There should be a specific family violence and child sexual abuse module 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. That Legal Aid Commissions across Australia should consider requiring their lawyers as well 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 To ensure there is 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. 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 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. 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 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. The word ‘imminent’ be removed from s 10H(4)(b) of the Family Law Act 1975.
The need for specialist family violence expertise A prominent theme in the submissions and forums was a concern to incorporate the expertise of specialist family violence services into family law system risk assessment processes. Stakeholders who raised this issue referred to the importance of incorporating an understanding of this sector’s experience and understanding of family violence dynamics and trauma-informed practice into the family law system to support early risk assessments, including the expertise of family violence services for Aboriginal and Torres Strait Islander and culturally and linguistically diverse clients. These submissions also noted the importance of incorporating an understanding of the tactics of abuse that can undermine the child’s attachment to the non-abusive parent, including the psycho-social and health impacts and support needs associated with exposure to family violence for children, as well as an understanding of the ways in which legal processes may be used to continue abuse after separation. The need to recognise cumulative harm to children Some stakeholders expressed concerns about the scope for decision-making about children’s care needs to focus on recent and imminent risks to the child’s safety at the expense of recognising the cumulative impact of trauma on children over time. This issue is discussed in the Department of Health and Human Services’ Child Development and Trauma Guide, which describes this concept as referring to ... the effects of patterns of circumstances and events in a child’s life, which diminish a child’s sense of safety, stability and wellbeing. Cumulative harm is the existence of compounded experiences of multiple episodes of abuse or ‘layers’ of neglect. The unremitting daily impact on the child can be profound and exponential, covering multiple dimensions of the child’s life. This concept is recognised in Victoria’s child protection legislation, the Children Youth and Families Act 2005, which requires the courts and practitioners working with vulnerable children to consider ‘the effects of cumulative patterns of harm on a child's safety and development’. The need for culturally safe risk assessment processes In its Interim Report, Council noted the evidence that Aboriginal children in Australia are significantly more likely to be the subject of care and protection orders, and to be living in out of home care, than non-Aboriginal children. Submissions received during the first stage of Council’s work on this reference suggested that greater access to the family law system could offer a way to reduce the incidence of Aboriginal and Torres Strait Islander children being removed from family and country. However, Council’s previous work on these issues and the materials made available during the present reference indicate that the high rates of
were performed in ‘silos’ and relevant information was not shared between agencies. None of the services shared its risk assessment with any other service. In response to his concern about the implications of this for Luke’s safety, Judge Gray recommended the Victorian government ‘identify legislative or policy impediments to the sharing of relevant information, and remove such impediments’, so that all relevant agencies ‘are able to share relevant information in relation to a person at risk of family violence’. The report of the Royal Commission into Family Violence also notes that the sharing of risk assessment information has the potential to increase victim safety, improve case management and coordination, reduce the need for victims to re-tell their stories, and increase the accountability of perpetrators. The Royal Commission has recommended the enactment of dedicated family violence information sharing legislation in Victoria (discussed in Chapter 4). Reflecting similar concerns, two submissions to Council’s reference proposed that family dispute resolution services should be able to share their screening assessments with the courts where they have safety concerns for a child or parent. However, in keeping with the view espoused by many stakeholders that there should be no change to the current provisions regarding confidentiality and inadmissibility of disclosures, there was also some strong opposition to this proposal. For example, the submission from the FRSA noted in relation to its survey of members that: … all respondents were of the view that particular aspects of counselling and FDR should remain confidential (ie intake assessment, case file notes). VLA also opposed any proposal to remove the confidentiality protections from intake processes, noting that ‘during the assessment interview, a party will often seek assurances that the information collected is protected by confidentiality’. VLA expressed particular concern that any incursions into the confidentiality of intake assessments could ‘result in parties failing to raise safety concerns’ during the screening process. Council also notes that the joint submission from the Magistrates’ Court of Victoria and the Children's Court of Victoria proposed that risk assessments conducted by support agencies should not be shared without client consent. A number of submissions noted that it remains unclear whether intake assessments conducted by family dispute resolution providers are covered by the Family Law Act’s confidentiality provisions. This uncertainty stems from the 2010 decision in Rastall & Ball. In this case, Riethmuller FM (as he then was) ruled that: The confidentiality protection in s 10H relates to ‘a communication made to the practitioner while the practitioner is conducting family dispute resolution’ (emphasis
judicial officers preside over matters involving family violence to strengthen understanding of family law and family violence and the impact of trauma. 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. Children’s views and experiences Council notes that a number of submissions expressed a concern to ensure respect and due weight is accorded to children’s views and experiences when assessing and responding to risk within the family law system. Council notes in this regard the findings of the 2014 Independent Children's Lawyers Study, which confirmed that children hold strong views about their needs and the kinds of professional supports they require. This study suggests that children and young people expect to be consulted and to have their views taken seriously in relation to decisions about their post-separation care. This is consistent with Article 12 of the United Nations Convention of the Rights of the Child, to which Australia is a signatory, and the guiding principles of the National Framework for Protecting Australia’s Children More generally, a number of stakeholders consulted for this reference urged Council to ensure that children’s experiences of the family law system are used to help guide the development of any policy and service responses to families with complex needs. In its Interim Report, Council recommended the ‘convening of regular meetings of relevant stakeholder organisations’ to explore ways of developing an integrated approach to the management of cases involving families with complex needs (Rec. 5). Several stakeholders pointed to the importance of ensuring that children and young people are ‘provided with a place at this collaborative table’. Council acknowledges that in some jurisdictions, children and young people have input into family justice systems via advisory groups that allow them to provide feedback about their experiences of the system. An example is the United Kingdom’s Family Justice Young People's Board. Council understands that in South Australia, a trial will soon commence of a youth board, which will act as an advisory group to the family courts. Council commends this initiative. In Council’s view the development of client centred services must incorporate input from children and young people with experience of the family law system. Council notes in this regard the recommendation by the COAG Advisory Panel that all governments ‘work with children and young people to design services that can best support them to report violence’. Council supports this recommendation.
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