Improving practice

16.168 State and territory magistrates courts, as the first point of contact that most victims of family violence have with the legal system, are in a position to deal with the range of legal issues faced by victims of family violence in an integrated and responsive way. The recommendations made in this chapter are directed towards ensuring that state and territory magistrates courts exercising jurisdiction under family violence legislation can also address related family law issues that arise in such proceedings. While the Commissions recommend that the jurisdiction of state and territory courts should be extended so that magistrates may make interim parenting orders in certain circumstances, the majority of the recommendations focus on ways to encourage and facilitate magistrates courts exercising the family law jurisdiction that they already have.

16.169 The Commissions acknowledge that family law is not currently a large practice in many state and territory magistrates courts. As such, the judicial officers, legal practitioners, police prosecutors and others involved in family violence proceedings will require regular training, resources and other support in order to exercise family law jurisdiction in a way that ensures the protection of victims of family violence.

16.170 The Commissions also acknowledge that the capacity of state and territory courts to exercise federal jurisdiction is, to a large degree, governed by funding arrangements. As such, the federal government must play an important role in funding and supporting the exercise of federal family law jurisdiction by state and territory courts. The Commissions consider that while this will have resource implications, it will lead to savings in the long term because people can resolve more of their legal issues in the one court, reducing duplication and further litigation.

Specialised practice

16.171 By expanding the jurisdiction of state and territory magistrates courts to make family law orders in certain circumstances and fostering the use of current family law jurisdiction, the Commissions envisage that state and territory courts will develop or expand specialised practice in family violence. Specialised practice in state and territory magistrates courts will be particularly beneficial to victims of violence, as they are often the first point of contact that separating families with issues of family violence have with the legal system.

16.172 Chapter 32 discusses a number of benefits of specialised courts, or specialised lists within courts including greater understanding and sensitivity about the context of family violence, improved victim support and the development of best practice to address the needs of all participants in the system. In addition, specialised lists can also build cohorts of legal practitioners with specialisation in family violence—rather than a siloed approach in which lawyers specialise in criminal law or family law.

Training and education

16.173 It is clear from submissions and consultations that one of the greatest barriers to state and territory magistrates courts exercising their current jurisdiction under the Family Law Act is a lack of knowledge and experience in family law on the part of judicial officers, legal representatives, police prosecutors and others involved in protection order proceedings.

16.174 The importance of training and education has been emphasised in a number of inquiries.^[174] In particular, the National Council to Reduce Violence against Women and their Children (National Council) recommended the development of a national education and professional development framework for all people involved in the legal systems that deal with family violence.^[175]

16.175 As part of training for judicial officers, the National Council recommended the development of a model bench book that would provide information on the social context and case law relating to family violence and sexual assault.^[176]

16.176 In the specific context of the exercise of family law jurisdiction by state and territory courts, the Commissions proposed that the Australian Government—in conjunction with state and territory governments, the National Judicial College of Australia, the Judicial Commission of NSW and the Judicial College of Victoria—should provide ongoing training and development for judicial officers in state and territory courts who hear proceedings for protection orders on the exercise of their powers under the Family Law Act.^[177]

Submissions and consultations

16.177 Stakeholders generally supported the need for training and education for judicial officers on the exercise of their family law jurisdiction.^[178] However, some submissions noted that other participants in the legal systems dealing with family violence would also benefit from training. In particular, ensuring that legal practitioners involved in protection order proceedings and police prosecutors had knowledge of family law would mean that they are better able to assist the court in the exercise of its family law jurisdiction.^[179]

16.178 In addition to training about relevant family law provisions, some stakeholders submitted that judicial officers and other participants in protection order proceedings should be supported with education about the nature and effect of family violence. For example, Legal Aid NSW and the Women’s Domestic Violence Court Advocacy Service Network submitted that:

judicial officers need to undertake significant domestic violence training to ensure that they understand the complex nature of this violence. This will also ensure consistency across the various jurisdictions and courts. To enable judicial officers to make educated and informed decisions they need to understand the dynamics of domestic violence and the impact of this violence on victims and their children.^[180]

16.179 The Magistrates’ Court Victoria did not consider that the government should provide training and education for judicial officers, and submitted that judicial education should be provided by the courts themselves or educational authorities set up for that purpose.^[181] The Court noted that these colleges provide judicial education on a broad range of jurisdictions and areas of law, and submitted that judicial education in family violence and family law should be supported with ‘national standardised education packages based on sophisticated data and up to date research’.^[182]

16.180 The Magistrates’ Court Victoria and the joint submission from Domestic Violence Victoria and others commented that, in addition to training, judicial officers would benefit from access to a common bench book that included resources and research about the social context of family violence to support effective decision making.^[183]

Commissions’ views

16.181 Training and education of all people involved in family violence matters is essential to efforts to promote the use of the state and territory courts’ family law jurisdiction to improve the safety of victims of family violence.

16.182 The Commissions consider that regular training about the operation of s 68R and any new provisions of the Family Law Act that confer powers on state and territory courts would be particularly useful for judicial officers, legal practitioners and police prosecutors. Such training should also cover the considerations relevant when making protection orders and making or amending a parenting order. Training of this kind would raise awareness of the provisions and build confidence in legal practitioners and judicial officers to use these provisions to seek and make amendments to parenting orders in appropriate circumstances.

16.183 The Commissions also consider that judicial officers, court staff, legal practitioners, police and other professionals involved in family violence proceedings should also receive education about the prevalence, nature and effects of family violence. In particular, education programs should focus on the impact of family violence on children and the risk of family violence during contact and handover arrangements, as well as practical safeguards that can be used to ensure that these arrangements do not expose parents and children to family violence.

16.184 Bench books to assist judicial officers are an important part of training and education for judicial officers. Elsewhere in this Report, the Commissions have endorsed the recommendation of the National Council that a model bench book should be produced which would provide information on the social context and case law relating to family violence and sexual assault.^[184] Information in bench books could also include guidance for state and territory judicial officers on exercising jurisdiction under the Family Law Act to ensure that parenting orders and protection orders are consistent and do not compromise the protection of victims of family violence.^[185]