Family Law: 18 March 2019
Family violence is dangerous and growing issue in Australian society. It feels as though not a week goes by where we do not hear of a new horrifying situation involving family violence resulting in the death or near death of the victim.
These ever continuing tragedies highlight the almost complete failure of the 'system' to protect victims from exposure to family violence.
On 22 February 2015, the Royal Commission into Family Violence  was charged with what seemed to be the almost impossible task of enquiring into, and making practical recommendations on how Victoria's response to family violence can be improved.
More specifically, the Commission was tasked with looking at the most effective ways in which to prevent family violence from occurring, improve early intervention, better coordinate community and government responses to family violence and to make practical recommendations on how to achieve these outcomes.  Some 13 months later the Commission presented its 2,083-page report to the Victorian Government with 227 recommendations.
The focus of this article is on the recommended development and implementation of technology within the system as well as the relationship between the state and federal courts. While the Commission makes many other excellent recommendations outside these two specific areas, these areas are of significant importance to assist and protect victims when they enter the court system and throughout their court experience.
It is important to explore the correlation between the state legislation and the Family Law Act (FLA) as well as the implications for parties with matters in both jurisdictions. As identified by the Commission and practitioners, these miscommunications and lack of understanding between the two jurisdictions is an issue and needs to be addressed.
Implementing new and building on existing technology will assist the system in responding more effectively and in a timelier manner to victims of abuse. If done correctly it can also aid in projecting victims when they are entering the court system.
Organisations providing services to people involved in family violence 'collect and use a wide range of personal information for a variety of purposes'.  Sharing of such valuable data is critical in protecting victims as well as holding perpetrators accountable.  If information about perpetrators is not shared or made available to other agencies, victims are left vulnerable.
Mr Scott Widmer, Executive Director, Service Design and Operations Division of the Department of Health and Human Services, gave evidence to the Commission regarding the importance of information sharing. He stated that information sharing 'is necessary to assess and manage the risk to a victim's safety and, in particular, to prevent or reduce the risk of further harm'. 
The Charter of Human Rights and Responsibilities Act  protects the right to privacy and establishes that if an organisation proposes to collect and share personal information the rights of the individual must be considered. However, the commissioner for Privacy and Data Protection noted that 'the right to privacy does not trump the right to personal safety, Victorian privacy laws are written to reflect that'. 
The Commission acknowledges that while every situation is different, family violence is not usually a one off occurrence. It usually manifests in patterns of behaviour that escalate to a point where either the cycle starts again or it ends either by death, intervention or someone leaves the situation. Having reviewed data collected from the Australian Bauru of Statistics the Australian National Research for Women's Safety reported that, since the age of 15, women who had experienced multiple incidents of physical assault by a male partner, two thirds reported that the assaults were all perpetrated by the same man. 
The Commission has made recommendations to create a specific family violence information-sharing regime within the next 12 months.  It recommends that the State government establish a 'secure Central Information Point' that can be accessed by Victoria Police, court (registry) staff, Department of Health and Human Services, and the Department of Justice.
A summary of the information in this database should be made available to such services as the recommended Support and Safety Hubs  and the 24-hour crisis telephone service to enable effective assessment and management or risk in individual cases.  It is also recommended that the state government 'examine options for the development of a single case management data system to enable agencies to view and share risk information in real time'. 
The challenges that face the information sharing policy include the fact that legislation and policy surrounding information sharing is restrictive and complex and the reliance on outdated IT systems. 
Recommendation 10 suggests that the State government should expand on an already existing website within the next two years. The website should be relevant to 'victims of all forms of family violence'  including those who face barriers to obtaining help, 'families, friends and community networks, to help them recognise family violence'  and provide information on how to support victims in both the short and long term.
Recommendation 63 suggests that the Magistrates' Court should establish an e-registry as a central management portal. Further, the Magistrates' Court is to 'roll out an online application form€¦ for all applications for a family violence intervention order'.  This type of system has been proven to work  and should be encouraged. It is beneficial in this situation for a number of reasons; court staff can tailor the information they require to make an assessment of a situation; it goes hand in hand with the proposed information sharing system; and it removes applicants from the court itself.
In the submissions of Women's Legal Service Victoria it was submitted that duty lawyers and court staff fear for the safety of applicants as their perpetrators are often verbally and or physically abusive, to the extent that Personal Safety Officers are called.  Having an online application and registry system as well as enabling applicants to appear by video link from a different location would prevent these types of situations from occurring and reduce further violence.
Throughout the consultation process for the Commission, it has been recognised that there is a significant lack of communication and understanding between federal courts and state courts exercising jurisdiction under the FLA.
The Commission recommends that the state government ensure that the Magistrates' Court have the functions of a Family Violence Court Division court within two years. These courts should include specialist court staff, specialist Magistrates, police prosecutors, advocates and remote wireless facilities for applicants.  It is also recommended that its jurisdictional power should be drawn from an amendment to section 40 of the Magistrates Court Act  to include the power to make parenting and property orders under the FLA.  All matters relating to Family Violence should, after the establishment of such a court and subject to exceptional circumstances, be heard in this new specialised court. 
The goes on to recommend that the state government needs to take steps to ensure that the Magistrates Court and the Children's Court grant family violence intervention orders 'speedily and with due regard to the interests of justice and the safety of affected family members'.  In doing so the State government needs to consider transferring some of the Magistrates' Court jurisdiction to other forums, expanding the range of matters that can be heard on the papers and appointing more registrars to facilitate that.  The court should also look at whether the caseload of Magistrates could be better managed by transferring some matters to Neighbourhood Justice Centre's and delegating more authority to registrars. 
The writer takes some issue with these recommendations. While these recommendations on the face of it appear to be worthwhile, the reality is that many of them already exist in one form or another and funding remains an issue for the rest.
Let us look at what powers the court already has in relation to family violence.
Firstly, it is important to note that police officers currently have the power to issue Family Violence Safety Notices  before 9:00 am and after 5:00pm on a weekday and anytime on a Saturday, Sunday or a public holiday  with provisions the same as that of an Intervention Order and without the need for the matter to go before a court. The Safety Notice will last until such time as the matter can be brought before the court. 
When a matter comes before a court, the court also has a wide discretion to 'inform itself in any way it sees fit, despite any rules of evidence to the contrary'.  When considering whether evidence can be admitted or not, the test is whether it is just and equitable to do so or if the prejudicial impact outweighs the probative value. 
Secondly, when the Magistrates' Court makes an Intervention Order that is inconsistent with current orders made pursuant to the FLA, the court must use its power under s68R the FLA. This provides the court hearing the intervention order with the power to suspend Family Court orders to the extent of the inconsistency as well as the power to discharge the Family Court orders if a final Intervention Order is made and it is inconsistence with the Family Court order.
A suspension of Family Court orders will only operate for 21 days and cannot be extended.  However, in November 2015, the Government introduced to parliament the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 (the Bill). The Bill proposes changes to s68T of the FLA that deals with the court's power to vary or suspend Family Law Act orders on the making of an interim family violence order.
Of relevance is the Explanatory Memorandum in relation to this proposed change  which states
€œthe existing 21 day time limit can result in inconsistent orders about parent-child contact. For example, if a party is unable to have their parenting matter heard in the family courts within 21 days, the parenting order that was varied or suspended by the state or territory court is revived. This can result in two valid, yet inconsistent orders €“ an interim family violence order prohibiting or limiting the other party's contact with a child, and a parenting order providing for the party's contact with the child. This outcome has the potential to put children and their carers at risk of further family violence.€
When the Magistrates' Court makes such an order, the Applicant can then make an application to the Family Court to the have the order made indefinitely but unless a child is in danger, the matter is not deemed urgent and could take weeks to get on before a judge. This brings up the issue of delays and timeliness, an issue that will be discussed later on.
Ms Kim Southey, a barrister practicing in all aspects of Family Law, including child protection and family violence matters, is of the view that 'if state Magistrates' Courts and the Federal courts doing family law work were to work better and more cooperatively together, [a] common plan might be able to be implemented in a better and more productive way to help combat family violence'.  Bell J of the Supreme Court of Victoria discussed a similar view in AA v BB. 
The Commission only briefly touched on a proposal that could solve these inconsistencies. The framework for a proposed model law has been recently announced at the Law, Crime and Community Safety Council meeting in Canberra in November 2015. Tasmania led the charge for a National Domestic Order Model Law which is in the process of being referred to the Council of Australian Governments for agreement.
Recommending that some matters such as traffic infringements be transferred to another forum to ease the caseload of the Magistrate's Court seems not that well thought out. Again, while this proposal appears to be an ideal solution, the fact of the matter remains, where would these matters be heard? Would a new tribunal have to be established in order to deal with such matters? Where would it sit? Who would preside over such a Tribunal? Where would the staff come from? Where would the funding come from? It appears that the funds potentially earmarked for that recommendation would be better spent on more Magistrates and Federal Court judges.
The Commission conceded that '[t]here are a number of steps between applying for a FVIO and a final order being made. The Commission heard that the court process can be fraught with delays, including delays having applications heard, serving the application on the respondent, and delays in subsequent hearings'.  On the flip side, the Commission also heard that applications made by police are often 'brought too quickly, leaving victims little time to prepare for the consequences of an order'. 
When giving evidence, Ms Alice Cooney, a former civil advocate, told the Commission that there can be delays of up to three months between first mention and directions hearings and contested hearings are often scheduled for a month after directions.  The Law Counsel submitted that it is not uncommon for a final hearing to be listed some six months after the initial hearing. 
Recommending that registrars be given more power to hear certain matters is just irresponsible. Under this recommendation registrars are effectively being made into quasi judges who may have the ability to hear ex parte applications and possibly even on the papers. This recommendation arguably undermines the notion of an adversarial trial, one of the ideals that underpin our system of justice.
While it is obvious that the time taken to deal with these types of cases is far too long and not appropriate given the risks to a life, the recommendations given by the Commission in this regard are not, in the writer's view, the answer. While one does not want to appear heartless, to move Magistrates from their current role into a new list would create new and different stresses on an already stretched system.
As discussed above, moving certain types of matters to a different forum will again create different stresses in different areas. A reshuffle is not the answer. A brand new Justice Centre sits out in Moorabbin with six courtrooms, but on any given day three may be empty because there are no Magistrates to sit in them.
Overall, the Commission has done a good job in making recommendations on how to deal with this seemingly ever-growing problem of family violence. Any exposure to the issue is good exposure; publicly condoning the atrocious behaviour of some is important.
The Andrews Government has announced that it intends to implement most, if not all, of the recommendations made by the Commission. Some of the legislative recommendations may have been overlapping of some already existing laws and some of the funds spent on enquiring into that area could have saved and spent on other things, like hiring new Magistrates or Judges.
Enquiries into a model law system would solve all of these issues, something that interestingly the Commission touched on ever so briefly.
On the other hand, the recommended development in technology is important and something that the courts really need to look at. Any way to provide a safer and more expedient environment for victims should be reviewed.
For more information on dealing with Family Violence, please contact our Family Law Team on 03 8600 6080.
 State of Victoria, Royal Commission into Family Violence: Summary and recommendations (2016) Parl Paper No 132 (2014€“16 1
 While no Family Court or Federal Circuit Court Judges actually gave evidence at the Commission, both courts did in fact lodge submissions. However two Victorian Family Law Accredited Specialists did give evidence on the day that the Commission considered the overlapping jurisdictions of family law and child protection law.
 2006 (Vic)
 Recommendation 5
 Recommendation 37
 Recommendation 7
 Recommendation 9
 Recommendation 74
 Through such e-filing registry's as RedCrest in the Supreme Court, an initiative that will see the Supreme Court paperless within the next 2 years, and The Federal Court and Federal Circuit Curt eLodgement and eCourtroom system.
 Page 35
 Recommendation 60
 1989 (Vic)
 1975 (Cth).
 Recommendation 61
 Recommendation 62
 Recommendation 62
 Recommendation 62
 Family Violence Protection Act 2008 s24(f)
 S68T of the FLA
 https://www.attorneygeneral.gov.au/Mediareleases/Documents/FLB-Explanatory-Memorandum-2015.pdf, Page 33 and 34
 Kim pg, 29
  VSC 120