Problem-Solving Courts

Abstract

This chapter considers the catalyst for developing specialist problem-solving courts across Australia. It charts their emergence and assesses their evolution from tentative beginnings to the critically important role they play within the contemporary criminal justice system. Use of the term ‘problem-solving’ is, in itself, somewhat controversial, as these courts might be better considered as ‘problem-oriented’ to reflect that they cannot solve the causes of criminal behaviour. Australia has observed an ‘Americanisation’ of these specialty courts: this somewhat confused identity creates challenges and warrants change. It describes the potentially coercive nature of participation in problem-solving courts and the contentious sentencing practices that undergird them. There are multiple complexities and therefore challenges inherent in the contemporary operationalisation of problem-solving courts, including equity of access; resourcing issues; and case co-ordination hurdles. In order to ‘solve problems’ related to offending, problems must be better defined, access increased and solutions better resourced.

Appendices

Practitioner Perspective: A Reflection on Problem-Solving Courts in Australia

• Elizabeth Daniels 

1. Queensland Magistrates Court, Brisbane, QLD, Australia

   Elizabeth Daniels

I started my legal career in 2011 as a young general practice lawyer in rural Queensland, spending much of my time representing clients in Magistrates Courts for a variety of criminal proceedings. During that period, I did not devote much thought to the purpose of the justice system, nor did I readily recognise the system’s shortcomings when it came to interacting with those experiencing or exposed to domestic and family violence (DFV).

To me, courts were a place for justice, punishment and accountability for someone’s actions according to the law. Even with my narrow view of the function of the justice system, I still recall questionable practices, particularly in the domestic and family violence (DFV) jurisdiction, which did not serve the needs of those seeking protection. I regularly observed lawyers representing perpetrators enter courthouse saferooms and demand victims withdraw applications for protection orders or make submissions to the court that a domestic violence offence was ‘not overly serious’ and punishment ‘should be at the lower end of the sentencing regime’.

Throughout the second decade of the twenty-first century, we have seen significant government reform and a spotlight on solving the ‘problem’ of DFV, including the delivery of the ground-breaking report of the Queensland Special Taskforce on Domestic and Family Violence (2015) Not now, not ever: Putting an end to domestic and family violence in Queensland (NNNE Report) in February 2015. I am fortunate to say, through the introduction of specialist DFV courts, I have played an active role in one of the more significant justice system reforms in Queensland’s history.

Background and Challenges

In response to the recommendations from the NNNE Report, a trial of the Southport Specialist Domestic and Family Violence Court (SDFVC) commenced in September 2015 and a report evaluating this court was released in 2022 (ARTD, 2022). The NNNE Report implored the Queensland Government to reform the justice system to ensure it better protected victims/survivors (and their children), achieved fair and protective outcomes and made perpetrators of violence accountable for their behaviour. Many reported to the Taskforce that the justice system (courts and police) only further victimised or marginalised victims. From inception, the implementation of a specialist court and the key outcomes it was to achieve had overarching support from government and non-government agencies alike; however, factors such as day-to-day operations, how we would achieve reform, and what would be the ‘measures of success’ remained key challenges.

From the outset, the SDFVC had a clear mandate: to create a justice system response where the safety of victims/survivors was paramount and perpetrator accountability was a key objective. The specialist court model differed from traditional courts as it became a place of engagement for people attending court and provided not only a legal response but encouraged ‘wrap-around’ DFV support for those who attended. The model required all stakeholders (government and non-government/legal and social work) to work together in a way and to a magnitude which was unprecedented. The concepts of integration, collaboration and co-ordination would become the cornerstones of the court’s operation.

A major challenge was ensuring that the model maintained the separation of powers of the court, preserved the functions of individual stakeholder roles (prosecutors, lawyers, DFV support services) and pursued reform. Despite the collaborative spirit being evidenced from the outset, it did not prevent issues arising which placed significant pressures on all to reflect and understand how their organisations internal operations, purpose and traditional functions may be contributing to the ongoing generation of barriers and marginalising or re-victimising those seeking protection/safety. This reflective practice was particularly challenging for government departments with deeply entrenched organisational cultures, which at the time were reported as not consistent with a ‘best practice’ response to DFV or the specialist court approach.

Some of the more significant challenges for practitioners involved in the implementation of SDFVCs have included:

• an ‘open door policy’ and broad eligibility criteria for accessing the specialist court, leading to substantial increases in case numbers, workloads and file complexity (which contributed to staff burnout, placed pressure on resources, and impacted the ongoing sustainability of the model);

• integrated methods of working for government and non-government agencies, including the need to proactively share information about parties attending the court to ensure the most appropriate orders were made (including the granting of protection orders)¹;

• a lack of a common risk screening and assessment tool or any uniform terminology²;

• complexity and confusion, particularly for victims, in navigating the legal processes (combination/intersection of both civil and criminal proceedings in Queensland) and limited support available to assist; and

• limited availability of specialist DFV support services to assist persons attending court (and for legal practitioners to refer clients to). The services available would eventually increase in functionality/scope and assist victims in drafting and filing protection order applications, conduct risk assessments and generate safety plans (including securing emergency accommodation), receive referrals to men’s support services and assist entry into behaviour change programmes. These support activities were identified by stakeholders as key engagement opportunities which if conducted at court and in a timely fashion, could assist in promoting the protection and safety of victims, increase engagement and potentially achieve perpetrator accountability.

Reforms and Solutions

In February 2017, Griffith University released its Evaluation of the Specialist DFV Court Trial in Southport, making several interim findings and key recommendations (Bond et al., 2017). The evaluation found the Southport SDFVC had made significant inroads toward achieving its desired objectives. Fundamentally the court had taken steps to increase engagement with parties and to create a safe place for victims to attend and seek protection, all the while providing ‘wrap-around’ support for both victims and perpetrators. Recommendations were made highlighting some of the areas for continued improvement, perhaps most significantly the need for increased perpetrator accountability and access to men’s behaviour change programmes, as well as consideration as to how the model might work in other locations in Queensland.

As a practitioner working across the model, I attribute the positive outcomes and the ‘specialist’ nature of the court to two key initiatives adopted by Southport (and replicated at subsequent specialist court locations). First, the implementation of the Operational Working Group (OWG)—a weekly stakeholder meeting with representatives from each agency and the dedicated DFV magistrates to openly discuss issues, challenges, failures or successes of how the model was operating and developing.³ This was one of the key ‘problem-solving’ elements of the model. Second, the commitment to ‘continuous improvement’ and ‘innovation’—this was despite differences in opinion, ever changing court operations and ongoing pressures on stakeholders’ resources including funding, staffing, workloads and fluctuations in government agenda/reform momentum. The commitment and collaborative spirit displayed by those involved in the implementation, development and ongoing sustainability of SDFVCs is what has made it a true privilege to be a practitioner involved.

Sustainability of Problem-Solving Courts

Without the delivery of the second evaluation of the Southport SDFVC at the time of writing this reflection, it is difficult to comment on the sustainability of the model from an evidence-based perspective. As a practitioner involved in inception and ongoing implementation, some of the challenges for sustainability include:

• ensuring models are properly resourced and are not ‘person-based’ or rely upon goodwill to function;

• the ongoing need for clarity about the model and its core elements—as the SDFVC developed at a rapid pace and in an organic fashion, the model continued to evolve making it challenging to define and sustain over a longer period and across multiple locations;

• the need for the model to reflect diversity, be accessible to people from all cultural backgrounds and diverse groups, and to be able to translate notions of ‘best practice DFV’ to courts across the state of Queensland (including regional areas/First Nations communities); and

• clarity around the concept of ‘success’, particularly in relation to the goal of perpetrator accountability.

Reflection

Upon reflection of my involvement in the implementation of specialist DFV courts in Queensland, it has been encouraging to see the justice system proactively and creatively adapt in its response to NNNE. From my perspective, it is important to continue reflecting on the model, both internally and externally through independent evaluations and reviews to improve. Building the OWG as a key function/component of the SDFVC was integral to the success of the model and in my view could be adapted to other problem-solving courts.

In my experience, the questionable practices observed during the start of my career are far less likely to be observed in the SDFVC—if they were, the OWG would certainly have something to say. Despite the significant reform to date, it remains imperative the justice system continues its journey to ensure courts are a place of safety for victims seeking protection and perpetrator accountability remains at the forefront of the response. It is these key objectives which must be achieved before the long-term objective of eliminating domestic and family violence can be realised.

Notes

• 1. This was in comparison with the traditional ‘siloed’ approach by agencies only submitting to the court ‘what they knew’. At the time of commencement of the SDFVCs, there were no uniform processes or platforms for sharing of information between agencies. The amendments to the Domestic & Family Violence Protection Act 2012 (Qld) introducing Part 5A regarding increased information sharing did not come into effect until 30 May 2017.

• 2. In 2017, the Queensland Government introduced the Common Risk and Safety Framework (CRASF). The framework was developed for use by government and non-government community service agencies. It articulates a shared understanding, language and common approach to recognising, assessing and responding to DFV risk and safety action planning, including common minimum standards and approaches for in an attempt to adopt a more uniformed approach.

• 3. Note that the OWG continues to date, albeit with less frequent meetings, but still as a key part of the model.

References

ARTD. (2022). The Southport Specialist Domestic and Family Violence Court: Process Evaluation 2017–2020. Department of Justice and Attorney-General. https://www.courts.qld.gov.au/__data/assets/pdf_file/0010/722674/southport-specialist-dfv-process-evaluation-2017-2020.pdf

Bond, C., Holder, R., Jeffries, S., & Fleming, C. (2017). Summary report: Evaluation of the specialist domestic and family violence court trial in Southport. Griffith Criminology Institute.

Queensland Special Taskforce on Domestic and Family Violence. (2015). Not now, not ever: Putting an end to domestic and family violence in Queensland. Report provided to the Premier.