Specialised courts

In Australia, family violence courts now operate in NSW, Victoria, Queensland, Western Australia (WA) and the ACT. Such a court has also been recommended recently for Tasmania. Specialised sexual assault courts are much less common than family violence courts. A specialised child sexual assault jurisdiction has been piloted in NSW, and Victoria operates special sexual offences lists.

The first issue that arises for this Inquiry is whether specialised courts should be established more widely in Australia. One key benefit in terms of improving the interaction between legal frameworks is the greater integration and coordination of the management of cases in these courts. The Commissions consider that family violence courts offer many potential benefits, and this is supported by evaluations. In the Commissions’ preliminary view, state and territory governments should establish and foster specialised family violence courts in their jurisdictions.

Jurisdiction

Most specialised courts in Australia focus on criminal cases only.^[3] Only Victoria employs a ‘one stop shop’ model, which deals with all related matters within the jurisdiction of the Magistrates’ Court. There appear to be considerable benefits, from the perspectives of victims and families, in enabling specialised courts to address issues across different legal frameworks. Most judicial officers dealing regularly with family violence issues already have experience both in criminal proceedings and in protection order proceedings. The Commissions consider that, when establishing family violence courts, state and territory governments should establish courts which deal with both criminal proceedings and protection orders in relation to family violence.

The Commissions’ preliminary view is that there is much advantage in the multi-jurisdictional model used in Victoria, which includes civil and statutory claims for compensation, as well as child support and family law matters (to the extent to which such jurisdiction is conferred on the state or territory courts). The Commissions are interested in hearing from stakeholders on the feasibility of multi-jurisdictional courts. The Commissions propose, at this stage, that state and territory governments should review whether specialised family violence courts should exercise other jurisdiction relevant to family violence.

The Commissions also consider that, in order to maximise the potential of specialised family violence courts and improve access to such courts, a mechanism for referral from general to specialised family violence courts should be established. Referral should be based on principled criteria, such as concurrent or multiple claims or actions in relation to the same family. A more general discretion could be conferred, such as where a judicial officer considers it necessary for exceptional reasons. There may be other criteria demonstrating a particular need for the use of specialised family violence courts. The Commissions are interested in hearing stakeholder views on this issue.

Features of specialised family violence courts

The features of specialised family violence courts vary markedly from jurisdiction to jurisdiction. The Commissions’ preliminary view is that, at a minimum, specialised family violence courts should have a number of features.

First, all judicial officers in a family violence court should be especially selected for their roles. The attitude, knowledge and skills of a judicial officer are critical to the success of such a court and it is important that selection be based on these criteria. The mechanisms for selection, however, should be determined by those establishing the court, in close consultation with stakeholders.

Secondly, specialised and ongoing training on family violence issues is key to ensuring a shared understanding of family violence within the court. Ideally, this training should be provided to all staff, as was done with the Victorian FVCD. At a minimum, training should be provided to the following key participants: judicial officers, prosecutors, registrars, and the police who appear in those courts. If there are specialised lawyers in the court, they should also participate in this training.

Thirdly, as stakeholders have emphasised, victim support workers play a key role in ensuring the success of such courts. Such workers may be employed directly by the court or a community organisation may be funded to provide such workers. The Commissions are also of the view that there would be significant benefit in providing support for defendants but, given the impact on resources, they do not propose that this be required for all specialised family violence courts.

Family violence courts should also have special arrangements for victim safety at court, such as a separate waiting room for victims, separate entrances and exits, remote witness facilities, and appropriately trained security staff. Finally, the Commissions propose that family violence courts should have mechanisms for collaboration with other agencies and non-government organisations. Those establishing such courts should determine precisely what kinds of mechanisms are desirable for each court, in close consultation with stakeholders.