Spring Forum: 'Lessons from the AFCC Conference'

 

The VFLPN (Pathways) Spring Forum entitled “Lessons from the AFCC Conference” emerged from Pathways sponsoring Alan Baker and Laura Villemagne-Sánchez to attend the AFCC Conference in Brisbane with the intention of having them report back to a Melbourne audience.

 

The AFCC (Association of Family and Conciliation Courts) Conference was themed around “Assessing and determining children’s best interests in the flood of family violence claims” and featured a program of workshops and plenaries to that affect.  Judge Harland, Vice-President of the Australian Chapter of the AFCC also agreed to participate in the forum as a representative of the AFCC.

 

This event was an opportunity for the members who were unable to attend the AFCC Conference to learn of selected workshops and its overall message. The event was organised as a panel style presentation with speakers Alan Baker and Laura Villemagne-Sánchez speaking for 30 minutes each, and Judge Harland speaking for 15 minutes to summarise major issues. The event concluded with a 15 minute audience discussion. 

 

Alan Baker

Alan Baker, a Family Dispute Resolution Practitioner from CatholicCare, was the first speaker of the event. He presented on five of the events from the AFCC Conference, which have been summarised below:

 

Domestic Violence, Child Abuse, Abduction. Oh my!!

In summary of this workshop, Alan outlined the types of family violence, identifying them as separation instigated, situation instigated and coercive controlling violence and discussed the benefits of screening. Past behaviour is the most robust predictor of future violence, it is important screening must be ongoing as perpetrators might not fully disclose violence from the outset.

 

Stalking and Family Violence: Course, Nature and Interventions

This workshop discussed stalking within a family violence context. Stalking was defined as: repeated and unwanted intrusions and communication, it is an accumulation of acts and is often a continuation of a pattern of coercive controlling behaviour.  Victims of stalking are 75% female and 25% male and are predominantly in the 18 to 30 age bracket. 15% of women in Australia have been stalked.

 

Perpetrators are mostly in higher socio-economic groups, one third are violent and blame their victims for their behaviour. Stalking has physical and psychological effects on the victims instilling in them feelings of fear, distress and powerlessness which often has implication for family, friends and employment.

 

Children are sometimes used as an excuse by a perpetrator to stalk the victim, as they can be a means of unavoidable ongoing contact between stalker and the victim. Stalking can impact on the victim’s ability to effectively parent. Children can live with the fear their parent is experiencing.

 

The Refugee and Asylum Seeker Context:

The workshop discussed the lived experience of Asylum Seekers and Refugees. Insight was provided into their experience and fear of being tortured, their loved ones being tortured, the loss of their possessions, culture, friends and family, as well as the trauma and powerless they experience.  

 

Children of refugees share these experiences and their parents are unable to provide attachment bases due to their own trauma which impacts on their development.

 

The session reminded us, it is important not to judge or make assumptions as their lived experience can be multi-faceted and ongoing. Our responses should be respectful but nevertheless enforcing Australian laws and community expectations. A Human Rights context should be the start of our responses, their right to safety and equality. Their culture and history should not be used to justify ongoing harm. A systematic approach should be implemented with focus on children, families and communities.

 

Treatment outcomes for Those Who are Violent Toward Family Members

In this workshop appropriate support services and treatment options were discussed. The focus was on male violence at moderate to high levels in which it was identified that many male perpetrators are also violent in other parts of their lives, they operate under the belief of the right of males to use violence.

 

There is a long way to go in developing effective treatment options which have positive long term effects. Prisons only provide short term protection for the victim; they’re not effective in the long term and are not a place where men learn to respect women. Publically naming and shaming perpetrators has not been found to be effective. Finally, anger management, cognitive skills and multimodal programs (looking at attitudes, self-regulation and lifestyle issues) have only a 30% positive effect.

 

Alan concluded his summary of this session by referencing the sentencing advisory council report which provided similar conclusions. Individuals sentenced for breaching a family violence order had a 53% reoffending rate over 5 years, 86% of individuals sentenced for breaching a family violence order were male. 82% of victims of male offenders were a current or former partner.

 

Flashpoints in Family Law: When Current Models of Risk Assessment Fails

The topic of this session discussed the difficulties and impreciseness associated with risk assessment and predicting danger. Analysing post event is one thing, predicting risk and danger is an imprecise science and notoriously difficult.

 

The session highlighted the stress and anxiety related to participating in the family law world in that the court process can tear a person’s world apart. Court decisions have such profound effect on how individuals parent their children, and on their financial situation now and into the future.

 

Overall men do better emotionally during a relationship than women do, and therefore have more to lose. Consequently, men are hit harder emotionally by separation, and emotionally do worse than women. The effects on the man can include grief, shock, anger, jealousy, obsession, hatred and paranoia.

 

Loss of power is a big part of the separation process. Perpetrators might have had power due to a coercive and controlling relationship, separation results in the loss or diminishment of that power. Outsiders (typically Judges and Lawyers) have control over what is going to happen to the perpetrator’s life, their children and their money.

 

The response of the perpetrator tends to be anti-social, involve revenge seeking and the use of power to reassert control. Narcissism is also common with thoughts such as ‘how dare this person do this to me, they need to be punished!’

 

Screening processes such as DOORS and AVERT are important tools to use, it is also important to look at a person’s history and continue to use screening tools throughout client interactions.   

 

Alan summarised his presentation by citing the aims of the Royal Commission into Child Abuse is to facilitate truth telling, stating that:

 

“A problem cannot be effectively understood and effectively responded to unless the truth has been told about the problem itself – its size numerically, what it actually involves, its effects, previous ways of responding to it etc.”

 

He finished by  noting that the truth about family violence is horrible and shameful, and that the challenge for professionals and society is to name and own the problem as it is, and to then work together to develop and implement compassionate and just responses.

 

Laura Villemagne-Sánchez

 

Laura Villemagne-Sánchez Laura Villemagne-Sánchez, a lawyer with Forte Family Lawyers and former Project Officer for the VFLPN, reported on:

 

Coordinating responses: Plugging into the System

In this seminar the speakers sought to identify the difficulties in assessing and dealing with different legal, welfare and criminal systems, the gaps between each system and how these systems can work better.

 

The difficulties assessing and dealing with different legal, welfare and criminal systems were presented from the perspective of the aforementioned systems. The police, representing the criminal systems perspective, raised concerns about being caught in the position of having to deal with vulnerable people and trying to elicit evidence for criminal matters. Small gaps in evidence do not mean that it is not credible. The differences in responses between the ‘real victim’ and ‘perfect victims’ were highlighted as well as concerns for police straddling two different legal systems: the criminal and civil jurisdictions.

 

Psychologists, representing the welfare side of the discussion, raised issues associated with re-victimisation in that the victim must retell their stories repeatedly in different forums and then have their story used against them. Often, the victims are left to deal with problems associated with the ‘perfect victim’ conception. The legal system likes consistency of evidence but psychologically speaking this is not possible – especially when considering something said in the heat of the moment versus later recollection. Affidavits are viewed by practitioners as a satirized version of events so they tend to avoid reading the affidavit and base their assessment on interview and observation. The impact of “procedural stalking”, the using court system as form of intimidation and bullying of the victim were raised as a concern from a psychological perspective.

 

From the legal system’s perspective, the analysis of facts and their contexts were discussed. While all systems might deal with the same set of facts they deal with them in a specific context, while one fact may not be legally relevant it might be when considering the psychological impact on a victim. There is also a risk of the less important or subsidiary issues dominating the situation. Furthermore, there is a fear of someone gaining the information from a victim and not being prepared to share that information for fear of it being used again someone. Magistrates’ not being prepared to use powers under the Family Law Act to make parenting orders (in conjunction with family violence orders) was also noted as a difficulty from the perspective of the legal profession.

 

Gaps were identified in terms of the lack of common risk assessment frameworks and in terms of perpetrator accountability. Similarly, with privacy concerns and information sharing as exemplified by a discussion regarding the use of body camera evidence with the police preferring the real time evidence whereas practitioners raised concerns about only seeing a snapshot of one moment in time.

 

The session concluded with considerations of how the different systems (legal, welfare and criminal) can work together. The general consensus was education (increased training or awareness), more integrative service delivery and greater collaboration were the answers.

 

Children’s Best Interest Where There are Allegations of Family Violence: Does the Legislation Support Good Decision Making?

The discussion was framed within the backdrop of recent research, primarily;

* The recommendations of the Victorian Royal Commission into Family Violence.

* Family Law Council’s Report on Families with Complex Needs and the Intersection of Family Law and Child Protection Systems.

* COAG Advisory Panel on reducing Violence Against Women and their Children.

 

The need for legislative reform to support practitioners, decision makers, working parents and children where there are allegations of family violence was also a key issue of the discussion.

 

In terms of the prevalence of family violence, according to World Health Statistics (2013) one in three women experience intimate partner violence. Within Australia one woman is killed every week due to intimate partner violence and in Victoria it is the top cause for injury, disability, or death for women between the ages of 15 and 44. The national inquiry into domestic violence (2014) reported that children were present for 1 in every 3 police call outs involving family violence.

 

Courts are often dealing with a troubled minority using the system that are heavily entrenched and high conflict individuals. 70% of litigants do not use the court system yet those who do seem to be caught in the revolving door of family law (38% of respondents had prior judicial determinations in separate proceedings). The statistics suggest that the court is not helping, and that re-litigation rates are un-acceptably high. Issues raised in litigation revolve around family violence, substance abuse, protection issues, supporting of child’s relationship with the other parent as well as parenting capacity to meet the needs of the child. All are very complex issues. Internal contradictions within the Family Law Act were outlined by the session speakers, namely in that s 60I lists the risk of family violence as an exemption but not enough to displace the presumption of equal shared parental responsibility in s 61DA. The impact of family violence on parenting capacity was also discussed in terms of the stress, anxiety, PTSD for the victim, and the psychological implications for the child.

 

The need for legislative reform was highlighted with consideration to the 2006 and 2012 Family Law Act Amendments. The 2006 reforms featured the inclusion of s 60CC(2)(a) and (b) – meaningful relationship with both parents, and protection from harm respectively, which were identified as being representative of twin lobbies for the placement of children in shared parenting arrangements. Decision making was linked to time arrangements in a “one size fits all approach” which were not appropriate for those in the court system. Furthermore, the primary and additional considerations as interpreted by the Full Court (who have said that the additional considerations can have more weight than the primary) distract the focus from the child. While the 2012 reforms maintained the shared parenting provisions, the protections against family violence were strengthened with the prioritization of protective provisions and the extension of the definition of family violence. Nevertheless, the rest of the Act remains the same in promoting shared parenting across its objects. The Act as it is was identified by panellists as being political, it tries to communicate messages of social change but fails the child, the very thing the Act was designed to protect.

 

A number of proposals were made by the panellists on how to best deal with the issues presented. The need to simplify and shorten the Family Law Act by removing the primary and additional considerations and instead focusing on the child’s current development, safety and the capacity of parents to meet them. The inclusion of provisions to protect from persistent litigation was also suggested. A need to improve coordination between state and federal jurisdictions was identified for example, Magistrates using their powers under the Family Law Act, information sharing and knowing which information to share. A call for improved risk assessments was noted.

 

Domestic and Family Violence and Self-Represented Litigants: Can we address the Power Imbalances?

The final session Laura reported on involved addressing power imbalances in cases of domestic violence were litigants are self-represented. The speakers acknowledged the inherent power imbalances already present in circumstances of family violence and how Court processes may be exploited to the benefit of the perpetrator. The session also noted existing techniques and mechanisms that can be used to reduce exploitation and to protect the victim.

 

The introduction of the session discussed the right to a fair trial and relevant case law. There is no common law right to legal representation, and while the lack of representation might amount to a lack of a fair trial whether or not this has occurred will be linked to the facts of the case. It is significant to note that more than 50% of litigants in the Federal Circuit Court are self-represented.

 

The process of cross examination is an inherent part of the trial procedure and all allegations should be tested. However, the imbalance is two–fold when considering that the perpetrator has the right to have the allegations tested appropriately through cross examination (although they are not versed in the art) versus the trauma caused to the victim being crossed examined. And for the self-represented alleged victim who wants the findings of domestic violence to be proven and having to prove it themselves, versus the trauma of being confronted by the perpetrator. The issue becomes the right to a fair trial versus the right to reduce re-victimisation, distress and humiliation. The Australian Law Reform Commission in their National response to Family Violence suggested that in criminal matters self-represented litigants should be prohibited from cross-examining and that the court appoint a lawyer to do it. Instead, the panel suggested that they might as well just fund representatives for the parties if the resources are going to be used for a public cross-examiner. Similarly, in a family law context, family violence is not a single issue and it would be impractical to have a cross examiner parachute in to question about family violence and then leave. The result would be that the intricacies linked to the violence are then left underrepresented. The Productivity Commission report on Access to Justice Arrangements suggested a prohibition on self-represented litigants from cross–examination in cases of family violence. Instead, the panel suggested a system in which judges do all the questioning and gathering of evidence within a limited mandate (similar to the inquisitorial system that exists in civil law countries). If that option were to be adopted it would result in significant time delays and within the present system judges are not passive. Judges within an adversarial system are not passive and do still have a role to play in combating these issues.

 

There exist a number of legislative techniques and devices which can be employed to protect litigants. Generally speaking, clients do not need to be at interim hearings – they can be in chambers and be readily available if necessary. Referring clients to services to help prepare them for Court, for example, counselling to help them face the perpetrators or familiarity with the Court environment through the Court Network might also be utilised.

 

The Family Law Act has a number of provisions built within division 12A that may be used to correct power imbalances:

* Section 69ZP – powers under this division can be exercised on the court’s own initiative.

* Section 69ZN – principles for conducting child relating proceedings

 - Principle 2 – s 69ZN(4): court to actively direct, control and manage conduct the proceedings.

 - Principle 3 – s 69ZN(5): proceedings to be conducted in a way that will safeguard:

           The child concerned from being subjected to or exposed to abuse, neglect or family violence,

           The parties to the proceedings against family violence.

* Section 69ZQ – general duties.

* Section 69ZQ(1)(b): decide order of issues – if the family violence issue is dealt with at the beginning a lot of the linked issues will fall into place.

* Section 69ZQ(1)(e): make appropriate use of technology (videolink, barriers).

* Section 69ZQ(1)(h): deal with the matter where appropriate without requiring the parties physical attendance at court.

* Section 69ZR – power to make determination, findings and orders at any stage of proceedings (Helps focus the proceedings).

Section 69ZX – court’s general duties and powers relating to evidence (To its presentation (oral or written)).

Section 69ZX(2)(i) – limiting or not allowing the cross examination of a particular witness. 

 

Similarly, the Evidence Act 1995 (Cth) also features a number of provisions to protect witnesses during cross examination:

* Section 26 – court’s control over questioning of witnesses

* Section 26(d) – the presence or behaviour of any person in connection with the questioning of the witness.

* Section 41 – Improper questions

- Mandatory language: court must disallow questions if:

          - unduly annoying, harassing, intimidating, offensive, humiliating or repetitive, belittling, insulting.

          - based on stereotype: sex, race, age, mental etc.not based on whether objection raised.

* Section 135 - general discretion to exclude evidence (unfairly prejudicial)

          - Excluding prejudicial value as against the probative value.

* Section 136 – general discretion to limit evidence.

 

Laura supplemented her summary of the session with her own arguments regarding vexation litigation which she identified as balancing two things: the right to be able to seek assistance of the court and mitigating procedural abuse. The provisions provide that an Officer of the Court cannot participate in litigation for use of abuse of process or for an improper purpose, cannot assist in the ‘aiding and abetting’ the financial or procedural abuse against a victim of family violence, or the ‘tit for tat application’ use of the applications for the purpose they were designed for. The case law prior to the Vexatious Litigant amendments, March & Winch (2013) FamCAFC 177 [131] resulted in an all or nothing approach in declaring litigants vexatious. The previous vexatious provisions set a high standard and courts were reluctant to stop proceedings all together. In June 2013 a number of amendments were made to the Vexatious provisions in section 118 of the Family Law Act 1975 (Cth) – regarding frivolous or vexatious proceedings, in that anyone with an interest in the proceeding can apply (Independent Children’s Lawyers for example). The provisions in section 102QB which relate to making vexatious proceedings orders were also amended. Laura outlined section 102QB in which a vexatious proceeding order can be made if proceedings have been frequently instituted and if the proceedings are vexatious (as per the definitions in section 102Q), and explained under s 102QB(2) the types of orders that can be made in response. The case Pedrana & Roberts (No 2) [2015] FamCA 231 (2 April 2015) was summarised in which the Court’s interpretation of frequently, vexatious and reasonable grounds as per their use in section 102QB were noted.

 

The session concluded with the panellist proposing solutions to reduce power imbalances. They were: the creative use of the legislation, such as those identified above, to create orders that protect, and the importance of planning and preparation to make the trial process the least unpleasant for victims. The importance of education in schools about gender roles was also highlighted.

 

Laura concluded her presentation with reference to major themes from the conference. She identified the importance of plugging into the system by being aware of frontline and support services. The importance of sharing information between each profession, being aware of the limitation of the legislative framework and being vocal about the need for reform and being aware of power imbalances. She finished by stating “it is the knowledge around family violence, about the services available to assist those in need and the wide range of skills we can learn that can only help rather than hinder. Sharing information about our professions to aim for effective integrated service delivery.”

 

 

 

Judge Alexandra Harland

 

Judge Alexandra Harland of the Federal Circuit Court and Vice President of the Australian Chapter of the AFCC concluded the event by discussing the importance of the AFCC and the key messages and themes from the conference.  Judge Harland talked about the fact that there is lots of misinformation in the area of family law, and conjecture over what the courts are responsible for. Judge Harland questions whether we in fact over-rely on trying to categorise things. Although it can be useful in some respects, we need to focus on the experience of the family, and the children in that family.

 

Judge Harland went on to discuss difficult cases. She gave an example of a mother saying that although she consented she felt that she should have because the father had been dangerous. The father was entitled to bring proceedings. The mother was angry, fearful, and did not present as the ‘perfect victim’.

 

The father was very good at saying the right things and superficially came across as reformed. The only way to deal with a situation such as this is by having a hearing. The judge had it in two courts on two different levels of the court. Judge Harland noted that this is not possible in Dandenong because all the courts are on one level, so she brings them to Melbourne if it is needed. This is entirely possible to do if the court has advance notice. Judge Harland noted the importance of reassuring the parties that they are just allegations and that until tested nothing is decided.

 

Judge Harland also expressed her frustration at the continued spending on consultations and reports that seem to never eventuate into action being taken. Money spent on reports and consultations could just be given to the courts instead.

 

The Judge commented that in situations where she has one unrepresented litigant and one who is represented, if she uses two courtrooms due to allegations of family violence, then she will often have the unrepresented person in the room with her, but that she is not sure what she will do in the situation that both parties are unrepresented as she has never been in this situation.

 

Q & A

 

The first questions was regarding the suggestion that State Magistrates courts be used more in family law, the questioner suggested that they are nasty places.

The response was that it was important to educate Magistrates to use power that they already have where it is relevant. However the greatest challenge is that the Federal system doesn’t know what the state is doing. At the moment the courts need to rely on litigants telling them if there are any other orders. However the idea of Magistrates using the powers they already have relating to family law may be too difficult as many magistrates have little if any experience even though they may have powers. They may also have 70 IVOs on a list and therefore may only have 5 minutes per person. Can anything be done to develop ongoing collaboration?

 

The second question had to do with s 60i certificates. The questioner stated that there is a lot of pressure to issue certificates very quickly, and without evening seeing both the parties.  There was acknowledgement that this is an issue, and is perhaps increasing, but that it was important to follow due process.

The third question was; is there any realistic chance of making changes to the Family Law Act? The response from the panel was that people’s expectations and understanding is different to how things really are, and this is very difficult. However the judge does not see anything happening any time soon.

 

The final question was about the idea of intervention orders that are made by consent in the state court, and how Judge Harland felt about this. There are applications that on the face of it have no base. This is a very poorly resourced area.

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