SUBMISSION TO FAMILY LAW COUNCIL

Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems

Name/Organisation

David Fanning

Magistrate

Neighbourhood Justice Centre

Collingwood,MelbourneVictoria

Contact Details

The views expressed in this paper are my personal views informed by my experience over the 8 years as the Magistrate of Australia’s only community problem solving court as well as my extensive experience as both a social worker and lawyer in the area of child protection and family law. The views expressed in this paper do not represent the views of the Magistrates’ Court of Victoria nor the Neighbourhood Justice Centre.

Introduction
  • The formation of the Family Court of Australia (the Family Court) represented a fundamental change in the federation concerning the law relating to children.This saw the fragmentation of responsibilities across State and Territories (States) and Commonwealth jurisdictions with ‘private’ family law becoming a federal matter enacted through the Family Court and ‘public’ family law the responsibility of States enacted through Children’s Courts. The consequence was to create a structural/jurisdictional barrier that works against a single cohesive system concerning the law relating to children. Overtime this barrier has grown in significance as courts are faced with responding to child protection matters within the context of increasingly complex family issues that can call for solutions across jurisdiction boundaries.
  • The States are responsible for the protection of children who are at risk of harm in the care of their families. This is enacted through State (intended here and elsewhere to also be referring to Territory) authorities (most usually ‘welfare’ or ‘child protection’ departments) and Children’s Courts. State legislation enables welfare ‘interveners’ (as well as in some instances State police officers) to bring matters before State Children’s Courts for adjudication.
  • Within Australia’s federal system, the protection of children has commonly been understood as a responsibility that primarily resides with the States because of the location of designated Child Protection programs but the reality is that the Family Court (intended here and elsewhere to also be referring to the Federal Circuit Court and the Family Court of Western Australia) also plays a substantial role in the protection of children.
  • Child protection is a fundamental responsibility of government. It is not only a responsibility of the States but also of the Federal government enacted through the Family Law Act.
  • The Family Court is responsible for determining arrangements for the care and parenting of children in the context of parental separation. The Family Court commonly deals with allegations about the safety, abuse and neglect of children as part of the disputes between separated parents when making parenting/custody and access orders.
  • For those not involved in the family law system, the Family Court can mistakenly be viewed as a venue for resolving parental disputes that at times involve issues relating to children rather than a the jurisdiction that has fundamental responsibilities for the protection of children similar in nature to the work of State Children’s Courts.
  • Families do not typically ‘voluntarily’ bring their own matters before State Children’s Courts but are compelled by State welfare authorities with coercive powers who are able to initiate proceedings in Children’s Courts. In contrast, a family member initiates Family Court matters ‘voluntarily’.
  • Whilst the mechanisms that bring families before State Children’s Courts and the Family Court are different, the substantive matters that must be resolved have become progressively more similar. Families who seek to resolve their parenting disputes post separation are increasingly affected by multiple and complex risk issues including child abuse and neglect, family violence and mental illness. Such family complexity and the associated risk issues for children has long been standard fare for State Children’s Courts.
  • Although the different legal systems relating to ‘private’ family law and ‘public’ family law have different primary aims and imperatives (Higgins & Kaspiew, 2011), the issues relating to children’s safety and welfare are common across the two systems.
  • The close relationship between the two parts of family law and the common issues that are dealt with in relation to determining the ‘best interests’ of children have been somewhat obscured in Australia due to the separate jurisdictional arrangements. In contrast, in England and Wales, there is a single family justice system which deals with both ‘public’ and ‘private’ family law within a unified court structure making legal solutions to cases with aspects of both more readily available. Similarly, in the USA, although a federal system of government, responsibility for both ‘private’ and ‘public’ family law rests with States which supports permeability as well as innovation with family courts also often having jurisdiction for an array of related matters such as family violence, juvenile justice, adoption, termination of parental rights, etc.
  • However, the reality is that Australia does have a jurisdictional separation between ‘private’ and ‘public’ family law and this is the context within which any reforms to enable greater permeability across the two systems and to build system wide coherence must take place.
  • The reference to the Family Law Council seeks comment on two mechanisms that may benefit families by creating greater permeability across the system - enabling transfer of matters between federal and state jurisdictions; and enabling family courts to exercise powers of relevant state courts, including Children’s Courts, and vice versa.
  • This submission as well as making comment on these options points to the relevance of a therapeutic problem-solving justice method to the Family Court as having the potential to modernize the court’s operation in respect to the protection of children.
  • Whilst the ability to transfer matters and cross vesting powers may hold important overall benefits to the coherence of the system across ‘private’ and ‘public’ family law, the vast majority of cases will remain to be determined in each jurisdiction and attention should not be lost on looking for means to enhance how these core responsibilities are enacted.
  • Problem solving justice has the potential to yield benefits for the Family Court relating to: identifying and responding to the safety and welfare of children;understanding and responding to complex spousal conflict; assessing parenting including the impact on parenting of various and possibly co-existing social problems; assessing future parenting capacity based on creating opportunities for change and assessing whether change is likely to be sustainable,thereby enabling better substantive outcomesas well as reducing the number of lengthy trials.
  • This submission contends that alongside such possible changes as the ability to transfer matters between jurisdictions and cross vesting powers, the Family Court could consider piloting a therapeutic problem-solving justice approach aimed at enhancing the court’s response to families with complex needs and strengthening the protection of children and the response to family violence. Trialing a problem-solving approach could demonstrate the potential to link the court with a range of services able to both assist families as well as provide broader expert information to judicial decision-makers.

Therapeutic problem solving justice

  • The development of problem solving courts represented a new approach to the delivery of justice when it was developed in America over two decades ago. The approach is now developing considerable momentum in Australia as a means of courts responding to an array of complex social and related legal problems.
  • Therapeutic problem solving courts are underpinned by a problem solving method which seeks to address the underlying problems of litigants/accused persons, victims and communities through the application of three organizing principles:
  • a problem solving orientation which is directed more broadly than individual rehabilitation
  • collaboration or the development of a joined up approach both within the justice system and with external service providers and community members
  • accountability which focuses on promoting compliance of litigants/offenders in addressing their problems and with interim and final orders, the provision of quality, tailored services to facilitate litigants/offenders in this endeavor and judicial monitoring of progress.
  • The problem solving justice movement initially found expression in the development of specialist courts. Broadly, four specialist models of problem solving courts initially arose – drug courts, mental health courts, domestic violence courts and community courts. Drug, mental health and domestic violence courts have specialist focus on each of these particular social issues. Community courts provide a combination of mainstream justice together with specialist responses to drug, mental health, domestic violence and other particular social issues within a defined geographic area. This means that community courts provide a much fuller range of justice services to a defined geographic area. Community courts have strong links to the network of services within the geographic area it serves and these services are involved in community building activities as well as the provision of service to individuals.
  • A problem solving focus can be used in non-specialist or traditional court environments either in part or fully. Depending on the demands of the particular jurisdiction, a problem solving approach is not necessarily the only method used. Indeed, one of the skills of the judicial officer is the ability to shift between problem solving and a more traditional courtroom methods, to see the potential of when to use problem solving and to have the skills to give effect to this method.
  • Problem solving justice initiatives, both specialist and employed in more traditional settings, are increasingly widespread and varied internationally but all share a common feature – at its heart, problem solving courts have an outlook that emphasizes outcomes over throughput. Problem solving courts focus on creating behavior change beyond the point in time of the resolution of the legal issues. It focuses on achieving better substantive outcomes that are sustainable over time and thus eliminate or reduce the cycle of matters coming back before courts.
  • Like all courts, problem solving courts must provide procedural fairness for litigants/accused persons and operate efficiently but this outcome outlook means that such courts seek not only to address the presenting issuesbut what sits behind them. Problem solving courts are not built on a naïve presumption that underlying problems will always be able to be immediately or necessarily addressed but provides for structured and purposeful opportunities for change. This has a positive impact for individuals and the communities within which they exist but also reduces the ‘churn’ within the legal system.
  • Therapeutic justice is a central component of problem solving. Therapeutic justice is given expression in two main ways. One relates to the judicial officer’s courtroom management and the other to the provision of services to the litigant/accused.
  • Problem solving courts orchestrate linking litigants/accused to services relevant to addressing the issues which have contributed to the court appearance. A vital component is the judicial officer’s ability to motivate and leverage the person’s own sense to agency for change. Regardless of the level of service offered, change does not occur without individuals themselves taking responsibility for change and making use of opportunities for change. The ability of problem solving judicial officers to promote change requires engaging with the person rather than equating them only with the sum of their problems.
  • Therapeutic problem solving justice is sometimes mistaken characterized as ‘soft’ justice and as ‘turning judicial officers into social workers’. In fact, problem solving courts originated in criminal jurisdictions with the policy of being ‘tough on crime; tough on the causes of crime’. Therapeutic problem solving court management is not about the judicial officer being ‘nice’, ‘sympathetic’, or ‘friendly’ – it is certainly not about a sentimental approach that has judicial officers leaving the bench to comfort or congratulate defendants. It is telling that many defense lawyers would rather have their client appear before a traditional court rather than a problem solving court as the method together with judicial continuity results in more sustained demands on their clients.
  • Judicial demeanor in a problem solving court, as in any other court, displays neutrality and objectivity but it is not passive and detached.
  • Therapeutic problem solving judicial officers require traditional legal skills, additional non legal skills and a mindset directed towards outcomes. The nature of the outcomes will depend on the jurisdiction.

The Neighbourhood Justice Centre (NJC)

  • The NJC is a multijurisdictional community court established in 2007 to service the City of Yarra, an inner municipality of Melbourne. It remains the only community court in Australia. The policy which informed the development of the NJC was to demonstrate a new and innovative way of responding to crime and other forms of social disorder, disadvantage and conflict within the City of Yarra. The municipality has had one of the highest crime rates in Victoria, contains the most densely populated areas in Australia and has a very high proportion of socially disadvantaged people. It is the home oflarge numbers of newly arrived families and individuals to Australia. The NJC was established as a therapeutic problem solving court and the Red Hook Community Court in Brooklyn, New York and the North Liverpool specifically informed its development.
  • The multijurisdictional community court is part of a broader community justice approach that emphasises the importance of engagement with the community on things like crime prevention and other initiatives that respond to the needs of the community and enhance the community’s confidence in the justice system. It delivers justice at a local level in the context of a defined local community.
  • The NJC court operates a number of jurisdictions: a Magistrates Court of Victoria with jurisdiction to hear all Criminal Division matters (except for serious sexual offences); Family Violence and Personal Safety Intervention Orders; a Children’s Court (Criminal Division); a Victims of Crime Assistance Tribunal (VOCAT); and a Victorian Civil and Administrative Tribunal (VCAT) which hears residential tenancy matters, guardianship matters and a range of civil disputes.
  • The suburbs of Fitzroy and Collingwood within the City of Yarra were developed on the land of the Wurundjeri people and whilst the number of Aboriginal residents has decreased over the years, it remains a significant meeting and gathering place for Aboriginal people. In response to the needs of the Aboriginal community in the City of Yarra and after Aboriginal Elders and service providers were consulted, the NJC instituted specific Aboriginal Hearing Days for which the Victorian Aboriginal Legal Service and Aboriginal support services are in attendance on site.
  • A Koori Justice Worker is employed at the NJC to provide cultural and spiritual comfort and case management services to Aboriginal people court and services as well as being a key figure in the Centre’s community engagement activities.
  • The NJC has a single courtroom and a single Magistrate. It is a high volume court (approximately 3,600 cases were finalised in the year 2013/14) which demonstrates the applicability of therapeutic problem solving not just to specialist courts with small listings such as a Drug Court..
  • A key aspect of the NJC model is the presence an array of justice services and social services staff located at the Centre which facilitates services operating in an integrated and coordinated way. These include – police prosecutors, Legal Aid and other legal advice services, drug and alcohol counseling services, family violence and victim support services, mediation services, Community Corrections and financial counselling services and mental health services. Volunteer services offering support are also a presence at the Centre.
  • Also central to the NJC model of problem solving justice is the Client Services Team whose members provide assessment, some treatment and referral services at the request of the Court as well as to residents who self refer for assistance. This team is the vital triage point providing advice to the court and linking those who appear before the court with relevant services. This team also manages the flow of information from these services back to the court.
  • It is mistaken to think that the NJC is a ‘Rolls Royce’ approach to justice that holds no lessons for other jurisdictions. This misconception can flourish in view of the array of services that are seen to be available to the court. The availability of these services in itself represents an innovation. A limited number of these services were funded at the establishment of the NJC. Most are co-located at the NJC through negotiation of the NJC service model with services already present in the City of Yarra who saw the benefit that would flow to service users through participation in the Centre’s innovative model and a co-located presence of their services at the NJC. All these arrangements are reflected in agreements negotiated between the NJC and each service. The NJC has also developed relationships with a range of other service providers within the City of Yarra that do not have co-located presence at the centre.
  • This has been a successful model of the NJC linking with other vital services and being able to benefit from their‘added value’.It holds valuable lessons for other courts interested in the idea of linking with services and the adoption of a community justice approach. Since the commencement of theNJC’s operation, crime has decreased in the municipality by 30 per cent, recidivism rates (both measured by actual reoffending and the seriousness of reoffending) has significantly reduced and the compliance rate of Community Correction Orders is consistently over 10 per cent above the state average.
  • The NJC is a model of justice that provides insights into innovation, application of therapeutic problem solving and how courts can link with other services.

Terms of Reference Questions 1 and 2 – transferring matters across jurisdictions and cross vesting powers of each jurisdiction to the other.