Monday, 18 May 2009

Response of the Queensland Magistrates Court to domestic violence- speech by the Chief Magistrate

A speech delivered by the Chief Magistrate of Queensland last week:

The response of the Queensland Magistrates Court to Domestic Violence

Judge Brendan Butler AM SC
Chief Magistrate


Thank you for welcoming me here to the Gold Coast today.
The Queensland Magistrates Court plays a significant part in the response to domestic violence in this State. Under the Domestic and Family Violence Protection Act 1989 the Magistrates Court has exclusive jurisdiction to deal with applications for Protection Orders that are made to protect a person against further domestic violence.

In turn, breach of a protection order may be prosecuted in the Magistrates Court as an offence punishable by imprisonment or fine.

Magistrates sitting in the Children’s Court hear child protection applications under the Child Protection Act 1999 to ensure the safety of children. These applications often arise in cases where violence is alleged to have occurred in the home. Many criminal offences are instances of domestic or family violence. The more serious of these are prosecuted in the District and Supreme Courts but the Magistrates Court, as the Court dealing with 96% of all criminal matters heard in Queensland, has the greatest exposure to criminal charges arising from domestic
situations.

I mention all of this to place in context the role the Magistrates Court plays in domestic violence matters. I appreciate many of you present have long experience dealing with domestic violence
matters and are very familiar with the court and its function. Forgive me if I am stating the obvious.

In speaking to you here today I should concede at the outset that I am not an expert in dealing with domestic violence, but merely a lawyer. Lawyers, as you may have heard, are said to have an opinion on everything but be expert in nothing. Nevertheless, I hope I can contribute something today.

I came to this position late last year and therefore am still coming to terms with the detail of our jurisdiction. I am fortunate however that I have come to a court where both my predecessor, Judge Marshall Irwin and so many of the magistrates have demonstrated an enthusiasm to embrace fresh solutions to the challenges of this jurisdiction.

I do have some personal appreciation, from decades of work as a Crown Prosecutor, of the anguish victims of crime endure, caused both from the original offending and from the difficulties they experience in the court system. As Chairperson of the CMC I delivered the Protecting Children Report in 2004 which recommended wide-ranging reform of the Child protection system in Queensland. In 2006 I was commissioned to provide a report to the government which recommended significant reforms to improve the lot of victims who had suffered at the hands of persons with mental illness, with particular reference to supporting the victims through the court processes and implementing strategies to minimise the risk of offending occurring in the first place.

Victims of domestic violence suffer similarly to other victims of crime and share the needs of other victims of crime but they also have special needs arising from the circumstances in which
the offending against them has occurred.

Every day in our courts we hear of victims of domestic and family violence who have suffered terrible injuries and indignities at the hand of partners or family members. At the extreme end of the spectrum the lives of some are at stake.

I need not repeat to an audience such as this the huge social cost to our community of the incidence of domestic and family violence. Indeed as you all probably know, the current Federal and State governments have both recently committed to proactively addressing domestic and family violence.

In April this year the Federal Government undertook to implement most of the recommendations of the National Plan produced last year by the National Council to Reduce Violence against Women and their Children.

Also Queensland Government agencies are actively involved in the developing a whole of Government strategy to target domestic and family violence. A consultation paper was issued last year and it is anticipated a strategy will be released later this year.

But I am not here as a member of executive government. I am here as a member of the judiciary. Our constitutional role is separate from that of government and involves the delivery of justice in accordance with law.

That obligation arises on two levels. On one level, as a head of jurisdiction responsible for the “orderly and expeditious exercise of the jurisdiction and powers” of the court, I proceed with a view to ensuring that the laws we enforce are given full and appropriate effect.

At the level of the individual case, magistrates must ensure that they determine the matter on the evidence before them according to law. In doing so they must treat all those appearing before them, applicants, aggrieved and respondents, in a professional, unbiased, courteous and respectful manner, giving each the fullbenefit of the law.

The domestic and family violence jurisdiction is a challenge for the court, constituting as it does one of its busiest areas. In the year ending 30 June 2008 there were 23,836 applications
for Protection Orders lodged in Queensland. That represented a 36% increase in applications over the last 7 years. The busiest centre in the state was Southport where 2,214 applications were lodged. A further 223 applications were lodged at Coolangatta. In 2007 – 2008 there were 32,081 orders made throughout the State and 5376 applications dismissed.

The jurisdiction is one that magistrates find to be emotionally demanding. Applications may be made shortly after an incident of violence and aggrieved persons may be very stressed, upset, in
pain or injured. Respondents may be confronted with the possibility of having to move home, having access to family members restricted or having other restrictions placed on them.
Magistrates often have to resolve competing interests and may be confronted by uncooperative parties.

In all of this the court is looking to give effect to the Domestic and Family Violence Protection Act which states its purpose as providing for the safety and protection of persons against domestic
violence.

Protection orders made under that Act are not just about controlling the immediate behaviour of the respondent; they are also about allowing the parties to deal with the issues that underlie
the violence.

Regrettably many protection orders are breached. In 2007 – 08 the Magistrates Court dealt with 6,107 breaches. 428 of those were in Southport and Coolangatta.

Court orders cannot alone deal with the complex causes of domestic and family violence. That requires a long term integrated response calling on the resources of a variety of Government and non-Government agencies. Some of those responses will be about preventing violence in the first place. As the Federal Government’s response to the National Plan to Reduce Violence
against Women says – “violence against women is preventable”. Unfortunately by the time the matter reaches the court and a protection order is made, the response must occur in the face of
established violence or at least an escalating situation. By that stage an integrated approach is frequently required in order to successfully respond.

Speaking to this forum two years ago my predecessor as Chief Magistrate, Judge Marshall Irwin, stated the aims of an integrated approach are to:
· Promote the safety of persons affected by family violence;
· Increase the accountability of people who engage in family
violence;
· Encourage behavioural changes; and
· Increase the protection of children exposed to family
violence.

I endorse those aims.

The concept of an integrated response is well understood here on the Gold Coast where you have been successfully operating a community-based integrated multi-agency response since 1996.
You are to be congratulated on the success of your approach. I am proud that the local Magistrates Court has participated by providing accommodation to the Domestic Violence Court
Assistance Program and by referring respondents to the Mandated Mens Program. A feature of your program has been a high level of interagency cooperation, supported by interagency training.

Responding to domestic and family violence is a dynamic process. We need to continue to search for improved responses. A further possible development is to achieve integration of response across the separate court jurisdictions dealing with domestic violence applications, criminal charges arising from domestic situations and child protection proceedings. With this in mind Judge Irwin championed the development of a specialised domestic and family violence court. The Magistrates Court has trialled an initiative in Rockhampton with the aim of developing a “one stop shop” to deal with all matters arising from instances of family violence. The remainder of what I say has been, with her permission, drawn largely from a paper by
Magistrate Hennessy.

At present, issues of domestic violence in a family in particular, may lead to the family becoming involved in an application under the Act (civil closed jurisdiction), criminal charges (criminal open jurisdiction) and child protection proceedings (childrens’ court closed jurisdiction). Of these three jurisdictions, the two closed jurisdictions are closed to all other jurisdictions. A respondent
person may be subject at the same time to a protection order, bail conditions and directives under an interim order under the Child Protection Act 1999.

Given that these orders are generated from differing jurisdictions and cannot be determined at the same time, there is enormous potential for conflict between the orders. At the present time, court processes are not harmonised or co-ordinated internally to detect any such conflicts.

A more co-ordinated court process is the only reliable way in which to address the potential for conflict or disharmony between orders in any of the three jurisdictions. This obviously creates a
significant difficulty for the court due to the inability to combine any of the jurisdictions in the absence of legislative change.

An integrated court process allows parties to navigate one court system for all matters relating to domestic violence. This amounts to the provision of better access to justice and improves fairness to parties, particularly self-represented persons, by making the process easier and less time consuming. The Queensland Magistrates Court has a strong background in initiating and implementing problem-solving and therapeutic court approaches including the Drug Court, Murri Court, Homeless Persons Court Diversion Program, Special Circumstances List,
QMERIT (Early Referral into treatment program), some of which have been developed within the current resources of the Court.

The Rockhampton model draws heavily from the experience of specialised Family Violence Courts overseas and interstate. Research indicates that there are a number of benefits in
specialised domestic and family violence courts. The four major benefits are:
(i) Improved victim assistance, support and safety
(ii) Increased accountability of offenders and fast
tracking of offenders to programs and counselling
(iii) Potential to deal with complexity of cases across
jurisdictions.

There is no universal model for specialised domestic violence courts but most courts include specialised investigation and prosecution processes, a high level of collaboration between the
court and agencies, an integrated approach from the courts across jurisdiction types and support for victims and offender behaviour change through service providers and programs.

The vision of the Rockhampton trial was to develop a procedure to meet the following criteria within the current framework of the courts and without funding. The goals were (not in order of
priority):
· To reduce the amount of unnecessary appearances required by the parties in applications for domestic and family violence orders by having applications, hearings and breach proceedings heard on the one day in the one court;
· To ensure maximum access to domestic violence support workers for the aggrieved person in relation to applications for protection orders on a temporary and final basis (until then, the hearings of applications were listed at various times through the court list and were not able to
be serviced by the support workers);
· To provide an opportunity for the aggrieved person to attend Court for breach charges should they wish to, enabling victim impact information to be received by the court;
· To improve information available to parties to applications at the earliest opportunity – regarding the court process but also support services – including improved prosecutorial knowledge of the matters through specialisation of prosecutors and providing consistency of
personnel having access to the parties;
· Improving child protection outcomes by improving Department of Child Safety knowledge of the contents of orders made and providing an opportunity for that Department to inform the Court of issues impacting on the making of orders relating to particular parties – Child
Safety call-over listed on the same day in the same court room;
· To reduce conflict and inconsistency between various orders from different jurisdictions affecting the same parties;
· To provide the opportunity for referral of offenders to perpetrator programs or counselling during bail periods prior to sentencing on breach charges or as a condition of a community based order;
· To provide further safety and comfort for aggrieved spouses when attending court.

From the outset in Rockhampton, stakeholder meetings established links between the court and service providers and other stakeholders. Early on, the court was able to arrange for
some minor remodelling to the exiting courthouse facilities to facilitate domestic violence support.

In Rockhampton a number of other issues were easy to address and changes were quickly made:
· changes to the listing arrangements for Domestic Violence matters – two dedicated domestic violence days per month were arranged with application mentions (9am), breach charges (9.30am), hearings on applications (10am) and child safety matters (2pm) listed on the one
day;
· a dedicated prosecutions team was created by the QPS with the Sergeant from the DVLO office prosecuting first return mentions of applications each morning and a prosecutor (with the assistance of the Sgt) prosecuting all Domestic Violence matters on the dedicated day, QPS
Enquiries office personnel (responsible for service of applications and orders and taking of statements in support of applications) attend to support and instruct the
prosecutor on each occasion;
· domestic violence support officers attend court to support aggrieved persons on each domestic violence day as well as on the first return mentions each morning;
· improved written material on and referrals to service providers being provided to parties to applications and appointments to provide statements to Police being made
at Court, increasing the likelihood of the necessary preparation for hearing being achieved;
· improved communication and liaison between the court and all interested parties in the system through regular meetings and co-ordination of processes;
· Police changed their procedure to facilitate breach charges being returnable on the dedicated domestic violence court days.
· concurrent Police follow-up and call-back program by DVLO; Repeat Calls for Service were addressed by Police – families that Police are called to more than three times in a six month period are case managed with serious offences being managed by a senior officer,
normally a Sergeant. Referrals to services for aggrieved, respondent and children if necessary are given. The anecdotal evidence from DVLO is that despite attempts to engage the family in the process, attendance at referred services is not high.
· In Rockhampton, 1/3 of domestic violence callouts are to indigenous families. Police Liaison officers who are aboriginal and islander officers attempt to engage with families who have issues with domestic violence. They attend on houses where an incident occurred a couple of
days after the incident and encourage the respondent (and family members if appropriate) to attend the local Indigenous Healing Centre.

Some issues were more difficult and are still being developed:
· There have been difficulties around the availability of perpetrator programs through service providers, due to the transient nature of the funding arrangements for programs, and the lack of sufficient places in programs dedicated for court use.
· The lack of legislative support for a bail based treatment program necessitates reliance on the local Police attitude to the laying of potential breach of bail charges where offenders fail to answer bail conditions to attend programs;
· There have been delays in engagement with the process by Department of Child Safety.
· There has been limited success from Police Liaison officers’ actions in attending on families. Domestic Violence training for those officers and co-ordination with other services may be needed.

The Rockhampton Court arrangements are presently operating without additional funding. For this reason the model as it is presently operating falls short of what would be expected in a fully
operational Specialised Court.

Specialised Courts of this nature seek to achieve a therapeutic outcome for the parties. Respect for victims needs to be at heart of the process, with a view towards improving safety and
empowerment of victims through referral to appropriate services and support mechanisms being available at the court. At the same time, a focus needs to be on offenders taking responsibility and accepting accountability for their behaviour. This, we believe, can
best be achieved through the use of court ordered programs for criminal offenders with supervision of progress on the order by the court.

The process will best be achieved through co-operation and collaboration between court, service providers and stakeholders, including a mutual understanding of the response of the various
agencies to domestic and family violence issues.

Additional components of an ideal response would include:
· A process for early comprehensive assessment of the risk to
and safety of affected persons,
· identification of families with multiple support needs and
case management of the delivery of services to those
families,
· provision of legal services for both aggrieved and
respondents for domestic violence orders and related
matters,
· a formal mechanism for liaison between the Courts, referral
agencies, prosecutors, Probation and Parole, Child Safety,
QPS and non-government service providers.

Conclusion
Domestic and family violence imposes a huge cost upon the community. It primarily impacts upon women and children but ultimately the whole community suffers. Research demonstrates
that children exposed to violence are more likely in time to offend themselves. Much hangs on our putting a stop to this destructive cycle of offending. We must not shirk the difficult task of
addressing domestic and family violence. I believe that an integrated response of the type I have been describing will provide a way ahead.

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