardship and develop an awareness campaign to ensure both consumers and credit providers are aware of their rights and responsibilities.
2
Work with the Australian Communications and Media Authority and its relate representative bodies and associations to amend the Telecommunication Consumer Protections Code to:
a.
List minimum eligibility criteria for access to hardship programs,
b.
Make family violence an express eligibility criterion,
c.
Incorporate a requirement for specific policies for customers experiencing family violence to clarify consent requirements for payment plans when an account is jointly held,
d.
Include grounds for splitting jointly held debt and removing an account holder’s name if family violence has occurred.
Recommendation 111
The Victorian Government encourage the Australian Bankers’ Association, through its Financial Abuse Prevention Working Group, to develop a family violence-specific industry guideline [within 12 months]. This should be supported by training and education for relevant banking staff, to help them understand, identify and deal with economic abuse associated with family violence.
Recommendation 129
The Secretary of the Department of Justice and Regulation liaise with the Secretary of the Commonwealth Attorney-General’s Department on a continuing basis to advocate for the adoption of family law reforms that reduce fragmentation of jurisdictions in cases involving family violence.
Recommendation 131
The Victorian Government, through the Council of Australian Governments Law, Crime and Community Safety Council, pursue amendments to the Family Law Act 1975 (Cth) [within 12 months] to:
1
Provides that a breach of an injunction for personal protection is a criminal offence,
2
Increase the monetary limit on the jurisdiction of the Magistrates’ Court of Victoria to divide the property of parties to a marriage or a de facto relationship (section 46),
3
Make it clear that the Children’s court of Victoria can make orders under Part VII of the Family Law Act in the same circumstances as the Magistrates’ Court of Victoria (sections 69J and 69N).
Recommendation 134
The Victorian Government, through the Council of Australian Governments Law, Crime and Community Safety Council, pursue [within two years]:
1
The creation of a single database for family violence, child protection and family law orders, judgments, transcripts and other relevant court documentation that is accessible to each of the relevant state, territory and Commonwealth courts and other agencies as necessary.
2
The development of a national family violence risk assessment framework and tool and consistent use of such a framework or tool by state, territory and Commonwealth courts, lawyers, government and non-government service providers.
Recommendation 154
The Victorian Government, through the Council of Australian Governments, encourage the Commonwealth Government [within 12 months] to:
1
Ensure that the Human Resource Management Standard in the Community Care Common Standards Guide specifies that workers delivering services must have successfully completed certified training in identifying family violence and responding to it.
2
Review the existing Community Services Training Package courses relevant to providing ageing support to ensure that each course has a core, rather than elective, unit that adequately covers all manifestations of family violence.
Recommendation 162
The Victorian Government, through the Council of Australian Governments, encourage the Commonwealth Government to broaden the definition of family violence in the Migrations Regulations 1994 (Cth) so that it is consistent with the Family Violence Protection Act 2008 (Vic) and to ensure that people seeking to escape violence are entitled to crisis payments (regardless of their visa status) [within 12 months].
Recommendation 165
Faith leaders and communities establish processes for examining the ways in which they currently respond to family violence in their communities and whether any of their practices operate as deterrents to the prevention or reporting of, or recovery from, family violence or are used by perpetrators to excuse or condone abusive behaviour.
Recommendation 173
The Victorian Government, through the Council of Australian Governments Disability Reform Council, encourage the Commonwealth Government and the National Disability Insurance Agency to ensure that all disability services workers involved in assessing needs and delivering services have successfully completed certified training in identifying family violence and responding to it. This could include further developing and mandating the units on family violence and responding to suspected abuse in the Community Service training Package [within five years].
Recommendation 179
The Victorian Government encourage the National Disability Insurance Agency, in the transition to the National Disability Insurance Scheme, to provide flexible packages that are responsive to people with disabilities experiencing family violence. These packages should incorporate crisis supports and assistance for rebuilding and recovering from family violence [within two years].
Recommendation 208
The Australian Association of Social Workers amend the Australian Social Work Education and Accreditation Standards to require that a ‘working with family violence’ subject be required as a component of the core curriculum in all social work undergraduate degrees [within two years].
Recommendation 210
The Victorian Government encourage the Commonwealth Government to extend the HECS-HELP benefit scheme to graduates employed in specialist family violence services and associated services (such as community legal services that provide legal services to victims of family violence) [within 12 months].
Special Taskforce on Domestic and Family Violence in Queensland–Not Now Not Ever Report (2015)
The Queensland Special Taskforce into domestic and family violence (the Taskforce) was announced by the Premier on 10 August 2014. The Taskforce was led by former Governor-General, The Honourable Quentin Bryce AD CVO. The final report was provided to the Premier of Queensland on 28 February 2015.
Recommendation 96
The Queensland Government establishes specialist domestic violence courts in legislation with jurisdiction to deal with all related domestic and family violence and criminal/breach proceedings.
Recommendation 97
Specialist courts should include specialist divisions or programs and utilise specialist Magistrates with specialised expertise in domestic, family and intimate partner sexual violence to improve the efficacy of responses to domestic and family violence. This Recommendation is to be considered in combination with other recommendations in this Report and in particular recommendations 116 (interpreters), 124 (court support workers), 126 (duty-lawyers) and 80 (perpetrator interventions).
Recommendation 100
The Queensland Government utilises trained and specialist circuit Magistrates, in areas where a specialist court is not feasible (e.g. rural and remote areas), with good knowledge of the relevant legislation and knowledge and understanding of domestic and family violence and its impact on victims of the violence, including children who witness the violence.
Australian Institute of Family Studies–Evaluation of the 2012 Family Law Act Amendments (2015)
In October 2015 the Australian Institute of Family Studies (AIFS)released a report of the evaluation of the 2012 amendments made to the Family Law Act 1975 (Cth). The amendments were aimed at removing disincentives for families to disclose family violence to the courts and at making the safety of children the priority in family violence situations.
The report, a synthesis of the findings of three AIFS research projects, indicated that the amendments were a positive step towards improving the response to family violence. However, the data also suggested that only minor improvements in screening for family violence had occurred since the reforms; that families reports feeling that the issues of family violence and child abuse were still not dealt with effectively; and that there has been minimal impact on parenting arrangement outcomes.
Productivity Commission–Access to Justice Arrangements Inquiry (2014)
The Productivity commission was asked to undertake an inquiry into ‘Australia’s system of civil dispute resolution, with a focus on constraining costs and promoting access to justice and equality before the law’.
The Commission’s report, released in December 2014, proposes broad reforms to the civil justice system. In relation to family law these reforms are aimed at:
a.
Improving access to legal information and services;
b.
Reducing the time and costs associated with reaching effective resolutions;
c.
Improving collaboration between the family law system and related authorities; and
d.
Improving data collection and evaluation.
Since the release of the report the Government has implemented many of the recommendations but will not implement all recommendations.
Australian Law Reform Commission and NSW Law Reform Commission–Family Violence – A National Legal Response (2010)
In 2009, the federal Attorney-General referred the Australia Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC) to conduct a wide-ranging review of family violence laws and legal frameworks.
Family Violence –A National Legal response presented 186 recommendations aimed at making the legal framework seamless for those engaging with it; creating better access to legal and non-legal services for victims of family violence; ensuring legal responses are fair, safe, and just; and providing effective support for victims of family violence.
The Government considered 56 of the recommendations to be appropriate for the Commonwealth to respond to, and considered the remaining recommendations appropriate to be address by States and Territories, and national organisations.
Relevant recommendations to this report are included below.
Recommendation 16: Family Law Interactions: Jurisdiction and Practice of State and Territory Courts
1
Family Violence legislation in each state and territory should require judicial officers making or varying a protection order to consider, under s 68R of the Family Law Act 1975 (Cth), reviving, varying, discharging or suspending and inconsistent parenting order.
2
Application forms for protection orders under state and territory family violence legislation should include an option for an applicant to request the court to revive, vary, discharge or suspend a parenting order.
3
The Family Law Act 1975 (Cth) should be amended to allow state and territory courts, when making or varying a protection order, to make a parenting order until further order.
4
Section 60CG of the Family Law Act 1975 (Cth) – which requires a court to ensure that a parenting order does not expose a person to unacceptable risk of family violence and permits the court to include in the order any safeguards that it considers necessary for the safety of a person affected by the order – should be amended to provide that the court should give primary consideration to the protection of that person over the other factors that are relevant to determining the best interests of the child.
5
Section 68T of the Family Law Act 1975 (Cth) should be amended to provide that, where a state or territory court, in proceedings to make an interim protection order under state or territory family violence legislation, revives, varies, or suspends a parenting order under s 68R, or makes a parenting order in the circumstances set out in Rec 16-3, that parenting order has effect until:
a.
The date specified in the order;
b.
The interim protection order expires; or
c.
Further order from the court.
6
State and territory family violence legislation should provide that courts not significantly dimish the standard of protection afforded by a protection order for the purpose of facilitating consistency with a parenting order.
7
Application forms for protection orders under state and territory family violence legislation should include an option for applicants to indicate their preference that there should be no exception in the protection order for contact required or authorised by a parenting order made under the Family Law Act 1975 (Cth).
8
Australian courts and judicial education bodies should provide education and training, and prepare material in bench books, to assist judicial officers in state and territory courts better to understand and exercise their jurisdiction under the Family Law Act 1975 (Cth). This material should include guidance on resolving inconsistencies between orders under the Family Law Act and protection orders to ensure the safety of victims of family violence.
9
Australian, state and territory governments should collaborate to provide training to practitioners involved in protection order proceedings on state and territory courts’ jurisdiction under the Family Law Act 1975 (Cth).
10
Application forms for protection orders under state and territory family violence legislation should clearly seek information about property orders under the Family Law Act 1975 (Cth) or any pending application for such orders.
11
Sate and territory family violence legislation should require courts, when considering whether to make personal property directions in protection order proceedings, to inquire about and consider any property orders under the Family Law Act 1975 (Cth), or pending application for such orders.
12
State and territory family violence legislation should provide that personal property directions made in protection order proceedings are subject to orders made by a federal family court or other court responsible for determining property disputes.
13
State and territory family violence legislation should provide that personal property directions do not affect ownership rights,
Recommendation 17: Family Law Interactions –Jurisdiction and Practice of Federal Family Courts
1
The ‘additional consideration’ in s 60CC(3)(k) of the Family Law Act 1975 (Cth), which directs courts to consider only final or contested protection orders when determining the best interests of a child, should be amended to provide that a court, when determining the best interests of the child, must consider evidence of family violence given, or findings made, in relevant family violence protection order proceedings.
2
The Australian Government should initiate an inquiry into how family violence should be dealt with in property proceedings under the Family Law Act 1975(Cth).
3
The Family Law Act 1975 (Cth) should be amended to provide separate provisions for injunctions for personal protection.
4
The Family Law Act 1975 (Cth) should be amended to provide that a breach of an injunction for personal protection is a criminal offence.
5
The Family Law Act 1975 (Cth) should be amended to provide that, in proceedings to make or vary a protection order under state or territory family violence legislation, a state or territory court may revive, vary, discharge, or suspend a Family Law Act injunction for personal protection of a party to a marriage.
6
Section 114(2) of the Family Law Act 1975 (Cth), which permits a court to make an order relieving a party to a marriage from any obligations to perform marital services or render conjugal rights, should be repealed.
Recommendation 19: The Intersection of Child Protection and Family Laws
1
Federal, state and territory governments should, as a matter of priority, make arrangements for child protection agencies to provide investigatory and reporting services to family courts in cases involving children’s safety. Where such services are not already provided by agreement, urgent consideration should be given to establishing specialist sections within child protection agencies to provide those services.
2
State governments should refer powers to enable the Australian Government to make laws allowing family courts to confer parental rights and duties on a child protection agency in cases where there is no other viable and protective carer. Family courts should have the power to join a child protection agency as a party in this limited class of cases.
3
Where a child protection agency investigates child abuse, locates a viable and protective carer and refers that carer to a family court to apply for a parenting order, the agency should, in appropriate cases:
a.
Provide written information to a family court about the reasons for the referral;
b.
Provide reports and other evidence; or
c.
Intervene in the proceedings.
4
The Family Law Act 1975 (Cth) should be amended to give children’s courts the same powers as magistrates courts.
5
Federal, state and territory governments should ensure the immediate and regular review of protocols between family courts, children’s courts and child protection agencies for the exchange of information to avoid duplication in the hearing of cases, and that a decision is made as early as possible about the appropriate court.
Recommendation 21: Family Dispute Resolution
1
The Australian Government Attorney-General’s Department should continue to collaborate with the family dispute resolution sector to improve standards in identification and appropriate management of family violence by family dispute resolution practitioners.
2
The Australian Government Attorney-General’s Department should:
a.
Promote and support high quality screening and risk assessment frameworks and tools for family dispute resolution practitioners;
b.
Include these tools and frameworks in training and accreditation of family dispute resolution practitioners;
c.
Include these tools and frameworks in the assessment and evaluation of family dispute resolution services and practitioners; and
d.
Promote and support collaborative work across sectors to improve standards in the screening and assessment of family violence in family dispute resolution.
3
The Australian Government Attorney-General’s Department, family dispute resolution service providers, and legal education bodies should ensure that lawyers who practise family law are given training and support in screening and assessing risks in relation to family violence and making appropriate referrals to other services.
4
The Australian Government Attorney-General’s Department should continue to provide leadership, support and coordination to improve collaboration and cooperation between family dispute resolution practitioners and lawyers.
5
The Australian Government Attorney-General’s Department should take a comprehensive and strategic approach to support culturally responsive family dispute resolution, including screening and risk assessment processes.
Recommendation 22: Confidentiality and Admissibility
1
Sections 10D(4)(b) and 10H(4)(b) of the Family Law Act 1975 (Cth) should be amended to permit family counsellors and family dispute resolution practitioners to disclose communications made during family counselling or family dispute resolution, where they reasonably believe that disclosure is necessary to prevent or lessen a serious threat to a person’s life, health or safety.
2
The Australian Government Attorney-General’s Department, in consultation with family dispute resolution practitioners and family counsellors, should develop material to guide family dispute resolution practitioner’s and family counsellors in determining the seriousness of a threat to an individual’s life, health or safety, and identifying when a disclosure may be made without consent. Such guidance should also encourage family dispute resolution practitioners and family counsellors to address the potential impact of disclosure on the immediate safety of those to whom the information relates, and for that purpose:
a.
Refer those at risk to appropriate support services; and
b.
Develop a safety plan, where appropriate, in conjunction with them.
3
Bodies responsible for the education and training of family dispute resolution practitioners and family counsellors should develop programs to ensure that provisions in the Family Law Act 1975 (Cth) and in state and territory child protection legislation regulating disclosure of information relating to actual or potential abuse, harm or ill-treatment of children are understood and appropriately acted on.
4
The Australian Government Attorney-General’s Department should coordinate the collaborative development of education and training –including cross-disciplinary training– for family courts’ registry staff, family consultants, judicial officers and lawyers who practise family law, about the need for screening risk assessment where a certificate has been issued under s 60I of the Family Law Act 1975 (Cth), indicating a matter is inappropriate for family dispute resolution.
Recommendation 23: Intersections and Inconsistencies
4
State and territory courts should ensure that the terms of a family violence protection order indicate that participation in family dispute resolution, as ordered or directed by family court, or provided under the Family Law Act 1975 (Cth), is not precluded by a family violence protection order.
5
State and territory courts should ensure that parties to family violence protection order proceeding are information that, if involved in proceedings or family dispute resolution under the Family Law Act 1975 (Cth):
a.
They may be exempt from requirements to participate in family dispute resolution under the Family Law Act 1975 (Cth);
b.
They should inform a family dispute resolution practitioner about any family violence protection orders or proceedings; and
c.
They should inform family courts about any family violence protection orders or proceedings, where family court proceedings are initiated.
6
The Australian Government Attorney-General’s Department and state and territory governments should ensure that family violence screening and risk assessment frameworks indicate the importance of including questions in screening and risk assessment tools about:
a.
Past or current applications for protection orders;
b.
Part or current protection orders; and
c.
Any breaches of protection orders.
7
Family dispute resolution service providers should ensure that:
a.
Tools used for family violence screening and risk assessment include questions about past and current protection orders and applications, and any breaches of protection orders; and
b.
Parties are asked for copies of protection orders.
13
The Australian Government Attorney-General’s Department and state and territory governments should collaborate with Family Relationship Services Australia, legal aid commissions and other alternative dispute resolution service providers, to explore the potential of resolving family law parenting and child protection issues relation to the same family in one integrated process.
Recommendation 26: Reporting and pre-trial processes
3
Federal, state and territory governments and relevant education, professional and service delivery bodies should ensure ongoing and consistent education and training for judicial officers, lawyers, prosecutors, police and victim support services in relation to the substantive law and the nature and dynamics of sexual assault as a form of family violence, including its social and cultural contexts.
Recommendation 29: Integrated Responses
2
The Australian, state and territory governments, in establishing or further developing integrated responses to family violence, should ensure ongoing and responsive collaboration between agencies and organisations, supported by:
a.
Protocols and memorandums of understanding;
b.
Information-sharing arrangements;
d.
Where possible, designated liaison officers.
3
The Australian, state and territory governments should prioritise the provision of, and access to, culturally appropriate victim support services for victims of family violence, including enhanced support for victims in high risk and vulnerable groups.
4
The Australian, state and territory governments should prioritise the provision of, and access to, legal services for victims of family violence, including enhanced support for victims in high risk and vulnerable groups.
Recommendation 30: Information Sharing
1
The Initiating Application (Family Law) and (Initiating Application (Family Law) Response forms should clearly seek information about past and current family violence protection and child protection orders obtained under state and territory family violence and child protection legislation and past, pending or current proceedings for such orders.
2
The Initiating Application (Family Law) and Initiating Application (Family Law) Response forms should be amended to include a question seeking more general information, for example, ‘Do you have any fears for the safety of you or your child or children that the court should know about?’
3
Non-publication provisions in state and territory family violence legislation should expressly allow disclosure of information in relation to protection orders and related proceedings that contains identifying information in appropriate circumstances, including disclosure of family violence protection orders to the federal family courts under s60CF of the Family Law Act 1975 (Cth).
4
State and territory child protection legislation should not prevent child protection agencies from disclosing to federal family courts relevant information about children involved in federal family court proceedings in appropriate circumstances.
5
Federal family courts and state and territory child protection agencies should develop protocols for:
a.
Dealing with requests for documents and information under s69ZW of the Family Law Act 1975 (Cth); and
b.
Responding to subpoenas issued by federal family courts.
6
State and territory family violence legislation should require courts exercising jurisdiction under that legislation to inquire about existing parenting orders under the Family Law Act 1975 (Cth), or pending proceedings for such orders.
7
Application forms for family violence protection orders , in all states and territories including applications for variation of protection orders, should clearly seek information about existing parenting orders under the Family Law Act 1975 (Cth).
8
Federal family courts should provide state and territory courts dealing with family violence and child protection matters –and others with a proper interest in such matters, including police and child protection agencies – with access to the Commonwealth Courts Portal to ensure that they have reliable and timely access to relevant information about existing federal family court orders and pending proceedings for such orders.
9
The Australian, state and territory governments should ensure that privacy principles regulating the handling of personal information in each jurisdiction expressly permit the use or disclosure of information where agencies and organisations reasonably believe it is necessary to lessen or prevent a serious threat to and individual’s life, health or safety.
10
The Australian, state and territory governments should consider amending secrecy laws that regulate the disclosure of government information to include and express exception to allow the disclosure of information in the course of a government officer’s functions and duties.
11
State and territory family violence legislation should expressly authorise the use or disclosure of personal information for the purpose of ensuring the safety of a victim of family violence or an affected child.
14
The Australian, state and territory governments should develop guidelines to assist agencies and organisations working in the family violence and child protection systems to better understand the rules relation to the sharing of information.
16
Federal family courts, state and territory magistrates courts, police and relevant government agencies should develop protocols for the exchange of information in relation to family violence matters. Parties to such protocols should receive regular training to ensure that the arrangements are effectively implemented.
17
Federal family courts and state and territory child protection agencies should develop protocols for the exchange of information in those jurisdictions that do not yet have such arrangements in place. Parties to such protocols should receive regular training to ensure that the arrangements are effectively implemented.
18
A national register should be established. At a minimum, information on the register should:
a.
Include interim, final and police-issued protection orders made under state and territory family violence legislation; child protection orders made under state and territory child protection legislation; and related orders and injunctions made under the Family Law Act 1975 (Cth); and
b.
Be available to federal, state and territory police, federal family courts, state and territory courts that hear matters related to family violence and child protection, and child protection agencies.
19
The national register recommended in Rec 30-18 should be underpinned by a comprehensive privacy framework and a privacy impact assessment should be prepared as part of developing the register.
Recommendation 31: Education and Data Collection
2
The Australian, state and territory governments should collaborate with relevant stakeholders to develop and maintain a national bench book on family violence, including sexual assault, having regard to the Commissions’ recommendations in this Report in relation to the content that should be included in such a book.
5
The Australian, state and territory governments should collaborate in conduction a national audit of family violence training conducted by government and on-government agencies in order to:
a.
Ensure that existing resources are best used;
b.
Evaluate whether training meets best practice principles; and
c.
Promote the development of best practice in training.
Recommendation 32: Specialisation
1
State and territory governments, in consultation with relevant stakeholders, should establish or further develop specialised family violence courts within existing courts in their jurisdictions
2
State and territory governments should ensure that specialised family violence courts are able to exercise powers to determine: family violence protection matters; criminal matters related to family violence; and family law matters to the extent that family law jurisdiction is conferred on state and territory courts.
3
State and territory governments should ensure that specialised family violence courts have, as a minimum:
a.
Specialised judicial officers and prosecutors;
b.
Regular training on family violence issues for judicial officers, prosecutors, lawyers and registrars;
c.
Victim support, including legal and non-legal services; and
d.
Arrangements for victim safety.
4
State and territory governments should, where possible, promote the following measures in all courts dealing with family violence matters, including courts in regional and remote communities:
a.
Identifying and listing on the same day, protection order matters and criminal proceedings related to family violence, as well as related family law and child protection matters;
b.
Training judicial officers in relation to family violence;
c.
Providing legal services for victims and defendants;
d.
Providing victim support on family violence list days; and
e.
Ensuring that facilities and practices secure victim safety at court.
Professor Richard Chisolm –Family Courts Violence Review (2009)
The Chisolm review assessed ‘the appropriateness of the legislation, practice and procedures’ that apply in family violence cases, and whether improvements could be made.
The review provided 22 recommendations and included suggestions for improvements in court procedures, legislative amendments, funding for legal and non-legal services, and training/qualification requirements for family law professionals.
The Australian Government response to this review was implementing amendments to the Family Law Act 1975 (Cth) in 2012 to change the definitions of family violence and child abuse, remove the ‘friendly parent’ provision, and promote the ‘need to protect a child from harm’ as more important than a relationship with both parents.