Australasian Therapeutic Jurisprudence Clearinghouse

3. Problem-Solving Courts

3.1 Overview

Problem-solving courts originated in the United States with the establishment of drug courts and domestic violence courts. Since then, a large range of problem-solving courts have been established, including community courts, drug courts, domestic violence courts, DWI (driving whilst intoxicated) courts, mental health courts, tribal drug courts and courts dealing with the substance abuse problems of parents whose children may be at risk. There are also courts that are taking a hybrid approach, assisting people with more than one offending related problem.

Problem solving courts were introduced into Australasia in the 1990s. Family violence courts operate in Australia and New Zealand. Drug courts have been established in New South Wales, Queensland, South Australia, Victoria and Western Australia. There are mental health court programs in several jurisdictions. The Geraldton Alternative Sentencing Regime in Western Australia is a hybrid program working with participants with a range of offending related problems and often with more than one problem. It has assisted participants with problems such as licit and illicit substance abuse, family violence, gambling and stress.

Key elements of problem-solving court programs that distinguish them from mainstream courts include: seeking to address all the underlying issues rather than simply focusing on the legal problem; judicial case management; a multi-disciplinary court team; a collaborative approach with participants; involvement of government and community agencies in the development and running of the project; and the use of therapeutic legal processes by the court and team members. However, there is wide variation between problem-solving courts as to the extent to which these elements are present in practice.

There is general acceptance that therapeutic jurisprudence has become the underlying philosophy of these courts. It suggests processes that court team members can use to promote the therapeutic outcomes of the court.

A critique of problem solving courts suggests that the concept of the court as problem solver is inappropriate and does not reflect best practice in therapeutic jurisprudence. According to this critique, the key change agent is not the court but rather it is the individual whose problem is to be solved. Often participants in problem solving court programs will have initiated change before coming into a problem solving court, may develop and apply change strategies while in the court program and may need to continue to apply change strategies after completing the court program. It has been suggested that these courts should be solution focused courts, supporting participants’ change mechanisms and facilitating their engagement in appropriate treatment and support services to address their underlying issues. A solution-focused approach is markedly different from a problem solving approach not only in conceptual terms but also in how judicial officers, lawyers and other professionals involved in the court program carry out their work.

This critique is discussed further in this article and in this chapter.

Resources

Bartels L and Richards K, ‘Talking the Talk: Therapeutic Jurisprudence and Oral Competence’ (2013) 38 Alternative Law Journal 31.
Bartels L, ‘Mainstreaming Problem-Oriented Justice: Issues and Challenges’ in Marie Segrave (ed), Australia and New Zealand Critical Criminology Conference 2009 Conference Proceedings (Monash University, 2009) pp 31-40. Available at SSRN: http://ssrn.com/abstract=2188711
Bartels L, Challenges in Mainstreaming Specialty Courts. Trends and Issues in Crime and Criminal Justice No 383 (Canberra: Australian Institute of Criminology, 2009).
Blagg H, Problem-Oriented Courts (Law Reform Commission of Western Australia, 2008)
Duffy J, ‘Problem-solving courts, therapeutic jurisprudence and the Constitution: if two is company, is three a crowd?’ (2011) 35(2) Melbourne University Law Review 394.
Freiberg A, ‘Problem-Oriented Courts: Innovative Solutions to Intractable Problems” (2001) 11 Journal of Judicial Administration 8.
Freiberg A, ‘Innovations in the Court System’ Paper presented to the conference ‘Crime in Australia: International Connections’, Melbourne, 29-30 November, 2004.
Freiberg A, ‘Problem-Oriented Courts: An Update’ (2005) 14 Journal of Judicial Administration 178.
Hannam H, ‘Problem Solving Courts and Therapeutic Jurisprudence in the Children’s Jurisdiction’ Paper presented to the ‘Children and the Courts’ conference, National Judicial College of Australia, 5 November 2005.
King MS, ‘Problem Solving Court Programs in Western Australia’ Paper presented to the ‘Sentencing: Principles, Perspectives and Possibilities’ Conference, Canberra, 10-12 February 2006.
King MS, ‘Problem Solving under the Dangerous Sexual Offender Act 2006 (Western Australia)‘ (2007) 14 eLaw Journal 32
King MS, ‘What can Mainstream Courts Learn from Problem-Solving Courts” (2007) 32 Alternative Law Journal 91.
King MS, ‘Problem-solving Court Judging, Therapeutic Jurisprudence and Transformational Leadership’ (2008) 17 Journal of Judicial Administration 155.
King MS, Solution Focused Judging Benchbook (AIJA, 2009).
King MS, ‘Judging, Judicial Values and Judicial Conduct in Problem-Solving Courts, Indigenous Sentencing Courts and Mainstream Courts’ (2010) 19 Journal of Judicial Administration 133.
King MS and Duguid W, ‘Geraldton Alternative Sentencing Regime: First Year Self- Evaluation’ (Curtin University School of Business Law Working Paper 03:01, 2003).
King MS and Piggott L, ‘Mirroring the Stages of Change in the Establishment of Problem Solving Courts’ in Reinhardt G and Cannon A (eds), Transforming Legal Processes in Court and Beyond (AIJA, 2007) 161.
Lau T, ‘Protecting Procedural Fairness in Mainstreaming Problem-solving Courts’ (2010) Pandora’s Box 41.
Law Reform Commission of Western Australia, Court Intervention Programs: Consultation Paper (LRCWA, 2008), https://www.lrc.justice.wa.gov.au/p/project_96.aspx#downloads.
Law Reform Commission of Western Australia, Court Intervention Programs: Final Report (LRCWA, 2008).
Madell D, Thom K, Mckenna B, ‘A systematic review of literature relating to problem-solving youth courts’ (2013) 20(3) Psychiatry, Psychology and Law 412.
Nolan JL Jr, ‘The International Problem-Solving Court Movement: A Comparative Perspective’ (2011) 37 Monash University Law Review 259.
Phelan A, ‘Solving Human Problems or Deciding Cases’ Judicial Innovation in New York and its Relevance to Australia Part I, II and III’ (2003) 13 Journal of Judicial Administration 98, 137 and 244.
Popovic J, ‘Meaningful v Meaningless Sentences: Sentencing the Unsentenceable’ Paper presented to the ‘Sentencing: Principles, Perspectives and Possibilities’ conference, Canberra, 10-12 February 2006.          15(4) (May 2006) Journal of Judicial Administration 190-205
Previtera T, ‘Responsibilities of TJ Team Members v Rights of Offenders’. Paper presented at the Cutting Edge: Therapeutic jurisprudence in Magistrates’ Courts Conference held May 2006 in Perth WA. (2006) 1 eLaw Journal (special series) 51, http://classic.austlii.edu.au/au/journals/QldJSchol/2005/38.html.
Richardson E, Thom K and McKenna B, ‘The Evolution of Problem-Solving Courts in Australia and New Zealand: A Trans-Tasman Comparative Perspective’ in Wiener RL and Brank EM (eds), Problem-Solving Courts: Social Science and Legal Perspectives (Springer: 2013).
Turner S, ‘The New South Wales Youth Drug & Alcohol Court Program: A Decade of Development’ (2011) 37 Monash University Law Review 280.
Tinsley Y, ‘Increasing safety and improving healing: The potential of a specialist sexual violence treatment court’ (2013) 5(2) Sexual Abuse in Australia and New Zealand 31.
Walsh T, ‘Defendant’s and Criminal Justice Professionals’ Views on the Brisbane Special Circumstances Court’ (2011) 21 Journal of Judicial Administration 993.
Waterworth, Rhondda (2024) Therapeutic jurisprudence: a practical guide to developing therapeutic intervention skills for judicial officers in specialist courts (Judicial Commission of NSW).

3.2 Drug Courts

Drug courts help participants address their underlying illicit drug problems with the aid of a court team and community agencies and with ongoing judicial case management, which can be for more than a year. Some courts will also assist in relation to alcohol problems alone or when the participant has both alcohol and illicit drug problems. Drug courts offer community or residential based rehabilitation – sometimes in custody – and work collaboratively with community and justice agencies to promote this service. Drug courts often use a system of sanctions and incentives to promote participant compliance. A breach point system is one mechanism they use for promoting compliance. Graduation ceremonies, the use of applause in court to recognise participant achievement and the use of behavioural contracts are also common features of drug courts.

Resources

Australian Capital Territory Drug and Alcohol Sentencing List
New South Wales Drug Court
New Zealand Alcohol and Other Drug Treatment Court 
Queensland Drug and Alcohol Court
South Australia Drug Court
Victorian Drug Court 
Western Australian Drug Court

Australian Institute of Criminology. Court Drug Diversion Initiatives Conference, Brisbane, 25-26 May 2006.
Birgden A, ‘A Compulsory Drug Treatment Program for Offenders in Australia: Therapeutic Jurisprudence Implications’ (2008) 30 Thomas Jefferson Law Review 367.
Cappa C, ‘The Social, Political and Theoretical Context of Drug Courts’ (2006) 32 Monash Law Review 145.
Costanzo, J, ‘Final report on the South-east Queensland Drug Court pilot’ (Queensland Courts, 2003), http://www.courts.qld.gov.au/__data/assets/pdf_file/0008/93914/m-drug-court-seq-pilot-costanzo-final-report.pdf
Dekker J, O’Brien K and Smith N, ‘An Evaluation of the Compulsory Drug Treatment Program (CDTP)’ (NSW Bureau of Crime Statistics and Research 2010). https://www.bocsar.nsw.gov.au/Publications/Legislative/l20.pdf
Dive R, Killen M, Cole D and Poder A, ‘NSW Youth Drug Court Trial’ Paper presented to the ‘Juvenile Justice: From the Lessons of the Past to a Road Map for the Future’ conference, Sydney, 1-2 September 2003.
Dive R, ‘Sentencing Drug Offenders’ Paper presented to the ‘Sentencing: Principles, Perspectives and Possibilities’ conference, Canberra, 10-12 February 2006. https://drugcourt.nsw.gov.au/documents/sentencing-drug-offenders-judge-dive.pdf
Dive R, ‘Judging in the Land of the Chaotic’ (2011) 20 Journal of Judicial Administration 185.
Foster J, ‘A Drug Court: A Police Perspective’ in Reinhardt G and Cannon A (eds), Transforming Legal Processes in Court and Beyond (AIJA, 2007) 107.
Freiberg A, ‘Australian Drug Courts’ (2000) 24 Criminal Law Journal 213.
Freiberg A, ‘Drug Courts: Sentencing Responses to Drug Use and Drug-Related Crime’ (2002) 27 Alternative Law Journal 282. http://www.austlii.edu.au/cgi-bin/viewdoc/au/journals/AltLawJl/2002/99.html
Freiberg A, ‘Australia’s Drug Courts’ (2004) 2(1) Of Substance 12.
Heath S, ‘Innovations in Western Australian Magistrates Courts’ Paper delivered to the 2005 Colloquium of the Judicial Conference of Australia. https://ajoa.asn.au/wp-content/uploads/2013/11/2005-Heath_Paper.pdf
Hora, Peggy Fulton, ‘The Synergy Between Therapeutic Jurisprudence and Drug Treatment Courts’ in Reinhardt G and Cannon A (eds), Transforming Legal Processes in Court and Beyond (AIJA, 2007) 155.
Indermaur D and Roberts L, (2003) ‘Drug Courts in Australia: The First Generation’ 15(2) Current Issues for Criminal Justice Journal 136. http://classic.austlii.edu.au/au/journals/CICrimJust/2003/21.pdf
Jones C and Kemp R, ‘The Strength of the Participant-Judge Relationship Predicts Better Drug Court Outcomes’ (2014) 21(2) Psychiatry, Psychology and Law 165.
King MS, ‘Challenges Facing Australian Court Drug Diversion Initiatives’ Keynote Address, Court Drug Diversion Initiatives Conference, Brisbane, 25-26 May 2006. https://pdfs.semanticscholar.org/4d7d/1e8ef13529ad1b4b54e91c3f179a8e91c2e1.pdf
King MS, ‘Perth Drug Court Practice’ (2006) 33(11) Brief 27.
King MS and Piggott L, ‘Mirroring the Stages of Change in the Establishment of Problem Solving Courts’ in Reinhardt G and Cannon A (eds), Transforming Legal Processes in Court and Beyond (AIJA, 2007) 161.
King, Michael S., New Directions in the Courts’ Response to Drug and Alcohol Related Legal Problems: Interdisciplinary Collaboration (2012) Paper presented to the ‘Making it Happen: Improving Services Through Collaboration’ conference, Perth, Western Australia, 6-8 August 2012. http://ssrn.com/abstract=2130343
Makkai T, ‘Drug Courts: Issues and Prospects’ (Trends and Issues in Crime and Criminal Justice n 95, 1998). https://www.aic.gov.au/publications/tandi/tandi95
Moore L, Tackling Drug Crime the TJ Way: Report on Therapeutic Jurisprudence and the Tasmanian Court Mandated Diversion Program (January 2012). Available at SSRN: http://ssrn.com/abstract=1992734 or http://dx.doi.org/10.2139/ssrn.1992734
Moore L, Measures of Success: Capturing the Impact of Drug Courts (December 20, 2012). Available at SSRN: http://ssrn.com/abstract=2236482
Moore L, ‘International Best Practice in Drug Courts’ (2014) 7 Arizona Summit Law Review 481.
Payne J,  The Queensland Drug Court: A Recidivism Study of the First 100 Graduates (Australian Institute of Criminology, Research and Public Policy Series no 83,2008). https://www.aic.gov.au/publications/rpp/rpp83
Previtera T, ‘Responsibilities of TJ Team Members v Rights of Offenders’ (2006) 1 eLaw Journal (special series) 51. http://classic.austlii.edu.au/au/journals/QldJSchol/2005/38.html
Tasmania Law Reform Institute, The Establishment of a Drug Court Pilot in Tasmania (2006). https://www.utas.edu.au/__data/assets/pdf_file/0003/283818/Drug_Court_17nov06_A4_Final.pdf
Took G, ‘Therapeutic Jurisprudence and the Drug Courts: Hybrid Justice and its Implications for Modern Penality’ (2005) Internet Journal of Criminology. https://958be75a-da42-4a45-aafa-549955018b18.filesusr.com/ugd/b93dd4_3b024db2a3a64111927a69415d57274d.pdf
Wexler DB and King MS, ‘Promoting Societal and Juridical Receptivity to Rehabilitation: The Role of Therapeutic Jurisprudence’ (October 17, 2011). Court-supervised treatment alternatives to incarceration for drug-dependent offenders: the drug policy agenda. Caroline S. Cooper & Antonio Lomba eds., 2013; Arizona Legal Studies Discussion Paper No. 10-46. Available at SSRN: http://ssrn.com/abstract=1722278
Wilson A, ‘Putting therapeutic jurisprudence on edge: a gendered engagement’ (2014) 47(3) University of British Columbia Law Review 1185.

3.3 Mental Health and Mental Health Courts

Mental health courts connect defendants with mental health problems with appropriate treatment and support resources within the community and seek to promote their engagement in the treatment programs. Proper assessment of participants’ needs and the development of a treatment plan accordingly are features of these programs. Mental health court participants often also have related problems such as homelessness and substance abuse problems.

Resources

Queensland Mental Health Court
South Australia: Magistrates Court: Treatment Intervention Court
Tasmania: Magistrates Court of Tasmania Diversion List
Victoria: Assessment and Referral Court List, Magistrates Court of Victoria
Western Australia: Mental Health Court Diversion Program

Albalawi O et al, ‘Court diversion for those with psychosis and its impact on re-offending rates: results from a longitudinal data-linkage study’ (2019) 5(1) BJPsych Open 1-9
Allan A, ‘The Past, Present and Future of Mental Health Law: A Therapeutic Jurisprudence Analysis’ (2003) 20(2) Law in Context 24.
Beaupert F and Vernon A, ‘Odyssey of hope’: the role of carers in mental health tribunal processes and systems of mental health care’ (2011) 18(1) Psychiatry, Psychology and Law 44.
Bogdanoski T, ‘Psychiatric Advance Directives: The New Frontier in Mental Health Law Reform in Australia?’ 16 Journal of Law and Medicine 891.
Burville M, Dusmohamed S, Hunter N and McRostie H, ‘The Management of Mentally Impaired Offenders Through the South Australian Criminal Justice System’ (2003) International Journal of Law & Psychiatry 13.
Cannon A, Doley R, Ferguson C and Brooks N, ‘Antisocial personality disorder and therapeutic justice court programs’ (2012) 22 Journal of Judicial Administration 99, also available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2166131.
Carne J, ‘The Unimportance of M’Naghten’s: What Happened to Therapeutic Jurisprudence?’ (2003) 15(11) Judicial Officers’ Bulletin 91.
Carney T, Tait D, Chappell D and Beaupert F, ‘Mental Health Tribunals: ‘TJ’ Implications of Weighing Fairness, Freedom, Protection and Treatment’ (2007) 17 Journal of Judicial Administration 46.
Carney T and Tait D, ‘Mental health tribunals – rights, protection, or treatment? Lessons from the ARC linkage grant study?’ (2011) 18(1) Psychiatry, Psychology and Law 137.
Davidson F, Heffernan E, Greenberg D, Waterworth R and Burgess P, ‘Mental Health and Criminal Charges: Variation in Diversion Pathways in Australia’ (2017) 24(6) Psychiatry, Psychology and Law 888
Diesfeld K and Freckelton I (eds), Involuntary Detention and Therapeutic Jurisprudence (Ashgate Publishing, 2003).
Diesfeld K and McKenna B, ‘The Unintended Impact of the Therapeutic Intentions of the New Zealand Mental Health Review Tribunal : Therapeutic Jurisprudence Perspectives’ (2007) 14 Law and Medicine 566.
Edgely M, ‘Solution-Focused Court Programs for Mentally Impaired Offenders: What Works?’ (2013) 22 Journal of Judicial Administration 207.
Edgely M, ‘Why do Mental Health Courts Work? A Confluence of Treatment, Support and Adroit Judicial Supervision’ (2014) 37 International Journal of Law & Psychiatry 572.
Edgely M, ‘Addressing the solution-focused sceptics: Moving beyond Punitivity in the sentencing of drug-addicted and mentally impaired offenders’ (2016) 39(1) University of New South Wales Law Journal 206-233
Freckelton I, ‘Mental Health Review Tribunal Decision-making: A Therapeutic Jurisprudence Lens’ (2003) 10(1) Psychiatry, Psychology and Law 44.
Graham H, A Foot in the (Revolving) Door? A Preliminary Evaluation of Tasmania’s Mental Health Diversion List (University of Tasmania, 2007).
Hill M, ‘Hobart Magistrates Court’s mental health diversion list’ (Tasmania) (2009) 18(3) Journal of Judicial Administration 178.
Lim L and Day A, ‘Mental Health Diversion Courts: Some Directions for Further Development’ (2013) 20(1) Psychiatry, Psychology and Law 36-45.
Lim L and Day A, ‘Mental Health Diversion Courts: A Two Year Recidivism Study of a South Australian Mental Health Court Program’ (2014) 32(4) Behavioral Sciences & the Law 539-551.
Lim L and Day A, ‘An examination of stakeholder attitudes and understanding of therapeutic jurisprudence in a mental health court’ (2016) 46 International Journal of Law and Psychiatry 27-34.
Lim L and Day A, ‘Mental health diversion courts: A prospective study of reoffending and clinical outcomes of an Australian mental health court program’ (2016) 55(4) Journal of Offender Rehabilitation 254-270.
Newitt E and Stojcevski V, Mental health diversion list evaluation report (Hobart, Tas: Magistrates Court Tasmania, 2009)
Popovic J, ‘Meaningful v Meaningless Sentences: Sentencing the Unsentenceable’ Paper presented to the ‘Sentencing: Principles, Perspectives and Possibilities’ conference, Canberra, 10-12 February 2006.
Purser K, Magner ES and Madison J, ‘Competency and Capacity: The Legal and Medical Interface’ (2009) 16 Journal of Law and Medicine 789.
Purser K, Magner Eilis S, Madison J, ‘A therapeutic approach to assessing legal capacity in Australia’ (2015) 38 International Journal of Law and Psychiatry 18.
Richardson E, ‘Mental health courts: Access to justice for people with mental illness and cognitive impairments’ (2019) Alternative Law Journal (in press).
Richardson E and McSherry B, ‘Diversion Down Under: Programs for Offenders with Mental Illness in Australia’ (2010) 33(4) International Journal of Law and Psychiatry 249.
Ross S and Graham J, ‘Screening offenders for health and mental health problems at court’ (2012) 19(1) Psychiatry, Psychology and Law 75.
Skrzypiec G, Wundersitz J and McRostie H, Magistrates Court Diversion Program: An Analysis of Post-Program Offending (OSCAR 2004)
Soon YL et al, ‘Mentally ill offenders eligible for diversion at local court in New South Wales (NSW), Australia: factors associated with initially successful diversion’ (2018) 29(5) Journal of Forensic Psychiatry and Psychology 1-12
Smith A and Caple A, ‘Transparency in mental health: why mental health tribunals should be required to publish reasons’ (2014) 21(4) Journal of Law and Medicine 942.
Toki V, ‘Therapeutic jurisprudence and mental health courts for Maori’ (2010) 33(5-6) International journal of law and psychiatry 440.
Topp V, Thomas M and Ingvarson M, Lacking Insight: Involuntary Patient Experience of the Victorian Mental Health Review Board (Mental Health Legal Centre, 2008).
Walsh T, ‘The Queensland Special Circumstances Court’ (2007) 16 Journal of Judicial Administration 223.
Waterworth R, ‘The New Mental Health Act 2016 (QLD): An Evaluation of the Impact on Mental Health Clients in the Magistrate’s Courts’ (2017) International Journal of Therapeutic Jurisprudence 195.
Weller P, ‘Taking a Reflexive Turn: Non-Adversarial Justice and Mental Health Tribunals’ (2011) 37 Monash University Law Review 81.
Zafirakis E, ‘Curbing the “Revolving Door” Phenomenon with Mentally Impaired Offenders: Applying a Therapeutic Jurisprudence Lens’ (2010) 20 Journal of Judicial Administration 81.

3.4 Community Courts

Community courts also known as community justice centres are a problem-solving court which primarily focuses on addressing local crimes and any concerns in the community. They provide mediation services to help resolve any disagreements which may be occurring in the community.

Community courts utilise principles in restorative justice, problem solving approaches and therapeutic jurisprudence. They attempt to find the underlying cause of crime within that neighbourhood to better access to justice and increase community cohesion.

Resources

Australian Centre for Court Innovation and the Neighbourhood Justice Centre (principal author E Richardson), Innovative Approaches to Justice: The NJC Experience. (Monash University, 2013) Online Resource, https://www.monash.edu/law/research/excellence/acji/research/njc/innovative-approaches-to-justice-the-njc-experience
Chan EHY, ‘Courts: Evaluating therapeutic jurisprudence’ (2012) 37(4) Alternative Law Journal 274.
Douglas K, ‘Therapeutic Jurisprudence, Restorative Justice and the Law’ (2007) 32 Alternative Law Journal 107.
Douglas K, ‘Steering Through Troubled Waters?’ (2007) 81(5) Law Institute Journal 30.
Jordens J and Richardson E, ‘Collaborative problem solving in a community court setting’ (2014) 23(4) Journal of Judicial Administration (JJA) 253.
Murray S and May S, ‘Envisioning a Community Justice Centre for Western Australia: Feasibility, Challenges and Opportunities’ (2018) 43(1) University of Western Australia Law Review 221
Murray S, ‘Community Justice Centres – New Trajectories in Law‘ (Routledge, 2022)
Murray S and Blagg H, ‘Reconceptualising Community Justice Centre Evaluations – Lessons from the North Liverpool experience’ (2018) 27(2) Griffith Law Review 1-15
Murray S, ‘Keeping it in the Neighbourhood – Neighbourhood Courts in the Australian Context’ (2009) 35 Monash University Law Review 74-95.
Neighbourhood Justice Centre

3.5 Family Violence and Family Violence Courts

Violence in families is a significant problem confronting communities in Australasia and internationally. It can have long-lasting physical, psychological and behavioural impacts on victims, children of the parties and perpetrators, affecting their overall quality of life. There are multiple dimensions of the problem such as the safety of the victim and children involved, providing appropriate support to address the trauma and any social dislocation arising as a result of the violence, the resolution of any outstanding issues concerning child and financial issues and the relationship and promoting the rehabilitation of the perpetrator.

The Australian justice system deals with differing aspects of the problem in various jurisdictions: criminal to hear and determine any charges arising out of the violence, specialist family violence courts to protect victims and promote rehabilitation of perpetrators, restraining order or apprehended violence order applications in magistrates courts to protect victims and family courts to address issues to do with the welfare of children and other relationship-related issues.

Therapeutic jurisprudence in this context examines the impact of court processes upon victims, perpetrators and any children involved. It looks to see whether victims and perpetrators are given voice, validation and respect. It examines court and other legal processes in each jurisdiction relating to family violence in the light of findings from research in the area, to see whether they promote or interfere with victim wellbeing and whether they promote offender rehabilitation and to make suggestions as to reform.

Since the mid 1990s, Australasian jurisdictions have introduced reforms to make the process of applying for a restraining order/AVO less intimidating for victims. There are more specialist family violence services available to support victims. In addition, family violence courts have been introduced to promote victim safety and perpetrator compliance with family violence perpetrators programs. Family Violence Courts use a system of judicial monitoring, participant engagement in family violence perpetrator programs and case management by a multi-disciplinary case management team to promote perpetrator accountability, prevent the recurrence of family violence and protect victims. The Geraldton Alternative Sentencing Regime has included perpetrators of family violence in its problem-solving, drug court-style program. The page on problem-solving courts discusses family violence courts further.

Resources

South Australia: Abuse Prevention Program and Family Violence Courts
Tasmania: Magistrates Court Family Violence and Restraint Orders Information
Victoria: Magistrates Court of Victoria. Family Violence Intervention Orders
Western Australia: Magistrates Court of Western Australia, Family Violence Service
New Zealand Family Violence Clearinghouse

‘Just Partners: Family Violence, Specialist Courts and the Idea of Integration’ conference, Canberra, 22 May 2008, papers.

Australian Law Reform Commission, Family Violence – a National Legal Response (ALRC Report 114, 2009).
Holder R, ‘The Emperor’s New Clothes: Court and Justice Initiatives to Address Family Violence’ (2006) 16 Journal of Judicial Administration 30.
King MS and Batagol B, ‘Enforcer, Manager or Leader? The Judicial Role in Family Violence Courts’ (2010) 33 International Journal of Law and Psychiatry 406, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1729092.
King MS, ‘Innovation in Court Practice: Using Therapeutic Jurisprudence in a Multi-Jurisdictional Regional Magistrates Court’ (2004) 7(1) Contemporary Issues in Law 86.
Marchetti E, ‘An Australian Indigenous-focussed Justice Response to Intimate Partner Violence: Offenders’ Perceptions of the Sentencing Process’ (2015) 55(1) British Journal of Criminology 86.
Morgan M, Coombes L, Te Hiwi E and McGray S, Responding Together: An Integrated Report Evaluating the Aims of the Waitakere Family Violence Court Protocols (Ministry of Justice, New Zealand, 2008).
Morgan M, Coombes L and McGray S, An Evaluation of the Waitakere Family Violence Court Protocols (Massey University and WAVES, 2007). https://nzfvc.org.nz/sites/nzfvc.org.nz/files/evaluation-WFVC-protocols.pdf
Robertson N, Busch R, D’Souza R, Sheung FL, Anand R, Balzer R, Simpson A and Paina D, Living at the Cutting Edge: Women’s Experience of Protection Orders  (University of Waikato, 2007), Vol 1: http://researchcommons.waikato.ac.nz/handle/10289/450; Vol 2:http://researchcommons.waikato.ac.nz/handle/10289/431.
Stewart J, ‘Specialist Domestic/Family Violence Courts Within the Australian Context. 2005
Toki V, ‘Domestic violence and women: can a therapeutic jurisprudence approach assist?’ (2009) 78(1) Revista Juridica de la Universidad de Puerto Rico 61.

3.6 Indigenous Issues and Indigenous Sentencing Courts

There is increasing recognition in courts and in other parts of the justice system that legal processes have failed to take into account the cultural background and rehabilitation needs of Indigenous peoples. Indeed, arguably legal processes have compounded social and behavioural problems confronting Indigenous people in the justice system and promoted distrust as to its fairness and capacity to address their problems.

One response of the court system has been to educate members of the judiciary, legal profession and justice system personnel as to Indigenous cultural issues so that they are more sensitive in interacting with Indigenous people whether in court or elsewhere and can use processes that are appropriate in the circumstances. For example, the Australasian Institute of Judicial Administration commissioned the development of a special model benchbook for the judiciary dealing with these very issues.

The legal system has investigated alternative responses to addressing Indigenous issues in the justice system for some time – albeit not on a systematic basis until recently. For example, Magistrate Terry Syddall invited Indigenous Elders to sit with him on the bench of the Magistrates Court at Broome, Western Australia in the 1970s. Subsequently special courts, called ‘Aboriginal Community Courts’ were set up in Western Australian Indigenous communities.

More recently Australian Magistrates Courts have engaged with Indigenous communities in the collaborative design of special Indigenous sentencing courts. Common features in these courts include: the court convening in a less formal atmosphere around a table in a room rather than in a formal court setting; a departure from court formalities including standing and bowing; a recognition by the judicial officer of the traditional owners and respect for their culture; the promotion of voice, validation and respect of all involved; active listening; promotion of decision making where all are involved in the process; and the promotion of restorative outcomes.

Some commentators have argued that Indigenous sentencing courts do not fall within the ambit of therapeutic jurisprudence and should not be regarded as problem-solving courts. However, given that therapeutic jurisprudence says that court processes can be designed to promote wellbeing, Indigenous sentencing courts fall within that concept. Their processes promote concepts valued by therapeutic jurisprudence: voice, validation, respect and self-determination. They also demonstrate respect for Indigenous culture and the Elders who are its authority figures. Their processes, collaborative in nature, promote the resolution of underlying problems that have brought individual offenders to court.

Resources

New South Wales Legal and Court Support for Aboriginal People and Torres Strait Islanders
Queensland Murri Court
South Australia Aboriginal Sentencing Courts (Nunga Court)
Victoria: Koori Court
Victoria: Children’s Court Koori Court
Western Australia: Aboriginal Services

Aquilina H, Sweeting J, Liedel H, Hovane V, Williams V and Somerville C, Evaluation of the Aboriginal Sentencing Court of Kalgoorlie Final Report (Shelby Consulting, 2009).
Auty K, Briggs D, Thomson K, Gibson M and Porter G, ‘The Koori Court: A Positive Experience’ (2005) 79 (5) Law Institute Journal 41.
Auty K, ‘We Teach All Hearts to Break But Can We Mend Them’ Therapeutic Jurisprudence and Aboriginal Sentencing Courts. Paper presented at the At the Cutting Edge: Therapeutic Jurisprudence in Magistrates’ Courts Conference held May 2006 in Perth WA.
Bartels L, Diversion Programs for Indigenous Women (Australian Institute of Criminology, 2010) https://aic.gov.au/publications/rip/rip13
Dick D, ‘Circle Sentencing of Aboriginal Offenders’ Paper presented to the ‘Innovation – Promising Practices for Victims and Witnesses in the Criminal Justice System’ seminar, Canberra, 23 October 2003. Edited version of paper in 7(1) (September 2004) Judicial Review 57-72
Daly K and Marchetti E, Innovative Justice Processes: Restorative Justice, Indigenous Justice, and Therapeutic Jurisprudence in Marinella Marmo, Willem de Lint, and Darren Palmer (eds), Crime and Justice: A Guide to Criminology (Sydney: Lawbook Company, 4th ed, 2012) https://www.griffith.edu.au/__data/assets/pdf_file/0019/234325/2012-Daly-and-Marchetti-Innovative-justice-processes-pre-print.pdf
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