This Part deals with matters not already covered in this Report, mainly falling within the provisions of the Terms of Reference dealing with:
whether appropriate support is provided within the court system for families who have experienced or are at risk of violence;
whether information disclosed to the courts by litigants or their representatives is appropriately shared or made available within the courts; and
whether appropriate legal representation is provided in such cases.
These topics, especially the first, raise issues of fact, and issues about resources, that it has not been possible to resolve in the limited time for this Review. Accordingly, although a wide range of matters have been touched on in submissions and conversations, this part will be limited to those topics on which there is enough material to provide a basis for discussion and recommendations. I regret that it has not been possible to deal with a number of other important matters.
4.2 APPROPRIATE SUPPORT WITHIN THE COURT SYSTEM FOR FAMILIES WHO HAVE EXPERIENCED OR ARE AT RISK OF VIOLENCE
As previously indicated, while the support of litigants and other people in court may not be associated with the traditional adversary model of courts, it is a normal part of the functioning of the family law courts. An example is the work done by the family law courts on support for people suffering from mental health problems.160
While the circumstances of this Review did not permit a detailed or comprehensive survey, it is obvious that registries of the family law courts provide various types of assistance to litigants, including an array of pamphlets, referral service, assistance with filling out forms, and where possible provide a setting for the operation of other services such as lawyers working in duty solicitor schemes, support groups for victims of violence.161 These services are of enormous importance, especially to people who have been exposed to family violence, and are consistent with the role of the court as part of today’s family law system. In these areas, the information available to the Review has been positive, although the services are inevitably limited by resources, especially in the smaller and more remote registries.
A number of suggestions made in submissions are obviously desirable, but raise issues of resources. An example is the suggestion that
when a court changes residency, the children should be brought into the court, cared for by the counselling service and go home directly with the parent who is now going to have residency of the children. Alternatively, once a decision is handed down, a court officer/social worker should accompany the parent, who is to hand over the children to the other parent, to collect those children as soon as the decision is given.162
The submissions identified a number of particular areas where resources were seen to be insufficient. They include some contact centres and some family dispute resolution centres, where delays are such as to put children at increased risk. For example, the Federal Magistrates Court submission emphasised the importance of contact centres and the particular value of evidence they could give the court about the behaviour of children and adult during contact. It noted that they provide supervised contact visits in a safe environment for children and a safe environment for changeover of children between parents in high conflict relationships, and that they are ‘the best practical means to balance the right of a child to a relationship with a parent and the need to protect a child and/or parent from violence or threats of violence’ as well as protecting parents from unfounded allegations of violence. The submission pointed to current delays:
At present these centres which deal with the most difficult and intractable cases are starved of funds. In Parramatta, delays are 8 months for a spot to have supervised visit each alternate week for 2 hours. In Dandenong and regional Victoria it is a 12 month delay.
The submission recommended:
Increased funding should be made available for the establishment and enhancement of services of Contact Centres. Centres should be funded on condition that they undertake reporting of conduct of clients at the Centres (and to that end their funding should accommodate the cost of the reporting).
As to the second aspect (reporting conduct) this has obvious appeal, and is consistent with the importance for the court in having access to relevant information held by other agencies, a point made elsewhere in this report. However it raises issues that it has not been possible to examine during this Review.
Similarly, any significant delay in family dispute resolution agencies can be a major problem in families where there are violence issues. They may prolong a situation in which the child is likely to be disadvantaged by continuing uncertainty, and by any steps taken, whether by reason of being exposed to a risk of violence or by reason of being wrongly separated from a needed parent.163 Again, funding for Family Consultants is of great importance. As the Federal Magistrates Court submission states:
Family Consultants are a key resource for the identification of family violence at an early stage in the proceedings and for the risk assessment for children. They can also greatly assist the Court in making recommendations for appropriate programmes for offenders and victims.
Given that the Federal Magistrates Court is the front line for dealing with family violence there is a need for more appointments to relieve the already overburdened work load on existing Federal Magistrates.
As well as maintaining existing services that support the courts’ work, consideration also needs to be given to developing new or expanded services to meet new needs, or to reflect new understandings of the problems. For example, it might be useful to pay attention to the perspectives and feelings of parents who are violent, as well as to those who are victims of violence (of course, in many cases both parties will have committed and experienced violence). There are some programs that deal with men who have been violent,164 including anger management programs. Obviously the family law courts should contain appropriate pamphlets and make appropriate referrals when this appears to be possible.
It is also important that the system should as far as possible encourage those who have been violent to see it as a problem that can be addressed. Those working in the area, I believe, generally say that a significant number of violent people are capable of improvement with proper support and encouragement. It seems desirable that people working in the court in all situations should have an understanding of the point of view of violent people and what sorts of handling of the case might make it more likely that they will accept responsibility for their actions and take steps to address them. In this connection I mention, by way of example, what appeared to me to be a useful brochure.165 It invites men to consider the role that violence has been playing in their lives, how they feel about it, and how their behaviour affects others. It is intended, as I understand it, to increase their insight into their situation and the impact of their behaviour. It also provides useful vignettes of men who have decided to do something about their violence, and contains referrals to appropriate agencies.
Unfortunately, it has not been possible to examine the situation of families from non-English speaking backgrounds, people with disabilities, indigenous Australians, and others who, for one reason or another, might need particular support. As the Wingspread Report and other authorities emphasise, family violence, like many other things, needs to be understood in context, and responding to the needs of these families will be difficult unless the context is understood.166 So far as possible, it is desirable that those assisting should include representatives of the relevant community. The Family Court of Australia has in the past employed Indigenous officers for this reason, and such schemes, in my view, can be extremely valuable.
It would not be appropriate to make firm recommendations in this area. The limited circumstances of this Review do not enable detailed findings to be made about the extent of need for increased resources, or about the priorities for funding within the family law system. Nor, of course, is it possible to say anything about what funding should be directed to the family law system as distinct from other areas. However the material received does indicate that there is reason for concern about issues of funding, and it is obvious that the level of risk for children and other family members, from violence and other causes, would be reduced if resources could be increased.
That the Government consider the desirability of providing additional funding in relation to the family law system, including funding that would support the work of contact centres, family dispute resolution agencies, legal aid, and family consultants in reducing the risk of family violence.
Safety at court
It is difficult to overstate the importance of safety in court, and the need for protective measures in the special circumstances of the family law courts. As the Law Council of Australia – Family Law Section said in its submission:
Litigants in this jurisdiction are often under enormous emotional and psychological stress. They may have a history of violent and unpredictable behaviour known to and feared by the other side. Practitioners need to be able to guarantee client safety and the court ought to be able to provide trained people who can do so. This unfortunately is not the case. The Newcastle, Parramatta and Dandenong Registries have had women murdered by their ex-partners outside of the court building.
It seems from information received during the Review that the sort of support that ought to be provided includes providing for the safety of litigants and other people in and about the courts, and appropriate referrals out. Attending court is typically stressful for families, and it is important that this is recognised in the way they are treated.
The Family Court of Australia has taken substantial measures relating to safety at Court. These measures, and some of the background, are conveniently summarised in the Information Paper provided by the Court:
A fundamental tenet of the Family Court’s operation is that all who attend the Court and work on its premises should be safe. The Family Court’s Safety at Court Protocol provides overarching direction for securing the safety of Court clients. Other allied materials, such as the family violence policy for Child Dispute Services167 and the Family Violence Policy and Guidelines for Registrars168 operate in conjunction with the Safety at Court Protocol.
The Protocol contains a series of defined steps that must be followed where it is brought to the Court’s attention that a client has safety concerns. In essence, this involves engaging the client and providing information about support options (including referrals to police and domestic violence agencies as appropriate), determining the level of need, checking for a family violence order or Notice of Child Abuse or Family Violence,169 and explaining the safety options available. These can include familiarisation visits, separate waiting areas, separate interviews, staggered arrivals and departures, telephone, video link or CCT attendance, security guard escort, police attendance and the presence of a support person at Court.
Once options have been discussed with the client and an approach agreed upon, a safety plan is drawn up by a Client Services Officer. The plan is placed on the Court file and entered in Casetrack, the Court’s electronic case management system, and is forwarded to the person conducting the next court event. A ‘tips and scripts’ resource has been developed and is available through the Family Court’s intranet site to guide staff through client interactions.
Information about client safety is contained in the brochure ‘Do You Have Fears for Your Safety When Attending Court?’, available in hard copy format from family law court registries, the family law courts website and the websites of the Family Court and Federal Magistrates Court. Copies can be mailed to clients on request. Family Court brochures include standard information on personal safety, where clients who have any concerns about their safety while attending court are advised to contact the Court’s National Enquiry Centre to discuss options for protecting their safety. This information is also included in relevant Court correspondence generated through Casetrack. Posters are displayed in all registries informing clients of the options available to them if they have concerns about their safety.
Comments in submissions
A number of submissions referred to the issue of court safety. Broadly speaking, they acknowledged and valued the work the Court has done, while indicating areas where improvement is possible. In this context the views of legal organisations seem particularly relevant, because their members have day to day experience of the system. The following submissions deserve consideration:
Law Council of Australia – Family Law Section
Spaces need to be provided in which victims of family violence can be sure they are safe. Court buildings, especially on circuit or in regional centres, may not have such spaces or easy access to them. Out of hours access to a police station can also be problematic in regional centres. The Australian Federal Police no longer have a presence in Family Court buildings so if there is violence, threats or risk, there is no one to assist. Security staff screen people entering court buildings but do not otherwise protect litigants.
The Australian Federal Police have withdrawn their services to the court and have not been replaced by trained security personnel. There have been instances of lawyers having to intervene to protect clients at their own peril. The existence of a “duress button” is of little comfort if practitioners and litigants do not know where these are located and upon it being pressed, there is no consistent or professional response…
Family Reports are now often out-sourced to external Family Consultants. This is universally the case in the Federal Magistrates’ Court in which most cases are heard. External Family Consultants who operate in private offices do not necessarily have any security at their premises. As single experts, all the correspondence such Consultants send or receive is read by both parties. The date, time and place of appointments is therefore known and can present a real security risk to victims of violence and to children.
National Legal Aid
It is understood anecdotally that Family Court registries have measures in place for the protection of clients who have safety concerns. Legal practitioners are familiar with clients’ attendance at hearings by telephone, video link or CCTV. Legal Aid duty lawyers in particular are exposed to measures such as security guard escorts, police attendances, separate waiting areas and secure rooms and help given from court support staff, although these facilities are usually confined to city registries, with such protection being much less likely to be available at rural and regional courts. In this regard, NLA notes it has been valuable to be able to raise security concerns direct with the Marshall of the Family Courts.
Law Society of NSW
Personal Security (at and around the Court)
Various members report being able to make arrangements for the safe movement of clients where there are issues of Family Violence. This includes being able to organise private entry and exit to and from the Court building other than, and away from, the usual public access points. These are however usually ad hoc and more a function of more experienced lawyers, familiar to and with the Court, being able to access relevant court officers &/or facilities. There is no obvious point of contact for the public, or less experienced practitioners. There is no facility at an organisational or structural level for parties who have been victims of, or who fear, Family Violence. Some registries have specific facilities for such persons. For example at the Sydney Registry there is room staffed by volunteers from an outside agency. This is to be applauded and is obviously of great assistance. It is however an external facility and peculiar to that Registry. There may be other similar facilities in other Registries. In the event an episode of violence occurs within the Court, and there is a history of such, there is limited security or protection for other Registries.
In the event an episode of violence occurs within the Court, and there is a history of such, there is limited security or protection for victims. Contracted security personnel have limited capacity to protect victims. Federal Police no longer have a presence within the Court. (pp 1 – 2)
ACT Law Society
The solicitor may take steps to facilitate increased security for clients in certain circumstances (for example, ensuring that security guards are more visibly present nearby and remain vigilant). In a practical sense there are inadequate facilities at the Court premises to ensure that victims of domestic violence are able to remain in a separate conference room (there are not enough conference rooms). In addition, the waiting area outside certain of the Court rooms is inadequate and results in many parties and their supporters being in close proximity to each other, with little room for private discussions with their solicitors, in particular, the upstairs waiting area outside Court 7 at the Canberra Registry. In other Courts, a separate area, behind appropriate security, is made available for victims of domestic violence. That facility is not available in the Family Court at Canberra. It is noteworthy that the facilities at the ACT Magistrates Court are also inadequate. Many victims of domestic violence and their advisors wait in the Legal Aid Office. Those facilities are often overcrowded and do not enable sufficient room for conferencing. 170 The form 4s, the presence of Police in Court where necessary, the pervasive literature and signage in the Court are all very supportive. Judges and Magistrates are also very sensitive about the issue. Should it do more? Probably not.171
The practical support for victims of violence when the Court is pre-advised seems to work well, for example, the presence of security personnel and ensuring that victim is in a separate room. However, this tends to be used when the client is represented and arrangements are made by her lawyer. For unrepresented clients, the nature of the duty list, the number of people at court and the uncertainty about process means that a victim of violence is often in the same general area outside the courtroom as the perpetrator. It is unlikely that the Court would even be aware of the issue of family violence in matters where clients are self-represented and it is the first return date. We always advise women to take a support person with them to court.172
Women’s Legal Services, Brisbane
We believe it is necessary to undertake an audit of the whole family law system, in accordance with International standards of best practice developed by Ellen Pence and others, to identify and address the systemic gaps that currently operate across the system and expose victims of violence and their children to a risk of harm. The audit should be a comprehensive audit of the family law system’s response to family violence and be undertaken with a view to addressing safety and increasing consistency and accountability. The audit should include Family Relationship Centres, other Family Dispute Resolution Providers and the family law courts. This process would also help identify how the role of risk identification and assessment can be properly embedded in the family law system.
Meeting at Family Court Melbourne on 8 September 2009
A further insight into issues of court safety was provided by comments made at a meeting at the Melbourne Registry of the Family Court of Australia on 8 September with about 20 members of the Court and its staff.
A number of issues arose relating to safety arrangements within the Court. Some related to the court building and its features. It was said that the public area on level 5 (which contains litigants in both the Family Court and the Federal Magistrates Court) did not have sufficient space and facilities for litigants and others involved to have private conferences in safe circumstances. There was only one secure room (on level 2 of the building). Similar problems were said to exist at the Dandenong Registry.
Others issues related to security personnel. It was noted that the Australian Federal Police formerly had a presence, but that currently they appeared only if the judicial officer made a formal request. It was also noted that the private security guards had not attended the Family Court’s Integrated Client Service Training that was conducted in 2007-2008. It was noted that although registrars had received training in safety matters in about 2006, it was not ongoing, and new staff were not being trained.
Other issues discussed related to the measures taken in relation to ‘Safety Plans’, which are documents created in relation to particular cases where there is a risk of danger, setting out safety measures that should be taken in relation to the particular case. Where the general ideas of a Safety Plan seemed to be approved, it was said that in practice Safety Plans were ‘event-specific’ – that is, the safety plan document was displayed prominently on the file in relation to a particular court event, but was then relegated to the correspondence part of the file (where it would not normally come to attention). Thus at the next court event, unless something special had been done, those involved would have no notice of the danger.
It was also suggested by a family counsellor that Safety Plans may not always exist in cases where there are risks – the counsellor spoke of dealing with cases where the files contained a great deal of evidence of violence, yet there was no Safety Plan.
A further problem was said to be that the measures prescribed in Safety Plans were not always acted upon.
There was wide agreement that these were serious issues. It was pointed out that the majority of children’s cases involve allegations of family violence, child abuse, mental health problems, and substance abuse, often in combination. Because most cases are settled outside court, those that do come to court tend to feature serious problems. A number of people said, in effect, that we should not have to wait for some terrible tragedy in the court before taking action.
I have no doubt that the meeting reflected widespread and reasonable concerns about safety by professionals whose work requires them to interact daily with people some of whom could well be highly dangerous, and who might pose a threat to all categories of court staff, other litigants, lawyers and witnesses, and any other members of the public who are in the court. Although to some extent the problem might be eased if people took more care to adhere to safety procedures, in practice when staff work hard to cope with a heavy workload, it is very difficult to set aside time to attend to these matters. In addition, some of the problems, such as the unavailability of the AFP and problems in the physical structure, cannot be addressed by court staff.
Conclusions and recommendations
In relation to safety at court as well as other aspects of dealing with family violence issues, measures need to be in place to ensure that risk is disclosed, and understood, and that necessary actions are then taken. In my view the Family Court has taken valuable steps to identify issues of danger and put in place measures that enhance safety at court. However the information received during the Review indicates that more needs to be done if the safety of those attending court is to be adequately protected. This review indicated some issues of concern, including the following:
The absence of the Australian Federal Police in the courts, and the limited qualifications and resources for security staff in the courts.
The current practice in relation to Safety Plans, in which, it seems, the approach of placing them prominently in the file only for individual court events, rather than for all events relating to each case for which a Safety Plan has been created, runs the risk that litigants and court staff may be unaware of the need to take specific safety measures;
Physical resources and arrangements in some court locations that do not provide adequate secure and private facilities for litigants and their lawyers in cases involving risks of violence.
Some safety measures require particular equipment. Thus the Federal Magistrates Court submitted:
Electronic means should be available in all Courts including video link up equipment to balance the requirement of procedural fairness in allowing testing of the evidence when there maybe a victim of violence being cross-examined by an abusive partner.
Although the Family Court has developed valuable initiatives, it seems inevitable that attending to these and related issues will require some additional resources. As the Law Council of Australia – Family Law Section wrote in its submission:
…The language of the Act and its concerns is not reflected in the resources provided to the Courts to realistically deal with violence and its effects. From the basic issue of feeling and being safe at court, to the resources available to investigate allegations and risk, and access to services to support victims of violence, the system is under-funded. The issue cannot be addressed in a way which assists Australian families and children without proper and consistent funding.
No doubt it is impossible to create a situation in which there is no danger, but on the basis of my inquiries there is much that could be done to reduce it considerably and go some way towards a court environment that provides a high level of safety for all those involved.
That the Government provide the necessary funding and other assistance so that the family law courts can review the adequacy of existing policies, facilities and arrangements for the safety of people in the courts, and address any deficiencies or difficulties revealed by that review.