The Family Drug Treatment Court: From establishment to practice and beyond

Magistrate  Kay  Macpherson2, Magistrate Greg Levine2, Ms Viv Mortell2, Miss Elisa Buggy1

1Judicial College Of Victoria, Melbourne, Australia, 2Children’s Court of Victoria, Melbourne, Australia, 3Department of Health and Human Services, Melbourne, Australia

The Family Drug Treatment Court was established in Victoria in 2014. The first of its kind in Australia, it has been developed using the principles of solutions-focused courts to address parental substance misuse where children have been removed from the family home due to the unacceptable risk this has caused. The Family Drug Treatment Court represents a fundamental shift in the way child protection matters are dealt with in the family division of the Children’s Court.

This panel presentation, featuring the Churchill Fellow and first Magistrate of the FDTC, the current Magistrate of the FDTC, and the Program Manager of the program will explore the design and development of the model, its implementation, and what has been found to work in this ground-breaking initiative (as well as what doesn’t).  Audience participation is encouraged and questions will be welcomed from the floor.

Biography:

Elisa is a passionate advocate of humanising the justice system, and an avid explorer of best practice in health approaches to the criminal justice system.  She has managed Drug Courts in two Australian States and established the first Family Drug Treatment Court in the country.  She has presented extensively, both nationally and internationally on topics relates to solutions focused courts and is actively working on a world class education program for Victoria’s Drug Court.  She loves meeting new people and sharing her passions with others.

Let’s Talk About Compassion as the Foundation of a Solution Focus in Sentencing.

Dr Anthony Hopkins1

1Australian National University, Acton, Australia

At heart, adopting a solution focus in sentencing involves understanding the lived experiences of those who come before the court and using this understanding as a platform to promote positive change. It requires engaging with participants as human beings entitled to equal respect and equal consideration. And this requires paying particular attention to each participant’s individual struggle and working actively to empower them to realise their potential. So described, adopting a solution focus is congruent with both ‘equality before the law’ and an ‘ethic of care’ (King, 2010). Indeed, it is argued that these as complementary and interdependent values. But what motivates and supports the pursuit of these values in solution focused sentencing processes? Utility – understood as ‘what works’ – is key. So too is principle, and the rectitude of promoting equality as an end in itself. Yet to stop here is to miss the deeper foundation that underlies the pursuit of solutions in sentencing. That foundation is compassion: ‘the capacity to be open to the reality of suffering and to aspire to its healing’ (Feldman and Kuken, 2011). It is compassion that ‘enables us to be motivated to engage with suffering, to stay with it and understand its causes in a non-judgement way’, and it is compassion that ‘enables us skilfully to work toward the alleviation and prevention of suffering and its causes’ (Gilbert and Choden 2014).  If it is accepted that a foundation of compassion best enables the pursuit of solutions in sentencing, there is much to be gained from naming compassion as a key attribute of professionals involved in the work of solution focused courts and supporting them to further cultivate a compassionate mind.

Biography:

Anthony Hopkins is a criminal defence barrister in the ACT and a Senior Lecturer at the ANU College of Law. He began his career as a lawyer working at the Central Australian Aboriginal Legal Aid Service in Alice Springs. Anthony’s teaching and research interests include a focus on why it is essential that particular attention be paid to the historical and contemporary experience of Indigenous Australians at all stages of the criminal justice process. He has a personal and professional commitment to holistic approaches to rehabilitation and personal change, born, in part, from his continuing Vipassana meditation practise.

 

Mediation and Conciliation: Identifying Worlds of Difference

Mr Jeremy Gormly1

1Australian Dispute Resolution Advisory Council, Sydney, Australia

Mediation and Conciliation are poorly distinguished but profoundly different.

This presentation will distil Mediation and Conciliation and present the work being done by the think-tank Australian Dispute Resolution Advisory Council (www.adrac.org.au).

Mediation is a usually facilitative, non-advisory dispute resolution tool that is a creature of the marketplace. It leaves both the mediator as a DR practitioner and the parties free to resolve their dispute as the parties choose and with a mediator unaligned to any policy or interest.

Conciliation is a usually evaluative and advisory dispute resolution process designed to promote resolution of a recognized form of dispute within pre-existing policy. Conciliators are trained to promote a resolution that actively encourage outcomes within that statutory or policy framework. Both parties and conciliator are bound to the policy that brings them together.

Whether, when and by what means each of mediation and conciliation is used, is the burning issue.

Biography:

Jeremy Gormly SC chairs the Australian Dispute Resolution Advisory Council, a DR think-tank which examines advances in appropriate DR for all forms of dispute. Jeremy Gormly is a Sydney barrrister who has done hundreds of trials, hundreds of mediations and dozens of inquiries as counsel assisting. He has concluded the Lindt Siege inquest. He managed the mediation of the outstanding HMAS Melbourne-Voyager claims.

 

What works and why? Achieving better outcomes at the Drug Court of NSW

Senior Judge Roger Dive

Drug Courts of NSW

P.O. Box 92 Parramatta  NSW  2124

judge.dive@courts.nsw.gov.au

The Drug Court of NSW has reached maturity – 18 years of age.  In that time the Court has expanded to three locations, and maintains 250 participants at any one time.  Judge Dive has been the Senior Judge for 12 of those years.

What have we learnt in those years?  Judge Dive will reflect on the key lessons learnt by the judges and program partners across those years.

The NSW Bureau of Crimes Statistics and Research studied the benefit of “Intensive Judicial Supervision at the Drug Court – how has the Court responded to that research, and what are the results?

The pattern of drug use has also changed across those years, and there is now a sustained increase in the use of “ice”.  Flexibility has been required from the court, with changes to policies and practices to meet a constantly changing treatment environment.

Some insights will also be provided as to what goes on behind the scenes to maintain the program.

Biography

Judge Roger Dive has been a Judge of the District Court of NSW, and the Senior Judge of the Drug Court, since July 2004.  Before those appointments Judge Dive had been a Local Court Magistrate since 1989, sitting in both city and country courts.

He held the roles of Senior Civil Magistrate and Senior Children’s Magistrate during 15 years on that bench.  In the Children’s Court, Judge Dive sat in the Care and Criminal jurisdictions, taking a particular interest in the chronic issues of the far West of this State.

Judge Dive was awarded the 2011 Prime Minister’s Award for outstanding contribution to Drug and Alcohol endeavours.

 

 

Sexual violence: Justice outside the courtroom? A New Zealand proposal

Ms Katherine (preferred name Kate) McKenzie-Bridle1

1New Zealand Law Commission, Wellington, New Zealand

Three quarters of New Zealand women who are sexually violated or abused know their abuser. He is a partner, relative or friend.  Victims want the perpetrator held to account, and to protect themselves and others from further abuse. Yet the vast majority do not report their sexual violence experience to the police. Often this is for fear of how the criminal justice system will treat them as complainants; at other times the concern is focussed on the perpetrator and the almost inevitable prospect of imprisonment that a finding of guilt will raise.

I will argue that the traditional “one size fits all” criminal justice system too often sidelines or undermines victims of sexual violence, both male and female.  Drawing on the work of Kathleen Daly and others, I will outline what victims of sexual violence need from a criminal justice process and contend that, just as there are different circumstances and individuals in each case of sexual violence, the “justice mechanisms” to address sexual violence incidents should be similarly diverse.

The paper will examine one such proposed justice mechanism recommended by the New Zealand Law Commission in its 2015 report “The justice response to victims of sexual violence: criminal trials and alternative processes.”

Briefly, the process would operate outside the court system.  Eligible victims could choose to access an accredited programme provider who would work with the victim to meet his or her “justice goals” – which may or may not involve meeting with the perpetrator. Eligible perpetrators who participated would need to take responsibility for their actions and make a redress agreement. The agreement would be monitored by the provider, who would verify completion to an external body. If the process was successfully completed, a statutory bar would prevent the perpetrator being prosecuted for the same incident of sexual violence.

The government is currently considering this proposal.

Biography:

The first twenty years of Kate’s working life were spent in private practice in civil and family litigation, interspersed with periods working at Community Law centres.  Over this period she focussed particularly on issues affecting women and children. A long held but latent interest in restorative justice led her to train as a facilitator in 2013. After taking up a legal and policy position at the New Zealand Law Commission in 2014, Kate was enabled to combine these interests by working on a proposal exploring an alternative means of resolving incidents of sexual violence outside of the traditional court system. The proposal was part of the Law Commission’s report to the New Zealand government in 2015: “The justice response to victims of sexual offending: criminal alternative criminal trials and alternative processes.” Kate lives in Wellington New Zealand with her husband, three children, and various pets.

Death Investigation and Procedural Justice: The Quest for Balance

Prof. Ian Freckelton1

1University Of Melbourne, Melbourne, Australia

For more than a decade analyses of coronial processes inspired by both therapeutic jurisprudence and restorative justice have identified the potential for maximizing the therapeutic and public health benefits of the investigative functions of coroners’ courts and minimizing their counter-therapeutic potential. The focus of both scholarly literature and law reform proposals has been upon addressing deficits in respect of the role of families in coronial investigations and especially coroners’ inquests. This has been a constructive contribution and has improved sensitivity to the risk that family members will be disenfranchised and alienated at a highly vulnerable time after they have been bereaved. However, the potential for adverse effects on parties other than family members has been inadequately recognized in the literature. This paper seeks to redress that imbalance and argues that it is appropriate also to have regard to such potential in endeavouring to provide an approach to the work of coroners that is influenced by the sensibilities of therapeutic jurisprudence and seeks to reduce so far as possible counter-therapeutic outcomes for all parties, prioritising accurate and robust fact-finding and formulation of constructive recommendations to avoid avoidable deaths. It calls for further empirical research on the impact of coroners’ investigations on all affected parties, and argues in favour of extension of improved funding to enable eligibility for the services of counselling services attached to coroners’ courts.

Biography:

Ian Freckelton is a Queen’s Counsel in full-time practice throughout Australia. He is also a Professorial Fellow of Law and Psychiatry at the University of Melbourne where he is co-director of the Health Law Masters Prpgram, and is an Adjunct Professor of Law and Forensic Medicine at Monash University. He is an elected Fellow of the Australian Academy of Law, the Academy of Social Sciences Australia and the Australian and New  Zealand College of Legal Medicine. He is a member of the Coronial Council of Victoria and the Mental Health Tribunal of Victoria. He edits the Journal of Law and Medicine and Psychiatry, Psychology and Law. He is the author of of over 40 books and more than 500 peer reviewed articles.

An Examination of Stakeholder Attitudes and Understanding of Therapeutic Jurisprudence in a South Australian Mental Health Court.

Dr. Loraine Lim1

1 Forensic Psychologist, 245 Sturt Street, Adelaide South Australia 5000, limloraine@gmail.com

Mental health courts represent a key component of contemporary responses to mental illness and disability in the criminal justice system, and yet there is uncertainty about how these courts should balance their punishment and treatment roles. This presentation will report an analysis of interviews with court professionals, which considered their understanding of the rationale underpinning the South Australian mental health diversion court, its effectiveness in achieving its criminal justice and clinical goals, and of the broader notions of therapeutic jurisprudence. The interviews generally revealed considerable support for diversionary mental health court programs of this type and professional confidence that this type of program is effective. However, thematic analyses conducted also highlighted conflict in the practice frameworks of the different professional groups who regularly contribute to the operations of the court. This presentation will conclude with suggestions as to how mental health courts in Australia can overcome its functional and operational challenges by integrating theoretical knowledge with practical strategies.

Biography:

Dr Lim was employed in South Australia’s Drug Court, Magistrates Court Diversion, and Treatment Intervention Programs for close to a decade. She is currently a Forensic Psychologist in private practice in South Australia, and an adjunct Senior Clinical Lecturer at the University of Adelaide. She completed her PhD through Deakin University in Victoria whilst she was still employed with the South Australia’s Court Administration Authority (CAA), where she conducted a series of research on their mental health diversion and co-morbidity court programs. She continued to be involved in research and evaluations of these programs in SA, post-doctorate, until she left the CAA late last year (2016).

Fact finding in Family Law disputes

Mrs Hilary Hannam1

1Family Court Of Australia, Parramatta, Australia

Fact finding in family law disputes, particularly in relation to allegations of family violence and child abuse presents many challenges for litigants and judges. This is especially so when many litigants are self-represented and victims may be required to cross examine or be cross-examined by parties who are alleged perpetrators. Nonetheless it is critical that all evidence relevant to the best interests of children be put before the court and be appropriately tested.

Family law disputes can also be protracted especially in the current climate of under resourcing. The result may be that children may endure unsatisfactory arrangements while their parents’ dispute progresses through the court system. Most of the parents utilising the Family Court who have been unable to resolve their dispute by alternate means have complex problems including mental illness, psychological disorders or substance misuse.

Division 12A of Part VII of the Family Law Act which requires that the court adopt a less adversarial approach to the conduct of child-related proceedings can assist in addressing these challenges. The author will outline how a judge of the Family Court can utilise the tools of the “less adversarial trial” to assist families embroiled in parenting disputes. These include early identification of risks to the children through the utilisation of family consultants attached to the court to inform early decisions such as interim orders. As the matter progresses the judge actively manages all stages of the litigation and leads the identification of the issues. Fact finding is enhanced through a relaxation of the rules of evidence and appointment of a single expert. As the proceedings are not strictly inter-partes the judges may identify proposals for the future parenting arrangements and is not bound by the proposals of the parties. The judge is expressly empowered to ask questions and required to direct the litigation with a focus on the best interests of the children.

It is argued by the author that the adversarial system of justice has its merits, especially as a method for fact finding, but some of the unsatisfactory features of adversarialism can be reduced through such a less adversarial approach. This less adversarial approach also has the advantage of enabling the judge to act in a more problem-solving and therapeutic manner with litigants in highly emotionally charged and complex litigation.

Biography:

Justice Hannam completed a Bachelor of Arts and Bachelor of Laws (Honours) from the University of Sydney in 1983. After practising as a solicitor, her Honour sat as a Magistrate of the Local Court of NSW from 2010, until her appointment as Chief Magistrate of the Northern Territory Local Court in August 2010. Her Honour then sat in Darwin and travelled to rural and remote locations in the Territory on circuit. Her Honour was then appointed to the bench of the Family Court in 13 August 2013.

Her Honour has a particular interest in therapeutic jurisprudence, and travelled to the United States in 2002-2003 as a Churchill Fellow to investigate specialised courts. Her Honour has been particularly taken by the Less Adversarial Trial process in the Family Court. Her Honour also has a particular interest in the children’s jurisdiction having worked in the Children’s Court in NSW, in youth justice and care and protection in the Territory and now parenting cases in the Family Court.

Due Process v Therapeutic Process Redux

Dr Nigel Stobbs1

1QUT, Durack, Australia

This paper examines the perceived tension between due process and therapeutic process in problem solving courts. Although individual courts and programs can and do become dysfunctional in terms of their adherence to best practice, and the wider criminal justice system is often notoriously unable to guarantee effective representation to criminal defendants, I argue that courts which operate according to principles of therapeutic jurisprudence are not only consistent with due process and procedural justice, these are symbiotic requirements. Continuing criticisms of the problem solving jurisdictions in the US, I suggest, are likely grounded in more than a conflation of flaws in individual programs and defence competence with defects in the therapeutic model however. The persistence of this sort of criticism is not a result of simple ignorance or misunderstanding.

Biography:

Nigel is a researcher in the Crime and Justice Research Centre at the Queensland University of Technology. His research interests include therapeutic jurisprudence, sentencing law and policy and Chinese law.

Safe and Supported: Developing a MODEL for MEDIATING FAMILY VIOLENCE Cases Beyond Family Law

Dr Becky BatagolProfessor Rachael Field2

1 Monash University, 2 Bond University 

Email contacts: Becky.Batagol@monash.edu rfield@bond.edu.au

The imperatives relating to mediation and family violence remain broadly similar regardless of the context. There is a legitimate concern about the use of informal dispute resolution processes in cases of family violence because of deep power imbalances between perpetrators and victims. However, with appropriate support, a focus on safety and careful attention not to minimise the violence, there are clear potential benefits of mediation for victims of family violence. The benefits can include self-determination, certainty, reduced financial and other costs and timeliness.

A great deal of attention has been paid to mediating cases in which there is a history of family violence in the field of family law. In Australia, a model of family dispute resolution known as Coordinated Family Dispute Resolution has been pioneered for such cases.[1]

Outside the family law field, less, if any, attention has been paid to how to appropriately identify and respond to cases of family violence in mediation practice. Family violence mediation takes place in disputes with providers of essential services, such as electricity, water, banking and telecommunications, as a result of economic abuse. It may take place in child protection conciliation conferences/ADR in state Children’s Courts and it can take place in the negotiation/mediation process that takes place in finalising the conditions of family violence orders in state magistrates’ courts.

Building on mediation practice in family law, this paper will outline elements of a proposed safe and supported model of mediation for victims of family violence

[1] R Field and A Lynch, ‘Hearing Parties’ Voices in Coordinated Family Dispute Resolution (CFDR): An Australian Pilot of a Family Mediation Model Designed for Matters Involving a History of Domestic Violence’ (2014) 36(4) The Journal of Social Welfare and Family Law 392

Biography:

Dr Becky Batagol is a researcher and teacher with a focus on family law, family violence, non-adversarial justice, dispute resolution, gender, child protection and constitutional law. Becky is the co-author of Non-Adversarial Justice (2nd ed, 2014), Bargaining in the Shadow of the Law? The Case of Family Mediation (2011) and the author of many academic articles. Becky is a contributor to the ADR Research network blog and tweets regularly under the handle @BeckyBatagol. Becky has taught the world-first subject Non-Adversarial Justice at Monash University for the last decade and she was awarded a National Tertiary Teaching Award in 2014.

Professor Rachael Field has published widely in her areas of research interest which include dispute resolution, women and the law and family law, the first year experience, legal education, and student success and well-being. Her research portfolio of publications is regularly cited and her work in the areas of mediation and domestic violence, legal education and law student success and well-being has had significant national impact and also some international level influence. Rachael’s research and scholarship in the areas of legal education and student success and well-being has had significant impact at a national level and is also beginning to have impact at an international level. Her impressive body of research work contributed to her being named 2013 Queensland Woman of the Year.

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About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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