The Council's recommendations are -
R1: Family safety services
The Australian Government consider ways of 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;
3) creating a dedicated family safety service within the family law system.
R2: 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.
R3: 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 for 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.
R4: Family dispute resolution practitioners and risk management strategies
The Australian Government consult with key stakeholders, including Family and Relationships 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) Regulations 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.
R5: 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.
R6: 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.
R7: 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 and 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 services sector.
R8: 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.
R9: 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.
R10: 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.
R11: 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 (including Independent Children's Lawyers).
2) 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.
3) That Legal Aid Commissions across Australia should consider requiring their in-house 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.
R12: Joint professional development
1) 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.
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.
R13: 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 s 10H(4)(b) of the Family Law Act 1975. 3) The Australian Government clarify the admissibility status of family dispute resolution intake assessments.
R15: State and territory courts exercising family law jurisdiction
1) The National Judicial College of Australia develop a 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 Rec 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.
R16: 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.
R17: 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 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.
R18: 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.
R19: 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.
R20: 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.
R21: 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.
R22: 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.