Responding to family violence

A survey of family law practices and experiences
Evaluation of the 2012 Family Violence Amendments – October 2015

4. Identifying and assessing harm and risk of harm

This chapter sets out the findings from the Survey of Practices relevant to the identification and assessment of family violence, child abuse and child safety concerns. It begins with a discussion of participants' reflections on the family law system's capacity to identify or screen for family violence and child abuse. It then considers participants' views of the extent of any effects that the 2012 family violence reforms may have had on the capacity of professionals to identify (or screen for) and then assess family violence and/or child abuse/child safety concerns. The discussion then focuses more specifically on changes in the screening and assessment practices of professionals since the family violence reforms, followed by professionals' assessments of their own capacities in these regards. To conclude, the chapter examines insights from the participants' open-ended survey responses about any changes to the ways in which family law professionals identify and assess family violence as a result of the family violence reforms, before a summary of the patterns emerging from the data discussed in this chapter.

4.1 The capacity of the family law system to identify and assess family violence, child abuse and child safety concerns

As discussed in Chapter 1, the family violence reforms set out to support parents to disclose concerns about family violence (and risk of family violence), child abuse and child safety, and to encourage practices that lead to the identification and assessment of, and response to, these concerns by professionals across the family law system.

This section first considers the views of participating professionals regarding the capacity of the family law system to adequately screen for family violence and child abuse. After setting out the general reflections of participant groups on this issue, the discussion considers participants' more specific views of the effects of the 2012 family violence reforms on professionals' capacities to both identify or screen for and then assess family violence and/or child abuse/child safety concerns.

4.1.1 The family law system's overall capacity to screen for family violence and child abuse

All professional participant groups were asked to reflect on the period of time since the introduction of the 2012 reforms and to consider the capacity of the legal system, lawyers and FRCs to screen adequately for family violence and child abuse in this post-reform context.

Table 4.1 indicates that while a substantial proportion (43%) of the aggregate sample of professional participants provided affirmative responses to the proposition that the legal system has been able to screen adequately for family violence and child abuse, 46% of the aggregate sample disagreed with this proposition (mostly disagreed: 32%; strongly disagreed: 14%). Looking more specifically at the responses of each professional group, the vast majority (65%) of participating judicial officers and registrars mostly or strongly agreed that the legal system has been able to screen adequately for family violence and child abuse, compared with substantially smaller proportions of lawyers (46%) and non-legal professionals (38%). In fact, non-legal professionals reported the highest level of disagreement, with 48% of professionals in this category strongly (16%) or mostly disagreeing (32%) that the legal system has been able to screen adequately for family violence and child abuse. While a smaller proportion of lawyers strongly disagreed (13%), a slightly greater proportion mostly disagreed with the proposition (34%).

Table 4.1: Agreement that since the 2012 reforms, the legal system has had the capacity to screen adequately for family violence and child abuse, by professional group, 2014
  Judicial officers Lawyers Non-legal Aggregated
No. % No. % No. % No. %
Notes: Professionals were asked: "Thinking about the period since the family violence reforms were introduced, to what extent do you agree or disagree that the following statements describe your view? The legal system has been able to screen adequately for family violence and child abuse". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Strongly agree 1 2.7 7 2.2 11 3.8 19 2.9
Mostly agree 23 62.2 140 43.8 99 34.0 262 40.4
Mostly disagree 7 18.9 110 34.4 92 31.6 209 32.3
Strongly disagree 1 2.7 42 13.1 47 16.2 90 13.9
Cannot say 5 13.5 21 6.6 42 14.4 68 10.5
Total 37 100.0 320 100.0 291 100.0 648 100.0

Comparative data from the Institute's Evaluation of the 2006 Family Law Reforms (Kaspiew et al., 2009) highlight that there were slightly higher proportions of affirmative responses in the 2014 participating lawyer sample on this question of the legal system's ability to screen adequately for family violence and child abuse, when compared with the 2008 Family Lawyers Survey. Table 4.2 indicates that 46% of the 2014 lawyer sample mostly or strongly agreed, as compared to the 43% of the participants in the 2008 FLS sample. Slightly lower proportions of the 2014 lawyer sample indicated that they mostly disagreed (34%) than in the 2008 FLS sample (36%) with almost equivalent levels of strongly disagree responses (2008: 13.5%; 2014: 13.1%). Similar proportions of participants in each sample were unable to express a view on this proposition.

Table 4.2: Comparative agreement by lawyers that the legal system has the capacity to screen adequately for family violence and child abuse, 2008 and 2014
  FLS 2008 Survey of Practices 2014
No. % No. %
Notes: Lawyers were asked in 2008: "Thinking about the period since the 2006 reforms, to what extent do you agree or disagree that the following statements describe your view? The legal system has been able to screen adequately for family violence and child abuse". Lawyers were asked in 2014: "Thinking about the period since the family violence reforms were introduced, to what extent do you agree or disagree that the following statements describe your view? The legal system has been able to screen adequately for family violence and child abuse". Percentages may not total 100.0% due to rounding.
Sources: Family Lawyers Survey 2008; Survey of Practices 2014
Strongly agree 8 2.5 7 2.2
Mostly agree 130 40.8 140 43.8
Mostly disagree 115 36.1 110 34.4
Strongly disagree 43 13.5 42 13.1
Can't say 23 7.2 21 6.6
Total 319 100.0 320 100.0

When reflecting on the capacity of lawyers to screen adequately for family violence and child abuse since the enactment of the family violence reforms, the majority of participating lawyers reported in the affirmative, with 51% mostly or strongly agreeing with the proposition (Table 4.3). These views contrast with the assessments of participating non-legal professionals, with only 14% mostly or strongly agreeing and a majority (53%) mostly or strongly disagreeing that lawyers have been able to screen adequately for family violence and child abuse. While 24% of judicial officers and registrars reported that they mostly agreed that lawyers have been able to screen adequately for family violence and child abuse, the views of judicial participants were less clear on this question, with the majority of these participants unable to express a view on this proposition (54%).

Table 4.3: Agreement that since the 2012 reforms, lawyers have had the capacity to screen adequately for family violence and child abuse, by professional groups, 2014
  Judicial officers Lawyers Non-legal Aggregated
No. % No. % No. % No. %
Notes: Professionals were asked: "Thinking about the period since the family violence reforms were introduced, to what extent do you agree or disagree that the following statements describe your view? Lawyers have been able to screen adequately for family violence and child abuse". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Strongly agree 0 0.0 9 2.8 5 1.7 14 2.2
Mostly agree 9 24.3 156 48.6 35 12.0 200 30.8
Mostly disagree 7 18.9 83 25.9 108 37.1 198 30.5
Strongly disagree 1 2.7 26 8.1 45 15.5 72 11.1
Cannot say 20 54.1 47 14.6 98 33.7 165 25.4
Total 37 100.0 321 100.0 291 100.0 649 100.0

With FRCs as the first port of call for many separating families, the reflections on their capacities to screen adequately for family violence and child abuse are of particular importance. Table 4.4 indicates that the vast majority of non-legal professionals (62%) reported in the affirmative, with only 19% mostly or strongly disagreeing (with this category of participants including professionals working in FRCs: n = 2). Positive, albeit less decisive responses, were provided by participating judicial officers and registrars (mostly agree: 22%) and lawyers (mostly agree: 26%), although a greater proportion of lawyers reported that they strongly (13%) or mostly (23%) disagreed with the proposition. Notably, 76% of the judicial officers and registrars and 36% of lawyers were unable to express a view, which suggests that there remains a significant level of uncertainty among these participants about the operation of FRCs.

Table 4.4: Agreement that since the 2012 reforms, FRCs have had the capacity to screen adequately for family violence and child abuse, by professional groups, 2014
  Judicial officers Lawyers Non-legal Aggregated
No. % No. % No. % No. %
Notes: Professionals were asked: "Thinking about the period since the family violence reforms were introduced, to what extent do you agree or disagree that the following statements describe your view? Family Relationship Centres have been able to screen adequately for family violence and child abuse". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Strongly agree 0 0.0 7 2.2 47 16.2 54 8.3
Mostly agree 8 21.6 82 25.6 134 46.1 224 34.5
Mostly disagree 0 0.0 74 23.1 36 12.4 110 16.9
Strongly disagree 1 2.7 43 13.4 20 6.9 64 9.9
Cannot say 28 75.7 115 35.8 54 18.6 197 30.4
Total 37 100.0 321 100.0 291 100.0 649 100.0

On this question of the screening capacities of FRCs, the comparative data available from the Institute's Evaluation of the 2006 Family Law Reforms (Kaspiew et al., 2009) highlights slightly higher proportions of strong disagreement in the 2014 participating lawyer sample as compared to the proportions of negative responses emerging from the 2008 FLS data. Table 4.5 indicates that 23% of the 2014 lawyer sample mostly disagreed and 13% strongly disagreed that FRCs had been able to screen adequately for family violence and child abuse, as compared to the 12% of the participants in the 2008 FLS sample who reported that they strongly disagreed and the 24% of that sample indicating that they mostly disagreed. Slightly higher proportions of participants in the 2014 sample indicated that they mostly or strongly agreed when compared with the 2008 sample (2008: 25%; 2014: 28%). On the other hand, slightly higher proportions of participants in the 2008 sample (40%) than in the 2014 sample (36%) were unable to express a view on this proposition.

Table 4.5: Comparative agreement by lawyers that FRCs have the capacity to screen adequately for family violence and child abuse, 2008 and 2014
  FLS 2008 Survey of Practices 2014
No. % No. %
Notes: Lawyers were asked in 2008: "Based on your experiences in the last two years, do you agree or disagree with the flowing statements: The Family Relationship Centres have been able to screen adequately for family violence and child abuse". Lawyers were asked in 2014: "Thinking about the period since the family violence reforms were introduced, to what extent do you agree or disagree that the following statements describe your view? Family Relationship Centres have been able to screen adequately for family violence and child abuse". Percentages may not total 100.0% due to rounding.
Sources: Family Lawyers Survey 2008; Survey of Practices 2014
Strongly agree 1 0.3 7 2.2
Mostly agree 78 24.5 82 25.6
Mostly disagree 77 24.1 74 23.1
Strongly disagree 37 11.6 43 13.4
Can't say 126 39.5 115 35.8
Total 319 100.0 321 100.0

4.1.2 The capacity of specific professional groups to screen for family violence and/or child abuse/child safety concerns

The discussion in the previous section examined professionals' general reflections on the capacity of the legal system, lawyers and FRCs to screen adequately for family violence and child abuse in the period of time since the family violence reforms were introduced. Participating professionals were also asked to consider, more specifically, whether these reforms had given rise to improvements in the screening capacities of judicial officers/registrars, ICLs, non-ICL lawyers, family consultants/single experts and FDR practitioners. It is these more specific findings that are considered in this section.

Figure 4.1 outlines the responses provided by judicial and legal participants in relation to each category of family law professional. Overall, approximately two-thirds of judicial respondents (66%) and three-quarters of lawyers (75%) indicated that the family violence reforms had led to some improvement in screening for family violence and/or child abuse/child safety concerns by judicial officers and registrars. More specifically, almost one-half (47%) of participating judicial officers and registrars reported that the family violence reforms had almost always (25%) or often (22%) led to an improvement in screening by their judicial colleagues. Participating lawyers also reported similar levels of confidence in the improvement of the screening capacities of judicial officers and registrars (almost always or often: 46%).

Figure 4.1: Legal professionals' views on the extent of improvement in screening for family violence and/or child abuse/safety concerns, by professional groups, 2014

Figure 4.1: Legal professionals' views on the extent of improvement in screening for family violence and/or child abuse/safety concerns, by professional groups, 2014. Described in accompanying text.

Notes: Legal professionals were asked: "In your experience, have the family violence reforms led to an improvement in screening for (identification of) family violence and/or child abuse/child safety concerns by: [each professional group]". Judicial officers/registrars: n = 36; lawyers: n=269-271. FC = family consultants; SEW = single expert witnesses. Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014

In relation to the screening capacities of ICLs, Figure 4.1 indicates that lawyers were the most positive of each of the surveyed professional groups, with 41% of participating lawyers indicating that the family violence reforms had almost always (16%) or often (25%) led to an improvement in screening for these risks or harm factors by ICLs. What emerges as particularly notable in these data is that one-half of participating judicial officers and registrars reported that they were unable to say whether the family violence reforms had led to an improvement in ICLs' screening capacities, although 22% reported that they considered that these reforms had almost always or often led to such improvements, with a further 22% observing that this was sometimes so.

The lowest levels of affirmative responses were made in relation to improvements in the screening capacities of non-ICL lawyers. Lawyers were once again the most positively responding participant group, with Figure 4.1 showing that 37% of participating lawyers indicated that this was often or almost always the case. A substantial minority (17%) of lawyers responded in the negative. Again, judicial respondents were, in large part, unable to express a view on this proposition (46%), although almost one-half of the judicial sample (43%) did report that they sometimes (29%) or often (14%) experienced an improvement in non-ICL lawyers' screening capacities.

In relation to non-legal professionals, family consultants and single expert witnesses in particular, Figure 4.1 indicates that lawyers were once again positive in their reflections, with 42% indicating that they often (28%) or almost always (14%) experienced the family violence reforms as leading to an improvement in screening. Judicial officers and registrars were also particularly positive in their reflections, with 39% responding that they had almost always or often experienced an improvement.

The vast majority (75%) of participating judicial officers and registrars were unable to express a view on whether the family violence reforms had led to an improvement in screening by FDR practitioners, although lawyers were able to provide significant insight in relation to this question. Over one-third of participating lawyers indicated that in their experience, the family violence reforms had often or almost always led to an improvement in screening by FDR practitioners. These data are particularly important in the context of previous research and analysis, including that of Kaspiew et al. (2009), the Australian and NSW Law Reform Commissions (2010) and Bagshaw et al. (2010) that have raised concerns about the effectiveness of screening and assessment practices in the FDR context. In particular, there were indications that FDR was proceeding with families for whom it was inappropriate, including in cases involving family violence, child abuse and/or child safety concerns.13 The Productivity Commission (2014) noted these screening issues and that measures such as screening tools and further training "will go some way to improving the delivery of FDR by Family Support Program funded providers [such as FRCs] in matters involving family violence" (p. 857-859). However, in the absence of further funding for the Coordinated Family Dispute Resolution pilot evaluated by the Institute (Kaspiew et al., 2012), the Productivity Commission also observed that "bigger questions remain about: how to ensure best practice FDR for cases involving family violence; the level of funding required to support this; and which service providers, or combinations of providers, should be funded" (p. 859).

Due to the length of the 2014 non-legal professional survey and the absence of this question in the 2009 Survey of Family Relationship Services Staff (FRSP services) (thereby eliminating any requirement to maintain consistent wording), participants in this category were simply asked to answer this question about improvements in professionals' screening capacities in the affirmative or negative. Figure 4.2 indicates that while 27% of non-legal professionals agreed that the family violence reforms had led to an improvement in screening by judicial officers and registrars, a substantial proportion (53%) were unable to answer this question, with the remaining 20% reporting that they did not consider that there had been an improvement in judicial screening capacities. Similarly, 28% of participating non-legal professionals provided affirmative responses when reflecting on whether the family violence reforms had led to an improvement in screening by ICLs. Again, a substantial proportion (54%) of this respondent group was unable to express a view on this proposition. Non-legal professionals were least positive in their reflections on improvements in the screening capacity of non-ICL lawyers, with 32% answering in the negative, although again, 53% reported that they were unable to answer this question.

Figure 4.2: Non-legal professionals' views on whether screening for family violence and/or child abuse/safety concerns has improved, by professional groups, 2014

Figure 4.2: Non-legal professionals' views on whether screening for family violence and/or child abuse/safety concerns has improved, by professional groups, 2014. Described in accompanying text.

Notes: Non-legal professionals were asked: "In your experience, have the family violence reforms led to an improvement in screening for (identification of) family violence and/or child abuse/child safety concerns by: [each professional group]". Non-legal professionals: n = 252-254. FC = family consultants; SEW = single expert witnesses. Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014

Figure 4.2 demonstrates that the highest proportion of affirmative responses was provided by participating non-legal professionals (62%) when they reflected on whether the family violence reforms had led to an improvement in screening by FDR practitioners. Of note, mediators and FDR practitioners constituted 29% of the non-legal professional participant sample for this item. A substantial proportion (37%) of these non-legal professionals (including 81% [n = 30] of family consultants and single experts) also responded in the affirmative about family consultants' and single experts' capacities.

4.1.3 The capacity of specific professional groups to assess family violence, and/or child abuse/child safety concerns

The discussion in this next section will consider whether the family violence reforms were regarded as leading to improvements in the capacities of family law professionals to assess risks or harm factors once they had been identified.

Figure 4.3 outlines the responses provided by judicial and legal participants in relation to each category of family law professional. It indicates that the highest positive ratings were related to the capacities of judicial officers and registrars, with substantial proportions of judicial participants (47%) and lawyers (44%) reporting that the family violence reforms had almost always or often led to an improvement in the assessment of family violence and/or child abuse/child safety concerns by judicial decision makers. Of note, these responses are somewhat less positive than those reported in the previous section in relation to judicial screening capacities. Further, close to one-third of participating lawyers (29%) responded that they only sometimes experienced this to be the case, although a smaller proportion of lawyers than judicial participants (14% cf. 17% of judicial officers and registrars) indicated that the reforms had rarely or never led to an improvement in judicial assessments.

Figure 4.3: Legal professionals' views on the extent of improvement in the assessment of family violence and/or child abuse/safety concerns, by professional groups, 2014

Figure 4.3: Legal professionals' views on the extent of improvement in the assessment of family violence and/or child abuse/safety concerns, by professional groups, 2014. Described in accompanying text.

Notes: Professionals were asked: "In your experience, have the family violence reforms led to an improvement in the assessment of family violence and/or child abuse/child safety concerns by: [each professional group]". Judicial officers/registrars: n = 35-36; Lawyers: n = 264-267. FC = family consultants; SEW = single expert witnesses. Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014

Consistent with response patterns of judicial and legal participants in the previous section, Figure 4.3 also depicts lawyers as the category of participants reporting most positively with respect to improvements in ICLs' assessments of family violence and/or child abuse/child safety concerns (almost always or often: 40%), with one-third of participating judicial officers and registrars also reporting that the reforms often or almost always led to an improvement in assessments by ICLs. A greater proportion of lawyers (14%) when compared to judicial officers/registrars (11%) did, however, report that the family violence reforms had rarely or never led to an improvement in assessments by ICLs, although more than one-third of judicial participants reported that they were unable to answer this question.

Figure 4.3 indicates that lawyers were again the professional group responding most positively when reflecting on whether the family violence reforms had led to improvements in non-ICL lawyers' assessments of family violence and/or child abuse/child safety concerns. One-third of participating lawyers indicated that this was often or almost always the case. A smaller proportion (18%) of lawyers indicated that the reforms had rarely or never led to an improvement in assessments compared to their responses regarding improvements in non-ICL lawyers' screening for these risks or harm factors. Judicial participants indicated in greater proportions that, in their experience, there had often (20%) or sometimes (26%) been improvements in non-ICL lawyers' assessment capacities.

Once again, consistent with the response patterns emerging in the data relating to improvements in screening by family consultants and single experts, Figure 4.3 indicates that judicial officers were also positive in their reflections on improvements in assessments of family violence and/or child abuse/child safety concerns by family consultants and single experts. Almost one-half of judicial participants (47%) indicated that in their experience, the family violence reforms had almost always (19%) or often (28%) led to an improvement in assessments made by family consultants and single experts. Over one-third of participating lawyers (38%) reported that the reforms had almost always or often led to an improvement in assessments made by family consultants and single experts.

The vast majority of participating judicial officers/registrars were again unable to express a view on whether there had been improvements in assessments made by FDR practitioners (75%), although lawyers were able to provide substantial insight into this question. One-third of participating lawyers indicated that, in their experience, the family violence reforms had often or almost always led to an improvement in assessments by FDR practitioners, with 27% indicating that the reforms had sometimes led to an improvement.

In contrast with these reported perceptions of judicial participants and lawyers, Figure 4.4 indicates that non-legal professionals remained, in large part, unable to say whether there had been any improvement as a result of the family violence reforms in the assessments of family violence and/or child abuse/child safety concerns by judicial officers/registrars or lawyers. However, one-quarter of the non-legal participants (25%) responded in the affirmative in relation to the assessment capacities of judicial officers/registrars, and almost one-third answered in the affirmative with respect to ICLs. In contrast, almost one-third of the non-legal sample responded in the negative when reflecting on improvements in non-ICL lawyers' capacities in this regard. Indeed, non-ICL lawyers received the lowest positive rating from non-legal participants (14%).

Figure 4.4 also shows that once again, non-legal professionals were the most positive in their reflections on improvements in the assessment capacities of family consultants, single experts and FDR practitioners. In relation to family consultants and single experts, over one-third (38%) of the sample answered in the affirmative, with family consultants and single experts constituting 15% of the sample for this item (n = 37). The highest proportion of affirmative responses (63%) was provided in relation to FDR practitioners, with mediators and FDR practitioners constituting 29% of the non-legal professional participant sample for this item (n = 71).

Figure 4.4: Non-legal professionals' views on whether the assessment of family violence and/or child abuse/safety concerns has improved, by professional groups, 2014

Figure 4.4: Non-legal professionals' views on whether the assessment of family violence and/or child abuse/safety concerns has improved, by professional groups, 2014. Described in accompanying text.

Notes: Non-legal professionals were asked: "In your experience, have the family violence reforms led to an improvement in the assessment of family violence and/or child abuse/child safety concerns by: [each professional group]". Non-legal professionals: n = 252-255. FC = family consultants; SEW = single expert witnesses. Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014

4.2 Changes to the identification and assessment practices of family law professionals

The discussion in this section will now focus more specifically on participants' observations of any changes in the professional practices and tasks employed in the screening and assessment of family violence, child abuse and child safety concerns since the inception of the family violence reforms. It will then consider professionals' assessments of their own capacities in these regards.

4.2.1 General reflections on changes to identification practices

The family violence reforms introduced a duty upon the court to ask the parties in proceedings for parenting orders:

  • whether they consider that the relevant child has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence (FLA s 69ZQ(1)(aa)(i)); and
  • whether the party considers that he or she or another party to the proceedings, has been, or is at risk of being, subjected to family violence (FLA s 69ZQ(1)(aa)(ii)).

In order to consider the effects of this amendment, participants in each professional group were asked for their views on whether courts more actively enquired about the existence of the risk of child abuse or family violence as a result of the family violence reforms. Table 4.6 indicates that almost two-thirds of the aggregate sample of participants provided affirmative responses to this proposition, with 19% indicating that they strongly agree and 46% mostly agreeing in this regard. More specifically, participating judicial officers overwhelmingly agreed (89%) that since the family violence reforms, courts more actively enquired about the existence of risk of child abuse and family violence, with only 3% indicating that they disagreed. Lawyers also answered firmly in the affirmative on this issue (70%), although interestingly 23% mostly or strongly disagreed. Non-legal professionals were least positive on this question, with just over one-half indicating that courts more actively enquired about the existence of risk of child abuse and family violence, and 26% of participating non-legal professionals indicating that they mostly or strongly disagreed.

Table 4.6: Agreement that as a result of reforms, courts more actively enquire about the existence of risk of child abuse and family violence, by professional groups, 2014
  Judicial officers Lawyers Non-legal Aggregated
No. % No. % No. % No. %
Notes: Professionals were asked: "To what extent do you agree or disagree that the following statements describe your view? As a result of the family violence reforms, courts more actively enquire about the existence of risk of child abuse and family violence". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Strongly agree 12 32.4 69 21.6 43 14.7 124 19.1
Mostly agree 21 56.8 156 48.8 119 40.8 296 45.6
Mostly disagree 0 0.0 59 18.4 49 16.8 108 16.6
Strongly disagree 1 2.7 16 5.0 26 8.9 43 6.6
Cannot say 3 8.1 20 6.3 55 18.8 78 12.0
Not applicable - - - - 0 0.0 0 0.0
Total 37 100.0 320 100.0 292 100.0 649 100.0

Participating professionals were also asked to reflect on their own current practices as family law system professionals in the areas of child abuse and/or child safety, family violence and the exposure of children to family violence, and to consider whether they had changed their approach to seeking information from parties (all professional participants) and to providing advice (lawyers and non-legal participants) since the family violence reforms. Table 4.7 indicates that less than one-half of the aggregate sample of participants responded affirmatively to this proposition, and 49% answered in the negative. Non-legal professionals had the highest level of affirmative responses (45%), followed by judicial officers and registrars (44%) and lawyers (42%).

Table 4.7: Whether professionals have changed their approach to seeking information from parties and providing advice since the reforms, by professional groups, 2014
  Judicial officers Lawyers Non-legal Aggregated
No. % No. % No. % No. %
Notes: Judicial officers/registrars were asked: "Thinking about your current practice in the areas of child abuse/or child safety, family violence and the exposure of children to family violence, have you changed your approach to seeking information from parties since the family violence reforms?" Lawyers and non-legal professionals were asked: "Thinking about your current practice in the areas of child abuse/or child safety, family violence and the exposure of children to family violence, have you changed your approach to seeking information from parties and providing advice since the family violence reforms?" Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Yes, changed 15 44.1 110 42.2 107 45.2 232 43.6
No, not changed 15 44.1 132 50.6 114 48.1 261 49.1
Cannot say 4 11.8 19 7.3 16 6.8 39 7.3
Total 34 100.0 261 100.0 237 100.0 532 100.0

Together, these findings suggest that while the majority of participant groups considered that the courts now actively enquired about the risk of child abuse and family violence, the self-assessments of changes in the approaches from each participant category were more mixed in nature, with an equal number of judicial officers answering in the affirmative and negative, and slightly greater proportions of lawyers and non-legal professionals answering in the negative rather than in the affirmative.

4.2.2 Changes in identification and assessment practices aimed at eliciting disclosures

The survey of professionals also included questions focusing specifically on professional practices aimed at eliciting disclosures of family violence/risk of family violence and child abuse/child safety concerns. These questions were included with a view to gaining more detailed insight into practices employed to screen for these risks and harm factors.

Judicial officers/registrars

Judicial officers and registrars were asked about how often (if at all) in the 18-month period preceding the survey, they were required to remind counsel or self-represented litigants of the obligation in family law matters arising under FLA s 60CH and s 60CI to disclose to the court where a child had been the subject of attention from child protection authorities.14

As Figure 4.5 indicates, in the 18-month period preceding the survey, most participating judicial officers reported that where counsel was involved in a matter, they rarely or never (53%) or sometimes (31%) were required to provide a reminder of this obligation, with 11% indicating that they were often or almost always required to do so. In contrast, more than one-third of judicial officers/registrars reported that they were often or almost always required to remind self-represented litigants of the obligation to disclose relevant attention from child protection authorities. A further 31% of judicial participants indicated that they were sometimes required to remind self-represented litigants of this obligation.

Figure 4.5: Frequency of judicial decision makers reminding counsel or self-represented litigants of the obligation to disclose, by type of obligation, 2014

Figure 4.5: Frequency of judicial decision makers reminding counsel or self-represented litigants of the obligation to disclose, by type of obligation, 2014. Described in accompanying text.

Notes: Judicial officers/registrars were asked: "Over the past 18 months, how often (if at all) have you had to remind [counsel/self-represented litigants] that: There is an obligation in family law matters to disclose to the court whether a child in the family has been the subject of the attention of child protection authorities"; and that: "There is a need to disclose concerns of child abuse and family violence in family law proceedings". Judicial officers/registrars: n = 36. Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014

In addition to the obligation relating to the involvement of child welfare authorities, FLA s 60CF provides that if a party to proceedings is aware that a family violence order applies to the child or to a member of the child's family, then they must inform the court of the family violence order (s 60CF(1)). Where a party is alleging that a relevant child has been abused or is at risk of abuse or that there has been family violence or there is a risk of family violence, FLA s 67Z and s 67ZBA respectively also require notification to the court and relevant parties of these allegations. In light of these obligations, judicial officers and registrars were also asked about how often (if at all), in the 18-month period preceding the survey, they were required to remind counsel or self-represented litigants of the need to disclose concerns of child abuse and family violence in family law proceedings. Consistent with the pattern observable in relation to attention from child protection authorities, Figure 4.5 also indicates that where counsel was involved in a matter, the majority of participating judicial officers reported that they rarely or never (53%) or sometimes (33%) were required to provide a reminder of this need to disclose, with only 8% indicating that they were often required to do so.

In contrast, more than one-third (36%) of judicial officers/registrars reported that they were often required to remind self-represented litigants of this need to disclose concerns about child abuse and family violence. A further 36% of this participant category indicated that they were sometimes required, with just over one-quarter of participating judicial officers/registrars indicated that they were rarely or never required to remind self-represented litigants of this need to disclose.

Lawyers and non-legal professionals

Following on from the data depicted in Figure 4.5, lawyers and non-legal professionals were also asked to reflect on the 18-month period preceding the survey and to consider how often, if at all, they had explained to clients the obligation to disclose to the court where a child had been the subject of attention from child protection authorities, as described in FLA s 60CH and s 60CI. Figure 4.6 indicates the vast majority of participating lawyers (82%) reported that they almost always (59%) or often (22%) explained this obligation to their clients, with a further 12% indicating that they sometimes did so. The responses were more evenly spread across response options for non-legal professionals, with just over one-third (36%) of these participants reporting that they almost always explained this obligation to clients, and a further 16% stating that they often did so. A similar proportion (15%) indicated that they explained this obligation to clients sometimes, and 19% indicated that they rarely or never did so. Importantly, 14% of participating non-legal professionals indicated that this explanation was not applicable to them.

Figure 4.6: Frequency of lawyers and non-legal professionals advising clients of the obligation to disclose, by type of obligation 2014

Figure 4.6: Frequency of lawyers and non-legal professionals advising clients of the obligation to disclose, by type of obligation 2014. Described in accompanying text.

Notes: Lawyers and non-legal professionals were asked: "Over the past 18 months, how often (if at all) have you explained to clients involved in parenting disputes that: Parties are obliged in family law matters to disclose to the court whether a child in the family has been the subject of the attention of child protection authorities; and that: Concerns about family violence and child safety should be raised with family law system professionals". Lawyers: n = 256-260; Non-legal professionals: n =230-237. Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014

Lawyers and non-legal professionals were also asked to consider how often, if at all, in the 18-month period preceding the survey, they had explained to clients involved in parenting disputes that concerns about family violence and child abuse should be raised with family law system professionals. Figure 4.6 indicates that the vast majority of participating lawyers (88%) indicated that they almost always (66%) or often (22%) explained this to their clients, with a further 7% indicating that they sometimes did so. Similar response patterns emerged for non-legal professionals, with 78% of these participants reporting that they almost always (58%) or often explained this to clients. A further 13% indicated that they sometimes did so.

4.2.3 Identification and assessment practices directed at eliciting disclosures

Participating lawyers and non-legal professionals were also asked detailed survey questions about the more specific enquiries that they made of their clients with a view to eliciting disclosures where relevant. These questions related to the regularity with which practitioners specifically asked their clients about:

  • family violence;
  • exposure of children to family violence;
  • child abuse and/or child safety; and
  • whether child protection authorities are or have been involved with their family.

Table 4.8 indicates that well over three-quarters of the aggregate sample of participants (85%) indicated that they almost always specifically asked their clients about family violence, with a further 10% (data not shown) of the sample reporting that they often did so. A greater proportion of the participating non-legal professionals (90%) than participating lawyers (80%) reported that they almost always specifically asked their clients about family violence.

Table 4.8: Frequency of lawyers and non-legal professionals almost always specifically asking their clients about issues relevant to family law cases, 2014
Issue Lawyers (%) Non-legal (%) Aggregated (%)
Notes: Lawyers and non-legal professionals were asked: "Please indicate how often you specifically ask your clients about: Family violence; exposure of children to family violence; child abuse and/or child safety: and whether child protection authorities are or have been involved with the family". Lawyers: n = 259-260; Non-legal professionals: n = 234-235; Aggregated professionals: n = 493-495. Percentages do not total 100% as not all response categories are presented and multiple responses could be chosen.
Source: Survey of Practices 2014
Family violence 80.0 90.2 84.8
Exposure of children to family violence 76.2 90.2 82.8
Child abuse and/or child safety 72.7 88.1 80.0
Involvement of child protection authorities 64.9 79.9 72.0

Table 4.8 also indicates that, consistent with the response patterns relating to asking clients about family violence, well over three-quarters of the aggregate sample of participants (83%) indicated that they almost always specifically asked their clients about the exposure of children to family violence. A further 12% of the sample reported that they often did so (data not shown). On this question, once again, a greater proportion of the participating non-legal professionals (90%) than lawyers (76%) reported that they almost always specifically asked their clients about the exposure of children to family violence.

Similarly, Table 4.8 indicates that more than three-quarters of the aggregate sample of participants (80%) indicated that they almost always specifically asked their clients about child abuse and/or child safety. A further 13% of the sample reported that they often did so (data not shown). Also consistent with the pattern emerging so far in this section, a greater proportion of the participating non-legal professionals (88%) than participating lawyers (73%) once again reported that they almost always specifically asked their clients about child abuse and/or child safety.

While consistent with the response patterns emerging from the other questions examined in this section so far, Table 4.8 shows that fewer, albeit almost three-quarters, of the aggregate sample of participants (72%) indicated that they almost always specifically asked their clients about whether child protection authorities were or had been involved with their family. A further 18% of the sample reported that they often did so (data not shown). A substantially greater proportion of the participating non-legal professionals (80%) than lawyers (65%) reported that they almost always specifically asked their clients about whether child protection authorities were or had been involved with their family.

4.2.4 Screening and assessment tools

Family Law Detection of Overall Risk Screen

Robinson and Moloney (2010) observed that the differing definitions of family violence employed by professionals in the legal and non-legal spheres, together with the differing assumptions about and emphases on violence, present a complex backdrop to the screening and assessment practices of family support services (p. 2). The variability of understandings or definitions of family violence in the post-separation services sector, together with the variety of available screening tools and the differing ways in which they may be applied, have led some commentators to call for the focus to be on the "development of tools that are useful for the expressed purposes" rather than engaging in the illusive "search for abstract and perfect measures of things well defined" (Rodgers, 2011, p. 6.). While a screening and assessment tool has been identified as one of several tools in the armoury of professionals working in the field (Breckenridge & Ralfs, 2006), the guidance provided by these tools and by the statutory definitions of family violence and abuse reflect an attempt to address the complications arising in the screening and assessment process.

It was against this backdrop that lawyers and non-legal professionals were asked about their use of tools aimed at assisting practitioners to identify/screen for and assess risks and harm factors. Particular focus was directed at examining their use of the Family Law Detection of Overall Risk Screen (DOORS), a tool developed specifically for professionals working in the family law sector.

Table 4.9 indicates that a substantial proportion of the aggregate sample of participants indicated that they rarely or never used DOORS (59%). Only 7% of the aggregate sample indicated that they almost always (3%) or often (4%) used DOORS, with 5% of the sample reporting that they sometimes used the tool. Importantly, more than two-thirds of non-legal professionals (69%) and just over half of lawyers (51%) indicated that they rarely or never used DOORS, although a greater proportion of lawyers (35%) than non-legal professionals (21%) stated that they were unable to report on their use of this tool.

Table 4.9: Use of the DOORS tool, lawyers and non-legal professionals, 2014
  Lawyers Non-legal Aggregated
No. % No. % No. %
Notes: Lawyers and non-legal professionals were asked: "Are you using the Family Law Detection of Overall Risk Screen (DOORS) tool?" Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Almost always 5 1.9 12 5.1 17 3.4
Often 14 5.4 5 2.1 19 3.8
Sometimes 17 6.6 8 3.4 25 5.1
Rarely/never 132 51.0 162 68.6 294 59.4
Cannot say 91 35.1 49 20.8 140 28.3
Total 259 100.0 236 100.0 495 100.0

Lawyers and non-legal professionals who did report on their use of DOORS were asked about their practice in implementing this tool. Table 4.10 indicates that the majority of the aggregate sample of participants (62%) indicated a preference for directly asking their clients DOOR2 questions, with a slightly greater proportion of lawyers than non-legal professionals (63% and 58% respectively) preferring to use DOORS in this way. Notably, DOOR2 of the DOORS tool enables the DOOR1 questions to be administered by the practitioner. A slightly greater proportion of non-legal professionals than lawyers (25% and 19% respectively) preferred to have clients complete a paper version of DOOR1.

Table 4.10: Usual practice in implementing the DOORS tool, lawyers and non-legal professionals, 2014
  Lawyers Non-legal Aggregated
No. % No. % No. %
Notes: Lawyers and non-legal professionals were asked: "When you do use DOORS, what is your usual practice in implementing this tool? I ask clients to complete the DOOR1 questionnaire online; I ask clients to fill in a paper version of the DOOR1 questionnaire before I see them; I ask clients the DOOR2 questions myself; Another employee at my service asks the clients the DOOR2 questions." Percentages do not total 100.0% due to rounding.
Source: Survey of Practices 2014
Clients complete DOOR1 online 2 3.7 2 8.3 4 5.1
Clients complete paper version of DOOR1 10 18.5 6 25.0 16 20.5
I ask clients DOOR2 questions myself 34 63.0 14 58.3 48 61.5
Another employee at my service asks clients the DOOR2 questions 8 14.8 2 8.3 10 12.8
Total 54 100.0 24 100.0 78 100.0

All professional participants were asked to provide any comment in relation to DOORS via an open-ended response. The discussion below reflects the range of these responses that emerged in each of the participant categories.

Judicial officers/registrars

Some of the responding judicial participants (e.g., JO39, FCoA, registrar; JO50, FCC, judge; JO57, FCoA, registrar) described DOORS as a "useful tool" or a tool that could be of assistance. One judicial officer was particularly supportive when reflecting on the DOORS tool:

I would love it if there were sufficient resources to enable every family to go through a DOORS screening process as part of dealing with their family law issues. (JO70, FCC, judge)

Other judicial officers and registrars expressed concern with aspects of the DOORS tool related to difficulties in its application and were critical of the design and content of the tool, together with the training exercises upon roll out:

There were concerns that it may be difficult to adapt to a busy practice. (JO49, FCC, judge)

I consider DOORS a flawed and dangerous tool. Any screening tool must be applied competently and insightfully. The training exercises on roll out were appalling and suggest the receptionist has a client complete it. Worst practice and in the wrong hands dangerous. In the best hands, little if any improvement on how things would be competently done. Simplistic and fraught with danger. (JO54, FCC, judge)

As indicated in the response of the following judicial officer, some participants were of the view that screening tools were not necessarily assisting in the development of skilled practitioners, and that it was the professional skill and capacity of the family lawyer that was better able to screen for violence when engaging with their client in their interview and supporting them "through the process of disclosure":

Obviously all practitioners working in the family law field should be well versed in identifying risk of harm to clients or their children. It is fair to say that lawyers are probably the least trained in this regard. Experienced family lawyers are very good; those who "dabble" can be woeful. While screening tools such as DOORS can assist, they can also lead to a dumbing down and a handing over of professional responsibility to the assessment tool rather than developing any appropriate professional capacity. As I understand it, DOORS is a self-assessment tool that clients complete in the first instance before then meeting with the relevant worker. It is well understood that many clients are unable or unwilling to identify as victims of abuse/violence, however a skilled practitioner (whether lawyer/FDR/counsellor) is able to identify risk through an interview/s process, rather than simply relying on a screening tool. It also allows the professional to then engage with and support the client through the process of disclosure, which can be very traumatic for some clients. (JO50, FCC, judge)

At a more elementary level, some judicial participants described how they were unaware of DOORS and, as the discussion in the next sections will show, this lack of awareness was also a feature of the qualitative responses from lawyers and non-legal professionals on this question:

I have no information about it. I do not know what it does. That, it seems to me, is a gap in the dissemination of information. (JO46, FCC, judge)

Lawyers

Consistent with the reflections of some judicial participants, there were also some lawyers (e.g., L349; L90) who described DOORS as a "useful", "helpful" or "comprehensive" tool:

[DOORS] is very helpful for those practitioners who perhaps were unaware of how to or did not previously screen for family violence. It is helpful for the resources it can direct a client to for assistance. (L82, lawyer)

The [DOORS] questions work for me. (L366, lawyer)

[DOORS is] comprehensive, a very good framework. (L402, lawyer)

Other lawyers were more mixed in their reflections on DOORS, and while describing the tool as useful, they nominated impractical aspects and difficulties associated with the application of the tool in practice; for example:

[DOORS is a] useful resource in terms of best practice but the suggested implementation is not always practical and/or a process new clients are prepared to engage in. (L69, lawyer)

[DOORS] is too much like a research tool for use in everyday family law practice, although I think something like it would be a useful aid in discussions about the role of violence in particular families. It is probably more useful for solicitors who first see clients, but is also a useful framework in some cases for barristers. (L396, lawyer)

[DOORS] is a great resource but a little too time intensive. (L426, lawyer)

If people used [DOORS], it would add to the costs of access to justice by both private and publicly funded clients. Any tick-a-box tool is useful in an environment where there are inconsistent and/or low levels of skill and expertise and/or a revolving door of staff. (L480, lawyer)

There were numerous lawyers who responded negatively when commenting on DOORS, identifying a range of barriers to the effective operation of the tool in their practice.

Some lawyers described the difficulties associated with implementing DOORS with clients from an Aboriginal and Torres Strait Island or culturally and linguistically diverse background or with clients with low levels of literacy:

Given the nature of clients that we work with where sometimes English is not their first language or they face multiple and complex barriers, the DOORS assessment program is cumbersome and too long for many of our clients. (L18, lawyer)

[DOORS is] difficult to use with CALD or ATSI clients or clients with low level of numeracy and literacy. (L153, lawyer)

We experience difficulties, such as large numbers of clients with very poor literacy and a tendency not to use forms of technology which easily allow answering questionnaires online. Our clients frequently can't - or won't - read things sent to them, let alone have a go at filling them in. This is exacerbated in FV situations by the victim's frequent reluctance to dredge up memories they have often tried to repress or forget or explain away. I find that gentle, sympathetic questioning in the context of explaining best interests considerations and why FV is important for the sake of the children has the best chance of getting a disclosure with sufficient detail to start considering whether it meets the definition and how it might be addressed. Even so, we know that some victims don't disclose. (L410, lawyer)

As indicated in the response quoted directly above, some lawyers described multiple and complex barriers for clients that were exacerbated by their experiences of family violence:

[I am] yet to … implement … and understand how [DOORS] will be received by those clients who, being most at risk, are the least likely to fill in a form. (L35, lawyer)

Indeed, some lawyers (e.g., L410 and L35 above) described clients who were not comfortable filling in forms, while other lawyers considered forms to be an ineffective mechanism for communicating with their clients:

I tend to question clients orally. I practice in a country town and find clients [are] "turned off" by forms. (L325, lawyer)

I wonder at the merit of requesting a potential victim to "fill in a form". Most clients will tell me what I need to know without a form. (L85, lawyer)

I haven't done the training or used [DOORS] at all. In my experience clients don't tell you about family violence, you have to extract that information from them and a questionnaire is rarely going to succeed in getting the information I need to run their case properly. We don't need yet another set of forms, we need resources to support the victims and to speed up the progress of cases through the court. We need more supervised contact centres. (L64, lawyer)

Despite the concerns raised by lawyers related to clients filling in forms, it is important to acknowledge that DOOR2 of the DOORS tool enables the DOOR1 questions to be administered by a practitioner with their client.

Numerous lawyers (e.g., L18, L63, L83, L280, L387, L501, L476) expressed concern about the length (and as a result, the cost) of DOORS, that it was not sufficiently "user friendly", and/or that it was cumbersome and prescriptive in nature:

[DOORS is] too cumbersome and prescriptive of responses. (L360, lawyer)

I am concerned about using the DOORS … risk screening tool with my clients as it is very time consuming and costly for them, and particularly early on I do not feel that I have established the relationship with the client to send them off to do the DOORS test. (L395, lawyer)

As intimated in the comment quoted directly above, some lawyers were of the view that the development of trust between lawyer and client was required before detailed questioning of clients on risk issues:

Client trust is required before detailed questions. (L344, lawyer)

Usually divulging the most serious (risks/harm factors) requires several face-to-face meetings to build up trust that telling us will not make things worse. (L35, lawyer)

Most lawyers after the introductory evening felt they would never put their clients through it at the first/second interview stage. (L32, lawyer)

Indeed some lawyers were concerned that DOORS was too complex and that they were lacking in training to properly implement the tool or that it took them beyond the responsibilities of their role:

I have concerns that [DOORS] is too complex for lawyers to properly implement, it is costly for clients, for lawyers to implement and it can give a sense of confidence to professionals that they can undertake risk assessment when really it is outside their professional capacity. It doesn't clearly define when a professional should just screen for issues and make appropriate referrals and leaves the door open for confident professionals to actually think they are able to undertake risk assessment. This over-confidence or over-reach can be dangerous and lead to wrong assessment. Professionals should screen and then refer to the appropriate professional for risk assessment to be undertaken properly. (L61, lawyer)

[DOORS] is too complex and designed for professionals who already have specific training and an ability to make such assessments. Many lawyers are not able to make the connection between a client who is unable to give specifics or seems changeable to experiences of violence and perhaps suffering PTSD as a result. (L198, lawyer)

I do not find [DOORS] useful. I consider that such checklists, especially when self-administered or applied by a non-skilled staff member … have the potential to offer false security of screening. (L66, lawyer)

I do not agree with it as I feel it shifts responsibilities to lawyers that belong elsewhere. (L95, lawyer)

Other lawyers focused their criticism more on the capacity of the DOORS tool to effectively assist with the identification and assessment of risk:

I have undertaken risk assessment training here and overseas. I have provided risk assessment training. In my view the manner in which DOORS operates is a clumsy one, with the potential for not correctly identifying the risk factors involved. What is NOT adequately dealt with in DOORS is that the past is the best guide for the future, but the past is not a perfect guide, and acts can happen for which there is not a good predictor. I emphasise the need to take an holistic approach to issues to do with violence, neglect and abuse so that I undertake both risk assessment with clients (and have been doing so for many years) and safety planning. To raise the bar for other lawyers etc. in the system with their clients is a good thing. (L443, lawyers)

What DOORS suggests is that we may be able to uncover information that would otherwise remain hidden, and this is simply not possible beyond the standard candid and robust Q and A that any good lawyer should do with their client. It also has other implications for lawyers: what about my requisite fiduciary relationship of trust and confidence with my client? If I ask my client to tell me the truth in confidence I need to operate on the basis that what they say is true. If I can't do that, the trust and confidence may be lost, in which case I must cease to act. Bottom line, these academic "systems" and templates are frankly silly because they can never achieve what they are espousing. (L408, lawyer)

One lawyer also expressed particular concern that opposition lawyers may seek production of the DOORS assessment into evidence, and lamented what was identified as a lack of consultation with the legal profession prior to the release of the tool:

I am especially concerned that sooner or later a lawyer will seek production of the DOORS report from the other side and that it may not be privileged. This could have potentially huge ramifications for the client, and does not appear to have been adequately addressed. The issue about loss of privilege, and professional indemnity issues for lawyers has been raised with me by a number of other family lawyers concerned about the proscriptive process involved with DOORS. It would appear that there has been little adequate consultation with the profession before DOORS was launched upon it. (L443, lawyer)

Again, at that more elementary level, there were also many lawyers responding to this question who either did not use DOORS or had not heard of it. For example:

Never heard of it. (L139, lawyer)

Don't know what it is. (L156, lawyer)

Never heard of DOORS. Sorry, but marketing poor. (L229, lawyer)

It is not a tool that my organisation currently uses. (L349, lawyer)

I have never heard of this, and I am involved with community groups and have just completed my masters of applied law in family law. (L431, lawyer)

Have not encountered it. (L447, lawyer)

Don't know anything about it. (L453, lawyer)

For some lawyers who reported that they were not using DOORS, this was due to the fact that they considered their knowledge and experience to have extended beyond this tool:

I did not do the training. I have done so much DV training over the last 20 years and run so many DV cases I really don't need another "tick a box" tool. If I don't know how to assess and screen DV by now then I am never going to learn. I am much more interested in training about the social science and the linked topics of substance abuse and mental health in conjunction with DV than another DV tool. (L336, lawyer)

For other lawyers, their responses indicated that their decision not to use DOORS was more related to the familiarity with alternative screening tools and this observation will be considered further in the next section.

Non-legal professionals

Non-legal professionals were markedly more positive in their open-ended responses relating to the DOORS tool than participating judicial officers and lawyers, with a greater number of comments of the following nature:

All services within my management will be using the DOORS tool when training [is] completed. The DOORS tool is user-friendly and can be adapted for many disciplines. It is a good tool. (NL, 494, Parenting Orders Program, post-separation services manager)

It is a very useful tool for systematic screening of risk that can be used in post-separation services. Its point of difference is that it is a self-report which can than be used by the practitioner to complement their own practitioner assessment of overall risk. (NL556, service not specified, post-separation services manager)

Feedback from colleagues who have attended the training has been extremely positive in identifying risks. (NL528, family relationships education and skills training service, educator)

The capacity for uniformity in the identification and assessment of family violence was highlighted as a positive by the following non-legal professionals:

It is good to have a standardised risk assessment tool to ensure all practitioners are screening appropriately for family violence. (NL96, FRC, mediator/FDR practitioner)

I think [DOORS] has the potential to make it easier for all people who work with violence to have the same ideas and processes and screening so we all respond and identify in the same way. (NL612, FRC, mediator/FDR practitioner)

It is a very positive step for this detailed and thorough risk assessment tool to be rolled out Australia-wide so that it is assured all at-risk parties are screened appropriately wherever they reside in this great country of ours. (NL566, family relationships education and skills training service, educator)

Other non-legal professionals were more mixed in their reflections on the DOORS tool and suggested that its take-up was reduced due to time and resource constraints, and that more training would need to be provided to family law professionals for its effective implementation:

[DOORS] looks like a very comprehensive tool and it is unfortunate that it is not being used by family consultants due to resource and time constraints. Family consultants who work in the courts deal with the most complex of all matters but sufficient resources have not been provided (due to government funding cuts). These resources issues require review because it is often very difficult to expect the family consultants to comprehensively assess the family violence issues within the limited time frames that they are allocated to do their job. (NL19, FCC, family consultant)

[DOORS] cannot be used with every client - it is very resource intensive. It can be a useful tool for professionals but more training and referral is required for professionals who have not worked with family violence - in both the support of victims and the challenging work with perpetrators. (NL381, FRC, service level coordinator/service manager)

On the other hand, a number of non-legal professionals identified issues associated with integrating DOORS into their existing practice approaches. This was particularly apparent in the responses of family consultants and single experts. For example:

[DOORS] is too rigid and limited for the more comprehensive assessments needed in the family consultant role. (NL26, FCC, family consultant)

[DOORS] has been assessed by the child dispute service as not always relevant to the clients who come to court. (NL56, FCoA, family consultant)

[DOORS] has been evaluated as not suitable to my workplace. (NL485, FCC, family consultant)

[DOORS is an] unsophisticated tool that does not encompass the breadth of cases and circumstances at the most difficult end of family law cases. [It] might be useful for entry-level families. (NL2, private practice, single expert)

Some non-legal professionals in the mediation and FDR context reported barriers to the application of DOORS in their workplaces based on its potential to compromise the practitioner's neutrality or on the basis that it was not comprehensive (as noted directly above) or did not address the questions pertinent to the non-legal professional in the FDR context:

It worries me that the DOORS screening tool has the capacity to draw the mediator out of the role of neutral facilitator and into the role of engaged counsellor. Dispute resolution is a pragmatic exercise not a counselling one. (NL116, FRC, mediator/FDR practitioner)

I have only used it once in a CD tutorial and found the demonstration of the DOORS system to be a lot less involved and comprehensive than we already do at the FRC in screening/intake. (NL37, FRC, mediator/FDR practitioner)

It is impersonal and onerous to implement and does not contribute to any evaluation as to the suitability to progress to mediation. (NL62, FRC, mediator/FDR practitioner)

Our current screening tool is more than adequate and comprehensive and I prefer it to the DOORS tool. (NL121, FDR service, mediator/FDR practitioner)

Consistent with lawyers, client literacy levels and the knowledge and training of professionals using DOORS, were also identified by participating non-legal professionals as barriers to the effective operation of the DOORS tool:

The parties I interview usually do not have the reading level to fully use DOORS - probably 1 in 10 would be able to fill out the forms. (NL4, private practice, psychiatrist/psychologist)

Until it is approved and applied universally to all aspects of responses, it will continue to be a gamble whether a particular client is effectively understood and supported by its use, or let down because practitioners do not comprehend trauma, DV and family violence and child abuse issues. (NL514, other counselling or support service, no occupation specified)

Other participating non-legal professionals (consistent with some judicial and legal comments, noted by J050 and L410 above) emphasised that DOORS or other tools could not be regarded as an appropriate substitute for practitioner experience or skill:

It is unrealistic to think that a family consultant would be able to use the DOORS tool when the time allocated to seeing clients is so limited. There are other tools around and most have similar content. I use a tool developed by the court but more importantly is the experience I have in this area. I hope the powers that be don't think that by giving a person a tool they are an expert. (NL23, FCC, family consultant)

I prefer to see professionals well trained rather than using a bureaucratic device on each occasion. (NL6, other counselling or support service, psychiatrist/psychologist)

This emerging theme will be considered further in the next section in the context of a discussion of other nominated screening tools and practices.

Once again, at a more elementary level, numerous non-legal professionals (e.g., NL44, NL93, NL138, NL199) indicated that they were yet to undertake the training to use the DOORS tool or that they or their service did not use DOORS (e.g., NL487, NL78, NL358, NL535, NL201) or that they preferred to use an alternative screening and assessment tool, with responses in this latter category considered further in the next section.

Other nominated screening tools and practices

Participating lawyers were asked to nominate in open-ended responses the measures other than DOORS that they used to screen for family violence.

Most lawyers responding to this question reported engaging in interviews or discussions with their clients and listening to and observing their clients in this process. For example:

[The measures I use involve] asking questions and listening to answers. Getting the client to simply "tell their story". (L43, lawyer)

I use narrative instruction and active listening. I look for signs of violence by reference to the accepted literature of the impact of violence. (L66, lawyer)

[I use a] thorough interview. Initial appointment questions about presence of protection orders, police involvement, child protection involvement, ex-partner's behaviour towards client and client's responses to that, questions surrounding types of violence experienced and whether any children were exposed to it. (L334, lawyer)

[I use] questioning I have developed over the years, observation of the whole person and their reaction to specific questions, their ability to answer and how they answer. (L82, lawyer)

The same [measures] I have used for years. I specifically ask them, face-to-face, about whether there has been family violence in each single parenting case. I check they actually know what is meant by family violence. I look for "warning signs" particularly in women, that they have been subjected to family violence. I explain why I need to know. I explain about the implications for the presumption. I ask direct and indirect questions. I look for risk factors. (L64, lawyer)

I ask open-ended questions about the issues relating to the parties and the children. I then move to asking direct questions. I will also ask what issues the other party will raise even if my client were to say the allegations were untrue. (L261, lawyer)

We use a screening question on our intake form. When talking with the client I ask open questions to begin with. If there are any disclosures of violence I follow that up. If there are not disclosures, but hints (e.g., the client's actions to date, or their attitude to arrangements or the patterns of care don't add up unless there is some violence), I ask a direct question about violence. When talking about mediation/FDR I describe the process and always ask clients whether they would feel able to freely make decisions in that process. (L121, lawyer)

Many lawyers spoke of their personal and professional skills and experience when discussing their screening measures, with these skills and experience shaping the nature and extent of the inquiry:

[I use] instinct and listening to what is not said. (L228, lawyer)

I rely on my experience in the family law area, and ask many questions calculated to obtain information about the family dynamic. (L214, lawyer)

I just ask questions which I have learnt over time [and] allow client's to feel comfortable to answer about family violence and child abuse. (L97, lawyer)

I am a family law solicitor with considerable experience, I know when clients are hiding something from me and I don't need a checklist. If clients want to lie to me about their relationship, a checklist also doesn't help me to get the truth out of them. At the end of the day, there is no answer for those matters where I suspect something is wrong, but I can't get straight instructions about it. (L308, lawyer)

[I use] my personal intuition gained from years of experience in the family law industry. (L406, lawyer)

I use my common sense, together with my training and experience as a lawyer, and my life experience as a mature person who knows what it is like to be a spouse and a parent. But that is all. I cannot be expected to detect hidden information from a person if they choose to actively hide it. As I said above, a lawyer must start from a position of trusting and believing that what his or her client tells them is truthful. Of course challenging questions must be asked of clients, but beyond that, I can only act on the facts my client stands by. If I am not willing to do that because I have encountered evidence to the contrary of the facts my client is claiming, then I may be conflicted and would need to cease acting. This approach of trying to "engage" clients at some deeper level of meaning is fraught with dangers and I will not do it. I am a lawyer not a clairvoyant. (L408, lawyer)

Other lawyers describing their other screening measures nominated information from third parties, including using relevant professionals or documentary evidence in conjunction with discussions with clients or taking instructions from clients in co-joint meetings or with the assistance of advice from relevant experts:

[I use] open-ended questions, police reports and other evidence, just general good practice of focusing on child's needs and best interests. (L285, lawyer)

[I engage in] consultation with the client [and] professionals involved in the matter. (L56, lawyer)

[The other measures I use are:] 1. Experience. I look for behavioural clues to indicate possible DV history and I look for clues in documents without even consciously thinking about it. 2. Specific questions. I have a questionnaire that I fill in at the first appointment in every single parenting matter in which I ask specific "risk" and "DV" questions of the client (and look for clues that they are failing to disclose). 3. Documents. I issue subpoenas and read the material produced. (L336, lawyer)

Two lawyers specifically referred to their use of the provisions of the FLA as a measure to guide their screening for family violence:

I ask questions by following the relevant subsections and definitions within the legislation. (L110, lawyer)

[My screening measure involves] with every client, going through the s 60CC factors and talking about why they are important for children, including FV. Asking about involvement of police and child protection services. (L410, lawyer)

Some lawyers (e.g., L198) indicated that their organisation had their own risk screening and assessment tools, while others (e.g., L152, L377, L280, L299) used their own list of questions prepared from a range of education tools. Other lawyers (e.g., L59, L63, L79, L98, L126, L297, L393, L419, L426, L470) nominated alternative screening tools, including the AVERT Family Violence - Collaborative Responses in the Family Law System, CRAF - Common Risk Assessment Framework and Legal Aid Best Practice Guidelines.

Similar to lawyers, participating non-legal professionals also described a variety of measures (other than DOORS) for screening for family violence, with these measures often involving the service's own intake and assessment procedures and the review of information from third parties, including relevant professionals or documentary evidence, in conjunction with interviews with clients/parties. For example:

[I use] a process of semi-structured interviews with parents and children, and reviews of documents. (NL26, FCC, family consultant)

[I use] parents' interview, child interview, family observation, child protection reports, police reports. (NL28, FCC, family consultant)

[I use] clinical interview [and] selected psychometric tests. (NL8, private practice, psychiatrist/psychologist)

All clients requesting service at the FRC are required to complete an intake screening with an intake worker. This screening includes specific questions around family violence, child protection involvement, intervention orders and police involvement. Further assessments are made throughout the process. (NL355, FRC, mediator/FDR practitioner)

As an FDR practitioner/mediator, my screening is at a second stage, as all parents are interviewed by a Family Relationship Advisor [FRA], who screens for family violence and/or abuse. If there is any doubt about a case, then we also conduct pre-FDR sessions with parents (individually) to further pursue matters of violence/abuse and to determine whether FDR/mediation is suitable or a more appropriate referral needs to be made. The pre-FDR interviews sometimes include the FRA involved in the case, and the sessions are comprehensive regarding screening. (NL415, FDR service, mediator/FDR practitioner)

Alternative screening tools that were nominated included the AVERT Family Violence - Collaborative Responses in the Family Law System (e.g., NL83, NL299, NL632); SARA - Spouse Assault Risk Assessment (e.g., NL353); CRAF - Common Risk Assessment Framework (e.g., NL123, NL574, NL535, NL564, NL549); Family Safety Framework Risk Assessment (e.g., NL556, NL622); and Staying Home Leaving Violence (NL175), together with government guidelines (e.g., NL377, NL165).

Consistent with the lawyers who responded to this question, many non-legal professionals also described the importance of their interactions with clients/parties in the screening process. For example, one respondent described how they:

create an environment where clients feel safe to discuss violence openly (peer support group); allow clients to share their experience without judgment or interruption (psycho-therapeutic model); really listen to screen for participant attitudes, beliefs and principle based thought processes that underpin risk; ask specific questions about family violence, children's level of exposure, safety and child protection involvement history. (NL173, FRC, service level coordinator/service manager)

I find that engaging in general conversation elicits as much information in relation to family violence as DOORS does. (NL116 (FRC, mediator/FDR practitioner)

[I engage in an] unstructured interview with parents, interview with child's teachers, general practitioner or counselor [and] interview with child. (NL168, private practice, family consultant)

[I] ask a series of questions about long-term family violence - [I] explain the definitions of family abuse, ask about the worst incident children have been exposed to, discuss whether the party feels they would be on an even playing field and be able to negotiate. (NL51, FRC, mediator/FDR practitioner)

[I engage in] in-depth discussion, rapport building, direct questioning. (NL183, FCC, family consultant)

Consistent with the observation of Breckenridge and Ralfs (2006; noted at the outset of 4.2.4), a key theme emerging from the qualitative data discussed in this section was that screening and assessment tools should be but one of a range of tools available to the family law professional. These data also emphasised that competent professionals with well-honed skills and experience in interviewing clients, are central to the screening and assessment process. Similarly, Robinson and Moloney (2010; referring to Kropp, 2008) indicated that, as well as accepted screening and assessment tools or guidelines, professionals require expertise and experience in interviewing clients who have experienced or perpetrated family violence, together with a knowledge base of the dynamics associated with family violence (p. 5). Indeed, Robinson and Moloney warn of the "considerable dangers associated with the use of a screening instrument in isolation from empathic engagement" between the professional and client (p. 5).

The variety of screening and assessment tools, skills and practices identified in the discussion of the qualitative data in this section, reflect that risk assessment is an ongoing process, and a multifaceted interaction that does not end with the completion of a screening form (Laing, Humphreys, & Cavanagh, 2013, p. 49). It acknowledges that reliance on a screening tool alone may also lead to a failure to identify and assess risks or forms of harm falling outside the indicators of a specific screening tool (Humphreys, 2014), with too great a focus on formal tools or procedures potentially leading to complacency about false negative findings (Robinson & Moloney, 2010, p. 6). The use of typological understandings of family violence as a framework for screening and assessment tools, and the definition of family violence in FLA s 4AB, have also been the subject of criticism for their lack of clarity and their exclusionary effect (e.g., Rathus, 2013; Wangmann, 2011).

Robinson and Moloney (2010) nominated key dilemmas arising in the context of evaluating screening and assessment tools that relate to how to determine whether the screening or assessment tool is "measuring what it is supposed to measure"; how to ensure consistent use and application of the tools and how to measure their effectiveness (pp. 13-14). Although these uncertainties remain, ongoing training and, where possible, supervision of staff applying these tools, in conjunction with a broader range of screening and assessment practices, emerges as being indispensible from the perspective of many of the open-ended comments of professional participants in this study (see also Robinson & Moloney, 2010, p. 15).

4.2.5 Evidence-gathering practices that facilitate the assessment of risks or harm factors by courts and lawyers

Form 4 Notice of Child Abuse, Family Violence or Risk of Family Violence

Judicial officers and registrars were asked for their perspectives on the effectiveness of the process of filing a Form 4 Notice of Child Abuse, Family Violence, or Risk Family Violence ("Form 4 Notice"), whereby interested persons (including parties to the proceedings or Independent Children's Lawyers) are required to file (and serve) a Form 4 Notice where alleging child abuse or risk of child abuse (FLA s 67Z), or where alleging family violence or a risk of family violence as a consideration relevant to decision making about Part VII orders (FLA s 67ZBA). The Form 4 Notice is a prescribed form under the Family Law Rules 2004 that has been employed in both the Family Court of Australia and the Federal Circuit Court of Australia.15 This Form 4 Notice allows for the provision of a summary of the acts or omissions that are alleged to constitute abuse and/or family violence, the facts alleged to constitute any risk of abuse and/or family violence, and the identification of relevant affidavit evidence in this regard.

Of note, during the period of data collection for the Survey of Practices, the Federal Circuit Court of Australia conducted a pilot of a Notice of Risk form to be filed in all parenting proceedings issued in South Australia, with a view to comparing its operation to that of the Form 4 Notice as a means to "better facilitate the early identification of a range of risks in parenting matters … and to improve compliance with the legislative requirements".16 The intention was that the Notice would operate as a "broad based initial risk screening device to assist the court to identify at the earliest opportunity those matters in which allegations of risk are made so that the alleged risks can be addressed in a timely fashion" (FCCoA, 2014, p. 2). In addition to the requirement that the piloted Notice of Risk form be filed in all matters (so as to better address risks covered by s 67Z and s 67ZBA and the court's compliance with s 69ZQ), the Notice of Risk in the pilot was a shorter form that included questions of a more specific nature, which were linked more directly to these legislative provisions (Appendix A: Notice of Risk (SA Pilot) and Form 4 Notice).

Although some of our study's survey questions sought South Australian participants' views and experiences of this piloted Notice of Risk, an insufficient number of participants responded to these more specific questions and as such they are not separately reported herein. The discussion below therefore relates predominantly to the Form 4 Notice that was current and nationally applicable (save for South Australia) at the time of data collection.

In broad terms, the legal and judicial survey data together suggest that the Form 4 Notice was regarded as simple and easy to use and effective in its capacity to facilitate assessments respectively. Half the participating lawyers (50%) responded in the affirmative when asked whether the Form 4 Notice was simple and easy to use, though a substantial proportion answered in the negative (41%). A further 8% of legal participants were unable to express a view on this proposition (data not shown). In terms of the capacity of the Form 4 Notice to facilitate assessments, Table 4.11 indicates that a majority of judicial officers mostly or strongly agreed (73%) that when the Form 4 Notice was filed by a solicitor, the information included in the form assisted them to understand whether there were risks to parents or children in a case. This contrasted with their reported experiences with the Form 4s filed by self-represented litigants, with the majority of participating judicial officers and registrars mostly or strongly disagreeing (59%) that the information provided in these Form 4s helped them to understand whether there were risks to parents or children in a case. Nevertheless, a substantial proportion (38%) did indicate that they mostly or strongly agreed with the proposition.

Table 4.11: Effectiveness of Form 4 Notice for screening and assessment, judicial officers and registrars
Form 4 Notice helps me understand whether there are risks to parents or children in a case Strongly agree (%) Mostly agree (%) Mostly disagree (%) Strongly disagree (%) Cannot say (%) Total (%) Total (N)
Notes: Judicial officers/registrars were asked: "Please indicate the extent of your agreement with the following statements about the current Form 4 Notice of Child Abuse, Family Violence or Risk of Family Violence: When filed with the assistance of a solicitor, the information provided in a Form 4 Notice helps me understand whether there are risks to parents or children in a case; When filed by a self-represented litigant, the information provided in a Form 4 Notice helps me understand whether there are risks to parents or children in a case". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
When filed with the assistance of a solicitor 12.1 60.6 18.2 6.1 3.0 100.0 33
When filed by a self-represented litigant 6.3 31.3 50.0 9.4 3.1 100.0 32

On this issue, Strickland and Murray (2014), in their 2014 post-family violence reform study of the extent to which the reforms are meeting their objectives, suggested that the filing of Form 4 Notices "can assist in clarifying the issues in dispute and provid[e] a structure for their consideration" (p. 61).

Judicial officers, registrars and lawyers were also asked in open-ended survey questions for their views and experiences of the Form 4 Notice process. Those relevant to the screening and assessment process are discussed below.

Judicial officers and registrars

While some judicial participants reflected positively on the Form 4 Notice, they also indicated that the affidavit material and expert reports were of greater benefit in terms of assessing concerns:

The history, scope and detail of violence is often better set out in affidavits and expert reports. The Form 4s are generally a warning to have a deeper look. (JO34, FCoA, judge)

Screening in an objective sense occurs too late. Form 4s are unreliable. Affidavit material is more useful. (JO62, FCC, judge)

As foreshadowed in the responses quoted above, some judicial officers and registrars reported that they did not find the Form 4 Notice to be a useful document in that it was not an effective screening mechanism:

[The] Form 4 is not a useful document - [There is] still underreporting as parties [are] not filing in appropriate cases … [There is the] problem then [of] getting early information from welfare agencies - no legal aid - limited family consultant resources available. (JO39, FCoA, registrar)

When reflecting on the Form 4 Notice, this judicial officer was critical of the fact that they were not filed in all matters:

Form 4s continue to be problematic. They cannot (save the FCC pilot in SA) be filed in all matters. They are only required when there are allegations. They are filed at best 20-25% of the time when they should be and about 20-25% of those filed do NOT allege abuse or FV within the definitions. (JO54, FCC, judge)

By way of contrast, the following registrar considered that the Notice serve as a "stand alone notification" in cases involving allegations of child abuse:

The Form 4 or similar document should be limited to allegations of child abuse so that it can be shown to be [a] stand-alone notification. It also needs to contain provision for dates the alleged abuse has taken place and if such an incident has already been referred to the relevant state welfare agency. Allegations of violence should be evidenced by the attachment of an intervention order in the Initiating Application and Response and details of the alleged violence is then provided in the affidavit in support. (JO57, FCoA, registrar)

Interestingly, in the open text responses regarding changes in the ways in which family law professionals identified, assessed and responded to family violence issues as a result of the family violence reforms, some judicial participants took the opportunity to show their support for the adoption of the new Notice of Risk form being piloted in South Australia. They did so on the basis that this revised and compulsory version of the Notice provided a more comprehensive screening and assessment tool:

The proposed new Notice of Risk in the FCCoA is an excellent initiative designed to alert both practitioners and unrepresented litigants to the issues identified in the expanded definition - and through it, as an early identification tool - the judges in the Circuit Court who deal with over 90% of interim/first court date applications. (JO56, FCC, judge)

[I am] conscious of the workload of welfare agencies and working locally to try and get some information sharing at an early date … [The] FCC [is] intending to introduce a Notice of Risk in all parenting proceedings to not only comply with the statutory notification requirements but also highlight other risks and hopefully aid case management. (JO39, FCoA, registrar)

As far a screening goes, it would be very useful to have a broad-based screening tool for all parenting matters that come before the courts. The Form 4 is pretty ineffectual, not least because it is mostly honoured in the breach. I am very much looking forward to the introduction in the FCC of the proposed new Notice of Risk which will provide a basic screening of all parenting matters for allegations of arising from family violence, child abuse, drug and alcohol abuse, mental illness, neglect and parental incapacity. It will allow a targeted assessment and response on day 1 in high volume lists. (JO70, FCC, judge)

The SA pilot is designed to trial a simpler, less cumbersome Notice of Risk, as the F4 is seen as too long and clunky. As the FCC also has affidavits filed in support of children's applications, I tend to rely upon the affidavit rather than the Notice of Risk. It has been very effective in improving the information flow from Families SA, however, with excellent results. (JO50, FCC, judge)

Lawyers

While some lawyers (e.g., L66, L349, L349) identified the requirement to file a Form 4 Notice in "appropriate circumstances" as important, in contrast to the judicial officers, the responses of most lawyers reflecting on the Form 4 Notice as it stood at the time of the survey were negative in content.

Many of these lawyers providing open-ended responses were of the view that the Form 4 Notice was unnecessary, "superfluous", that it was not a useful form or that it was a duplication of other documents filed in a case. For example:

[The Form 4 Notice is a] waste of time. (L50, lawyer)

[The Form 4 Notice] is often a duplication of affidavit evidence. There should be a tick a box on the front of an affidavit which requires parties to simply identify if any of their evidence contains allegations of family violence or child abuse. (L63, lawyer)

[The Form 4 Notice] largely duplicates the work you've done in the client's affidavit. Could be shorter and more user-friendly. (L391, lawyer)

The form is cumbersome and requires a regurgitation of matters already covered in affidavits. We should simply annex the affidavit. (L402, lawyer)

Other lawyers (e.g., L404, L405, L391) also reported that the Form 4 Notice was not user-friendly or that it was too long, complicated, repetitive and required simplification and revision (e.g., L488, L470):

[The Form 4 Notice] is a bewildering nightmare of a form to complete. [It is] far too complicated. [It is] far too repetitive. The cross referencing to evidence is time-consuming and very expensive to clients and serves no purpose. It results in courts having less idea of the true particulars rather than serving its true purpose. (L122, lawyer)

The form is also repetitive in the sense that you fill out a separate section for risk. The form should be reviewed into a more simple format. (L227, lawyer)

Change it to a checklist and remove the temptation to duplicate affidavit material /quote paragraph numbers from other documents. If that means more documents need to be forward[ed] to child protection services assessing Form 4s, that's better than having a confusing form. (L286, lawyer)

As foreshadowed in the comment of L122 above, some lawyers were critical of the Form 4 Notice on the basis that it was too time-consuming and that it added to litigation costs and delays:

I sometimes feel that it is just an aide memoir for the bench given that the expanded information is in the client's affidavit material. I feel that busy practitioners would probably say that preparing the document is time-consuming and a cost impost to clients, which is somewhat of a duplication. (L104, lawyer)

I think it is convoluted and unnecessarily increases legal costs in circumstances where affidavits are filed that provide the same information. (L218, lawyer)

The Notices are just another form to fill in (and more costs for the unfortunate clients to pay) and make no difference to outcomes. That information should be already in the affidavit, which the court does read with far more attention. (L64, lawyer)

The form is costly to prepare with no obvious added benefit. It also appears to be a substitute for the court's role. That is, if the purpose is to bring the issue to the court's attention, it seems superfluous to trace through the affidavits filed and "cherry-pick" the specific paragraphs so as to cross-reference them in the Form 4. (L258, lawyer)

The responses of lawyers in these open-ended responses also identified that there existed a reluctance on the part of some practitioners to file the Form 4 Notice, that they were poorly completed or that they were being misused by parties to gain advantage in the litigation process:

Solicitors complete it before I am briefed and become confused about which acts constitute variously child abuse, family violence and/or risk. There is really no need for such a long form with so many sections. It would be better to have a shorter form where all conduct is listed. Courts can readily determine which category conduct falls into anyway. This would also reduce the amount of paper the court has to look through at interim hearings and mentions when it is just trying to get across a matter. (L110, lawyer)

When the family violence reforms were introduced, I observed that some practitioners [were] filing Form 4 notices for reasons more related to litigious advantage than a genuine desire to protect parties and children. I think that has been tempered somewhat by judicial "guidance". Generally though, Form 4 notices have been beneficial especially since their effect is to better integrate the family law and child welfare systems. (L131, lawyer)

I am aware that there are some lawyers who may use the form as a tool to be listed quicker in the regional area. I will always warn my clients that Form 4s are not to be taken lightly and must be for genuine concerns, not "lashing out" at the other parent. (L500, lawyer)

The use and effectiveness of the Form 4 Notice will be discussed further in Chapter 6, where the capacity of the form to facilitate responses to family violence/risk of family violence and child abuse/risk of child abuse will be examined.

Memoranda and family reports

Insight into judicial practices relating to requests for memoranda of advice pursuant to FLA s 11E or s 11F or requests for section 62G family reports is provided in Table 4.12.

Almost half (44%) of responding judicial officers and registrars indicated that they did not seek s 11E advice as to the services (and service providers) appropriate to the needs of a relevant person in a family law matter. Of the remaining proportion of the sample, 22% indicated that they requested advice pursuant to s 11E in "less than a quarter" of the children's matters before them, and a further 9% indicated that they did so in "about a quarter" of children's matters.

A greater proportion of judicial participants (21%) reported that they ordered parties to attend a child inclusive conference, child dispute resolution conference or child responsive program under s 11F (and therefore received s 11F memoranda of advice) in "more than three-quarters" or "about three-quarters" of children's matters (Table 4.12). A further 15% reported that they did so in "about a half" of children's matters and 12% reported that this was the case in "about a quarter" of children's matters. A substantial proportion of judicial participants ((39%) reported that they made these orders pursuant to s11F in "less than a quarter" (36%) or in "none" (3%) of children's matters before them.

The data in Table 4.12 suggests a greater reliance on s 62G family reports, with 30% of judicial participants indicating that they requested s 62G family reports in "more than three-quarters" or in "about three-quarters" of children's matters. A further 18% of the sample indicated that they requested s 62G family reports in "about a half" of children's matters and 27% indicated that they did so in "about one-quarter" of these matters. Only 3% of the sample indicated that they did not make any such requests in their children's cases, with a further 18% indicating that they requested a s 62G family report in "less than one-quarter" of their children's matters.

Table 4.12: Proportion of children's matters where requests made for memoranda of advice or family reports from family consultants/single-experts, judicial officers/registrars, 2014
In approximately what proportion of children's matters would you request: None (%) Less than a quarter (%) About a quarter (%) About a half (%) About three-quarters (%) More than three-quarters (%) All (%) Cannot say (%) Total (%) Total (N)
Notes: Judicial officers/registrars were asked: "In approximately what proportion of children's matters would you: Request advice from a family consultant under s 11E of the Family Law Act 1975 (Cth); Order parties to attend a child inclusive conference, child dispute conference or child responsive program under s 11F of the Family Law Act 1975 (Cth); Request a family report under s 62G of the Family Law Act 1975 (Cth)". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Advice from a family consultant under s 11E of the Family Law Act 1975 (Cth) 43.8 21.9 9.4 6.3 6.3 6.3 0.0 6.3 100.0 32
Memoranda of Advice - s 11F of the Family Law Act 1975 (Cth) 3.0 36.4 12.1 15.2 3.0 18.2 6.1 6.1 100.0 33
A family report under s 62G of the Family Law Act 1975 (Cth) 3.0 18.2 27.3 18.2 12.1 18.2 0.0 3.0 100.0 33

Interestingly, some judicial participants suggested in their open-ended responses that resource constraints were such that s 11F was less likely to be invoked:

If I have to order a child inclusive report or a full family report, I will order a full family report because of lack of resources to order both. I would only order a child inclusive report if I felt that it would avoid me having to order a further assessment - perhaps where there are older kids or where strong views but not where there are issues of conflict or violence. The resource issue is a big thing. (JO69, FCC, judge)

There are limited resources for s 11F child inclusive conferences. (JO40, FCC, judge)

Evidence-gathering practices of lawyers that facilitate the assessment of risks or harm factors

Lawyers were also asked about the evidence-gathering practices that facilitated their assessment of family violence, child abuse and child safety concerns. Table 4.13 indicates that almost one-third of participating lawyers (31%) responded in the affirmative when asked whether they more frequently made applications for evidence relating to child abuse or family violence pursuant to FLA s 69ZW or s 202K of the Family Court Act 1997 (WA) as a result of the family violence reforms. More than one-half of the sample (53%) indicated that as a result of the family violence reforms, they more frequently applied for and inspected subpoena documents from statutory child protection services. A similar proportion of the sample indicated that they also more frequently applied for and inspected subpoena documents from police (54%). In addition, 40% of the participating lawyers also indicated that as a result of the family violence reforms they more frequently made informal enquiries about the history of contact with statutory child protection services.

Table 4.13: Lawyers' views of the effects of the family violence reforms on their evidence-gathering practices, 2014
As a result of the family violence reforms, I more frequently: Yes (%) No (%) Cannot say (%) Total (%) Total (N)
Notes: Lawyers were asked: "As a result of the family violence reforms, I more frequently: make applications for evidence relating to child abuse or family violence pursuant to FLA s 69ZW (or FCA s 202K); apply for and inspect subpoena documents from statutory child protection services; apply for and inspect subpoena documents from police; make informal enquiries about history of contact with statutory child protection services". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Make applications for evidence relating to child abuse or family violence pursuant to FLA s 69ZW/ FCA s 202K 30.9 46.3 22.8 100.0 246
Apply for and inspect subpoena documents from statutory child protection services 52.6 33.2 14.2 100.0 247
Apply for and inspect subpoena documents from police 53.9 32.7 13.5 100.0 245
Make informal enquiries about history of contact with statutory child protection services 40.1 46.2 13.8 100.0 247

Judicial officers and registrars were also asked for their views about whether the family violence reforms had affected lawyers' evidence-gathering practices, albeit with regard to a broader range of evidence-gathering tasks. The data in Table 4.14 show that substantial proportions of judicial officers provided affirmative views with respect to the various nominated evidence-gathering tasks, with requests for assessments of children and young people (e.g., medical, psychological or attachment assessments) being the exception to this affirmative response pattern, and with a higher level of disagreement reported in relation to applications for s 69ZW or s 202K information. More specifically, almost one-half of the judicial sample (45%) indicated that they mostly or strongly agreed that as a result of the family violence reforms, lawyers (including ICLs) were more likely to apply for a family report or single expert report. Similarly, 53% of the sample indicated a greater likelihood for lawyers to request assessments of parents and 47% reported that they strongly or mostly agreed that lawyers were more likely to seek criminal history checks of parents or other relevant persons (although almost one-third of the judicial sample disagreed with this latter proposition). Half of judicial participants reported that lawyers were more likely to enquire about the history of protective intervention orders against a parent or other relevant persons, although one-third of judicial participants mostly or strongly disagreed with this proposition. In relation to information available from statutory child protection services, more than one-third of the judicial participants (42%) considered that lawyers were more likely to make informal enquiries about the history of contact with statutory child protection services, and while a similar level of agreement was reflected in the responses relating to applications for s 69ZW or s 202K information (40%), a greater proportion of these participating judicial officers and registrars reported that they mostly or strongly disagreed (46%) that lawyers were now more likely to make an application for s 69ZW or s 202K information.

Table 4.14: Judicial officers'/registrars' perspectives on the effects of the family violence reforms on the evidence-gathering practices of lawyers, 2014
As a result of the reforms, lawyers (inc. ICLs) are now more likely to: Strongly agree (%) Mostly agree (%) Mostly disagree (%) Strongly disagree (%) Cannot say (%) Total (%) Total (N)
Notes: Judicial officers and registrars were asked: "Please indicate the extent of your agreement or disagreement with the following propositions in relation to the practice of lawyers (including Independent Children's Lawyers) in the period since the family violence reforms. As a result of the family violence reforms, legal practitioners, including Independent Children's Lawyers are now more likely to: apply for family report/single expert witness report; request assessments of the child/young person (e.g., medical assessment, psychological assessment, attachment assessment); request assessments of parents (e.g., psychological assessment); conduct criminal history checks of a parent, family member or other adult in contact with the child/young person; enquire about history of protective intervention orders against a parent or other person in contact with the child/young person (e.g., FVO, AVO, IVO, VRO); make informal enquiries about history of contact with statutory child protection services; make formal applications for FLA s 69ZW (or FCA s 202K) information". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Apply for family report/single expert witness report 2.8 41.7 33.3 2.8 19.4 100.0 36
Request assessments of the child/young person (e.g., medical assessment, psychological assessment, attachment assessment) 0.0 27.8 50.0 2.8 19.4 100.0 36
Request assessments of parents (e.g., psychological assessment) 2.8 50.0 27.8 2.8 16.7 100.0 36
Conduct criminal history checks of a parent, family member or other adult in contact with the child/young person 5.6 41.7 25.0 5.6 22.2 100.0 36
Enquire about history of protective intervention orders against a parent or other person in contact with the child/young person (e.g., FVO, AVO, IVO, VRO) 5.6 44.4 25.0 8.3 16.7 100.0 36
Make informal enquiries about history of contact with statutory child protection services 5.6 36.1 27.8 8.3 22.2 100.0 36
Make formal applications for FLA s 69ZW (or FCA s 202K) information 5.7 34.3 34.3 11.4 14.3 100.0 35
Evidence-gathering practices of non-legal professionals that facilitate the assessment of risks or harm factors

Non-legal professionals were also asked about their evidence-gathering practices relevant to assessing risks or harm factors. In particular, this participant group was asked about the people with whom they liaised to gather relevant information. As Table 4.15 indicates, more than one-half (58%) of non-legal professionals stated that they almost always (31%) or often (28%) liaised with lawyers for the parents/carers, with a further 14% indicating that they sometimes did so. Almost all of non-legal professionals reported that they almost always (92%) or often (6%) liaised with parents/carers, and 86% indicated that they almost always (58%) or often (28%) liaised with ICLs. Most non-legal professionals almost always (72%) or often (19%) liaised with children/young people to gather relevant information, and over half (56%) of non-legal professionals indicated that they liaised with child protection authorities for this purpose (almost always, 25%; often, 31%).

Table 4.15: Information-gathering practices, non-legal professionals, 2014
Persons with whom non-legal professionals liaise Almost always (%) Often (%) Sometimes (%) Rarely/ never (%) Not applicable (%) Cannot say (%) Total (%) Total (N)
Notes: Non-legal professionals were asked: "With whom do you liaise to gather relevant information? Lawyers (for the parents/carers); parents/carers; independent children's lawyer; children/young people; child protection authorities; other". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Lawyers (for the parents/carers) 30.6 27.8 13.9 25.0 2.8 0.0 100.0 36
Parents/carers 91.7 5.6 0.0 0.0 2.8 0.0 100.0 36
ICLs 58.3 27.8 5.6 8.3 0.0 0.0 100.0 36
Children/young people 72.2 19.4 2.8 2.8 2.8 0.0 100.0 36
Child protection authorities 25.0 30.6 27.8 11.1 5.6 0.0 100.0 36
Other 18.5 14.8 11.1 14.8 33.3 7.4 100.0 27

More specifically, family consultants and single experts were asked to reflect on the evidence used in the preparation of their family reports and memoranda. The data in Table 4.16 show that the vast majority of this portion of the sample (95%) indicated that they almost always (92%) or often (3%) used court documentation filed by the parties in a case, including those documents filed by the ICL. A substantial proportion of the participating family consultants and single experts also indicated that they almost always (72%) or often (19%) used subpoenaed material (e.g., child protection files, medical records, criminal records) when undertaking their family reports or memoranda. A majority of these participants (83%) almost always (69%) or often (14%) used expert reports (e.g., medical assessments, psychological assessments and attachment assessments) when undertaking their family reports and memoranda. More than one-half (56%) of the sample indicated that they almost always (50%) or often (6%) used other sources of information to undertake family reports/memoranda.

Table 4.16: Evidence-gathering practices for family reports and memoranda of family consultants and single experts, non-legal professionals, 2014
  Almost always (%) Often (%) Sometimes (%) Rarely/never (%) Not applicable (%) Total (%) Total (N)
Notes: Non-legal professionals were asked: "What information do you use to undertake your family reports/memoranda? Court documentation filed by the parties in a case (including documents filed by the Independent Children's Lawyer); subpoenaed material (e.g., child protection files, medical records, criminal records); expert reports (e.g., medical assessments, psychological assessments and attachment assessments); other". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Court documentation filed by the parties in a case (including documents filed by the ICL) 91.7 2.8 0.0 2.8 2.8 100.0 36
Subpoenaed material (e.g., child protection files, medical records, criminal records) 72.2 19.4 2.8 2.8 2.8 100.0 36
Expert reports (e.g., medical assessments, psychological assessments and attachment assessments) 69.4 13.9 11.1 2.8 2.8 100.0 36
Other 50.0 5.6 11.1 27.8 5.6 100.0 18

Family consultants and single experts were also asked more generally whether they had changed their approach to making assessments in family law matters since the family violence reforms. Table 4.17 indicates that more than one-half of these participants (57%) responded in the negative, with nearly one-third (31%) answering in the affirmative.

Table 4.17: Whether family consultants and single experts have changed their approach to making assessments since the family violence reforms, non-legal professionals, 2014
  No. %
Notes: Non-legal professionals were asked: "Since the family violence reforms, have you changed your approach to making assessments in family law matters?" Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Yes 11 31.4
No 20 57.1
Cannot say 4 11.4
Total 35 100.0

Further qualitative insight was obtained on this issue from family consultants and single experts using open-ended responses. Responding professionals indicated that they now placed greater focus on family violence and child abuse and its effects on children when undertaking their assessments (NL56) and that they had revised their screening and assessment practices, engaging in a more specific and detailed enquiry about a wider range of violence (e.g., NL21, NL23, NL129, NL395, NL484, NL485).

4.2.6 Professionals' assessments of their capacity to identify and assess family violence and abuse

Lawyers and non-legal professionals were asked to rate their own capacities to screen for the presence of family violence and abuse, and all participants in each professional category were asked to rate their own capacity to assess allegations of family violence and abuse. Table 4.18 indicates that more than three-quarters of the aggregate sample answered in the affirmative (85%) and rated their capacity as very high (42%) or high (43%) in this regard. Non-legal professionals were the category most confident in their capacity to screen for and assess allegations of family violence and abuse (95%), with more than one-half of the sample rating their capacities to do so as very high (58%) and more than one-third rating their capacities in this regard as high (37%). Approximately three-quarters of lawyers (78%) rated their capacity to screen for and assess allegations as very high (31%) or high (48%). Judicial officers' and registrars' responses reflected lower self-assessments, with only 12% rating their ability to assess allegations as very high and 56% rating their ability to do so as high. Almost one-quarter of judicial participants rated their ability as moderate.

Comparative data were available with respect to lawyers' self-assessments, with Table 4.18 indicating that a substantially higher proportion of lawyers in the 2014 sample compared to the FLS 2008 sample reported that their capacity to screen for the presence of family violence and abuse was very high (31% cf. 15%). Correspondingly, a lower proportion of 2014 lawyers than the 2008 sample rated themselves as having a high (48% cf. 56%) or moderate capacity (19% cf. 26%).

Table 4.18: Professionals' assessments of their own capacity to screen for or assess the presence of family violence and abuse, 2008 and 2014
Rating Judicial officers 2014 (%) Non-legal 2014 (%) Lawyers 2014 (%) Lawyers 2008 (%)
Notes: Judicial officers and registrars were asked in 2014: "I would rate my capacity to assess allegations of family violence and abuse as: [Please choose one of the following answers] Very high; High; Moderate; Low; Very low; Cannot say." Lawyers were asked in 2008 and 2014: "I would rate my capacity to screen for the presence of family violence and abuse as: [Please choose one of the following answers] Very high; High; Moderate; Low; Very low; Cannot say." Non-legal professionals were asked in 2014: "I would rate my capacity to screen for the presence of family violence and abuse as: [Please choose one of the following answers] Very high; High; Moderate; Low; Very low; Cannot say". Judicial officers/registrars: n = 34; Non-legal professionals: n = 238; Lawyers, 2014: n = 259; Lawyers, 2008: n = 319. Percentages may not total 100.0% due to rounding.
Sources: Family Lawyers Survey 2008; Survey of Practices 2014
Very high 11.8 58.0 30.9 15.4
High 55.9 37.0 47.5 55.5
Moderate 23.5 4.6 18.5 26.3
Low/Very low 0.0 0.0 1.2 1.6
Can't say 8.8 0.4 1.9 1.3
Total 100.0 100.0 100.0 100.0

More specific comparative data were available from the 2009 Survey of FRS Staff component of the Evaluation of the 2006 Family Law Reforms (Kaspiew et al., 2009). Although the variations between the 2009 and 2014 self-assessments were less marked, higher proportions of the non-legal professional sample provided positive ratings of their capacities to screen for various risks and harm factors. Table 4.19 demonstrates that in the post-family violence reform context of 2014, 96% of non-legal professionals rated their capacity to identify child abuse or neglect as excellent (54%) or good (42%), compared to 89% of 2008 participants rating their capacity as excellent (47%) or good (42%).

Similarly, Table 4.19 shows that 98% of non-legal professionals in the 2014 sample rated their capacity to identify family violence as excellent (62%) or good (36%), compared to 91% of 2009 participants rating their capacity excellent (57%) or good (34%) in this regard.

Table 4.19: Proportion of non-legal professionals who assessed their own capacity to identify specific issues as excellent or good, 2009 and 2014
Issue Survey of FRS Staff 2009 (%) Survey of Practices 2014 (%)
Notes: Non-legal professionals were asked in 2014: "Please rate your ability to do the following in your work: Identify issues of child abuse and/or neglect"; "Identify issues of family violence"; "Identify circumstances where clients/callers may be suicidal or at immediate risk of self-harm'; and "Identify circumstances where clients may be at risk of harming others". Non-legal professionals were asked in 2009: "Please rate your ability to do the following in your work for this service: Identify issues of child abuse and/or neglect"; "Identify issues of family violence"; "Identify circumstances where clients/callers may be suicidal or at immediate risk of self-harm"; and "Identify circumstances where clients may be at risk of harming others". Percentages do not total 100% as not all response categories are presented and multiple responses could be chosen. Non-legal professionals, 2009: n = 853-855; Non-legal professionals, 2014: n 230-234.
Sources: Survey of FRS Staff (FRSP Services) 2009; Survey of Practices 2014
Child abuse and/or neglect 89.0 96.2
Family violence 91.3 98.3
Clients who are suicidal/risk of self-harm 85.4 93.1
Clients who may be at risk of harming others 80.9 87.1

Although a marginally smaller proportion of the 2014 non-legal professional sample assessed their capacity to identify circumstances where their clients or callers may be suicidal or at immediate risk of self harm as excellent (42%) compared to the 2009 non-legal professional cohort (46%), 52% of non-legal professionals in the 2014 sample rated their capacity as good as compared to 40% of 2009 participants.

Once again, a marginally smaller proportion of the 2014 non-legal professional sample assessed their capacity to identify circumstances where their clients may be at risk of harming others as excellent (35%) compared to the 2009 non-legal professional cohort (38%). In addition, 52% of non-legal professionals in the 2014 sample rated their capacity as good, compared to 43% of 2009 participants.

These data suggest a general trend of higher self-assessments by legal and non-legal professionals following the 2012 family violence reforms.

4.3 The effects of the family violence reforms on the identification and assessment of family violence: Qualitative insights

Judicial officers, registrars and lawyers were asked for their views in open-ended survey questions about any changes to the ways in which family law professionals screen/identify, assess and respond to family violence as a result of the family violence reforms. In this section, the survey responses relevant to the screening/identification and assessment of family violence will be considered, with the views about responses to family violence examined in Chapter 6.

4.3.1 Judicial officers/registrars

A number of judicial participants reflected positively on the effects of these family violence reforms in encouraging greater awareness of family violence among both lawyers and the community more generally, which in turn give rise to improvements in the identification and assessment of family violence in the family law context:

Screening and assessment processes have improved along with awareness in general terms. (JO29, FCoWA, magistrate)

The reforms have meant a greater awareness of family violence issues as legal issues and that has meant more evidence of that violence (in its expanded definition form) has been adduced. (JO44, FCC, judge)

There has been an increase in the initial reporting of family violence concerns by lawyers and parties - previously this was sometimes "glossed over" perhaps with a view to minimising areas of dispute … What the amendments have done is increase the reporting of violence in the initial applications/affidavits (by the lawyers drafting material or by the litigants themselves) resulting in those persons (family consultants, ICLs, etc.) being aware of this issue immediately instead of becoming aware of it in the course of their involvement with the family. (JO63, FCoA, registrar)

Some judicial participants observed that while reforms assisted in improving community awareness of the behaviour that might constitute family violence, which in turn assisted parents to disclose family violence, the practices of experienced family lawyers, family consultants and single experts, were identified by these participants as being less influenced by the reforms:

I think that specialists in the field (accredited specialists and experienced ICLs and family report writers and experts) were already identifying family violence and child safety concerns. The reforms have assisted mostly in assisting parties to understand the scope of what is meant by family violence, which in turn assists the professionals in getting the information from them, that is, in getting the disclosures. (JO69, FCC, judge)

Other judicial participants (e.g., JO39) were more mixed in their reflections, identifying the family violence reforms as a positive change, but also emphasising broader issues, such as continued under-reporting and lack of resources, as factors influencing the effective screening for and assessment of family violence:

The same lack of resource pressures apply to family law professionals now as before. (JO49, FCC, judge)

Screening and assessment processes have improved along with awareness in general terms, however treatment programs and contact supervision services are grossly inadequate to meet the demand. There is a sense that we know that family violence is a damaging disease, with potentially lifetime implications for children. We can diagnose the problem, we with can give a prognosis but we have little by way of treatment/cure/protection to offer people. Police and child protection authorities have insufficient resources to respond and there is only "asprin and band aids" in the Family Court medicine kit. (JO29, FCoWA, magistrate)

Increasing reporting of risks and identification at an earlier date [is] clearly useful but [with] limited ICL resources, unlikely to have welfare intervention; courts left to make difficult determinations with limited resources; matters coming to the courts more complex with increasing risk factors. (JO39, FCoA, registar)

The effects of the family violence reforms upon responses to family violence referred to in the statements quoted directly above will be considered in detail in Chapter 6.

Other judicial officers and registrars reported that they observed no change in practice with respect to the screening/identification and assessment of family violence as a result of the family violence reforms:

There does not seem to be any change in the practices of lawyers, courts and family consultants from that which existed before the reforms; apart from a requirement for assurances about violence when making consent parenting orders, which seem of limited value in assessing extant risks to children and acting upon any perceived risk. (JO40, FCC, judge)

The amendments largely codify what was the practice of competent family law practitioners, and for the competent practitioner have made little real difference, other than as to how case management is packaged. (JO52, FCoWA, judge)

Prior to the amendments most ICLs, judges and court staff prioritised violence and abuse over all else and were conscious of it and addressed it appropriately. The majority of lawyers on the other hand were and remain poor at addressing, advising or representing clients around these issues and the amendments have not significantly changed this. Mothers are, by and large, more insightful and responsive (and less self-righteously focused) than fathers and others. (JO54, FCC, judge)

Good lawyers including ICLs have always managed those difficult cases well and poor lawyers have not. I do not perceive a difference to the approach pre- and post-amendment in that regard. (JO70, FCC, judge)

In some instances, the responses of these participants (e.g., JO46) suggested that they were of the view that no change was required:

The family consultants, ICLs and other persons who normally work with the families and children (as opposed to act for them) have always taken family violence into account and made recommendations that consider the protection of children, in particular, from violence as being essential. The family violence amendments have not impacted on this at all - it was occurring. (JO63, FCoA, registrar)

4.3.2 Lawyers

Consistent with the reports of judicial participants, some lawyers reflected positively on the effects of the family violence reforms on screening and assessment practices:

[As a result of the family violence reforms, there is now] increased identification of family violence. (L61, lawyer)

[As a result of the family violence reforms, there is now] greater assessment of whether the behaviour alleged does constitute family violence. (L377, lawyer)

Lawyers are using the broader definition of family violence, which takes into account a range of controlling and coercive behaviours. Legal professionals are becoming more aware of how family violence can affect children. I believe lawyers are more likely to ask questions about family violence and explore its implications. (L498, lawyer)

Screening has always been dependent on one's skill to elicit relevant information from a client in a safe, respectful manner, given that it may be that you are the first person that the client has actually spoken to about the family violence. My feeling is that experienced family lawyers screen around the expanded definitions of family violence very carefully. (L104, lawyer)

As indicated in the penultimate response quoted above, the amended definition of family violence in FLA s 4AB was specifically nominated by some lawyers as improving screening and assessment practices. Greater awareness of family violence more generally was also linked to improvements in screening and assessment practices as a result of the family violence reforms:

[As a result of the reforms, there is now a] higher awareness of FV and generally better and more consistent screening. Generally more consistently raised with courts. Definitely has reduced tendency of some lawyers to discourage clients from raising FV issues for fear of being seen by the court as not supporting a relationship with the other parent. Courts are much more FV aware and taking FV more seriously. It is changing decisions both at interim and final stages. (L470, lawyer)

Also consistent with the reflections of judicial participants, some lawyers observed that the practices of experienced and competent practitioners were largely unchanged by the family violence reforms:

Little has changed for those who are experienced and competent. Perhaps there is greater focus for those who are inexperienced (and this specifically includes some judicial officers). (L138, lawyer)

Some private practitioners are able to access more training and anecdotally I hear that some are incorporating formal screening tools - but the really good practitioners have not been impacted by the reforms - they have always dug for family violence, tried to act or frame orders/agreements protectively and prioritised safety over relationships. (L347, lawyer)

The majority of cases in which family violence was a relevant issue were dealt with appropriately prior to the current amendments. There has been limited appreciable benefit since the amendments were enacted, although greater time is now spent on the question of family violence. (L55, lawyer)

No change. [The] reforms stated the obvious. (L383, lawyer)

Other lawyers who observed there was no change or limited change in practice with respect to the screening/identification and assessment of family violence as a result of the family violence reforms reflected negatively on this lack of change and the lack of identification and proper assessment of family violence issues:

It is not possible by legislation to fix the problem of judicial officers who believe that violence is rare or at the best will stop now that the relationship is over. I have found that there are very few judicial officers who truly believe what the statistics tell us to be the situation. (L321, lawyer)

Legal practitioners [are] using the changes to justify bad behaviour by abusive clients. (L79, lawyer)

Lawyers and judicial officers and registrars simply don't understand family violence, especially where there is no evident physical harm. Most other non-legal professionals have much better understanding but once a person files in the court they are very marginalised in their influence on the court's understanding. (L293, lawyer)

In contrast, some lawyers argued that the family violence reforms had encouraged false, exaggerated or irrelevant allegations that in turn posed challenges for screening and assessment of family violence in these circumstances. These participant comments will be considered in the broader discussion of observations of an evidentiary nature in Chapter 8.

More generally, some lawyers identified "inconsistency in the assessment of risk" (L311) and a lack of knowledge with respect to screening and assessing family violence issues, and more specifically, an absence among family law professionals of a nuanced appreciation of the nature and effects of family violence that in turn influenced screening and assessment practices. For example:

I think some practitioners would screen/identify, and assess family violence issues more than others. There continues to be a lack of knowledge among many solicitors on how to screen for these issues. (L388, lawyer)

There may be increased identification of family violence but there is a tendency to see "all violence" as the same and not to be able to properly screen for coercive and controlling violence, take into account issues about power and control and a tendency to try to mutualise violence between parties … There is also a tendency to compartmentalise abuse issues and to not see the crossover and inter-relationship between violence against women and violence against children. If the case involves direct abuse of children, then there is a tendency to forget perhaps about the violence against the mother and consider all these aspects of the family dynamics. (L61, lawyer)

Participating lawyers (e.g., L201, L422, L38, L393) also recommended further training for family law professionals, including judicial officers:

[There is a] lack of awareness of the changes and what they mean. Training [is] required to increase awareness. Training in screening techniques for lawyers and other professionals would be useful. (L314, lawyer)

I think there needs to be more education as to the impact of family violence on children both as primary and secondary victims as well as a far greater understanding as to why women don't leave abusive relationships. Further, there also needs to be greater understanding of the non-physical components of family violence, as I think these are poorly understood. Economic abuse in particular is poorly understood. (L174, lawyer)

The lawyers need more training to understand the intention of the legislation. I believe that if they do not understand the legislation, they will not understand any of the changes. (L366, lawyer)

Not all judicial officers have had sufficient experience or training in children's matters. Judicial officers still get appointed on connections rather than being the best person for the job, which is very frustrating and disappointing for those people who practice in this jurisdiction. (L357, lawyer)

Most open-ended responses from lawyers on this survey question, however, focused on changes in the ways in which family law professionals respond to family violence issues as a result of the family violence reforms. As noted above, these views are considered in detail in Chapter 6.

4.4 Summary

This chapter has examined findings from the Survey of Practices relevant to the identification, screening and assessment of family violence, child abuse and child safety concerns. This is an area where differences in views were apparent between professional groups when reflecting on some aspects of the family law system's identification and assessment capacities.

The data in this chapter demonstrate a divergence between the reflections of judicial participants and other participant groups on the capacity of the legal system, lawyers and FRCs to screen adequately for family violence and child abuse since the introduction of the family violence reforms. While 65% of judicial participants considered that the legal system adequately screened for family violence and child abuse in the post-reform context, markedly lower levels of agreement were reported by lawyers (46%) and non-legal professionals (38%). A similar response pattern emerged in relation to the assessments of lawyers and FRCs, with lawyers reflecting most positively on the capacity of their own profession to screen adequately for family violence and child abuse, and non-legal professionals reflecting most positively on the capacity of FRCs to screen adequately for family violence and child abuse. Of note, comparative data available from the Institute's Evaluation of the 2006 Family Law Reforms (Kaspiew et al., 2009) indicate a slight increase in positive reflections on the legal system's capacity in this regard. This finding suggests an increase in inter-professional trust. A lack of trust has previously been identified as having a negative influence on effective inter-professional practice in the family law context (see, e.g., Kaspiew et al., 2012; Moloney et al., 2011; and Rhoades, Astor, Sanson, & O'Connor, 2008).

The discussion in this chapter also analysed more specific survey questions that canvassed any improvements in the capacities of judicial officers/registrars, ICLs, non-ICL lawyers, family consultants/single experts and FDR practitioners to screen for/identify and assess family violence, child abuse and child safety concerns as a result of the family violence reforms. The analysis of these data indicated that participating lawyers were the group that consistently responded most positively in relation to improvements in the capacities of each category of professional, with judicial and non-legal participants generally endorsing improvements in the capacities of various professionals where these participants were able to express views on the relevant propositions. Variations in these response patterns emerged, however, with respect to improvements in the screening and assessment capacities of non-legal professionals, with non-legal participants reporting the highest proportion of affirmative responses when reflecting on improvements in the capacity of family consultants and single experts to assess family violence, child abuse and child safety concerns, and in the capacity of FDR practitioners to screen for and assess family violence, child abuse and child safety concerns.

The analysis in this chapter also set out participants' observations of changes arising since the inception of the family violence reforms to professional screening and assessment practices. In relation to changes with respect to court practices, judicial and legal participants were in strong agreement that courts more actively enquired about the existence of child abuse and family violence since the family violence reforms, while non-legal professionals were less positive on this front. However, when participants reflected on their own practice approaches, they were more likely to indicate that these practices had not changed since the introduction of the family violence reforms. As suggested by some open-ended survey responses, it may be that, faced with resource limitations, judicial decision makers are, for example, refraining from seeking a memorandum of advice from family consultants pursuant to FLAs 11F at an early or interim hearing stage, in order to ensure that sufficient resources are available for a s 62G Family Report. Early or interim decisions made in this context therefore would proceed in the absence of information that may facilitate the risk assessment process (Altobelli, 2014).

Substantial insight into current screening and assessment practices emerged in this chapter, with the answers to relevant survey questions suggesting that a greater proportion of non-legal professionals than lawyers regularly asked their clients directly about family violence, risk of family violence, child abuse or child safety concerns. Discussion of the data relating to screening and assessment tools also indicates that while professionals generally used a broad range of screening and assessment tools, DOORS was not widely used at the time of the survey. The qualitative data provided more detailed insight into professionals' reflections on their screening measures, with open-ended responses emphasising the utility of the client interview process and the significance of professional skill, knowledge and experience in screening for risks and harm factors.

Evidence-gathering practices aimed at facilitating the assessment of these risks and harm factors were also examined, with judicial participants reflecting less negatively than lawyers on the utility and effectiveness of the Form 4 Notice, whereas the open-ended responses of most lawyers on the Form 4 Notice, as it stood at the time of the survey, were negative. Data on the evidence-gathering practices of lawyers after the family violence reforms indicate increases in applications for subpoena documents from child protection services and police for a majority of participating lawyers, with substantial proportions of judicial participants also providing affirmative views with respect to the effects of the reforms on a broad range of evidence-gathering tasks undertaken by lawyers.

Professionals' self-assessments of their own capacity to identify and assess family violence and abuse showed that a majority of lawyers and non-legal professionals were confident in their capacity to screen for family violence, with a substantially higher proportion of positive responses from lawyers participating in the Survey of Practices than the lawyers participating in the 2008 Family Lawyers Survey for the Evaluation of the 2006 Family Law Reforms. A majority of judicial officers and registrars also reflected positively on their own capacity to assess allegations of family violence and abuse.

More generally, participants' qualitative, open-ended survey responses about any changes as a result of the family violence reforms to the ways in which family law professionals identify and assess family violence, also indicated that while some judicial and legal participants observed change, other participants in these categories were mixed in their view on this question or reported that they had observed no change to the screening and assessment of family violence. The perspectives of both judicial officers and lawyers on this question also provided particular insight into impediments emerging in the screening and assessment process, with some participants reflecting negatively on the lack of improvement in the identification and assessment of family violence, which was exacerbated by a lack of court and child protection resources. The discussion of any changes in the ways in which family law professionals respond to family violence as a result of the family violence reforms will take place in Chapter 6.

13 For further discussion of this issue, see also Batagol and Brown (2011); Elizabeth, Tolmie, and Gavey (2011); Field (2006); Trinder, Firth, and Jenks (2010); and, more recently, Kaspiew, De Maio, Deblaquiere, and Horsfall (2012); Carson, Fehlberg, and Millward (2013); and Sifris and Parker (2014).

14 This obligation arises from FLA s 60CH and s 60CI, which provide that parties to proceedings are obliged to inform the court where a relevant child is under the care of a person pursuant to a child welfare law (FLA s 60CH(1)), and where a relevant child is or has been the subject of a notification or report to a prescribed state or territory child welfare authority or where an investigation, enquiry or assessment by such an agency has been undertaken, where that notification, report, investigation, enquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse (FLA s 60CI(1)).

15 Note that for proceedings in the FCoWA, the relevant Form 4 Notice is titled Notice of Child Abuse or Family Violence (or Risk) - Form 4.

16 See Federal Circuit Court of Australia (2012; 2014, p. 2). The pilot of the Notice of Risk in parenting proceedings issued in South Australian Registries of the Federal Circuit Court of Australia commenced on 4 February 2013. The evaluation of this pilot concluded that "concerns about lack of compliance with legislative requirements for reporting or risk appear to be justified given the increased level of reporting and the absence of any evidence to suggest that the identified risk is unsupported by the facts" (FCCoA, 2014, p. 9). While the evaluation acknowledged the concerns of lawyers with respect to the imposition on their time when required to complete the form in cases where there were no allegations, "the majority of legal practitioners found the form easy to navigate and ticking the boxes marked 'no' should not be too time consuming" (p. 10). The compulsory Notice of Risk was identified as enhancing compliance and addressing the issue of under-reporting of risk of family violence and child abuse. The evaluation concluded that there are advantages to implementing this Notice of Risk form on a national basis (FCCoA, 2014). Following the evaluation, the Federal Circuit Court Rules were amended to provide for the new form of Notice of Risk to replace the currently prescribed Form 4 Notice on a national basis, effective from 12 January 2015. See Federal Circuit Court Amendment (2014 Measures No. 1) Rules 2014 (registered 22 October 2014).