The Terms of Reference refer to ‘whether information disclosed to the courts by litigants or their representatives is appropriately shared or made available within the courts’. I take the words ‘the courts’ in this part of the Terms of Reference to mean the family law courts. I note in this connection that the Australian Law Reform Commission is considering issues between the state and territory courts and the family law courts.173 That review, I assume, will consider issues of the transmission of information between the state and territory courts, for example in family violence proceedings, and the family law courts.
Information may be disclosed to the court in different ways. Most obviously, it may be provided in affidavits filed in the proceedings. There appear to be no problems in this respect: affidavits are filed in court and come before the judicial officer if and when parties seek to rely on them in evidence. Similarly, when a case is transferred from one of the family law courts to the other, I am not aware of any difficulties in transferring the file, along with the affidavits.
Information will also be disclosed to the court if the litigants or their representatives provide information to a member of the court staff. For example, a litigant may tell a staff member that they are frightened of another litigant. In such cases, it might be appropriate for the staff member to share that information with other appropriate people, such as a security officer or a family counsellor, so that appropriate action can be taken. I am not aware of any difficulties in this regard. The sharing of information would form an essential part of the risk assessment process that I recommend should replace the present mechanism under s 60K. The information will come before a judicial officer, of course, only if it is contained in evidence presented to the court.
I have referred elsewhere to the important question whether information provided to external agencies might be made more available to the family law courts: this part of the Terms of Reference applies only to information provided to the (family law) courts by litigants and their representatives.
4.4 THE NEED FOR EDUCATION ON FAMILY VIOLENCE
There was considerable support in the submissions for education and training.174 A number specifically drew attention to the training and qualifications of expert witnesses.175 A number of points were made in connection with expert witnesses, including the lack of peer review, and the need for more than one interview.176 The Family Law Section of the Law Council of Australia supported legal education relating to family violence, and its submission contains details of steps taken by the Section in this regard.
Some comments critical of the handling of cases are relevant in this connection. Such comments (from lawyers) include:
More often than not the alleged family violence is considered incidental to the proceedings, an element of the separation process, and as such is not given appropriate weight in determining what is in the child’s best interests. It appears that some judicial officers assume that family violence is the "product of the relationship" and relates to incidents between parents and that once separation has occurred, the violence either ceases or becomes less serious. It is conceded that family violence takes many forms. Some social science indicates that the impact of family violence on children varies depedent (sic) upon the form it has taken. There is a need for courts to have greater regard for social science research when determining the weight that it should be given. Family law practitioners and judicial officers would benefit from a central data base being maintained by the Family Courts containing significant research on children and families post separation.177
“In the Family Court victims are somewhat discouraged by disclosing violence because they are focusing on moving on; by separating from the other partner they have removed the likelihood of it occurring”.178
'The language from the bench can reinforce the view that raising allegations of family violence risks being seen as a "trouble maker" and not looking to the future and/or the child's interests. Violence should not be characterised as merely heightened emotions at the time of separation.
As a case example, there was matter before the Federal Magistrates Court where there were allegations by the mother of a history of domestic violence and controlling behaviour. [....] The father had a criminal conviction for an offence where a weapon was used. At an interim hearing, the Federal Magistrate made a comment that the parties "knew how to push each other's buttons". The mother felt that this comment minimised and mutualised the history of family violence. The mother felt that the father's history was not given enough weight and there was instead a pressure to "look to the future" and simply forget what happened'.179
People who allege family violence they ‘may be seen to be neurotic or liars depending on the judicial officer involved’.180
This definition of family violence under the Family Law Act while not as prescriptive as some definitions in state family violence legislation, for example the recent Family Violence Protection Act 2008 (Vic), is nonetheless fairly broad. The fact that it does not emphasise physical violence over any other form is a positive thing, as much debilitating violence is psychological, emotional or financial. However, it is still the experience of lawyers that unless a litigant can show clear evidence of some physical violence, other forms of violence are often not considered in depth until final hearing,181
It is inevitable that the outcome of cases will to some extent reflect the personal characteristics of the judicial officer, but training and education might help judicial officers to understand the various forms of violence and the behaviour of those who are involved in it, and, it may be hoped such understanding might reduce the extent to which the outcome will depend on the particular judicial officer who happens to hear the case.
A number of confidential submissions spoke, often in less measured terms, about the authors’ experiences in court, and it is instructive to consider some of them.
One submission expressed concern that ‘the focus on the future’ in the Less Adversarial Trial process appeared to ‘brush past violence under the carpet’. It is a matter of concern if this is true. While of course the purpose of the exercise is to determine the child’s best interests in the future, this determination can only draw on past behaviour to predict the likely consequences of particular parenting arrangements. The system needs to discourage irrelevant criticisms, but pay attention to evidence of behaviour that might affect the child’s best interests in the future. There seems no reason why the Less Adversarial Trial process should have the effect of brushing violence under the carpet – indeed in some ways it should provide a good opportunity for any violence to be disclosed and understood – but this comment underlines the fact that the more interventionist role envisaged for the judicial officer in Division 12A makes it especially important that the judicial officer should be well equipped to deal with family violence issues (as well as other frequently-occurring issues).
The author of another private submission spoke of advice that ‘the Court doesn’t like you airing your dirty washing’ and understood that the message was ‘to keep quiet about what has happened to you’. If the intended message was that the court does not want to hear irrelevant allegations, this could be a useful illustration of the need for lawyers to ensure that the client correctly understands what is being said.
One submission indicated that some victims of violence are unwilling to disclose incidents of violence, or full extent of the violence, due not only to fear of retribution from the perpetrator, but also from lack of support and understanding from the court. One judicial officer was described in a confidential submission as ‘aloof’, ‘disinterested’, and ‘self-opinionated and impatient’ and was said to have made comments to the effect that the case was ‘cluttering up my Circuit schedule’. Another submission spoke of a judicial officer saying that if the author appeared again and ‘wasted his time’ he would ‘just agree to everything in the Family Report’; the author considered the remarks demeaning and belittling.
It may be that courts’ need to deal with cases briskly underlies such remarks, assuming that they were indeed made. The Women’s Family Law Support Service referred to the emphasis the court places on the parties reaching a settlement, and said of one mother that she ‘gathered the impression that the most important thing for the Court to do was to get the matter over and done with’.
It is impossible to know from the information available to the Review how justified such comments are in particular cases, or how representative they are. But they are useful in drawing attention to areas that could usefully be addressed in education and training programs. For example, education might perhaps reveal to a judicial officer that remarks intended to do no more than keep the case on track can, in the fraught circumstances of family litigation, easily be understood in different ways. Similarly, any tendency for judicial officers to assume that violence necessarily ceases after separation might be usefully corrected by exposure to the research evidence on the occurrence, and re-occurrence, of violence following separation in some cases.
Finally, education or training would seem likely to assist if, as suggested in one submission,182 the court sometimes inappropriately refers violence cases to family dispute resolution.
Substantial improvement could be obtained, in my view, if there were improved education of all those who work in family law. Many practitioners, both legal and in the counselling and dispute resolution sectors, and certainly including judicial officers, emphasised the value of education and training in this field. Some of the submissions also indicated, by comments on particular cases, that there could be such benefits.
Careful consideration needs to be given to the form of educational opportunities that could be provided. There is a body of knowledge about family violence, and providing a guide to that literature would form an essential part.
But more will be required than a mere intellectual understanding. Those working in family law, in whatever capacity, will face day to day challenges. A member of the court staff might be faced with a litigant frightened of a threatening partner. Judicial officers will need to form a view about whether a person’s failure to complain about previous alleged violence is an indication that the allegations are false, or might be explained by other factors, such as a desire to keep the family together or fear that a disclosure might provoke further violence. Family dispute resolution practitioners will need to consider, in virtually every case, whether clients can safely be seen together in the same room. Lawyers need to understand that some victims of family violence might be reluctant to disclose it, or disclose it in detail, unless the demeanour of the lawyer is such as to give them confidence, or unless the lawyers asks specific questions.
Lawyers, and judicial officers, and perhaps others, might learn to become more sensitive to the impact of their manner, and way of speaking, on people who have been exposed to violence, especially those from non-mainstream communities. Judicial officers in a busy list - looking for cases to settle so that there will be time to deal with other cases, anxious to avoid time being wasted by irrelevancies - need to have, or to learn, the skills that will enable them to handle the work efficiently while at the same time ensuring that litigants are not afraid to put to the court their evidence and argument about what the child needs.
Similarly, lawyers and others involved in agreed outcomes, whether by parenting plans or consent orders, need to be careful to ensure, as best they can, that neither party is acting under false impressions of what the outcome of a contested case might be, or what the judge might be willing or unwilling to hear.
Because of the need for practitioners to put their knowledge into practical use, education and training on family violence may well require techniques beyond the provisions of reading material and lectures. It seems likely that the use of video, role playing and other such interactive methods will be of particular value. As with other aspects of the topic of family violence, it is useful to consider the three steps that constitute the theme of this Report: education and training should include consideration of the disclosure of family violence, its understanding, and the actions that should be taken.
Education can and should take many forms. Community education could be an important part of it. Apart from the potential of education to reduce the amount of community tolerance of violent conduct, it has the potential to empower victims. It should extend not only to family violence itself but to the functions of agencies and institutions that deal with it. In this connection, the following comment is relevant:
There has been some concern amongst stakeholder groups that women who have experienced violence are not well-informed of the exemptions in the Family Law Act related to family violence and may feel pressured to participate in family dispute resolution when it is not appropriate to do so.183
The need for education is a continuing one, and in my view there is also merit in the suggestion that steps should be taken to ensure that the personnel of the key family law bodies include people with an understanding of family violence. 184
That the Government, the family law courts, and other agencies and bodies forming part of the family law system consider ways in which those working in the family law system might be better educated in relation to issues of family violence.
That experience and knowledge of family violence be taken into account when considering the appointment of persons to significant positions in organisations forming part of the family law system.