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Case Management Standards - family law 

Introduction
Right to Information
Information privacy
Solicitors’ fundamental duties
Barristers’ Conduct Rules

Part A — Acting in family law matters generally
A1. Initial interview
A2. Grant of aid
A3. Management of the client and file
A4. Briefing counsel
A5. Completion of matter
A6. Initial/final contribution
A7. Appeal
A8. General solicitors duties

Part B – Acting in a legal aid family dispute resolution conference
B1. Initial client interview
B2. Negotiation
B3. Attending the family dispute resolution conference
B4. Confirm outcome with client
B5. Consent orders

Part C – Acting in parenting and property matters
C1. Letter of introduction
C2. Initial client interview
C3. Parenting plans
C4. Compulsory dispute resolution
C5. Prepare documentation
C6. Costs
C7. Filing the documentation at court
C8. Write to client advising of date of hearing
C9. Before the interim hearing date
C10.Child abuse cases
C11. Domestic violence cases
C12. Hearing of interim issues
C13. Prior to each further court event
C14. Procedural hearing/mention
C15. Matters to be considered prior to conciliation conferences — property matters
C16. Conciliation conferences
C17. Preparation for trial
C18. Magellan cases
C19. Property proceedings — trial
C20. Further preparation for trial — both courts
C21. Brief counsel for trial
C22. Conference with counsel
C23. Attend at the trial and instruct counsel
C24. Appeals
C25. Judgment delays

Part D — Acting as an ICL
D1. Notice of Address for Service and other notices
D2. Letter directly to the represented litigant
D3. Communication with a self represented litigant
D4. Letter to Child Dispute Resolution Services
D5. Letter to the department
D6. Subpoenas
D7. Meeting the children
D8. Dealing with criticism of the ICL
D9. Right of the child to direct representation
D10. Conference/telephone other parties
D11. Contacting other witnesses
D12. Case management
D13. Domestic or family violence cases
D14. Preparation for hearing of interim issues
D15. Family reports and other expert reports
D16. After interim issues have been determined
D17. Dealing with contact supervisors
D18. Preparation of material
D19. Briefing counsel
D20. Costs
D21. Trial
D22. At the conclusion of the trial
D23. Delays in judgments
D24. Appeals
D25. When child abuse is suspected

Part E – Acting in domestic violence matters
E1. Clients experiencing domestic violence and their needs
E2. Face-to-face or telephone advice
E3. Initial interview
E4. Temporary protection orders
E5. Court procedure
E6. Implications of application
E7. DV 1 Form— Application for a Protection Order completion
E8. Lawyer acting as an authorised person
E9. Lodging an application for mention
E10. Service
E11. Evidence and witnesses
E12. Negotiations with the respondent/lawyer
E13. Arrangements for court
E14. The court process
E15. The application
E16. The impact of parenting orders in domestic violence matters

Part F – Acting in child protection matters
F1. Telephone instruction/advice
F2. Letter of introduction
F3. Initial interview
F4. In-house precedent package
F5. Notice of Address for Service completion
F6. Dealing with the department
F7. Dealing with unrepresented parties
F8. Family group meetings
F9. Prior to each court event
F10. Attending mentions
F11. Where there are allegations of domestic violence
F12. Applications for adjournments
F13. Applications on adjournments
F14. Consents and instructions
F15. Court ordered conference
F16. Mention following the court ordered conference
F17. Write to client advising of date of trial
F18. Briefing counsel
F19. Conference with counsel
F20. Departmental preparation for trial
F21. Evidence and witnesses
F22. Issuing of subpoenas
F23. Arrangements for court
F24. Preparation for trial
F25. The court process
F26. Attend at the hearing and instructing counsel
F27. Appeals
F28. Client care at the conclusion of the matter

Part G – Acting as a separate representative – child protection
G1. Acting as a separate representative
G2. Conduct of separate representation files
G3. In-house precedent package
G4. Confidentiality
G5. Dealing with the department
G6. Dealing with unrepresented parties
G7. Notice of Address for Service
G8. Letters to parties and/or their legal representatives
G9. Letters to the child/children
G10. Dealing with non-parties
G11. Dealing with other people working with the child/family
G12. Attendance at the department to inspect file
G13. Social assessment reports
G14. Engaging a report writer
G15. Where there are allegations of domestic violence or a protection order is already in force
G16. Meeting with the child/ren
G17. Family group meetings
G18. Attending court events
G19. Applications for adjournments
G20. Applications on adjournment
G21. Entering into negotiations
G22. Court ordered conference
G23. Mention following the court ordered conference
G24. Briefing counsel
G25. Conference with counsel
G26. Departmental preparation for trial
G27. Evidence and witnesses
G28. Issuing subpoenas
G29. Preparation for trial
G30. Trials
G31. Attend the trial and instruct counsel
G32. Appeals
G33. Provision of information to the child
G34. Completion of the separate representative's role

Part H – Acting in arbitration matters
H1. Letter of introduction
H2. Initial interview with client
H3. After the initial interview and following completion of the Arbitration statement
H4. Final Interview with client

Annexures
A. Family law and domestic violence advice worksheet

Introduction


These case management standards (standards) have been prepared to assist Legal Aid Queensland (LAQ) staff and preferred suppliers who practise in the family law jurisdiction including child protection and domestic or family violence. They cover the following practice areas:

  • family dispute resolution conferences
  • parenting orders and property matters
  • domestic or family violence matters
  • acting as an independent children’s lawyer (ICL)
  • acting as a separate representative — child protection matters
  • party representation in child protection matters
  • arbitration.

The standards represent the work expected to be undertaken in representing a client or when acting as an ICL or separate representative. The objective of these standards is to help lawyers achieve efficient and effective practice.

Compliance with the standards is a pre-requisite to ensuring consistency of service delivery to clients, and is therefore an important requirement of undertaking legal aid work.

The standards refer to the Australian Solicitors Conduct Rules which came into operation in 2012 and apply to legal aid solicitors.

These standards refer to the Family Court of Australia (FamCA) and the Federal Circuit Court of Australia (FCCA) where appropriate — these courts will be collectively referred to as the ‘family law courts’.

These standards must be read in conjunction with the:

    which may be issued from time to time; and other relevant legislation, civil procedure rules and regulations in relation to all areas of family law practice, including the areas of child protection and domestic or family violence.

    Please note if the FCCR are insufficient, the FLR apply with necessary modification so far as they are capable of application and subject to any FCCA directions (FCCAA s 43). The FCCR r 1.05 specifically provides “if in a particular case the rules are insufficient or inappropriate, the court may apply the Federal Court Rules or the Family Law Rules 2004 or the Family Law Rules 1984, in whole or in part and modified or dispensed with, as necessary”. These standards identify the relevant rules to be applied in both courts where possible.

    Please also note if the CCR do not provide for a matter relating to childrens court procedure, the matter may be dealt with by directions made in the CCA s 8.

    Right to Information

    The Right to Information Act 2009 (RTI Act) gives broad access to documents of agencies and official documents of ministers, subject to certain restrictions including legal professional privilege. Members of the public have the legal right to apply for access to documents held by government agencies and amendment of personal information held by government agencies.

    All documents (both hard copy and electronic) are subject to an application for access under the RTI Act. It is important to maintain good file management systems and ensure the retention and/or destruction of documents complies with the Public Records Act 2002.

    Any documents created by LAQ employees may be the subject of an access application under the RTI Act. A LAQ document includes but is not limited to all files, emails, post-it notes, file notes, telephone messages, electronic versions of documents, database information, video and audio tapes and photographs. All notes, emails, letters, minutes should be drafted professionally and in accordance with employee obligations under the Code of Conduct for the Queensland Public Service, LAQ Client Service Standards and Australian Solicitors Conduct Rules.

    Information privacy

    The Information Privacy Act 2009 (IP Act) regulates how Queensland Government agencies manage personal information. Under the IP Act LAQ is required to manage personal information in accordance with the 11 Information Privacy Principles.

    LAQ employees must be aware of and understand their obligations under the IP Act. Personal information is given to LAQ employees every day. People have the right to expect LAQ employees will respect their privacy and protect their personal information. This includes clients, partners and other employees (eg permanent, temporary, casual employees, contractors, service providers etc).

    Solicitors’ fundamental duties

    Solicitors need to be aware of their ‘fundamental duties’ contained in the Australian Solicitors Conduct Rules, including:

    • A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.
    • A solicitor must also act in the best interests of a client in any matter in which the solicitor represents the client; be honest and courteous in all dealings in the course of legal practice; deliver legal services competently, diligently and as promptly as reasonably possible; avoid any compromise to their integrity and professional independence and comply with these Rules and the law.
    • A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to – be prejudicial to, or diminish the public confidence in, the administration of justice; or bring the profession into disrepute.
    • A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking, unless released by the recipient or by a court of competent jurisdiction.
    • A solicitor must not seek from another solicitor, or that solicitor’s employee, associate, or agent, undertakings in respect of a matter, that would require the cooperation of a third party who is not party to the undertaking.

    In-house solicitors should also be aware of their obligations outlined in LAQ policies such as the Code of Conduct for the Queensland Public Service and LAQ Client Service Standards.

    Barristers’ Conduct Rules

    Barristers need to be aware of their fundamental duties contained in the Barristers’ Conduct Rules 2011:
    “The object of these Rules is to ensure that all barristers:

    1. act in accordance with the general principles of professional conduct;
    2. act independently;
    3. recognise and discharge their obligations in relation to the administration of justice; and
    4. provide services of the highest standard unaffected by personal interest.

    These Rules are made in the belief that:

    1. barristers owe their paramount duty to the administration of justice;
    2. barristers must maintain high standards of professional conduct;
    3. barristers as specialist advocates in the administration of justice, must act honestly, fairly, skilfully and with competence and diligence;
    4. barristers owe duties to the courts, to their clients and to their barrister and solicitor colleagues;
    5. barristers should exercise their forensic judgments and give their advice independently and for the proper administration of justice, notwithstanding any contrary desires of their clients; and
    6. the provision of advocates for those who need legal representation is better secured if there is a Bar whose members:
      1. must accept briefs to appear regardless of their personal beliefs;
      2. must not refuse briefs to appear except on proper professional grounds; and
      3. compete as specialist advocates with each other and with other lawyers as widely and as often as practicable.”

    In-house barristers should also be aware of their obligations outlined in policies such as the Code of Conduct for the Queensland Public Service and LAQ Client Service Standards.

    Part A — Acting in family law matters generally


    A1. Initial interview

    The first contact with a client who subsequently obtains a grant of aid to resolve a family dispute is often at a legal advice interview. The lawyer should explain the legal process and procedure relating to the client’s matter. Some client information will be obtained at this interview but there is generally insufficient time to obtain detailed instructions. Clients should be referred to local counselling agencies where appropriate. Clients should also be advised of the availability of LAQ’s Property Arbitration Program for property dispute matters.

    When providing clients with advice for their family law matters lawyers must provide information required by the FLA and the FLR (see FLA ss12A–12E).

    A2. Grant of aid

    LAQ is the approving authority for grants of aid. Generally aid is effective from the date LAQ receives the application. A grant of aid must exist before any work can be done on the file. The lawyer should check the approval letter to determine the nature and appropriateness of the grant of aid. Where the grant of aid is subject to an initial contribution, the lawyer must not commence work until appropriate arrangements have been made with the client for a contribution payment.

    Grant of aid confirmation should be provided to the other party or parties to proceedings in line with the Legal Aid Queensland Act 1997 s 28. This is an ongoing responsibility where the parties to proceedings change.

    LAQ will pay for legal services in accordance with LAQ’s set schedule of fees less the initial contribution from the client (where applicable). The schedule of fees includes LAQ’s Scales of Fees, rules for payment of accounts and claiming guidelines. The lawyer should explain to the client LAQ’s retrospective contributions policy and ensure the client signs and returns the Payment of costs letter template prior to commencing work on the file.

    If at any time during the course of proceedings a client’s grant of legal aid is refused and the lawyer is the solicitor on the court record, that the lawyer must take appropriate steps in that jurisdiction to advise the court and the client they are no longer acting. This may involve filing an appropriate notice or an appearance at the next court date to seek leave to withdraw.

    A3. Management of the client and file

    Lawyers should refer to the File management standards – litigation support officers to be aware of their file management responsibilities. They should also be aware of litigation support officers’ responsibilities.

    Following grant of aid approval, an initial letter enclosing a Client information sheet must be sent to the client. The client must be informed of their obligations and rights regarding costs payable for work to be done on their behalf and any rights to recover costs from another party to proceedings.

    The lawyer should pay special attention to the FLR rr 19.03–19.04 regarding notification to the client. Refer to the FCCR pt 21 for the FCCA.

    If the matter is urgent and it is not appropriate to send the initial letter to the client, lawyers must give the client a Client information sheet at the first client interview. An appropriate record must appear on the file.

    Lawyers must communicate regularly with clients. Standard letters should be used when available. Correspondence sent or received on behalf of the client should be copied and sent to the client. Lawyers must keep copies of all file notes, correspondence sent or received and all documents received or prepared on behalf of the client on the client’s file.

    Lawyers should have the client’s signed instructions before any significant step on the file and these should be retained on the file.

    Lawyers must be aware of and comply with the Best practice guidelines for lawyers working with people who have experienced domestic violence

    Lawyers must also read and be aware of the contents of the family law courts’ Family Violence Best Practice Principles.

    Lawyers must be aware of and comply with LAQ’s Best practice guidelines for lawyers providing legal services to Aboriginal and Torres Strait Islander clients.

    Lawyers must be aware of and comply with LAQ’s Guidelines for lawyers working with interpreters. In cases where a disability may be a factor, lawyers will need to consider whether the client or a party in the matter is able to give instructions or has capacity to be involved. This will become an issue where a client has an intellectual disability or cognitive impairment. In these cases, lawyers should consider the appointment of a litigation guardian. They should also consider the involvement of the Adult Guardian. See the Queensland Law Society website, LAQ library resources and the Office of the Public Guardian’s website for further information.

    Where possible consider requesting permission to use video link, audio link or other appropriate means to give testimony, make appearances, make submissions, out-of-court electronic means give evidence or adduce evidence from a witness when previously attendances in person were required (see the FLA pt XI div 2, the FLR rr 5.06– 5.07, 12.12, 16.08, and the FCCA ss 66–73).

    A4. Briefing counsel

    In-house lawyers, when briefing counsel, must comply with the In-house lawyers briefing counsel policy which can be found on the intranet (LAQ staff access only).

    When applicable, briefs to counsel must contain the following:

    1. a logical and chronological index
    2. clear Instructions to counsel confirming the date of the court event, a summary of the issues in dispute, a list of each parties’ witnesses and confirmation of the client’s/ICL’s/separate representative’s instructions
    3. copy of all relevant material – including court documentation, file notes, witness statements and correspondence
    4. the brief should be marked "Legal aid brief" and include details of the grant of aid available for counsel if the client is represented by an in-house lawyer, or the LAQ pro forma invoice if the client is represented by a preferred supplier.

    A5. Completion of matter

    The client must be advised of the outcome of the matter and provided with any relevant documentation before a file is closed. A final letter confirming the conclusion of the matter, the outcome of the proceedings and a sealed copy of any orders must be forwarded to the client. If appropriate, the letter should also contain relevant advices with respect to time limitations (including appeal time limits) and the consequences of breaches of the orders.

    If at any stage in proceedings a lawyer is refused a grant of legal aid to continue to represent their client, they should immediately notify the court and file the appropriate documentation to withdraw. If the time period between legal aid being refused and the next court event does not allow for this formal notification then it is expected the lawyer will attend the court event and formally withdraw.

    Lawyers should notify LAQ of the file outcome after each grant of aid completion and when submitting their final account for payment and file finalisation. In-house staff will not be able to finalise a file unless a report has been submitted to grants on the outcome of each grant of aid.

    Lawyers should refer to the File management standards – litigation support officers to be aware of their responsibilities in closing a file.

    A6. Initial/final contribution

    Lawyers must ensure the initial or final contribution has been paid or arrangements have been made for the final contribution payment.

    A7. Appeal

    Lawyers should consider the appropriateness of any orders made and the potential merit for appeal or review. If appropriate lawyers should discuss the matter with the client including:

    • the appeal timeframe
    • risk of a less favourable outcome
    • potential liability for costs if unsuccessful
    • effect of appeal on the execution of order.

    All time limits must be observed.

    A8. General solicitors duties

    Australian Solicitors Conduct Rules – general solicitor duties

    A solicitor must follow a client’s lawful, proper and competent instructions (r 8.1).

    A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not: a solicitor who is a partner, principal, director or employee of the solicitor’s law practice; or a barrister or an employee of or person otherwise engaged by, the solicitor’s law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client (see exceptions) (r 9.1).

    A solicitor must not knowingly make a false statement to an opponent in relation to the case (including its compromise) and must take all necessary steps to correct any false statement made by the solicitor to an opponent as soon as possible after the solicitor becomes aware that the statement was false (rr 22.1–22.2).

    A solicitor must not take unfair advantage of the obvious error of another solicitor or other person, if to do so would obtain for a client a benefit which has no supportable foundation in law or fact (r 30.1).

    Unless otherwise permitted or compelled by law, a solicitor to whom material known or reasonably suspected to be confidential is disclosed by another solicitor, or by some other person and who is aware that the disclosure was inadvertent must not use the material and must return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure was inadvertent; and notify the other solicitor or the other person of the disclosure and the steps taken to prevent inappropriate misuse of the material (r 31.1).

    A solicitor who reads part or all of the confidential material before becoming aware of its confidential status must: notify the opposing solicitor or the other person immediately; and not read any more of the material (r 31.2).

    If a solicitor is instructed by a client to read confidential material received in error, the solicitor must refuse to do so (r 31.1).

    A solicitor must not make an allegation against another Australian legal practitioner of unsatisfactory professional conduct or professional misconduct unless the allegation is made bona fide and the solicitor believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it (r 32.1).

    A solicitor must not deal directly with the client or clients of another practitioner unless: the other practitioner has previously consented; the solicitor believes on reasonable grounds that:

    the circumstances are so urgent as to require the solicitor to do so; and the dealing would not be unfair to the opponent’s client; the substance of the dealing is solely to enquire whether the other party or parties to a matter are represented and, if so, by whom, 

    there is notice of the solicitor’s intention to communicate with the other party or parties, but the other practitioner has failed, after a reasonable time, to reply and there is a reasonable basis for proceeding with contact (r 33.1).

    A solicitor must not in any action or communication associated with representing a client:

    make any statement which grossly exceeds the legitimate assertion of the rights or entitlements of the solicitor’s client, and which misleads or intimidates the other person;

    threaten the institution of criminal or disciplinary proceedings against the other person if a civil liability to the solicitor’s client is not satisfied; or

    use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person (r 34.1).

    A solicitor with designated responsibility for a matter must exercise reasonable supervision over solicitors and all other employees engaged in the provision of the legal services of that matter (r 37.1).

    A solicitor must not in the course of practice, engage in conduct which constitutes: discrimination; sexual harassment or workplace bullying (r 42.1).

    Part B – Acting in a legal aid family dispute resolution conference


    Parties are encouraged to attend family dispute resolution with the aim of making a genuine effort to settle their parenting dispute (see the relevant pre-action procedures in the FLR r 1.05 and sch 1).

    B1. Initial client interview

    Note:

    A client may have completed a Client Conference Assessment Sheetprior to the solicitor having an initial client interview. The initial client interview must be in person unless extenuating circumstances make an interview in person impracticable, such as illness or distance. A preliminary discussion with the client over the telephone is permitted where the client is reluctant to attend in person or where initial information can be reasonably assessed over the phone to determine if a matter should go to a conference. Take care if this approach is adopted. Often eye contact and body language will be important in assessing a client’s vulnerability and needs. If initial information is obtained over the telephone, a follow-up in person interview must take place prior to the conference date.

    An admitted solicitor must conduct the initial client interview. When the lawyer first sees the client they should:

    1. Obtain full particulars of the nature of the dispute, the history of the marriage/relationship, current arrangements for the children and matrimonial property.
    2. Obtain instructions about the reasons for the relationship/marriage breakdown and whether there is any domestic or family violence and if so, whether there is a protection order in place.
    3. Assess the nature of any domestic or family violence. If domestic or family violence exists/ed in the relationship, conduct a risk assessment of the situation – use the LAQ Best practice guidelines for lawyers working with people who have experienced domestic violence and the family law courts’ Family Violence Best Practice Principles .
    4. Assess the client’s safety attending and leaving the family dispute resolution conference.
    5. Consider whether the client needs any additional supports at the conference — would it be better if they had a support person or support worker with them?
    6. Consider whether the matter falls within the exceptions to compulsory family dispute resolution as noted in the FLA s 60I(9) and, if so, seek appropriate funding for litigation.
    7. If family dispute resolution is appropriate and the matter has not been excluded, complete the Solicitor Conference Assessment Sheet, and return it to LAQ’s Dispute Resolution Services no later than 48 hours before the start of the conference.
    8. Explain the family dispute resolution conference procedure, the aim of conferencing, the role of the family dispute resolution practitioner(s) and qualifications, and the consequences of refusing an invitation to attend dispute resolution to the client.
    9. Explain the solicitor’s role and the client's role at the family dispute resolution conference.
    10. Explain the confidentiality provisions and expected conduct of the parties at the family dispute resolution conference.
    11. If relevant, request copies of any documentation relevant to the matter.
    12. Use the LAQ risk assessment resources on the intranet (LAQ staff access only) to assess the client’s safety. Be sympathetic to the emotions and concerns that the client may have.
    13. Advise the client the conference format is at the conference organiser’s discretion who takes into account all information. If a protection order exists then the matter MUST commence as a shuttle conference.

    If the principal dispute relates to parenting orders the lawyer should:

    1. discuss a detailed proposal to be put to the other party and in doing so provide advice in relation to:
      1. the FLA ss 60B, 60CA, 60CC, 61DA, 64B. The client must also be advised of consequences of an order in line with ss 65DAA, 65DAC, 65DAE
      2. the obligations created by parenting orders in line with the FLA ss 65M, 65N, 65NA, 65P
      3. the option of entering into a parenting plan in line with the FLA s 63DA, where to get assistance in preparing a parenting plan and what matters may be dealt with in the parenting plan in line with the FLA s 63C.
    2. check with the client whether there are any property issues to be resolved. Also check the child support situation and whether it is an underlying issue affecting the parties’ attitudes to parenting orders. If these are relevant matters, arrange a further advice session as soon as possible to discuss these matters with the client and all relevant time limitations.

    If the principal dispute concerns property settlement the lawyer should:

    1. Check that parenting arrangements, including child support, are satisfactory or whether these also need to be discussed at the family dispute resolution conference. If the parties are in dispute in all areas and all the issues are complex, two separate dispute resolution conferences may need to be held, one for parenting arrangements and the other to finalise property settlement issues. A further advice session may be necessary to discuss these other matters and all relevant time limitations with the client.
    2. Discuss supporting document availability with the client and provide them with a list of documents to produce with the Family Dispute Resolution Conference – Preparation Form (Property) before the family dispute resolution conference. If the parties own real estate, the client should obtain at least one and preferably three market appraisals in writing of any property to attach to the LAQ Property Preparation Form (provided by LAQ) for exchange with the other party before the family dispute resolution conference.
    3. Advise the client generally about the FLA ss 79(4), 75(2) and draw up a proposal.
    Note:

    Instituting proceedings and time limitations – FLA s 44 — a 12 month time limit applies for certain types of applications.

     

    Note:

    In all matters, the Solicitor Conference Assessment Sheet MUST be returned to the conference organiser no later than 48 hours before the start date for the conference. In property matters the Family Dispute Resolution Conference – Preparation Form (Property) must also be returned to the Conference Organiser with the Solicitor Conference Assessment Sheet no later than 48 hours before the start date for the family dispute resolution conference.

    B2. Negotiation

    In order to narrow or define the issues, the lawyer may write to the other party's solicitor, if known, (or the other party if he/she is not represented) with the client's proposals and concerns in accordance with the instructions given at the initial interview. In the case of property settlement, the letter should also contain a request to produce relevant documents at the family dispute resolution conference, and list the client's estimate of the value of each separate item of property.

    B3. Attending the family dispute resolution conference

    Before a family dispute resolution conference, the lawyer should arrange for the client to attend a brief 15 to 30 minutes interview prior to the start of the conference to bring them up to date with any recent developments. This is also an opportunity to confirm the issues and concerns of the client, to reiterate the confidentiality of the conference, and to remind the client of the family dispute resolution conference procedure. If domestic or family violence is an issue, consider meeting the client at LAQ and escorting the client to the family dispute resolution conference. If the conference is at the LAQ office, consider meeting the client at another location and escorting them to the office.

    During the family dispute resolution conference the lawyer should:

    • Allow the client to do most of the talking (some clients will request the lawyer’s assistance and may find speaking for themselves too difficult. They should encourage the client where possible to speak for themselves and prompt them if they forget to raise any relevant issues).
    • Assist where necessary to summarise the client's concerns and proposals or supply necessary details omitted by the client.
    • Ask for a private meeting if the client becomes distressed or otherwise requires legal advice.
    • If the client starts to interrupt when someone else is speaking, quietly remind them that interrupting is not permitted.
    • At private meetings during the family dispute resolution conference, carefully explain options and proposals discussed during the family dispute resolution conference to the client and give the appropriate legal advice in relation to those options and proposals. Also discuss the consequences of agreement or failure to reach agreement and their implications for future legal aid funding. The client should be encouraged to compromise wherever it is appropriate, but not forced to reach agreement. Reality test all proposals for agreement with the client.
    • Advise the client about the use and effect of a parenting plan and/or court orders.
    • If domestic or family violence is an issue in the dispute, consider how the proposed orders will work given the nature of the domestic or family violence. Will the client and children still be safe? Are the orders workable considering the nature of the domestic or family violence? Reality test this with the client. Do not advise the client to agree to something if it will place them or the child/ren in a dangerous situation or will not be workable.
    • Ensure the client is aware that information given to the family dispute resolution practitioner may be given to the other party unless it is clearly explained the information is not to be disclosed.
    • Ensure any agreement reached is explained to the client in detail, the client understands the practical implications of the agreement and the agreement is fully understood by the client.
    Note:

    Lawyers may prepare a draft proposed agreement based on their client’s instructions, however this draft is not to be used at the commencement of the family dispute resolution conference to limit the process. All conference parties must be given the opportunity to raise their concerns and issues and explore options for resolution. Any draft is only to be used at the end of the family dispute resolution conference to assist in preparing the written agreement incorporating the terms agreed between the parties on the day.


    B4. Confirm outcome with client

    If the parties reach an agreement but do not intend to file consent orders, the lawyer should write a letter to the client confirming the agreement and enclosing a typed copy of the agreement.

    If an agreement was reached and consent orders are intended to be filed, the lawyer should write a letter to the client confirming this and enclosing the typed proposed consent orders and other relevant court documents– see section B5 below.

    If no agreement is reached, the lawyer should confirm this in writing with the client and provide advice to the client about their options including options for further mediation or counselling services.

    B5. Consent orders

    If a written agreement is reached at the family dispute resolution conference and consent orders are intended to be filed in court, aid is granted for the preparation of the orders unless advised otherwise by LAQ (this is part of the grant of aid).

    A final client interview is required to check and sign the consent orders including to draft the annexure to certify the risk of domestic or family violence or child abuse and how the consent orders attempt to deal with the domestic or family violence as per the FLR r 10.15A. If this is not possible, then send a final letter of advice to the client enclosing the consent orders for signature. Refer to the FLR pt 10.4 re consent orders.

    Part C – Acting in parenting and property matters


    C1. Letter of introduction

    Prior to the initial client interview, the lawyer should forward a letter requesting an appointment be made and enclosing the instruction check list (in Visual Files) for completion by the client prior to interview.

    C2. Initial client interview

    For parenting issues, the lawyer should advise the client generally concerning the relevant sections of the FLA:

    • s 60B — objects and principles
    • ss 60CA, 60D — best interests are paramount consideration but greater weight is given to protecting the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
    • ss 60CC, 61F — factors used to determine best interests
    • ss 60I, 60J — requirements for attending family dispute resolution services before court proceedings are commenced (if applicable) (see s C4)
    • ss 60CH, 60CI — where a party is aware that a child or member of a child’s family is under the care of a person under a child welfare law or if they are aware that the child or member of the child’s family is or has been subject to a notification, investigation, inquiry or assessment that relates to abuse
    • ss 61DA, 65DAA, 65DAC, 65DAE — the presumption of equal shared parental responsibility and the consequences of shared or equal shared parental responsibility orders
    • s 63DA — the option of the use of parenting plans rather than court orders (see separate section ­– C3)
    • ss 65M–65P — the general obligations created by parenting orders
    • ss 67Z, 67ZBA — where an interested person to the proceedings alleges family violence or abuse, filing of the appropriate forms.

    In addition, unless the lawyer has reasonable grounds to believe the client has already been given documents containing the following information, they are required to provide information to the client relating to:

    • non-court based family services and court proceedings and services prescribed by the FLA s 12B
    • services available to help with a reconciliation between the parties to a marriage prescribed by the FLA s 12C (note this does not have to be provided if there is no reasonable possibility of a reconciliation)
    • family counselling services available to assist the parties and the child or children to adjust to the consequences of the FLA pt VII orders prescribed by s 12D.

    For property matters, they should advise the client generally in relation to the FLA ss 72, 79(4).

    They should discuss various options with the client for resolution or determination and advise on:

    • mediation including family dispute resolution services offered by LAQ
    • counselling
    • arbitration (if property dispute)
    • pre-action procedures prior to filing (FLR r 1.05, sch 1)
    • the requirements for attending family dispute resolution services should be fully discussed with the client (FLA ss 60I, 60J)
    • their duty of disclosure (FLR pt 13.2, and FCCR pt 14 div 14.2)
    • where domestic or family violence is present, safety and risk assessment issues including whether a protection order is needed (use the risk assessment resources located on the intranet — LAQ staff access only)
    • the making of an offer to settle (FLA s 117C, and FLR pt 10.0)
    • the client's understanding of cost implications as far as legal aid is concerned and their rights and obligations under the FLA and the FLR (FLR ch 19)
    • the appropriate court to commence proceedings in.

    Consider advising the client about whether an ICL appointment is appropriate if court proceedings commence. Consider to the facts of the case and whether they warrant such an order (Re K (1994) FLC 92–461, the FLA ss 68L, 68LA, and the FLR r 8.02). The ICL’s role and responsibilities must be explained to the client and the obligations of the client must be discussed.

    The lawyer should get signed instructions from the client at every significant stage of the case and retain these on the file. Instructions need to be taken to approach the other party, if this has not already occurred, to attempt to resolve the matter.

     

    Australian Solicitors Conduct Rules relevant to advice

    A solicitor must provide clear and timely advice to assist the client to understand the relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of engagement (r 7.1).

    A solicitor must inform the client about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation (r 7.2).

    A solicitor must follow a client’s lawful, proper and competent instructions (r 8.1).

    C3. Parenting plans

    The FLA encourages parents to make use of parenting plans to document agreements about parenting arrangements, such as who the child will live with, the time a child is to spend with another person and allocation of parental responsibility. Parenting plans:

    • must be in writing, made between the parents of a child, signed by the parents, and dated
    • must be made free from any threat, duress or coercion
    • are not required to be registered
    • are not enforceable but:
      1. a parenting order is subject to a parenting plan which is entered into subsequently by the child’s parents and agreed to in writing by any other person to whom the parenting order (other than the child) applies
      2. therefore if a parenting order contravention is alleged, it will be a sufficient defence to show that the conduct was permitted under a subsequent parenting plan
      3. only in exceptional circumstances can the court order that a parenting order may only be varied by a subsequent order of the court and not a parenting plan (for example if there is a need to protect the child from harm or likely use of coercion or duress to enter into a parenting plan).

    Parents will be encouraged, but not required, to obtain legal advice before entering into a parenting plan.

    C4. Compulsory dispute resolution

    Parties are encouraged to attend family dispute resolution with the aim of making a genuine effort to settle their parenting dispute. The current family court pre-action procedures set out in the FLR will apply and will also be extended to other courts exercising family law jurisdiction, such as the FCCA.

    Lawyers should be aware family dispute resolution practitioners have a discretion to give or not to give their surname on a certificate and to sign or not to sign a certificate (FLR sch 7A).

    Some matters are not required to have the certificate before an application is made. These are matters where:

    1. the court is satisfied on reasonable grounds there has been child abuse, there is risk of such abuse, there has been domestic or family violence by one of the parties or there is a risk of such domestic or family violence
    2. the application is for contravention, made within 12 months of the court allegedly contravened order, is made in relation to a particular issue and there are reasonable grounds to believe the alleged contravener show a serious disregard for their obligations under the orders.

    Note: the current pre-action procedures only apply to property proceedings commenced in the family court (FLR sch 1 pt 1).

    A party must make a reasonable and genuine attempt to settle the issues noted in the application before filing (the FLR r 5.03 notes the exceptions to this).

    C5. Prepare documentation

    Family law courts and the Federal Circuit Court of Australia
    • Initiating Application (interim/procedural/ancillary/ interlocutory or incidental order) (FLR chs 2, 5 and FCCR pt 4)
    • affidavit — setting out evidence supporting the application
    • consider whether a Notice of Abuse or Notice of Family Violence — Form 4 is required and consider the FLA ss 60K, 67Z, 67ZA and the FLR pt 2.3
    • if domestic or family violence is an issue, consider whether an application for a protection order is appropriate and the services available to assist in supporting people who have experienced domestic or family violence
    • alternatively, the lawyer can give consideration to applying for an injunction in the family law courts for personal protection of a child or any person the child is involved with
    • if the client already has a protection order, filing the order with the family law courts
    • any notices under the FLA ss 67Z, 67ZBA relating to child abuse or domestic or family violence
    • remember to give the client relevant brochures (FLR r 2.03 (service of brochures) and the FLA, s12E (“obligations on legal practitioners”)
    • consider who must be a party to the proceedings (FLR ch 6 and FCCR pt 11)

    For documents to be filed refer to the FLR Chapter 2 and Tables 2.1 and 2.2. For protection orders refer to the FLA s 60CF and the FLR r 2.05.

    The lawyer should consider whether any applications need to be made to preserve property or to secure the client’s position regarding children’s matters, and obtain instructions to collect appropriate evidence to support such application.

    The lawyer should also consider whether to issue subpoenas in support of the application in a case. The lawyer will need leave to file any subpoenas in the FamCA (see the FLR ch 15, r 15.21 for the limitation on the number of subpoenas allowed, and pt 15.3 generally regarding subpoenas). Refer to the FCCR pt 15 div 15.3 in the FCCA. If the documentation is lengthy and includes an application for interim orders, the lawyer should prepare it in draft and forward it to the client for perusal with a letter requesting that they arrange a further appointment for signature and advise of any changes at that appointment. The lawyer must give clear advice to the client about swearing the affidavit and the implications of making false or misleading statements (FLA s 118; FLR pt 15.2; and FCCR pt 15 div 15.4).

    When taking instructions and preparing the client’s material for parenting orders, consider the matters specified in the FLA ss 60B, 60CC, and the adviser obligations in s 60D.

    C6. Costs

    There is an obligation to provide a written statement of the actual costs incurred up to and including the trial to the court and to each party (FLR r 19.04(4)). This rule is not often enforced by the FamCA.

    ICLs need to be aware of the FamCA and the FCCA rules in relation to costs (FLR ch 19 and FCCR, ch 1 pt 21).

    If costs are an issue in the matter, then it may be essential to strictly comply with the rules regarding costs to obtain an appropriate court order.

    C7. Filing the documentation at court

    When filing the application and supporting documents, include a letter to the registry requesting a waiver of fees on the basis that the client is legally aided. A copy of the LAQ letter confirming the grant of aid can be downloaded and printed via Grants Online e-lodgement.

    In property proceedings, once an application is filed there are rules about what documentation must be exchanged prior to the first court date (FLR r 12.02). Also check the FCCA disclosure requirements (FCCR pt 14).

    Magellan matters fall into a separate category and are discussed later in these standards.

    The family law courts have published a protocol for the division of work between the FamCA and FCCA. This states that the FamCA should deal with matters involving: 

    • international child abduction
    • international relocation
    • disputes about whether a case should be heard in Australia
    • special medical procedures (of the type such as gender reassignment and sterilisation)
    • contravention and related applications in parenting cases relating to orders which have been made in FamCA proceedings; which have reached a final stage of hearing or a judicial determination, and which have been made within 12 months prior to filing
    • serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling domestic or family violence warranting the attention of a superior court
    • complex questions of jurisdiction or law
    • if the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.
    Note:

    The FamCA has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.

    A lawyer should be mindful a particular matter may need to be transferred up to the FamCA at some point during the course of the proceedings. Either court on its own motion or on application of a party can transfer a matter to the other court and there is no right of appeal from a decision to transfer.

    C8. Write to client advising of date of hearing

    Once the application is filed, a lawyer should advise the client in writing of the next court event and provide an understanding of the next step involved in the process and the need for the client's attendance. Generally a client should attend each court event unless excused (see the FLR ch 12). At all possible and appropriate opportunities, the client should be reminded of the benefits and availability of counselling, mediation and other primary dispute resolution methods to assist in the resolution of the dispute.

    C9. Before the interim hearing date

    Once the court documents have been filed they need to be served on all parties. The FamCA, requires service of all relevant documents and brochures (FLR chs 2, 6–7). Refer to the FCCR pt 6 in the FCCA.

    For all urgent applications without notice in the FamCA or FCCA see the FLR pt 5.3 and the FCCR pt 5.

    For unusual FamCA applications relating to maintenance, cross-vesting, medical procedures, child support, applications for nullity and validity of marriage or divorce/annulment and passports see the FLR pt 4.2 .

    For unusual FCCA matters refer to general provisions for applications (FCCR pt 10 “How to conduct proceedings”, and rr 4.08–4.10).

    When acting for the respondent, the same processes apply but refer to the FLR ch 9 when dealing with FamCA matters. In the FCCA there is no distinction between applicants and respondents.

    It is possible to adjourn a hearing administratively and this can be done by all parties writing to the court requesting the adjournment (FLR pt 12.5 and FCCR r 10.02).

    Note:

    Care should always be taken when writing to the court that all parties are copied into the correspondence and this is apparent on the face of the correspondence. Direct contact with a judge is not appropriate and all correspondence should be to a duty registrar, registrar, or the relevant judicial officer’s associate

    C10. Child abuse cases

    Protecting a child from harm is the primary consideration in the FLA s 60CC. Check the definition of abuse in the FLA s 4.

    The FLA requires that a party must advise the court if they are aware that a child or another member of the child’s family is in care or subject to a child welfare process (s 60CH).

    FLA s 67Z requires a notice in the prescribed form to be filed where an allegation of child abuse is made. In both the FamCA and the FCCA, the FLR pt 2.3 provides that a Form 4 must be filed and served. The Form 4 sets out the allegations of abuse or risk of abuse. Check the definitions of abuse in the FLA which includes being ‘exposed’ to family violence (s 4(1)).

    The FLA s 67ZBB requires that when a document is filed alleging abuse or risk of abuse of a child, the court must consider interim or procedural orders to enable the matter to be dealt with expeditiously and to protect the child and the parties.

    When these matters are raised in the material, then consideration should be given to:

    • the appointment of ICL (FLA s 68L, Re K (1994) FLC 92–461)
    • requesting the intervention of the Department of Communities, Child Safety and Disability Services (the Department) (FLA s 91B)
    • an order for the production of documents or information from a prescribed State Authority (FLA s 69ZW)
    • the need and suitability for further counselling in the matter, and
    • any other appropriate interim order required.

    Consider whether the matter should be referred to the Magellan Registrar for inclusion in the list of cases to be determined using the Magellan case management system in the FamCA. If the matter is in the FCCA, consider applying to transfer the matter to the FamCA if it is considered a candidate for allocation to Magellan.

    C11. Domestic violence cases

    Where there are allegations of domestic or family violence, ensure these are outlined in the client’s material in detail and all available extraneous evidence is annexed to the material. Check the definition of domestic or family violence (FLA s 4AB). Remember that the definition of abuse of a child includes exposure to domestic or family violence. Ensure that the information before the court includes whether the child/ren witnessed or otherwise experienced the domestic or family violence.

    When a document filed alleges domestic or family violence or risk of domestic or family violence by one party the court must consider interim or procedural orders to enable the matter to be dealt with expeditiously and to protect the parties and the children. In both the FamCA and the FCCA a Form 4 must be filed and served. The Form 4 sets out the allegations of domestic or family violence or risk of domestic or family violence (the FLA s 67ZBB and the FLR pt 2.3 apply to both the FCCA and the FamCA).

    Read and be aware of the contents of the LAQ Best practice guidelines for working with people who have experienced domestic violence and the family law courts’ Family Violence Best Practice Principles.

    Some important considerations are:

    • Use best endeavours to ensure that the parenting orders made in the family law courts are consistent with any state domestic violence order.
    • Consider whether a safety plan is required with the courts for the client’s attendance at court events. Consider whether the client needs:
      • to give evidence via video link
      • to be escorted by security to and from the court
      • a safety room while waiting to go into the court.
    • The FLC’s Family Violence Best Practice Principles include reference to a ‘PPP’ screening tool which they describe as a useful framework of factors to look for when considering the risk of domestic or family violence.
    • Consider whether the client’s address should be suppressed or other protective measures should be taken to protect their identity and location.
    • Consider whether a social science expert in domestic or family violence should be called to give evidence.
    • Consider whether the client should be referred to a domestic violence prevention service for support through the court process.
    • Do a risk assessment — use the LAQ risk assessment resources or the FLC’s Family Violence Best Practice Principles. What is the severity of the violence? What means does the perpetrator have to carry out their threats?
    • The lawyer should consider their own safety and take precautions.

    The Family Violence Best Practice Principles outline some important considerations for a court both at the interim and final hearing stage. It is important that these considerations are addressed both in the client’s material and in submissions to the court.

    C12. Hearing of interim issues

    The client must attend court unless there are special circumstances and these must be set out in an affidavit to be provided to court. Attendance can be by electronic means (FLR r 5.06, FCCA s 67).

    On the day of the hearing, ensure attendance at the callover (if applicable). At the callover, or if asked by the associate, a general overview of the matter is given and an estimate of the time the matter will need to be heard.

    At the commencement of the hearing, the court will need to be advised of the material the client intends to rely to support their application. Submissions are made to the court setting out why the orders sought should be made and should refer to the relevant evidence supporting those submissions. Reference should be made to relevant sections of the FLA, the relevant procedural rules and appropriate case law. In particular the case of Goode & Goode (2006) FLC 93–286 needs to be considered when preparing submissions for interim hearings.

    Where there is domestic or family violence and/or child abuse, it is essential that all material and information is placed before the court at this early stage and submissions include reference to this evidence.

    When considering submissions, lawyers must consider matters in the FLA pt VII and especially ss 60B, 60CA, 60CC, 60CF–CI.

    It is good practice to have a set of draft orders for the court to consider. Some judicial officers will insist upon this being done. They must be drafted in line with the client’s instructions and using the FLA’s required terminology.

    At the conclusion of the interim hearing, either court may make directions for a final hearing and a lawyer should be ready to discuss the length of trial, the number of witnesses and the nature of the evidence to be called to establish a client’s case and generally the terms of any directions needed to progress a matter to final hearing.

    Following the interim hearing, advise the client in writing of the hearing outcome and their rights and obligations as a result of the orders made by the court. Consider and provide advice in relation to any possible review or appeal of the decision. The lawyer must also provide the client with a sealed copy of any orders made in due course.

    Inform the client of the next court event and whether they need to attend. Review the case plan for the matter with the client.

    Lawyers need to be aware in some cases the court can order that a family consultant interview the parties and prepare a report in line with the FLA s 62G. The FLA s 11F gives a court the power to order the parties to attend appointments with the family consultant and, if a person fails to do so, to report the failure to the court which may then make further orders as appropriate in the circumstances.

    The court can adjourn the interim hearing for the family consultant to prepare the report and give evidence relating to the report. Family consultants are present in the court room and may give, on oath, evidence of their observations of the parties regardless of whether or not they have had any prior involvement in the matter. In some circumstances, the judicial officer may invite the parties to cross-examine the family consultant on their observations but many do not. The lawyer should be prepared for this.

    Australian Solicitors Conduct Rules relevant to mentions and interim hearings

    A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client, and must exercise the forensic judgements called for during the case independently and after consideration of the client’s instructions where applicable (r 17.1 and see exception in r 17.2).

    A solicitor must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the solicitor’s personal opinion on the merits of that evidence or issue (r 17.3).

    A solicitor must not, in the presence of any of the parties or solicitors, deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court (r 18.1).

    A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which are within their knowledge and are not protected by privilege and that the solicitor has reasonable grounds to believe would support an argument against granting relief or limiting its terms adversely to the client (r 19.4).

    A solicitor must, at the appropriate time in the hearing of a case if the court has not yet been informed of that matter, inform the court of any binding authority, where there is no binding authority, any authority decided by an Australian appellate court and any applicable legislation known to the solicitor and which the solicitor has reasonable grounds to believe to be directly on point, against the client’s case (rr 19.6, 19.8).

    A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension (r 19.11).

    A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless the court has first communicated with the solicitor…or the opponent has consented beforehand…a solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication… (rr 22.5–22.6).

    A solicitor must take steps to inform the opponent as soon as possible after the solicitor has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact and the grounds of the application, and must try, with the opponent’s consent, to inform the court of that application promptly (r 22.8).

    C13. Prior to each further court event

    Prior to each court event the lawyer should:

    1. obtain an appropriate grant of aid to attend
    2. consider the possibility of settlement prior to the court event and the filing of consent orders
    3. advise the client about costs (FLR ch 19, pt 21)
    4. obtain all relevant documentation to be exchanged from the client (FLR pt 12.2, FCCR pt 14)
    5. consider any necessary adjournment (see FLR pt 12.5).

    C14. Procedural hearing/mention

    At the procedural hearing, the lawyer must fully advise the court of all matters relevant to the procedural orders needed in the matter, details of agreed issues, assessing prospects of settlement and negotiating resolution of the matter, and identify all matters relevant to fulfilling the main purpose of the FLR. This is appropriate practice in both courts (FLR r 12.04, FCCR r 10.01). The lawyer must also assist the court in determining the next appropriate court event.

    Directions may be made by either court for a final hearing and a lawyer should be ready to discuss the length of trial, the number of witnesses and the nature of the evidence to be called to establish a client’s case and generally the terms of any directions needed to progress a matter to final hearing. Consider:

    • is the matter ready for trial? Do other things need to occur or is time needed to have steps undertaken or progress made for the matter eg counselling, completion of course, valuations, reports etc
    • the number of witnesses needed and why their evidence is relevant
    • the length of trial — include assessment of time for opening statements, need for further evidence in chief, cross-examination, re-examination and submissions
    • whether expert witnesses and a conference of experts are needed (if appropriate)
    • whether a family report is needed (if appropriate)
    • speaking to proposed counsel and confirming availability (if possible).

    The determination of directions to prepare a matter for trial provides a further opportunity for settlement negotiations. The lawyer must ensure that there is a grant of aid to attend this court event. Directions will be given for the preparation of the matter for trial (FLR r 12.07, FCCR pt 10).

    Immediately after the court event, when directions for trial are made, seek aid for trial material preparation and any other court event attendance prior to the final hearing. The lawyer should assess the evidence needed to assist the court in determining the issues in dispute, keeping in mind the legislative framework that applies. Consider how to adduce that evidence before the court in line with the rules of evidence (as far as they apply).

    C15. Matters to be considered prior to conciliation conferences — property matters

    In property matters, the lawyer should ensure all required documentation is exchanged seven days prior to the conciliation conference (see the FLR r 12.05 and the ‘conciliation conference document’).

    In the FCCA, the court will make orders/directions for the preparation of the matter for a conciliation conference. (FCCR r 10.05).

    Both courts provide extensive directions and requirements for the preparation, disclosure and exchange of information. These directions must be complied with and fully explained to the client.

    C16. Conciliation conferences

    The client is required to attend. Send the client a letter to advising the conciliation conference date, confirming their attendance is required and to set up a preparation meeting prior to the conciliation conference date (FLR r 12.11, FCCR r 10.05(3)).

    The lawyer should also consider all options for settlement with the client and make a genuine effort to reach agreement about relevant issues (FLR r 12.06, FCCR r 10.05). Try to agree on the size of the asset pool at the conciliation conference, failing agreement seek directions about obtaining valuations of the relevant assets of the parties.

    Always consider the filing of an offer. In the FamCA the rules require an offer be made within 28 days after the conciliation conference or such further time as ordered (FLR r 10.06).

    C17. Preparation for trial

    Once either court directs a matter be prepared for trial, the lawyer must request aid on behalf of the client to comply with the directions. The client must be informed of the request for aid result.

    Any material to be relied upon at trial must be filed in compliance with court’s directions. When preparing the material, consider the matters referred to in the FLA pt VII in relation to parenting arrangements, and in the FLA ss 72, 79(4) for property proceedings.

    Consider whether the orders sought in the application/response are consistent with the lawyer’s instructions. Do they need to file an amended application?

    Affidavits should be prepared in line with the guidance noted in the FCCR pt 15, div 15.4 and the FLR.

    Subpoenas should be prepared in line with the FCCR pt 15, div 15.3 and the FLR.

    In the FamCA, the directions hearing will be followed by a compliance hearing, callover and then trial.

    Once the court documents have been filed they need to be served on all parties (FCCR pt 6).

    C18. Magellan cases

    The FamCA has a separate case management system for matters involving allegations of child sexual abuse and serious physical abuse. If such matters commence in the FCCA, consider transferring them to the FamCA as soon as possible (FLA s 33B of the FLA, FCCA s 39).

    If a judicial officer or the parties identify a matter and the judicial officer agrees it is suitable for inclusion in the list of matters to be designated Magellan, it is referred to the Magellan Registrar for consideration. If the parties consider the matter is suitable for inclusion but are still waiting for a further court date, they may write to the court seeking the matter be referred to the Magellan Registrar for consideration.

    If the Magellan Registrar designates the matter as appropriate for inclusion, the matter is listed as soon as possible before a judge.

    On the first return date the judge will normally hear any interim application or list a matter on the next available date to determine interim issues and consider making matter preparation directions for the final hearing. As the matter is under the judge’s control, there may be more than one directions hearing or interim hearing, depending upon the judge’s directions for the involvement of a family consultant, expert reports, subpoenas, the filing of further material or other matters.

    The ICL’s role description is not different in these proceedings but they may berequired to undertake additional investigations. There Queensland Department of Communities, Child Safety and Disability Services (the department) some other states have a protocol for the Magellan reports to provide a summary of the department’s involvement with the family. The court may issue a request for the provision of this report or for documentation or information in line with the FLA s 69ZW.

    A Magellan matter’s final hearing is no different to a traditional trial because the issues in dispute will most likely require a thorough forensic investigation into the abuse allegations, the police and the department’s subsequent investigations if any and other matters.

    C19. Property proceedings — trial

    If the disputed issues only relate to property settlement then trial directions are issued by the registrar/judge when the matter is listed for directions or a mention following the conciliation conference. The lawyer must confirm the issues in dispute, identify the asset pool, identify agreed values or seek directions for the appointment of a single expert to provide valuations evidence and list the witnesses intended to be called to give evidence. Trial preparation directions will be determined.

    C20. Further preparation for trial — both courts

    When preparing for trial, the lawyer should:

    1. ensure an updated grant of aid is available
    2. inform the client in writing of the trial dates, confirming their need to attend along with their witnesses, and steps taken in preparation for trial
    3. file the material to be relied upon at trial, in line with trial directions
    4. confirm counsel for the trial by letter, setting out trial dates and fees payable in line with LAQ’s Scale of Fees
    5. issue subpoenas together with conduct monies
    6. inform witnesses of trial dates and ensure they have a copy of their affidavits or evidence, their availability for giving evidence and arrange times for their attendance for cross examination to minimise waiting time
    7. give notice of witnesses required for cross-examination
    8. give notice for admission of facts or tendering of documents by consent (remember for some documents to be accepted the lawyer may need to arrange for someone to be able to identify the document. These matters should be fully discussed well prior to trial to allow for appropriate subpoenas to be issued if necessary)
    9. tender file notices objecting to affidavits and documents (see FLR r 16.03, FCCR pt 15)
    10. liaise with the other parties/their legal representatives for the preparation and filing of material in line with court directions (eg a Case information form in the FamCA and FCCA Case Outline)
    11. file the Summary of argument or Case outline in accordance with court directions (FLR pt 16.2).

    If there is any reason to believe a matter is not ready to proceed to trial, the matter should be brought to the court’s attention as soon as possible.

    If a matter has settled, this should also be brought to the court’s attention as soon as possible.

    C21. Brief counsel for trial

    The lawyer should retain and brief counsel as soon as practicable. The brief to counsel must include all relevant filed court documentation; copies of any subpoenaed material available properly indexed (or summary if necessary, though copies of material should be sought if the matter is progressing to a trial); copies of relevant diary notes, correspondence and other documentation and if appropriate a Summary of argument/Case outline for settling. All briefs to counsel are marked "legal aid". Where appropriate, a pro-forma invoice is forwarded to counsel with the brief.

    “Instructions to counsel” in the brief should set out the trial dates and court in which the proceedings are listed for hearing, the basic outline of the case to be determined, list the witnesses to be called by each party and a statement as to the relevance of that evidence, and confirmation of fees payable pursuant to Legal Aid Scale of Fees. If there are any particular issues in the case that should be brought to counsel’s attention, they should be clearly spelt out in counsel’s instructions (eg previously agreed facts).

    If counsel is settling a draft Summary of argument/Case outline then the brief must be given well in advance and additional aid may be required.

    Any counsel briefed in a legal aid matter (including interstate counsel) accepts the brief on the basis that they will be paid at legal aid rates which are set out in the LAQ Scale of Fees unless otherwise provided. The lawyer should ensure that only barristers of suitable experience in the particular jurisdiction are to be briefed and only barristers who are members of the Bar Association of Queensland are briefed.

    Where LAQ directs the briefing of particular counsel, try to brief that particular counsel.

    A reading fee must be paid where counsel’s necessary preparation to undertake the case exceeds eight hours. A reading fee may be allowed in appeal matters where counsel on the appeal was not the trial counsel.

    C22. Conference with counsel

    The lawyer should consider the appropriateness of conferences with counsel and arrange them as early as practicable with counsel and the client.

    C23. Attend at the trial and instruct counsel

    A lawyer should ensure all required witnesses are available for giving evidence and arrange times for their attendance for cross examination purposes and to minimise waiting time.

    The lawyer should take accurate records of the proceedings including witness names, a sufficient summary of the evidence given and directions or orders made by the court during the course of the hearing. A ‘List of exhibits’ should also be maintained throughout the trial.

    It is recommended that during the course of the trial an adequate summary of questions and answers should be maintained by the instructing solicitor. As an instructing solicitor, a lawyer should be taking careful note of the evidence to assist counsel with their cross-examination and submissions. A full file note should be kept on the file confirming what occurs on each day of the trial. Handwritten notes from the trial should be placed on the file.

    At the conclusion of the trial the lawyer must write to the client informing them of the outcome and provide sealed copies of orders made or advise the expected judgment date if known. The client should also be informed of their obligations under the orders and their right of appeal.

    Ensure all accounts are finalised in a timely manner.

    Australian Solicitors Conduct Rules relevant to trials

    A solicitor must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the solicitor contrary to the true position and is believed by the solicitor to have been made by mistake (r 19.12).

    A solicitor who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client has…lied…falsified a document…suppressed …material evidence upon a topic where there is a positive duty to make a disclosure…must advise the client that the court should be informed of the lie, falsification or suppression and request authority so to inform the court; and refuse to take any further part in the case unless the client authorises the solicitor to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the solicitor to do so but otherwise may not inform the court of the lie, falsification or suppression (r 20.1).

    A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension (r 19.11).

    …in proceedings in which an allegation of sexual assault, indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence, a solicitor must not ask that witness a question or pursue a line of questioning of that witness which is intended to mislead or confuse the witness or ...be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive and …must take into account any particular vulnerability of the witness in the manner and tone of the questions that the solicitor asks (r 21.8).

    A solicitor whose client informs the solicitor that the client intends to disobey a court’s order must: advise the client against that course and warn the client of its dangers; not advise the client how to carry out or conceal that course; and not inform the court or the opponent of the client’s intention unless: the client has authorised the solicitor to do so beforehand; or the solicitor believes on reasonable grounds that the client’s conduct constitutes a threat to any person’s safety (r 20.3).

    A solicitor must not take any step to prevent or discourage a prospective witness or a witness from conferring with an opponent or being interviewed by or on behalf of any other person involved in proceedings (r 23).

    A solicitor must not advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or coach a witness by advising what answers the witness should give to questions which might be asked (r 24).

    A solicitor must not confer with …more than one lay witness (including a party or client) at the same time about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing and where (it) would affect evidence to be given by any of those witnesses unless ...(there are) reasonable grounds (r 25).

    A solicitor must not confer with …any witness (including a party or client) called by the solicitor on any matter related to the proceedings while that witness remains under cross-examination (with some “special circumstance” exceptions) (r 26).

    In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing (r 27.1).

    A solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice (r 28).

    C24. Appeals

    After the court delivers the final judgment, write to the client informing them of the orders made and the reasons for judgment, supplying copies of both sets of documents if available.

    Consider the appropriateness or otherwise of an appeal and inform the client of their options in relation to appeals (see FLA pt 10, FLR ch 22, FCCA s 20).

    If appropriate, an appeal should be discussed with the client and all time limits must be observed. If an appeal is considered appropriate:

    1. Take instructions from the client.
    2. Seek a grant of aid for obtaining an advice on appeal from counsel (in-house lawyers should consult with their coordinator and the Family Law, Civil Justice and Advice Services director about the case for a preliminary view on the prospects of an appeal) and assist the client in completing a legal aid application form.
    3. Provided legal aid funding is available to the client, the lawyer must assist the client to complete and lodge the Notice of Appeal.

    The lawyer should consider whether a stay of any of the orders should be requested pending further consideration of the matter.

    Usually, a directions hearing is set for before a regional appeal registrar to make directions for the preparation of the appeal books, including the transcript, and to have the matter prepared for a hearing.

    Appeal books can be very large. They are prepared by the appellant and the court will dictate how many books need to be filed. Usually there are two sets for each party and one set for each appeal judge.

    The directions are checked for compliance by the Appeal Registrar and ultimately the matter is listed before either a single appeal judge or the Full Court of the Family Court of Australia. Grants of aid need to be arranged for the client, whether they are the appellant or the respondent.

    Grants are available for counsel to appear on the appeal and counsel needs to be briefed with all relevant material, but most importantly a complete set of appeal books. Counsel must be made aware of the court’s directions as they will include the date for the filing of counsel’s Outline of Argument.

    Lawyers are required to instruct counsel at the hearing of the appeal. It is best that the same lawyer and counsel who conducted the trial appear on the appeal wherever possible.

    After the appeal is concluded write to the client informing them of the outcome and provide sealed copies of any orders made or advise the expected judgment date if known. Once the judgment is received, again write to the client informing them of the outcome. The client should also be informed of their obligations under the orders and their right of any further appeal.

    LAQ may consider further grants of aid, but this should be discussed with the Family Law, Civil Justice and Advice Services director before any request for further aid is made.

    Ensure all accounts are finalised in a timely manner.

    C25. Judgment delays

    If at any time there is an extended and unexplained delay in receiving a judgment, this should be brought to the Family Law, Civil Justice and Advice Services director’s attention. There is a protocol to be followed when chasing up an outstanding judgment from the courts.

    Part D — Acting as an ICL


    LAQ has developed Best practice guidelines for independent children’s lawyers (ICLs) working with people who have experienced domestic violence in conjunction with some private lawyers.

    National Legal Aid’s Guidelines for Independent Children’s Lawyers provide ICL’s with guidance to fulfil their role. The FamCA and the FCCA have endorsed these guidelines. All ICLs must read these documents and be familiar with them as they indicate what’s expected of the ICL during the course of the matter.

    The ICL must also be familiar with the protocol between the department and the family law courts. This protocol document is available through LAQ — refer to family law notes held in the LAQ library.

    The court appoints an ICL to independently represent the interests of a child. The ICL’s paramount responsibility is to act in the best interests of each child they represent. This responsibility carries with it a duty to act impartially, to present direct evidence to the court about the child and the relevant issues, the child’s views and matters relevant to the child’s welfare and to make submissions taking into account all the evidence before the court.

    The ICL’s obligations are to:

    1. form an independent view, based on the evidence, of what is in the best interests of the child
    2. act in the best interests of the child in the proceedings
    3. make a submission to the court suggesting it adopt a course of action, if the ICL is satisfied the course of action is in the best interests of the child
    4. act impartially
    5. ensure any views expressed by a child are fully put before the court
    6. analyse any report or document used in the proceedings to identify matters that are the most significant for determining what is in the best interests of the child and draw these matters to the court’s attention
    7. endeavour to minimise the trauma to the child/ren associated with the proceedings
    8. facilitate an agreed resolution when it is in the best interests of the child.

    The FLA states the ICL is not the child’s legal representative and is not obliged to act on the child’s instructions.

    An ICL is not obliged to disclose to the court and cannot be required to disclose to the court any information the child communicates to them. They may however disclose any information communicated by the child if they consider the disclosure to be in the best interests of the child. Such a disclosure can be made even if it against the wishes of the child (FLA s 68LA).

    An extensive precedent package has been developed and reference to letters, forms and documents relating to the ICL’s work should be made in conjunction with these case management standards. These precedents must be used by LAQ in-house ICLs.

    Given the FLA’s priority to protect a child from harm, the ICL must be familiar with the family law courts’ Family Violence Best Practice Principles, and LAQ’s Best practice guidelines for independent children’s lawyers working with people who have experienced domestic violence .

    The ICL needs to be mindful matters involving people from culturally and linguistically diverse backgrounds or where religion is a key consideration and place appropriate evidence before the court where appropriate.

    ICL’s representing Indigenous children should liaise with the FamCA’s Aboriginal and Torres Strait Islander family consultants or other relevant agency. The FLA requires the court to consider the child’s need to maintain ‘a connection to culture’ in its determination, therefore evidence of these connections to culture needs to be put before the court.

    ICL’s should apply particular sensitivity when dealing with children with physical, intellectual, mental or emotional disabilities. ICLs should liaise with the childrens’ treating specialists as part of their investigations. An ICL must conduct the case in accordance with the LAQ Grants Handbook’s ‘costs protocols’ and cap restrictions.

    D1. Notice of Address for Service and other notices

    As soon as the file is received, the ICL must:

    1. File and serve a Notice of Address for Service (Form 8) (FLR r 8.02, FCCR r 6.01).
    2. Inform the parties and their solicitors of the ICL’s appointment via letter providing them with a copy of brochures to explain the ICL’s role and the family report process, requesting they complete a questionnaire and sign relevant authorities to obtain information in relation to the family.
    3. Notify parties of your funding under the Legal Aid Queensland Act 1997 and requirements for financial contributions noted in the LAQ Grants Handbook’s funding guidelines.

    D2. Letter directly to the represented litigant

    Apart from an initial letter of introduction, all correspondence should be sent to a party’s legal representative. The initial letter to the party needs to explain the ICL’s role, enclose the necessary explanatory brochures, and inform them all further communication must be through their legal representative.

    If a party commences an action representing themselves and then engages a lawyer, it will be important to explain to the party that all further communication will need to be through their legal representative.

    D3. Communication with a self represented litigant

    Use the same form of communication with an unrepresented party as you would with another lawyer. Take particular care to accurately record the details of any conversations with the unrepresented party. An ICL should consider sending a letter to the party confirming the details of the conversation.

    ICLs should use plain English when communicating with unrepresented parties at all times.

    ICLs must refer to the QLS’s Self-represented litigants: Guidelines for solicitors.

    ICLs must to avoid creating the impression of bias and must remain independent, objective and focused on promoting the best interests of the children.

    The other party should be advised of any direct communications with the self-represented litigant.

    D4. Letter to Child Dispute Resolution Services

    Send a letter to the family consultant informing them of the ICL’s appointment. The letter must request the family consultant to contact the ICL to provide a preliminary overview of the dynamics of the family relationships and their impact on the children, details of other agencies involved with the family, case management recommendations, any further counselling/therapy recommendations, and child abuse notifications details.

    The ICL must be familiar with the FLA provisions concerning the Family consultant’s role (FLA pt III).

    D5. Letter to the department

    If a file indicates the department has been involved in the matter and a FLA s 91B order is made, the department must be notified of the ICL appointment. Issue a subpoena or request an order be made under the FLA s 69ZW to obtain all the relevant documents from the department unless one of these processes has already occurred. Inspect all returned documents before issuing a subpoena.

    D6. Subpoenas

    The lawyer should refer to the FLR pt 15.3, and the FCCR pt 15A, div 15.A.1 regarding subpoenas. All parties including ICLs must not issue more than five subpoenas in a proceeding without leave of the court (refer to FCCR r 15A.05).

    D7. Meeting the children

    It is expected the ICL will meet with the child/ren, where appropriate.

    Consider the appropriateness of this meeting in relation to how, when, where and with whom it will be conducted, the age and maturity of the child; the need for the child to be informed of the ICL’s role; the court process; how the court will be informed of the child’s views and the information the ICL may need to obtain about the child.

    The ICL cannot offer the child a confidential relationship in the sense of a traditional client/solicitor relationship. The child needs to be made aware of the basis of the relationship; in particular the child should be advised their views will be shared with the court though neither the court nor the ICL is bound by them (FLA s 68LA(4)).

    The lawyer needs to consider the child’s emotional, cognitive and intellectual development levels, systems abuse issues and the need to explain court determinations to the child.

    The ICL has a responsibility to not become a witness in the proceedings, and must take care to make appropriate arrangements when meeting with children. It is recommended the family consultant, the family report writer or other professional already involved with the children arrange the ICL and child/ren’s meeting. It is not the ICL’s role to take instructions from the child or to present evidence of the child’s views from the bar table. Evidence of the child’s views must be put before the court in an appropriate manner (FLA s 68LA).

    The details of the meeting with the children — noting time, date, place and who was present, must be retained on the file.

    D8. Dealing with criticism of the ICL

    An ICL may be the subject of criticism by either party. This may develop into abuse or harassment. The lawyer should make clear and accurate records of any telephone conversations, limit contact with the relevant party, require all communications to be in writing and confirm the details of any verbal contact in writing.

    If there are fears for personal safety, the ICL has the same legal rights and remedies as any other citizen. LAQ should be made aware of any concerns and intended actions.

    If a letter of complaint is received regarding a LAQ in-house ICL, this should be immediately referred to the Family Law, Civil Justice and Advice Services director.

    If LAQ receives a complaint regarding an ICL it will seek comment or a response from the ICL about the issues raised, investigate the complaint and respond to the party and the ICL in an appropriate manner.

    D9. Right of the child to direct representation

    A child of sufficient maturity may wish to have direct representation or to speak directly with the court. The ICL should, in appropriate cases, inform the child of the possibility of this and the processes needed for it to occur (for evidence from children refer to the FLA ss 69ZV, 100B and FLR pt 15.1; and for case guardians refer to FLR pt 6.3 and FCCR pt 11).

    D10. Conference/telephone other parties

    The lawyer must talk to the parties’ solicitors as soon as possible after receiving the file to determine in an informal way what other sources of information may be useful to follow up, and whether further issues have arisen since the court ordered ICL appointment was made. This may assist in providing the lawyer with early insight into the attitude of the parties and their solicitors.

    At some stage of the proceedings, and during the evidence gathering phase of preparation for a hearing to determine interim issues or a trial, the lawyer should consider the appropriateness of negotiations with the parties and/or their legal representatives. A legal aid family dispute resolution conference may be appropriate and should be considered at any time during the course of the proceedings. The purpose of the negotiations or conference should be to reach a resolution of the dispute — whether in part or whole.

    All communications with a party or their legal representative must be recorded accurately and legible notes kept on the file.

    D11. Contacting other witnesses

    In gathering evidence, the lawyer should consider obtaining information and/or reports from medical practitioners, teachers, counsellors and other professionals having contact with the child/ren. This should include details of their role, the information required and how the information is intended to be used. An authority from the parties is normally required.

    It should be noted there is no confidentiality in the discussions with the ICL and they must make the witnesses aware of this. However, the lawyer should also consider the benefit of preserving the parties’ confidential therapeutic relationship with their health professionals versus the relevance and importance of putting all pieces of evidence before the court.

    D12. Case management

    The ICL is allowed to do anything permitted of a party in line with the FLR; the ICL must comply with the FLR and do anything required by the FLR as if they were a party. The lawyer must also be familiar with the FCCR and maintain compliance with those rules.

    A case plan should be developed where appropriate with the family report writer or family consultant’s assistance and be regularly reviewed by the ICL during the course of the proceedings.

    Information obtained by the ICL should be placed before the court in an appropriate manner. Release of the information should be considered in light of the effect its release may have on the parties and the safety of the children. This issue may need to be brought before the court for determination.

    As a party the ICL has positive obligations to inform the court (in the appropriate way) if they:

    • are aware a child, or another member of the child’s family is under the care of a person under a child welfare law (FLA s 60CH)
    • are aware a child, or another member of the child’s family has been the subject of a notification, report, investigation, inquiry or assessment by a child welfare authority that relates to abuse (FLA s 60CI)
    • allege as a relevant consideration that there has been domestic or family violence or risk of domestic or family violence by one of the parties to the proceedings (s 67ZBA)

    All documents filed must be served (see FLR r 7.04 and FCCR ch 1 pt 2, pt 6).

    When entering into negotiations, the ICL must keep in mind that any agreement with their consent must be in the best interests of the children. If the parties reach an agreement which they believe is not in the best interests of the children, then they must not agree to the arrangement and the matter must be referred to the court for its consideration. The ICL must bring to the court’s attention all those matters which caused them to form the view they could not agree to the arrangement (refer to T and N (2003) FLC 93–172 and FLR r 10.15). Also note FLR r 10.15A addressing consent orders where there are allegations of abuse or family violence.

    D13. Domestic or family violence cases

    Where there are domestic or family violence allegations, check the FLA’s definition of family violence (s 4AB). Remember the definition of child abuse includes exposure to family violence.

    The ICL must ensure the information before the court includes whether the child/ren witnessed or otherwise experienced the domestic or family violence.

    When a filed document alleges domestic or family violence or a risk of domestic or family violence by one party the court must consider interim or procedural orders to enable the matter to be dealt with expeditiously and to protect the parties and the children. In both the FamCA and the FCCA a Form 4 must be filed and served. The Form 4 sets out the allegations or risk of domestic or family violence (see FLA s 67ZBB and FLR pt 2.3 which apply to both FCCA and FamCA).

    Read and be aware of LAQ’s Best practice guidelines for independent children’s lawyers working with people who have experienced domestic violence and the family law courts’ Family Violence Best Practice Principles

    Some important considerations are:

    • Proactively respond to evidence of children being exposed to domestic or family violence and continue to be mindful of the impact of domestic or family violence exposure on children.
    • Amend the expert referral letter and highlight any domestic or family violence issues and protection orders.
    • Comply with obligations to inform the court or relevant authority in line with FLA ss 12E, 60D and/or 63DA.
    • Consider the party’s own risk assessment — are they playing down the risk of future domestic or family violence?
    • If either of the parties are unrepresented, ensure the initial letter refers the party to court for security arrangements.
    • Consider other safety issues (eg the order in which parties leave the family dispute resolution conference process or key court events and the order and timing of interviews for assessment processes).
    • Consider how the lawyer’s behaviour may impact on a family’s experience of domestic or family violence.
    • Consider the type of report needed.
    • Consider who will read the report.
    • Consider what information and/or assessment is sought.
    • Would the report help the ICL fulfil their role?
    • Use discretion before seeking very detailed reports detailing a party's or a child’s personal trauma.
    • Consider whether a specific request for information is more appropriate than a subpoena.
    • Acknowledge the parties’ non-legal needs and make appropriate referrals where necessary.
    • Consider whether a social science expert in domestic or family violence should be called to give evidence.
    • Do a risk assessment – use the LAQ risk assessment resources or the family law court’s Family Violence Best Practice Principles. What is the severity of the violence? What means does the perpetrator have to carry out their threats?
    • The lawyer should consider their own safety and take precautions

    The Family Violence Best Practice Principles outline some important considerations for a court both at the interim and final hearing stage. It is important a lawyer’s submissions to the court address these considerations.

    D14. Preparation for hearing of interim issues

    Normally, this is the first court event attended by the ICL. The ICL should consider the following references in preparing for this hearing:

    1. subpoenas (see FLR pt 15.3, FCCR ch 1 pt 15A and consider FLA s 69ZW)
    2. expert evidence (see FLR pt 15.5 and FCCR ch 1 pt 15A)
    3. reports from treating experts /professionals
    4. evidence of those matters relevant to the appropriate provisions of:
      • s 61C — each parent has parental responsibility subject to a court order
      • s 60CA — best interests are paramount consideration
      • s 61DA, s 65DAA, s 65DAC and s 65DAE — the presumption of equal shared parental responsibility and the consequences of shared or equal shared parental responsibility orders
      • s 60CC — the need to protect the child from harm and from being exposed to domestic or family violence or abuse
      • ss 60CH — need to notify the court where child is subject to child welfare laws
      • s 60CF, 67ZBA and 67ZBB need to notify the court of relevant family violence orders and court to take prompt action
      • s 65DAB — the recent parenting plan
      • s 60B — objects and principles
      • ss 60CC, 61F — factors used to determine best interests
      • ss 60I, 60J — requirements for attending family dispute resolution services before court proceedings commence (if applicable)
      • s 63DA — the option of using parenting plans rather than court orders
      • ss 65M–65P — the general obligations created by parenting orders.
    5. submissions to be made at trial — considering the relevant case law
    6. counselling for the parties
    7. future court events and directions needed
    8. liberty to apply
    9. the appropriate forum for determining the matter — FCCA or FamCA.

    At the interim hearing, all relevant material in the lawyer’s possession should be placed before the court in line with the rules of evidence (as they apply — see FLA pt VII div 12A).

    Like other lawyers, the ICL should be prepared to make submissions about court directions needed to progress the matter and to inform the court about the issues, witnesses, proposed directions and length of trial. The ICL should ensure the focus remains on the relevant issues that will assist the parties to resolve, or the court determine the parenting arrangements needed to meet the best interests of the children. Matters to consider are:

    • is the matter ready for trial? (do other things need to occur or is time needed to allow other things to happen eg counselling, completion of a course, does the child need to spend time with a parent to build up a relationship to increase the time with the parent in the future?) the number of witnesses needed and why their evidence is relevant
    • the trial length — include assessment of time for opening statements, need for further evidence in chief, cross-examination, re-examination and submissions
    • whether expert witnesses and a conference of experts is needed (if appropriate)
    • whether a family report is needed, and
    • speaking to proposed counsel and confirming availability.

    Making directions to prepare a matter for trial provides a further opportunity for settlement negotiations. The ICL must ensure a grant of aid is available to attend this court event in the FamCA. Directions will be given for the preparation of the matter for trial (see FLR pt 12.02 and FCCR pt 10].

    Immediately after the court event when directions for trial are made, the ICL should seek aid for the preparation of trial materials and attendance at any other court event prior to the final hearing. The ICL should review the case plan, assess the evidence needed to assist the court in determining the issues in dispute and making orders in the best interests of the children. Consider how to adduce that evidence before the court in line with the rules of evidence (as far as they apply). It is important to remember that it is not the ICL’s role to adduce evidence to establish the case of a party (refer to the judgment of T and S (2001) FLC 93–086).

    Australian Solicitors Conduct Rules relevant to mentions and interim hearings

    A solicitor must not, in the presence of any of the parties or solicitors, deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court (r 18.1).

    A solicitor must not deceive or knowingly or recklessly mislead the court and must take all necessary steps to correct any misleading statements made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading (rr 19.1–19.2).

    A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which are within their knowledge and are not protected by privilege and that the solicitor has reasonable grounds to believe would support an argument against granting relief or limiting its terms adversely to the client (r 19.4).

    A solicitor must, at the appropriate time in the hearing of a case if the court has not yet been informed of that matter, inform the court of any binding authority, where there is no binding authority, any authority decided by an Australian appellate court and any applicable legislation known to the solicitor and which the solicitor has reasonable grounds to believe to be directly on point, against the client’s case (rr 19.6, 19.8).

    A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension (r 19.11).

    A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless the court has first communicated with the solicitor…or the opponent has consented beforehand…a solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication… (rr 22.5, 22.6).

    A solicitor must take steps to inform the opponent as soon as possible after the solicitor has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact and the grounds of the application, and must try, with the opponent’s consent, to inform the court of that application promptly (r 22.8).

    D15. Family reports and other expert reports

    An ICL should consider making arrangements for report preparation or appointing a single expert witness (refer to FLR pt 15.5 and FCCR pt 15). If the matter is before the FamCA , then this matter should be dealt with on the first return date (FLR ch 16A).

    Consider the child/ren special needs, if any when deciding whether a family report or any other type of expert report is needed . Be wary of obtaining unnecessary reports and exposing the child to systems abuse. If there are already reports or there is existing information that can be utilised by the court, a family report may not be necessary initially.

    A lawyer must comply with the FLR pt 15.5 and the FCCR pt 15 when engaging and instructing the report writer. An appropriately qualified and experienced expert should be engaged. Give proper instructions to the report writer. Refer to the Expert referral precedent in the precedent package(LAQ access only) when briefing the expert.

    An ICL is not bound by the recommendations of the report writer and it should be noted that the report is only one piece of the evidence. The ICL must make submissions based on all of the evidence before the court.

    D16. After interim issues have been determined

    If there is a breakdown in arrangements for the children, the ICL should take steps to minimise the impact on the children. Matters to consider include:

    • re-listing the matter
    • applying to suspend any parenting order
    • further counselling or therapy
    • keeping the child informed
    • the ongoing relationships between the child and others
    • organising a legal aid family dispute resolution conference
    • whether to act as broker prior to or at the conference
    • the role of the ICL at the conference
    • any further reports/information to assist in negotiations.

    Applications by the ICL are not common and should only be brought in exceptional circumstances.

    After a legal aid family dispute resolution conference, or following an appropriate period of time, the ICL should consider the state of the evidence and determine whether any further or updated expert evidence is required.

    The ICL’s role is very limited in contravention applications. Generally, the role is not an active one. However, where the ICL considers contravention proceedings are detrimental to the best interests of the children, or their presence may further the children’s best interests, the ICL should attend and participate in the proceedings as considered appropriate or alternatively seek leave of the court to withdraw from the proceedings. This is a matter for the ICL to determine.

    D17. Dealing with contact supervisors

    Where there are private supervision arrangements, the ICL or family report writer should explain the supervision expectations in details to the proposed supervisor. The ICL should speak directly to proposed supervisor to ensure they understand the need for supervision (this can mean a very detailed understanding of the reasons that supervision has been put place) and they fully appreciate the supervisor’s role and responsibilities The ICL must ensure the proposed supervisor is an appropriate person to supervise and can protect the child during the visits.

    It is best practice and common sense to write to the supervisor confirming their approval or otherwise as a supervisor. A copy of this letter should be sent to the parties. The letter should set out a brief statement of the reasons for the supervision and the provisions of any relevant court orders and details of the role of the supervisor and their responsibilities. The letter should also request the supervisor keep a diary of events surrounding supervision and confirm they may need to be a witness in proceedings. The supervisor should be asked to sign a copy of the letter and return that signed copy to the ICL to confirm they understand their role and their supervisory responsibilities.

    The parents and the children should meet the supervisor before any formal supervision takes place. Ideally, the report writer should be involved in this introduction process. Funding and timing need to be considered should this process be adopted.

    If a contact centre is to facilitate the parenting order, the centre will usually have their own induction process. Each centre has its own requirements and the ICL should be familiar with these requirements. It is important the centre is aware of the arrangements to give effect to the parenting orders ; it may be necessary to seek leave of the court to provide the centre with all appropriate information.

    D18. Preparation of material

    Trial preparations for either of the family law courts has already been discussed. The same standards apply to ICLs as to any other lawyer.

    The ICL should review the following matters in the lead up to the trial:

    • is the matter ready for trial?
    • the number of witnesses needed and why their evidence is relevant
    • the length of trial — include assessment of time for opening statements, need for further evidence in chief, cross-examination, re-examination and submissions
    • the need for expert witnesses, their availability for the trial dates and whether a conference of experts is appropriate,
    • the need for a family report
    • speaking to proposed counsel and confirming date availability.

    Part of the trial preparation includes consideration of what orders should ultimately be made by the court. It is appropriate to have formed a preliminary view at the trial commencement subject to any evidence that may be given in cross examination. For example if there is to be ongoing monitoring or assistance given to the parties and their children, FLA 65L may provide an opportunity for the courts to assist the family.

    If there is any reason to believe a matter is not ready to proceed to trial, the matter should be brought to the court’s attention as soon as possible which may involve the ICL having the matter relisted.

    If a matter has settled, this should also be brought to the court’s attention as soon as possible.

    D19. Briefing counsel

    Counsel should be retained as early as possible after the matter is listed for final hearing. It may be useful to discuss the matter with counsel to assist in the development of the case plan. LAQ guidelines do not normally enable counsel to be engaged for am interim issues hearing, although it is possible in exceptional circumstances.

    As soon as trial dates are set and aid has been approved for the trial, counsel should be retained and briefed for the trial. Counsel must be appropriately qualified and experienced to act on behalf of the ICL, and reference should be made to the requirements for appointment as an ICL to the LAQ Independent Children’s Lawyer and Separate Representative Panel when determining if counsel is appropriately qualified. Counsel may be instructed to advise in relation to evidence and case management strategies. Special grants of aid would need to be sought for formal advice to be obtained.

    The brief to counsel must include all relevant court documentation including any trial plan, copies (or a summary) of any subpoenaed material available, copies of relevant diary notes, correspondence and other documentation. Instructions to counsel should set out the trial dates and court in which the proceedings are listed for hearing, the basic premise of the case, a list of the witnesses to be called, summary of argument or case outline for settling and notice of fees payable in line with LAQ’s Scale of Fees.

    D20. Costs

    The ICL has an obligation to provide a written statement of the actual costs incurred by the ICL up to and including the trial to the court and to each party (refer to FLR r 19.04(4)) — this is a rule not often enforced by the FamCA).

    ICLs need to be aware of the FamCA and FCCA rules relating to costs (FLR ch 19 and FCCR ch 1 pt 21).

    If costs are an issue in the matter, then it may be essential to strictly comply with the cost-related rules to obtain an appropriate court order.

    The LAQ Grants Handbook requires ICL cost recovery in certain circumstances. Parties must be notified of these guidelines when an ICL is appointed and LAQ will advise if any further steps need to be taken in relation to costs at the appropriate time.

    The ICL should be mindful of the parties’ capacity to meet costs and should raise this at a relevant time during the course of the proceedings. This may be relevant to matters such as costs orders and/or the payment of expenses such as the costs of an expert’s report.

    D21. Trial

    It is part of the ICL’s duties to provide the child’s views to the court in proper format, and to make submissions suggesting the adoption of a course of action that is in the best interests of the child. Submissions must be based on the evidence available. In the event the ICL forms a preliminary view, it may be appropriate to inform the court at the commencement of the hearing of that view. It may not be possible to form a final view in relation to the matter until after the evidence is tested by cross-examination and at times, a concluded position may not be possible.

    It may be appropriate to provide draft orders to the court and parties. Draft order s preparation can assist in facilitating a resolution to some if not all of the issues in dispute.

    In making submissions, assist the court by bringing together all the threads of the case.

    Australian Solicitor Conduct Rules relevant to trials

    A solicitor must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the solicitor contrary to the true position and is believed by the solicitor to have been made by mistake (r 19.12).

    A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension (r 19.11).

    …in proceedings in which an allegation of sexual assault, indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence, a solicitor must not ask that witness a question or pursue a line of questioning of that witness which is intended to mislead or confuse the witness or ..be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive and …must take into account any particular vulnerability of the witness in the manner and tone of the questions that the solicitor asks (r 21.8).

    A solicitor must not take any step to prevent or discourage a prospective witness or a witness from conferring with an opponent or being interviewed by or on behalf of any other person involved in proceedings (r 23).

    A solicitor must not advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or coach a witness by advising what answers the witness should give to questions which might be asked (r 24).

    A solicitor must not confer with …more than one lay witness (including a party or client) at the same time about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing and where (it) would affect evidence to be given by any of those witnesses unless ..(there are) reasonable grounds (r 25).

    A solicitor must not confer with …any witness (including a party or client) called by the solicitor on any matter related to the proceedings while that witness remains under cross-examination (with some “special circumstance” exceptions) (r 26).

    In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing (r 27.1).

    A solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice (r 28).

    D22. At the conclusion of the trial

    The ICL should consider whether copies of any orders, reasons for judgment or copies of any of the material filed in the court, should be provided, by leave of the court, to any professional involved with the family or the police or the department.

    Make arrangements for the orders to be explained to the children where appropriate.

    D23. Delays in judgments

    If at any time there is an extended and unexplained delay in receiving a judgment, this should be brought to the Family Law, Civil Justice and Advice Services director’s attention. There is a protocol to be followed when chasing up an outstanding judgment from the courts.

    D24. Appeals

    An ICL has the right to appeal orders made by the court but should only do so in appropriate circumstances. When another party appeals, the ICL should participate in the appeal proceedings where appropriate. Aid for an appeal must be sought for the ICL and counsel whether the ICL is the applicant or the respondent.

    Consider meeting with the children to explain the appeal process.

    D25. When child abuse is suspected

    It is arguable that an ICL is obliged to make a notification to the department about a child if the ICL has reasonable grounds for suspecting that a child has been abused, or is at risk of being abused. The Notification must be made as soon as practicable and include the basis for the suspicion (FLA s 67ZA which refers to a “lawyer independently representing a child’s interests”). The ICL is referred to as the Independent Children’s Lawyer elsewhere in the FLA, which is a term with a special meaning. Arguably, s 67ZA could relate to a lawyer receiving direct instructions from a child. In any event, if the lawyer, in whichever role, receives direct evidence of child abuse then they should carefully consider their position and determine if the department requires notification.

    Assuming the section applies to the ICL, an ICL may make a similar notification if the ICL has reasonable grounds for suspecting that a child has been ill treated, or is at risk of being ill treated; or has been exposed or subjected, or is at risk of being exposed or subjected to behaviour which psychologically harms the child.

    The obligation to notify does not apply if the ICL knows the authority has been previously notified about the abuse or risk. If this situation arises the ICL should consult the Family Law, Civil Justice and Advice Services director or one of the Family Law Services’ assistant directors in.

    While there is some protection given in the FLA s 67ZB for this type of notification, it is recommended the ICL take due care before notifying the department. In particular, the ICL will need to consider how they can maintain their duties generally and specifically to act impartially in the matter if they are a notifier. If a notification is made, then it may result in the ICL having to discontinue their involvement in the matter. For the ICL in particular, the notification, or more pointedly their possession of information upon which the notification is made, may mean they will need to be a witness in the proceedings.

    Part E – Acting in domestic violence matters


    E1. Clients experiencing domestic violence and their needs

    Lawyers should be aware of and comply with LAQ’s Best practice guidelines for lawyers working with people who have experienced domestic violence and LAQ’s Best practice guidelines for working with people who have experienced sexual violence. These publications provide practical hints and useful information for representing clients affected by violence. See also the family law court’s Family Violence Best Practice Principles.

    Lawyers should also be aware of and use the risk assessment resources available on LAQ’s intranet (LAQ staff access only). Lawyers have a responsibility to assist clients to be safe.

    E2. Face-to-face or telephone advice

    Extra steps must be taken when advising a client who has experienced domestic or family violence. Consider the following:

    • allow enough time for the interview and avoid rushing the client.
    • if providing telephone advice, check it is safe for the person to talk at that time
    • ask about behaviours rather than using terminology (eg ‘assault’) the client may not understand
    • don’t be judgemental about the steps the client has or has not taken
    • ask about the children’s safety
    • consider referrals to domestic violence prevention services or a refuge
    • explore all of the allegations
    • conduct a proper risk assessment using LAQ’s Domestic violence risk assessment resources (LAQ staff access only). Remember that domestic violence can lead to domestic homicide — lawyers have a responsibility to assess the person’s safety at this and all other stages of the family law or domestic violence proceedings
    • provide or send the client written material supporting the legal advice.

    See the Family law and domestic violence advice worksheet (Annexure A) which is a comprehensive checklist for giving advice in this area.

     

    Australian Solicitors Conduct Rules relevant to advice

    A solicitor must provide clear and timely advice to assist the client to understand the relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of engagement (r 7.1).

    A solicitor must inform the client about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation (r 7.2).

    A solicitor must follow a client’s lawful, proper and competent instructions (r 8.1).

    E3. Initial interview

    At the initial client interview, the lawyer should:

    • ensure the client has the Client information sheet
    • obtain the other party’s full details, including nature of relationship and current address
    • explain the lawyer’s role, and the limitations of that role
    • explain the client’s role
    • assess the client’s safety and their children’s safety (use the LAQ risk assessment resources)
    • assess whether police have been involved, if any, including whether any police protection notices have been issues or whether police have made any other investigations including criminal investigations
    • request copies of any court documentation relevant to the matter
    • get a comprehensive account of the relationship history and acts of domestic or family violence committed during that time (be as specific as possible with these instructions)
    • get detailed instructions on any recent acts of domestic or family violence, and in particular what motivated the immediate desire to seek protection
    • obtain instructions on why it is necessary or desirable to protect the client
    • the lawyer should consider the relevant sections of the Domestic and Family Violence Protection Act 2012 (DV Act) such as s 37, and determine whether a court application would be likely to succeed on the basis of the instructions and available information (the lawyer should explain these considerations to the client, and deal with the possibility that corroborating evidence may be required)
    • collect information on children or other persons who may also need to be named in the protection order (explain the requirements in this regard under the DV Act ss 52–53)
    • collect information on the conditions the client seeks to include in the protection order and the need for any qualifications
    • obtain information about any family law orders as these must be disclosed to the magistrate and attached to the application form (DV Act s 77)
    • consider whether the court should exercise its power to revive, vary, discharge or suspend a family law order (FLA s 68R)
    • be prepared to work with or through interpreters, support workers and friends or family (where appropriate and with permission), but be sure to encourage the client to participate to the greatest possible degree
    • be sympathetic to the emotions and concerns of the client — if a client is very upset, give them extra time if needed and be prepared to divert from the usual process.
    • be familiar with other needs or issues the client may need addressed such as children, accommodation, counselling, financial support, property settlement and ideas of reconciliation, and be prepared to offer meaningful advice and support
    • give the client written legal information where possible (this is a very stressful time for the client and they can easily forget what was said in the interview)
    • If appropriate, provide written information on how domestic or family violence can affect children and themselves
    • explore counselling or support options with the client — consider refuge accommodation or domestic violence prevention services.

    E4. Temporary protection orders

    If the client is in danger, make an urgent application for a temporary protection order. A court can make a temporary protection order if it is satisfied it is necessary or desirable (see DV Act ss 44–50).

    Obtain clear instructions on living arrangements to determine if the order will, or needs to have the effect of, evicting the respondent to the proceedings from his or her premises. Consider the DV Act ss 63–64 which outlines that a court can impose an ouster condition to prohibit a respondent from returning to the former matrimonial home, and what will happen next.

    E5. Court procedure

    The client must be given a clear explanation of the application and court procedure. The explanation must cover all possible options and likely outcomes of the application.

    E6. Implications of application

    A lawyer should discuss the application’s effects and implications with the client, especially the effect of the existence of a protection order. This includes the legal prohibitions placed on the respondent, the procedure if breaches occur, and the necessity and availability of a variation or revocation of the order or certain conditions if required. This is especially important if a reconciliation is likely.

    E7. DV 1 Form— Application for a Protection Order completion

    If a client has a grant of aid for representation, then there is an expectation that a lawyer will complete the DV 1 Form — Application for a Protection Order form. All sections must be completed with special attention being given those questions outlining the history and recent incidences of domestic or family violence.

    Ensure that the application includes any child/ren or family members or friends which should be named, and reasons for their inclusion.

    Any weapons should be declared.

    Consider which conditions should be included in the protection order and reality test these with the client. Tailor the conditions to allow for any family law orders, particularly parenting orders. Consider any future family law implications of the proposed conditions on the order. Allow for parenting orders or property settlement-related orders. Consider FLA s 68R and attach any family law orders to the DV1 form.

    Consider whether the parties are likely to reconcile and whether the protection order should anticipate this possibility. Also consider whether it is likely the parties may attend a legal aid conference and whether the order should anticipate this possibility.

    E8. Lawyer acting as an authorised person

    A lawyer should not act as an authorised person on behalf of an aggrieved spouse in an application for a protection order because the contents of the application will become hearsay only. It is preferable to have the client, a family member or an associated professional complete the application and for a lawyer to appear as their legal representative.

    However if the lawyer believes it would be better that they make the application on behalf of the client, and there is no-one else available, the lawyer should obtain a written authority from the client. The relevant section of the application must be completed and signed and witnessed. to the lawyer must seek leave of the court to act as an authorised person. Any lawyer who is not admitted as a solicitor or barrister will need to appear in court as an authorised person and must have a written authority and seek leave.

    A hearsay affidavit may be prepared outlining that the authorised person confirms the application was prepared from instructions provided by the aggrieved spouse and that the application is true and correct to the best of their knowledge. This affidavit can be tendered to support the application.

    E9. Lodging an application for mention

    The application is signed and witnessed by a Justice of the Peace, Commissioner for Declarations or solicitor. Depending on the local magistrates court registry practice, it may be necessary to file one or four copies with the original application (some courts scan the application and send it to police). Additional copies may be needed if there are family or friends named in the application.

    Retain a copy of the application on file and for the client. If the matter is urgent, request the matter to be listed before the next available court. If this is not the case, obtain a mention date in approximately four weeks (timeframes will vary from registry to registry). The police will try to serve the application on the respondent in the meantime.

    E10. Services

    The police are required to serve all applications on the respondent.

    E11. Evidence and witnesses

    If the protection order is contested and listed for hearing, the lawyers make arrangements to collect relevant evidence for the hearing early in the process.

    Helpful information may include:
    • photos of injuries at the time of the domestic or family violence or later when the injuries are more visible (eg bruising that appears a day or two later)
    • statements of domestic or family violence witnesses
    • diary entries
    • doctor’s reports
    • other court orders
    • police statements
    • family law orders
    • reports from the client’s counselors
    • all text and voicemail messages, emails, letters and Facebook entries.

    Some courts may make trial directions prior to trial. Witnesses to specific acts of domestic or family violence need to be organised well in advance and the lawyer should attempt to speak with them prior to the hearing to determine what they will be able to say.

    The lawyer must issue subpoenas in adequate time for the hearing.

    E12. Negotiations with the respondent/lawyer

    It may be appropriate for the lawyer to write to the respondent or their lawyer about the case’s future conduct. A more detailed explanation of the allegations can be provided as well as some brief information on the application’s legislative requirements and likely outcome.

    It may be prudent to confirm an order will not be a criminal conviction, although criminal penalties apply to breaches, and qualifications allowing for contact will be included if appropriate.

    The consent procedure could also be explained in case the respondent wishes to write to the court in advance and does not wish to attend in person. Consent orders can be made by the court although the court may conduct a hearing if it is in the interests of justice, and may refuse to make or vary the order if it poses a risk to the safety of the aggrieved spouse or people named on the order (see the DV Act s 51).

    The respondent may offer undertakings at any stage of the proceedings. An undertaking is simply a written agreement between the parties about their future conduct (eg they will make no further contact with the other party). A disadvantage of an undertaking is that it is not enforceable by the police. However, it may be useful as evidence in future applications.

    If the client requests their whereabouts remain confidential take care when communicating with the other party’s lawyer to ensure confidentiality is maintained.

     

    Australian Solicitors Conduct Rules relevant to mentions and interim hearings

    A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client, and must exercise the forensic judgements called for during the case independently and after consideration of the client’s instructions where applicable (r 17.1 and see exception in r 17.2 ).

    A solicitor must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the solicitor’s personal opinion on the merits of that evidence or issue (r 17.3).

    A solicitor must not, in the presence of any of the parties or solicitors, deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court (r 18.1).

    A solicitor must not deceive or knowingly or recklessly mislead the court and must take all necessary steps to correct any misleading statements made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading (rr 19.1–19.2).

    A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which are within their knowledge and are not protected by privilege and that the solicitor has reasonable grounds to believe would support an argument against granting relief or limiting its terms adversely to the client (r 19.4).

    A solicitor must, at the appropriate time in the hearing of a case if the court has not yet been informed of that matter, inform the court of any binding authority, where there is no binding authority, any authority decided by an Australian appellate court and any applicable legislation known to the solicitor and which the solicitor has reasonable grounds to believe to be directly on point, against the client’s case (rr 19.6, 19.8).

    A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension (r 19.11).

    A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless the court has first communicated with the solicitor…or the opponent has consented beforehand…a solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication… (rr 22.5–22.6).

    A solicitor must take steps to inform the opponent as soon as possible after the solicitor has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact and the grounds of the application, and must try, with the opponent’s consent, to inform the court of that application promptly (r 22.8).

    E13. Arrangements for court

    Ensure appropriate arrangements have been made with the client for their appearance at court. If there are security or safety issues, it may be wise to meet the client at the office and accompany them to the court. In extreme cases the court staff and police should be informed of any concerns. Read and be aware of the Queensland Courts’ Domestic Violence Protocols 2012.

    Check the client understands the court attendance procedure and is correctly advised about the need to bring other witnesses or documentation. Allow sufficient time to confer with the client and with the other party or legal representative prior to court.

    At some court houses, there is a safety room that is available for women. Some safety rooms enable direct access in and out of the court room. This can be arranged with the local violence prevention worker, court security or a court staff member on arrival at court.

    Advise the client it is preferable they don’t bring their children into the safe room or to court as court staff are not responsible for supervising child/ren.

    The lawyer should also take precautions for their own safety at all times.

    E14. The court process

    Shield the client from any unnecessary conflict, or even contact with the other party if appropriate. This may mean that the client does not enter the court when the matter is called on. Separate rooms are sometimes available for an aggrieved spouse and support workers to wait prior to their applications being heard.

    Negotiate with the respondent as this may result in either an undertaking to consent or an expression of a desire to contest. Either way, this means that the client will not be required in court. Explain the negotiations to the client at all times. Ensure that the client's position is not compromised in any way and always seek instructions before agreeing to any proposals.

    Do not advise the client to consent to an undertaking if they need the protection of a protection order and the protection of the police to enforce it.

    Ensure that there is no material on a file that is visible to the respondent at the bar table which may identify the client’s whereabouts.

    E15. The application

    If a respondent consents to an order, the matter will be called on and both parties will make their appearances. The magistrate can then be advised that the respondent has agreed to consent. The terms of the order will then be discussed and the effect of the order may be explained to the respondent. The parties are then asked to wait for the orders to be typed.

    At a hearing, some magistrates will require an opening statement.

    The aggrieved spouse gives evidence to support the application and will be subjected to cross examination. Note the sections of the DV Act regarding practice and procedure including the ability to have a client deemed a protected witness (DV Act, ss 147–153).

    All witnesses are called before the respondent has the opportunity to respond. The same cross examination and re-examination process applies. Final submissions are then made and the magistrate gives judgment. The rules of evidence do not strictly apply to these proceedings (s 145) however the hearings follow the usual court process and where possible evidentiary rules are upheld.

     

    Australian solicitor conduct rules relevant to trials

    A solicitor must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the solicitor contrary to the true position and is believed by the solicitor to have been made by mistake (r 19.12).

    A solicitor who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client has…lied…falsified a document…suppressed …material evidence upon a topic where there is a positive duty to make a disclosure…must advise the client that the court should be informed of the lie, falsification or suppression and request authority so to inform the court; and refuse to take any further part in the case unless the client authorises the solicitor to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the solicitor to do so but otherwise may not inform the court of the lie, falsification or suppression (r 20.1).

    A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension (r 19.11).

    …in proceedings in which an allegation of sexual assault, indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence, a solicitor must not ask that witness a question or pursue a line of questioning of that witness which is intended to mislead or confuse the witness or ..be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive and …must take into account any particular vulnerability of the witness in the manner and tone of the questions that the solicitor asks (r 21.8).

    A solicitor whose client informs the solicitor that the client intends to disobey a court’s order must: advise the client against that course and warn the client of its dangers; not advise the client how to carry out or conceal that course; and not inform the court or the opponent of the client’s intention unless: the client has authorised the solicitor to do so beforehand; or the solicitor believes on reasonable grounds that the client’s conduct constitutes a threat to any person’s safety (r 20.3).

    A solicitor must not take any step to prevent or discourage a prospective witness or a witness from conferring with an opponent or being interviewed by or on behalf of any other person involved in proceedings (r 23).

    A solicitor must not advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or coach a witness by advising what answers the witness should give to questions which might be asked (r 24).

    A solicitor must not confer with …more than one lay witness (including a party or client) at the same time about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing and where (it) would affect evidence to be given by any of those witnesses unless ..(there are) reasonable grounds (r 25).

    A solicitor must not confer with …any witness (including a party or client) called by the solicitor on any matter related to the proceedings while that witness remains under cross-examination (with some “special circumstance” exceptions) (r 26).

    In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing (r 27.1).

    A solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice (r 28).

    E16. The impact of parenting orders in domestic violence matters

    There is a positive obligation for any person who applies for a protection order to disclose any family law orders they are a party to (DV Act s 77); these should be attached to the application form.

    The lawyer must ensure the conditions on a client’s protection order are consistent with any parenting orders or other order under the FLA pt VII.

    Give consideration to the FLA pt VII div 11.

    It is important to understand the consequences of inconsistencies between the orders and to prepare any matter to address this issue. FLA s 68Q provides that protection orders inconsistent with parenting orders or injunctions are invalid. This must be explained to the client.

    However a state court determining a protection order application (whether to make or vary such an order) may, under the FLA s 68R, revive, vary, discharge or suspend a parenting order; a recovery order; an injunction under the FLA s 68D or s 114; an undertaking; a registered parenting plan or a recognisance, if any of these provide or imply for a person to spend time with a child.

    There are limitations on this power:

    1. The court must not take these steps unless it also makes or varies a protection order (final or interim), and if the court has material before it that was not before the court that made that order or injunction referred to above.
    2. The court must not discharge such an order, injunction or arrangement to make an interim protection order or interim variation to a protection order.
    3. The court must consider the purposes of the FLA Div 11 (ie resolve inconsistencies, ensure people are not exposed to domestic or family violence (defined in the FLA) and to achieve the FLA’s objects and principles).
    4. The court must consider the best interests of the child.
    5. The court must be satisfied it is appropriate to vary, discharge or suspend the order or injunction if the person has been exposed to or is likely to be exposed to domestic or family violence (defined in the FLA) resulting from the order or injunction’s operation.
    6. The DV Act requires the court to not diminish the standard of protection given by the protection order in an attempt to make it consistent with a family law order.
    7. If the court is exercising its power under the DV Act s 78, it must give the parties to the proceedings a reasonable opportunity to present evidence and prepare and make submissions about the exercise of the power

    The state court does not need to apply the following FLA provisions when making the new parenting order:

    • s 65C — who may apply for a parenting order
    • s 65F(2) —the parties’ requirement to attend counselling
    • s 60CG — the need to consider a risk of domestic or family violence (defined in the FLA)
    • s 69N — the requirement to transfer proceedings
    • any provision that would otherwise make the child’s best interests paramount (note the child’s best interests are still taken into account even if not paramount — s 68R(5)(b)),
    • any provision of the act or rules specified in the FLA regulations.

    When making an interim protection order or interim variation of a protection order, the court also has discretion to consider the children’s views and any FLA or FLR provisions that do not apply (see FLA s 68S(2)).

    The court may dispense with any otherwise applicable court rules (see FLA s 68R(3)).

    If the state court exercises the power when making a temporary protection order or a temporary variation to such an order, then the revival, variation or suspension of a family law order ceases to have effect at the earlier of the time the interim order stops being in force and the end of the 21 day period starting when the interim order was made.

    No appeal lies in relation to the revival, variation or suspension of the family law order.

    Part F – Acting in child protection matters


    F1. Telephone instruction/advice

    Record information when giving telephone advice as this will save the need for its repetition at a later time. The lawyer must be aware of and comply with the Best practice guidelines for lawyers for working with people who have experienced domestic violence.

    F2. Letter of introduction

    Once the relevant grant of aid has been approved, forward a letter of introduction to the client to advise they’ve been granted aid and what it covers, and ask the client to make an appointment for an initial interview with you.

    F3. Initial interview

    At the initial client interview:

    1. ensure the client has a Client information sheet
    2. obtain any other parties’ full details including nature of relationship, their dates of birth and current addresses
    3. obtain full details of the Child Safety Service Centre involved with the client including details of the relevant child safety officer and team leader if known
    4. explain the lawyer's role, and the limitations of that role
    5. explain the client's role
    6. determine whether there are currently proceedings on foot, whether the proceedings are in the Childrens Court of Queensland or the Queensland Civil and Administrative Tribunal (QCAT) and request copies of any documentation relevant to the matter
    7. obtain a comprehensive account of the history of the department’s intervention including details of any previous interaction with the department in relation to this child or any other children of the client, including whether the client has any other children who are or have been subject to a child protection order (be as specific as possible with these instructions)
    8. obtain detailed instructions on the department’s protective concerns
    9. if some or all of the department’s protective concerns are accepted, obtain instructions on any actions the client has taken to address the protective concerns
    10. if some or all of the department’s protective concerns are not accepted, obtain instructions on the client’s position regarding the department’s allegations
    11. obtain information on where the child/children are currently placed and whether there are any alternative placement options
    12. find out if the client or the child/children are Indigenous and whether a recognised entity is involved in the matter
    13. find out whether there is a current case plan in place in relation to the child/children
    14. find out whether there is an upcoming family group meeting or court ordered conference
    15. find out whether a separate representative has been appointed in relation to the child/ren
    16. determine whether an interpreter will be required for subsequent attendances
    17. be prepared to work with or through interpreters, support workers and friends or family where appropriate, but be sure to encourage the client to participate to the greatest possible degree
    18. be sympathetic to the emotions and concerns that the client may have, and be prepared to divert from the usual process if these emotions or concerns dictate
    19. be familiar with other needs or issues that may need to be addressed such as accommodation, counselling, financial support and be prepared to offer meaningful advice and support
    20. focus on obtaining sufficient information to properly represent the client, and do not allow the interview to become sidetracked (one hour should be set aside for the interviews, but may be extended if necessary)
    21. use plain English in all written or verbal communications to. Legalese should be avoided at all times.

    Australian Solicitors Conduct Rules relevant to advice

    A solicitor must provide clear and timely advice to assist the client to understand the relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of engagement (r 7)

    A solicitor must inform the client about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation (r 7).

    A solicitor must follow a client’s lawful, proper and competent instructions (r 8).

    F4. In-house precedent package

    In-house lawyers are expected to use the relevant letters and documents contained in the Visual files precedent package where applicable.

    F5. Notice of Address for Service completion

    If there are current proceedings on foot the lawyer should file a Notice of Address for Service in the relevant childrens court registry.

    The Notice of Address for Service should be served on all other parties. If the department is a party, serve a copy of the notice on both the relevant Child Safety Service Centre and the department’s Court Services Unit.

    F6. Dealing with the department

    Communications with the department must take the same form as with any other party to the proceedings. If the department is a professional party in the proceedings, be aware the authorised departmental officer is unlikely to be legally represented until late in the proceedings. Take particular care to accurately record the details of any conversations with departmental officers. Where possible, consider confirming conversations with departmental officers in writing.

    F7. Dealing with unrepresented parties

    Communications with an unrepresented party must take the same form as with another lawyer. Take particular care to accurately record the details of any conversations with the unrepresented party. Consider sending a letter to the party confirming the details of the conversation.

    Use plain English at all times when communicating with unrepresented parties.

    F8. Family group meetings

    The CPA s 51L outlines parents may have a support person attend and participate in a family group meeting on their behalf and legal representatives can act in this role. The convenor must give the parent and their support person a reasonable opportunity to attend and participate in a family group meeting being convened to develop or review a case plan for the child.

    Subject to a grant of aid, the lawyer should attend the family group meetings convened by the department during the term of the matter. The lawyer should tell the client they can potentially attend the family group meetings with the client, and the lawyer should encourage the client to advise them of any family group meetings organised by the department. Family group meetings seek to provide family-based responses to children’s protection and care needs, and to ensure an inclusive process for planning and making decisions about the children’s wellbeing and protection and care needs. Be aware that matters discussed at family group meetings are admissible in any court proceedings except in a criminal proceeding.

    Focus on developing an appropriate case plan which meets the child’s assessed protection and care needs, which may include a goal or goals to be achieved by implementing the plan, for example:

    • arrangements about where or with whom the child will live, including interim arrangements
    • services to be provided to meet the child’s protection and care needs and promote the child’s future wellbeing
    • outline matters the department will be responsible for including particular support or services to be given to the child, the client, and the child’s family to allow the child to return to the client or someone else within their family if the return is in the child’s best interests
    • the child’s contact with the client and the child’s family group or other people the children are connected to
    • arrangements for maintaining the child’s ethnic and cultural identity
    • outline matters the client or the child’s carer will be responsible for, and
    • a proposed plan review date.

    The case plan should also reflect the client’s capacity to engage with support, therapeutic or other services.

    If a lawyer or their client does not agree with case plan goal/s, outcomes or the department’s proposed actions, make sure this is noted in the case plan.

    Make sure the goal/s and outcomes listed in the case plan are achievable by the client, and includes some clearly defined mechanism to measure the client’s progress in achieving the case plan goal/s. For example, instead of saying the client will submit to drug testing, include descriptive actions such as how the request will be made for the client to submit to drug testing (in writing/in person/via phone), where the test occur and who will pay for it, who gets the results, and how success will be measured eg five clear drug tests in a three month period.

    Where a case plan has been reviewed, draw the department’s attention to their obligation under the CPA s 51X to file a copy of the review report along with the revised case plan, and request the review report include the client’s achieved goals relating to the outcomes.

    F9. Prior to each court event

    Prior to each court event the lawyer must:

    1. obtain an appropriate grant of aid to attend
    2. consider whether the matter could be resolved prior to the court event, consider agreeing to the making of the child protection order sought, and consider filing a consent to the proposed order where appropriate
    3. obtain all relevant documentation from the client
    4. consider any necessary adjournment
    5. consider whether or not interim orders might be made on an adjournment, including whether it is necessary to grant temporary custody to the department or other suitable person in the circumstances, and
    6. consider the current case plan/s and assess its appropriateness.

    F10. Attending mentions

    The lawyer should attend all court mentions of the matter in accordance with the grant of aid. If the lawyer can’t attend court for a mention because the court is in a remote area or they have other court commitments, either engage an appropriately qualified agent or notify the court in writing at least five working days prior to the court mention, requesting arrangements be made to take part in the mention by telephone.

    F11. Where there are allegations of domestic violence

    When hearing a child protection proceeding, a childrens court may make or vary a protection order against a parent (DV Act s 43).

    A childrens court can make the order of its own initiative or on a party’s application, including a separate representative. If an order is sought in the child protection proceedings but an existing protection order is already in force against a parent of a child, the court must consider whether the existing protection order needs to be varied, given the child protection circumstances. The DVA s 43 outlines the process the court must use.

    Consider any allegations of domestic or family violence in the proceedings or any protection orders already in force, and whether an application for a protection order is better pursued in the childrens court or through a magistrates court (see acting in domestic or family violence matters above).

    F12. Applications for adjournments

    From time to time a lawyer may need to request a matter adjournment. Only apply for an adjournment if it is necessary for the efficient conduct of the case. Be mindful that child protection matters should be dealt with as quickly as possible in the best interests of the child.

    If the lawyer intents to request an adjournment, notify all parties of this intention and the reasons why the adjournment is being sought.

    F13. Applications on adjournments

    At each mention of the matter consider whether an application should be made to discharge any interim orders in relation to the child/ren, for example an order that the chief executive have temporary custody of the child/ren.

    When considering an adjournment application the lawyer must consider whether the child/ren’s protection needs securing during the adjournment period and whether an interim order is necessary to ensure the child/ren’s safety. The lawyer must consider whether the child/ren would be at an unacceptable risk of suffering harm if interim orders were not made.

    If additional material is available support the client’s position, the lawyer should ensure this material is placed before the court via an affidavit and ensure the affidavit material is filed and served on all parties prior to the mention date. If the department is a party, the lawyer should serve copies of the affidavit material on both the relevant Child Safety Service Centre and also the Court Services Unit.

    The lawyer should also consider the CPA ss 66–67, 68 and whether to make an application for orders:

    • regarding things the court could direct the parties to do during the adjournment
    • restricting a parent’s contact with the child
    • authorising the department to have contact with the child
    • requiring a social assessment report about the child and the child’s family be prepared and filed in court
    • authorising a medical examination or treatment of the child and requiring the subsequent examination or treatment report be filed in the court
    • regarding the child’s contact with their family during the adjournment period
    • requiring the department to convene a family group meeting to develop or revise a case plan and file the plan in the court; or to consider, make recommendations about, or otherwise deal with another matter relating to the child’s wellbeing and protection and care needs
    • to hold a conference between the parties to decide the matter in dispute or to try to resolve the matters before the proceeding continues, or
    • for a protection order
    • to appoint a separate representative.

    Consider making an order to appoint a separate representative if the facts of the case warrant such an order, particularly if the matter will be contested or if the department is applying for a long term guardianship order. The role and responsibilities of the separate representative must be explained to the client.

    Prior to the mention date, the lawyer must contact the relevant court to determine the applicable practices and procedures in that registry, for example in some places where childrens courts are constituted the magistrate will require legal representatives to remain seated throughout any appearance.

    The lawyer should arrive early at court on the mention date. Advise the court on the material intended to be relied on to support any application for interim orders or for interim orders to be discharged. The court may ask for the submissions that support the lawyer’s position. Make reference to relevant CPA sections and procedural rules.

    When considering submissions, consider the relevant principles stated in the CPA ss5A–5C. The child’s safety, wellbeing and best interests are the paramount principle when administering the CPA (s 5A).The CPA s 5B sets out a series of 14 general principles for ensuring the safety, wellbeing and best interests of a child, and s 5C sets out additional principles for Aboriginal or Torres Strait Islander children. The lawyer must also consider the CPA s 9 (‘what is harm’) and s 10 (‘who is a child in need of protection’), and any other relevant sections.

    After each mention the lawyer must advise their client of the outcome in writing and outline the client’s rights and obligations resulting from any court orders made. Consider and provide advice on any possible review or appeal of the decision. Confirm this advice in writing to the client and advise the next court date and the client’s need to attend. Provide the client with a sealed copy of any orders made in due course.

    The lawyer should ensure they receive copies of every order from the relevant registry or Child Safety Service Centre and place these orders on the file.

     

    Australian Solicitors Conduct Rules relevant to mentions and interim hearings

    A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client, and must exercise the forensic judgements called for during the case independently and after consideration of the client’s instructions where applicable (r 17.1 and see exception in r 17.2).

    A solicitor must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the solicitor’s personal opinion on the merits of that evidence or issue (r 17.3).

    A solicitor must not, in the presence of any of the parties or solicitors, deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court (r 18.1).

    A solicitor must not deceive or knowingly or recklessly mislead the court and must take all necessary steps to correct any misleading statements made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading (rr 19.1–19.2).

    A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which are within their knowledge and are not protected by privilege and that the solicitor has reasonable grounds to believe would support an argument against granting relief or limiting its terms adversely to the client (r 19.4).

    A solicitor must, at the appropriate time in the hearing of a case if the court has not yet been informed of that matter, inform the court of any binding authority, where there is no binding authority, any authority decided by an Australian appellate court and any applicable legislation known to the solicitor and which the solicitor has reasonable grounds to believe to be directly on point, against the client’s case (rr 19.6, 19.8).

    A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension (r 19.11).

    A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless the court has first communicated with the solicitor…or the opponent has consented beforehand…a solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication… (rr 22.5–22.6).

    A solicitor must take steps to inform the opponent as soon as possible after the solicitor has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact and the grounds of the application, and must try, with the opponent’s consent, to inform the court of that application promptly (r 22.8).

    F14. Consents and instructions

    If the client makes a decision to consent to the proposed child protection order, obtain the client's signed, dated and witnessed consent to the order. The lawyer should also obtain signed, dated and witnessed instructions at each stage of the proceedings, including details of advice provided to the client on the client's options and rights generally.

    F15. Court ordered conference

    The purpose of the court ordered conference is to decide the matters in dispute and to try to resolve them. The lawyer must attend the court ordered conference, subject to a grant of legal aid being available. The client may also have a support person in attendance at the discretion of the conference convenor.

    At the court ordered conference, the lawyer must advise the parties of any settlement prospects and assist making recommendations for the future conduct of the case.

    At the conclusion of the conference, the convener will prepare a written report that is filed in court but not served on the parties, containing the conference outcome including whether an agreement has been reached, and the order/s sought by the parties.

    Communications at a court ordered conference are confidential and cannot be used in any court proceedings unless all parties’ provide consent. If a lawyer wishes to advise the court of the court ordered conference communications, they must first obtain the parties’ consent.

    If department files subsequent material containing court ordered conference communications, make representations to the department to withdraw the affidavit material. If the material is not withdrawn, the lawyer should make an application to the court to disregard that material.

    F16. Mention following the court ordered conference

    The matter will be mentioned again after a court ordered conference. If an agreement has been reached, the parties can ask the court to make the order/s at this mention. The CPA s 105 outlines the court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate. The burden of proof required by the court is on the balance of probabilities. The Child Protection Bill 1998 (Qld) explanatory notes of state:

    ‘The court is inquisitorial, and may use whatever means it wishes to inform itself. For example, the court may accept a submission from interested family members, or may ask to speak to the child in the magistrate’s office.’

    If no agreement has been reached between the parties and the matter is proceeding to a contested hearing, the lawyer should use this mention to obtain directions on the steps that need to be taken to prepare the matter for trial.

    In preparing for the mention the lawyer must:

    • write a letter to the client to inform them of the mention date, request their attendance and explain the relevance of this court event;
    • prepare a trial plan — what are the issues and what are the client’s instructions? What evidence is needed to support their position? How long will it take to prepare for trial?
    • review the current case plan with the client and assess what evidence is needed to support the client’s case and how to get that evidence before the court
    • find out whether the department filed the case plan, the plan review date and whether it will still be current at the time of the trial or whether it will need to be reviewed
    • consider whether the matter is ready to proceed to trial
    • consider the likely number of witnesses and trial length— include time assessment for opening statements, need for further evidence in chief, cross-examination, re-examination and submissions
    • the need for expert witnesses and a social assessment report or an existing report update
    • confirm counsel’s availability to be briefed, subject to aid being granted
    • propose options for settlement
    • if the matter cannot be resolved request it be set down for hearing along with filing directions, and
    • consider whether the matter is complex and should be listed before the specialist Brisbane Childrens Court magistrate.

    At the mention, the lawyer must seek directions for matter preparation and filing dates for each party. The lawyer should seek a direction that the department file its material first, followed by any separate representative. Make sure sufficient time is allowed for the client to file their material in response.

    Immediately after the mention, seek aid on behalf of the client to prepare trial material and for trial attendance. Seek aid for counsel in complex matters.

    F17. Write to client advising of date of trial

    Once a trial date has been obtained, write to the client advising of the trial dates and also provide a timetable for filing material, explaining any filing dates they must comply with. Advise the client they need to attend court and prepare affidavits.

    F18. Briefing counsel

    LAQ’s Grants Handbook notes that counsel may be briefed to appear for complex matters.

    The lawyer should retain and brief counsel as soon as practicable. The brief to counsel must include all relevant court documentation including any trial plan, copies of any subpoenaed material available (or summary of same if necessary though copies of material should be sought if the matter is progressing to a trial), copies of relevant diary notes, correspondence and other documentation.

    Instructions to counsel must include the trial dates and registry in which the proceedings are listed for hearing, the basic premise of the case, list the witnesses to be called by each party, a statement as to the relevance of that evidence and confirmation of fees payable in line with LAQ’s Scale of Fees.

    F19. Conference with counsel

    The lawyer should arrange a conference with counsel as early as practicable.

    F20. Departmental preparation for trial

    Where matters are proceeding to a contested hearing, the department will usually engage Crown Law to appear at trial. Where Crown Law is not available the department may engage members of the private bar.

    Counsel is instructed by the applicant for the child protection order. In practice the matter is usually prepared by the Court Coordinator in the local Child Safety Service Centre in conjunction with an officer from the department’s Court Services Unit. The lawyer should liaise directly with those officers to prepare the matter for trial.

    F21. Evidence and witnesses

    Where a matter is contested and listed for hearing, the lawyer will need to consider each affidavit and exhibit to be relied on at the hearing, and give appropriate notice if a person is required to attend the court for cross-examination. In addition to departmental officers and the parent/s, consider any health practitioners that have undertaken any examinations, assessments, or treatment, any counsellors engaged in a therapeutic role, police officers that have provided statements or information and any other experts that have been engaged and produced reports. Also consider any material filed in any previous proceedings, any protection orders and obtain affidavits from witnesses to support the client's application.

    Witnesses will need to be organised well in advance. When calling a witness, attempt to provide their evidence to the court via affidavit material filed and served on the parties.

    The lawyer should prepare the client’s affidavit in draft and forward it to the client for perusal. Clear advice needs to be given to the client about swearing the affidavit and the implications of making false or misleading statements.

    The lawyer should be aware of any relevant conditions which may prevent the client from adequately proofing affidavit material eg illiteracy, language difficulties or diminished cognitive functioning and the relevant jurat should be used and complied with in those circumstances.

    If the client is seeking an alternative child protection order to what the department seeks, develop an appropriate case plan which reflects the order sought by the client.

    The lawyer must request the department provide copies of departmental file material. The department maintains both a paper file and an electronic file and lawyers should seek access to the documents contained on both parts of the file.

    If the department refuses access to the file then it can be subpoenaed.

    F22. Issuing of subpoenas

    Any witness who is to receive a subpoena should be given advance notice of the subpoena and should be served as soon as possible. Attempts may be made to accommodate expert witnesses and the timing of their evidence where practical, and the court should be made aware of any scheduling difficulties at the earliest opportunity.

    F23. Arrangements for court

    Ensure appropriate arrangements have been made with the client for their appearance at court. If there are security or safety issues, it may be wise to meet the client at the office and accompany them to the court. In extreme cases the court staff and police should be informed of any concerns.

    Check the client understands the court attendance procedure and is advised about the need to bring other witnesses or documentation. Allow for sufficient time to confer with the client, the department and other parties prior to court.

    F24. Preparation for trial

    When preparing for trial, the lawyer should:

    • ensure an updated grant of aid is available
    • inform the client in writing of the trial dates, confirming their need to attend along with their witnesses and steps taken in preparation for trial
    • if a counsel grant of aid has been approved, confirm counsel for the trial by letter setting out trial dates and fees payable in line with LAQ’s Scale of Fees
    • issue subpoenas — together with conduct monies, and provide notice to all parties
    • inspect any material returned under subpoena on behalf of the other parties
    • inspect the department’s files in their entirety
    • consider requesting copies of any protection order application/s or order/s from the relevant magistrates court registry
    • consider asking the court to make or vary a protection order on behalf of the client, and whether the child/ren should be named on the order
    • inform witnesses of trial dates and ensure they have a copy of their affidavits of evidence, their availability to give evidence, and arrange their cross examination attendance times to minimise waiting time
    • prepare affidavit objections and documents to be tendered
    • advise the other parties which of their witnesses will be required for cross examination
    • liaise with the other parties/their lawyers for preparation and filing in line with to court directions
    • consider whether the matter can be appropriately dealt with by submissions eg if harm is admitted and the appropriate type of order has been agreed, the only issue in dispute is the length of the order or the appropriateness of the case plan which could be dealt with by submissions.

    F25. The court process

    The lawyer should shield the client from any unnecessary conflict. Consider negotiating with departmental officers or other lawyers as this may result in either a consent or an expression of a desire to contest. Explain the negotiations to the client at all times and ensure the client's position is not compromised in any way. The lawyer must seek instructions before agreeing to any orders.

    Prepare the client for the trial process including preparations for giving evidence and also cross examination.

    F26. Attend at the hearing and instructing counsel

    The CPA s 105 notes the childrens court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate. The balance of probabilities is the burden of proof required for any matter before the court is. The court will normally follow the usual course of litigation. The lawyer should ensure that the department presents its case first and ensure objections to evidence are made in the usual way and in accordance with the accepted rules of evidence during the proceedings. The magistrate can then indicate when the rules are to be dispensed with.

    The lawyer should take accurate records of the proceedings including witness names and times of hearing. It is also recommended the instructing solicitor maintain an adequate summary of questions and answers during the course of the trial.

     

    Australian Solicitor Conduct Rules relevant to trials

    A solicitor must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the solicitor contrary to the true position and is believed by the solicitor to have been made by mistake (r 19.12).

    A solicitor who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client has…lied…falsified a document…suppressed …material evidence upon a topic where there is a positive duty to make a disclosure…must advise the client that the court should be informed of the lie, falsification or suppression and request authority so to inform the court; and refuse to take any further part in the case unless the client authorises the solicitor to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the solicitor to do so but otherwise may not inform the court of the lie, falsification or suppression (r 20.1).

    A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension (r 19.11).

    …in proceedings in which an allegation of sexual assault, indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence, a solicitor must not ask that witness a question or pursue a line of questioning of that witness which is intended to mislead or confuse the witness or ...be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive and …must take into account any particular vulnerability of the witness in the manner and tone of the questions that the solicitor asks (r 21.8).

    A solicitor whose client informs the solicitor that the client intends to disobey a court’s order must: advise the client against that course and warn the client of its dangers; not advise the client how to carry out or conceal that course; and not inform the court or the opponent of the client’s intention unless: the client has authorised the solicitor to do so beforehand; or the solicitor believes on reasonable grounds that the client’s conduct constitutes a threat to any person’s safety (r 20.3).

    A solicitor must not take any step to prevent or discourage a prospective witness or a witness from conferring with an opponent or being interviewed by or on behalf of any other person involved in proceedings (r 23).

    A solicitor must not advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or coach a witness by advising what answers the witness should give to questions which might be asked (r 24).

    A solicitor must not confer with …more than one lay witness (including a party or client) at the same time about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing and where (it) would affect evidence to be given by any of those witnesses unless …(there are) reasonable grounds (r 25).

    A solicitor must not confer with …any witness (including a party or client) called by the solicitor on any matter related to the proceedings while that witness remains under cross-examination (with some “special circumstance” exceptions) (r 26).

    In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing (r 27.1).

    A solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice (r 28).

    F27. Appeals

    The lawyer should consider merit in every case and determine whether grounds of appeal exist, and whether an appeal should be lodged. If the lawyer thinks an appeal should be lodged, they must discuss this option with the client.

    Lawyers should be aware of the relevant time limits and observe them in all cases.

    If the appeal is meritorious help the client complete and lodge the Notice of Appeal and the Application for aid form. The application for aid should contain sufficient information to allow the merits of any appeal to be assessed.

    In-house lawyers must consult with their principal lawyer and the Family Law, Civil Justice and Advice Services director about the merits of any appeal before making an application for aid to appeal.

    If an appeal is considered appropriate the lawyer should:

    • take instructions from the client
    • advise the client of the appeal process and possible outcomes
    • seek a grant of aid for obtaining an advice on appeal and help the client complete the Application for legal aid form
    • help the client complete and lodge the Notice of Appeal.

    F28. Client care at the conclusion of the matter

    After the matter is concluded the lawyer should write to their client informing them of the outcome and provide sealed copies of orders made and the reasons for judgment, or advise the expected date of judgment if known.

    Where a child protection order has been made, advise the client and confirm in writing their rights concerning QCAT proceedings. The lawyer should also indicate which departmental decisions are open to review in that forum:

    • a refusal to review a case plan after a child or their long-term guardian has asked the department to review the child’s case plan
    • decisions regarding a supervision matter stated in a child protection order (the CPA s 78)
    • decisions about placement of the child (the CPA s 86(2))
    • a decision to withhold information from the parents about the child (the CPA s 86(4))
    • restrictions on contact between the child and their parent, or a member of the child’s family (the CPA s 87(2)).

    The lawyer must also inform the client of their right to apply to revoke or vary the child protection order/s made should their circumstances or the circumstances of their child/children change in the future.

    The lawyer should ensure all accounts are finalised in a timely manner at the conclusion of the matter.

    Part G – Acting as a separate representative – child protection


    G1. Acting as a separate representative

    LAQ has developed standards for lawyers who are appointed to act as a separate representative in line with to the CPA provisions. These standards apply to both childrens court and QCAT matters. All separate representatives should observe the standards as they indicate what is expected of separate representatives during the course of a matter. The following recommended standards of behaviour and practice need to be read in conjunction with existing professional and ethical standards governing the profession, judicial directions, practice directions, protocols, case law and related legislation.

    The legislation provides limited guidance about the separate representative’s role, however all separate representatives should note the CPA s 110 requirements. CPA s 110 requires the separate representative to act in the best interests of each child they represent, regardless of any instructions from the child, and, as far as possible, present the child’s views and wishes to the court or QCAT.

    This responsibility imposes the duty to act impartially, to present direct evidence to the court or QCAT about the child, the child's safety, wellbeing and best interests and their views and wishes, to make submissions with regard to all of the evidence before the court or QCAT, and to assist the court or QCAT in making a decision that is in the best interests of the child. The CPA s 110 outlines while the lawyer is not a party to the proceeding on the application, they must do anything required to be done by a party and may do anything permitted to be done by a party. The other parties to the proceeding must act in relation to the proceeding as if the lawyer were a party to the proceeding. The separate representative must comply with any rules, regulations, practice directions, protocols and case management guidelines that may arise in relation to the role.

    The professional relationship between the child and the separate representative is not a ‘solicitor-client’ relationship. The separate representative cannot offer the child a confidential relationship. The child needs to be aware of the basis of the relationship needs to be made aware the court and the separate representative will listen to what they have to say but neither are bound by those views and wishes.

    Be aware the separate representative’s role relates to the proceedings presently before the court or QCAT and ultimately that role will cease. The parties (including the department, the parent/s and the child) may have some ongoing involvement with each other after the separate representative’s role ceases. The separate representative must take care to ensure good relations between the parties can be maintained after the separate representative’s role ceases.

    G2. Conduct of separate representation files

    Lawyers accepting a separate representative appointment in child protection and/or QCAT proceedings are subject to all provisions of the LAQ Service Agreement and Undertaking regarding the conduct of these matters.

    The lawyer may seek assistance from other lawyers and support staff to help with running the separate representative’s file to conduct these matters. This will include assistance with:

    • gathering evidence
    • issuing subpoenas
    • attending court for uncontested mentions and to make previously agreed orders by consent
    • arranging appointments for assessments
    • preparing the case for mention, conference and hearing
    • arranging witness attendance at court or the tribunal.

    Any assistance must be subject to the separate representative’s supervision at all times.

    All substantive decisions regarding the conduct of the case and any exercise of discretion must be made by the lawyer, or an appropriately qualified agent (ie another member of the Independent Children’s Lawyer and Separate Representative Panel who has been approved to undertake separate representative work). This will include:

    • attending the department to inspect their files
    • determining an appropriate expert to retain in a matter
    • conducting case discussions with any expert retained
    • determining any recommendations to be made to the court at any stage
    • attending family group meetings on behalf of the child
    • attending court ordered conferences on behalf of the child
    • being personally responsible for instructions to counsel during the course of a hearing.

    LAQ’s in-house separate representatives are prepared to undertake town agency matters for other members of the panel subject to no conflict of interests existing, appropriate notice being given and appropriate staff being available.

    G3. In-house precedent package

    It is expected in-house lawyers will use the relevant letters and documents contained in the precedent package (LAQ staff access only).

    G4. Confidentiality

    A separate representative is bound by the CPA’s confidentiality provisions. A separate representative must not use or disclose any acquired information or give document access to anyone else unless the disclosure is necessary to perform the separate representative’s functions or the use relates to the child's protection or wellbeing, or is otherwise required or permitted by law.

    When providing documentation to report writers or other experts remind them of the CPA’s confidentiality provisions, particularly s 188. This section outlines that as a ‘receiver’ of information about another person's affairs, the report writer or other professional cannot give access to this information unless the disclosure purpose directly relates to the child's protection or wellbeing or is otherwise required or permitted by law. Any documentation the separate representative provides to report writers or other experts must be retrieved from the expert and destroyed at the conclusion of the matter.

    G5. Dealing with the department

    Communications with the department must take the same form as with any other party to the proceedings. If the department is a professional party in the proceedings, be aware the authorised departmental officer is unlikely to be legally represented until late in the proceedings. Take particular care to accurately record the details of any conversations with departmental officers. Where possible, the separate representative must consider confirming conversations with departmental officers in writing.

    G6. Dealing with unrepresented parties

    Communications with an unrepresented party must take the same form as with another lawyer. Take particular care to accurately record the details of any conversations with the unrepresented party. Consider sending a letter to the party confirming the conversation details.

    The separate representative should use plain English at all times when communicating with unrepresented parties.

    Separate representatives should refer to referred to the QLS Guidelines for solicitors.

    G7. Notice of Address for Service

    After receiving file material from LAQ, the separate representative should file a Notice of Address for Service in the relevant registry.

    The sealed Notice of Address for Service should be served on all other parties. If the department is a party, the lawyer should serve a copy of the notice on both the relevant Child Safety Service Centre and also the department’s Court Services Unit.

    G8. Letters to parties and/or their legal representatives

    Within five days of their appointment the separate representative should send a letter to the parties advising their appointment and explaining the separate representative’s role in the proceedings. The separate representative should also enclose a copy of LAQ’s How will a separate representative help my child in their child protection matter? factsheet, and a notice to each party that legal assistance is being provided by Legal Aid Queensland to the child in line with s28 of the Legal Aid Queensland Act 1997. If a party is legally represented, the initial letter for the party will be sent to their legal representative.

    After the initial letters, the separate representative should talk to the lawyers or the parties (as relevant) to determine any information sources they should contact to gain an early insight into the parties and their lawyer’s attitudes. The separate representative may also forward a questionnaire to parties or their solicitors with the initial letter or subsequent correspondence, for the party to answer and return along with blank authorities for third persons to release information to them.

    The separate representative should take care to communicate in plain and uncomplicated language in all written or verbal communications. Avoid any legalese.

    G9. Letters to the child/children

    Once appointed the separate representative should consider whether it is appropriate to write to each child to introduce themself and enclose copies of relevant information sheets. In deciding whether this is appropriate, they should consider the child’s age and ability to understand, the child's knowledge of the proceedings and the reasons for the separate representative appointment.

    G10. Dealing with non-parties

    During their appointment the separate representative may have reason to talk to non-parties interested in the proceedings. Take into consideration that in accordance with the CPA s 113 the court may hear submissions from a member of the child's family or anyone else the court considers is able to inform it on any matter relevant to the proceeding.

    The lawyer should accurately record the details of all conversations with non-parties and must take special care to not provide confidential information or documents to them, unless directed.

    G11. Dealing with other people working with the child/family

    During their appointment, the lawyer may need to communicate with other people who are working with the child including counsellors, school teachers and other persons. Take care in these discussions as these persons have an ongoing relationship with the child or the child's family which will outlive the separate representative’s involvement.

    If the separate representative has obtained information about these persons during their department file inspection they should notify the department of their intention to contact the person prior to contacting the person. This may require a departmental officer’s assistance to obtain further information from the person or to facilitate contact with the person.

    The lawyer should accurately record the details of all conversations with other professionals and should take special care not to provide confidential information or documents to them. If the lawyer decides confidential information should be disclosed to other professionals in line with one or more of the exceptions noted in the CPA s 188(3), they should notify the department of this view and request they consider making the disclosure. If the department will not make the disclosure and agree the disclosure is required, the lawyer must give careful consideration to the disclosures appropriateness in line with the CPA s 188(3), or whether to seek directions from the court.

    G12. Attendance at the department to inspect file

    Once appointed the separate representative should contact the relevant Child Safety Service Centre and make an appointment with the current child safety officer to peruse the department’s paper and electronic files.

    The lawyer should initially obtain copies of the following documents (please note this list is provided as a guide only and is not exhaustive):

    • investigations and assessments notifications and outcomes
    • SCAN minutes
    • family group meeting minutes
    • any external assessments or reports eg medical or educational
    • child and parental strengths and needs assessments
    • case notes relating to observations of contact or conversations with other professionals eg school or doctors
    • relevant police checks
    • carer assessments
    • case plan/s and associated CPA review reports (see the CPA s 51X)
    • other relevant case notes
    • any other relevant material including protection orders and if available, applications for protection orders.

    The lawyer will usually be required to sign a Records Management Services – Access to information – interim receipt form. While practice may differ from office to office, departmental procedures require departmental officers to photocopy the material and senior staff must approve the material’s release.

    While performing the physical inspection the lawyer must clearly tag each of the documents that require copying.

    Once the documents have been photocopied and approved, the Child Safety Service Centre will forward the documents to the lawyer by.

    Further inspections may be required during the course of the matter; and the lawyer should follow the same procedures outlined above in those circumstances.

    Where a separate representative can’t inspect the departmental file due to distance or other factors, they can ask the social assessment report writer to assist with the file inspection. In these circumstances they should inform the relevant departmental officer the person’s name who will undertake the inspection. The procedures outlined above will apply to their inspection.

    Child Safety Service Centre will only provide the lawyer with copies of the requested documents requested. The lawyer needs to provide the report writer with these documents.

    G13. Social assessment reports

    The separate representative should consider whether a social assessment report or other expert report is required. Be wary of obtaining unnecessary reports and exposing the child to systems abuse. Consider why the report is being obtained and whether the report is necessary in the circumstances.

    Separate representatives should carefully consider the type of report required, including which persons need to take part in the assessment. If the assessment will involve both the parties and the child, the departmental officers involved in the matter must also be interviewed as a party to the proceedings.

    Before applying for a grant of aid to obtain a report the lawyer will have completed an inspection of the department’s files at the relevant Child Safety Service Centre and should use their professional judgment to:

    • confirm that any previous reports on the departmental file are not sufficient to assist the court or QCAT in determining the matter
    • determine that obtaining a social assessment or other report is necessary to assist the court or QCAT to determine the outstanding issues before the court or QCAT, and the orders or decisions that will promote the best interests of the child, and
    • consider whether the required report should be obtained by the department, for example if the department alleges a parent has psychiatric issues that require an assessment then the department should obtain and pay for that report as part of their case.

    If the lawyer thinks the report should be obtained as part of the departmental case, then contact the department and request they obtain it. It is good practice to make this type of request in writing and to provide a copy of the request to the department’s Court Services Unit. If the department refuses to obtain the report, or if the lawyer determines it is not appropriate for the department to obtain the report, consider applying for a grant of aid to obtain this report.

    Where the costs of a report are likely to exceed the costs paid at LAQ rates, contact the department and request financial assistance to obtain the report. The lawyer should be aware departmental policy dictates that where the department are contributing to the cost of the report, then the department will usually want input into who will be engaged, the terms of the letter of instruction, and what documentation will be provided to the expert. In these circumstances, the process for briefing the expert is similar to briefing a single expert in the family law jurisdiction.

    Where a joint brief of an expert is not appropriate in the circumstances, consider applying for a grant of aid to cover additional costs. Please note that such requests must be made prior to any costs being incurred.

    If the lawyer decides to obtain a report, send letters to each of the parties, including the department, notifying them a report will be prepared, provide the report writer’s name and enclose relevant LAQ factsheets.

    G14. Engaging a report writer

    The separate representative should engage an expert after considering the issues to be addressed and expert’s qualifications and experience. Consult with other separate representatives or experts before selecting an expert. Brief the expert with a clear letter of instruction (referral) along with all information and documentation necessary to complete the assessment. The referral should specify the issues the expert must address in their report while not restraining the expert’s assessment process. In the brief to the expert clearly mark the material as confidential and not to be disclosed in line with CPA s 188. The separate representative is not bound to adopt any of the expert’s recommendations, they are to be considered as one part of the evidence before the court, and all of the evidence must be evaluated in context.

    When an expert produces a report, it should be attached to an affidavit setting out the expert’s qualifications and experience. A copy of the affidavit and report should be filed in the registry and served on all parties. If the department is a party, the lawyer should serve a copy of the affidavit and report on both the relevant Child Safety Service Centre and the department’s Court Services Unit.

    G15. Where there are allegations of domestic violence or a protection order is already in force

    When hearing a child protection proceeding, a childrens court may make or vary a protection order against a parent (the DV Act s 43).

    A childrens court can make the order on its own initiative or on a party’s application including a separate representative. If a protection order is already in force against a parent of a child for whom an order is sought in the child protection proceedings, the court must consider the existing order and whether it needs to be varied, given the child protection proceedings. The DV Act s 43 outlines the process to be used by the court.

    Consider any allegations of domestic or family violence or any protection orders already in force and whether an application for a protection order would be an appropriate course of action as separate representative (see ‘Acting in domestic violence matters’ above).

    G16. Meeting with the child/ren

    It is anticipated the separate representative will meet with the child during the term of their appointment. Before meeting with the child, consider why, when, how and where the meeting occurs, the age of the child/children, whether the child is expressing a wish and the impact meeting the child may have on the child.

    In order to protect the independence of the role, the separate representative should consider meeting the child away from the department’s Child Safety Service Centre. It is best practice to avoid meeting with the child alone and thus avoid becoming a witness in the proceedings. Therefore any meeting with the child should ideally be facilitated by the social assessment report writer. Where no report writer is engaged, the separate representative should ideally meet the child in the presence of a member of the child’s family, the child’s carer or other third person. These meetings are reportable and should be conducted on that basis.

    The lawyer must avoid exposing the child to a systems abuse risk. The lawyer may decide to not to meet the child if they have determined the meeting is not in the child’s best interests.

    When meeting with a child the lawyer should explain their role as their separate representative and answer any questions the child has about the legal process. They should also explain that while their role is to present the child’s views and wishes to the court, the court or QCAT will ultimately make any decisions about the matter.

    G17. Family group meetings

    The CPA s 51L outlines that a separate representative (as a legal representative of the child), must be given a reasonable opportunity to attend and participate in a family group meeting being convened to develop or review a child’s case plans.

    Subject to a grant of aid, the lawyer should attend family group meetings convened by the department during their appointment as the child’s separate representative.

    The lawyer should be mindful that matters discussed at family group meetings are admissible in any court proceedings except in a criminal proceeding.

    Focus on developing an appropriate case plan which meets the child’s assessed protection and care needs, which may include a goal or goals to be achieved by implementing the plan, for example:

    • arrangements about where or with whom the child will live, including interim arrangements
    • services to be provided to meet the child’s protection and care needs and promote the child’s future wellbeing
    • matters the department will be responsible for including particular support or services to be given to the child and the child’s family to allow the child to return to their family if the return is in the child’s best interests
    • the child’s contact with the child’s family group or other persons the children is connected to
    • arrangements for maintaining the child’s ethnic and cultural identity
    • matters the parent or carer will be responsible for, and
    • a proposed plan review date.

    If an earlier case plan is in existence consider the outcomes and goals which have already been achieved by the family, and which do not need to be included in the new case plan. The lawyer may request that previous outcomes be included in the case plan with a notation that the goal has been achieved by the family.

    Where there is no agreement with the department’s proposed case plan goal/s, outcomes or associated actions, ensure the client’s position is noted in the case plan.

    The lawyer must ensure the family and the department’s goal/s and outcomes listed in the case plan are achievable, and include some clearly defined mechanism to measure goal achievement progress.

    Where a case plan has been reviewed, remind the department of their obligation under the CPA s 51X of to file a copy of the review report along with the revised case plan.

    G18. Attending court events

    The separate representative should attend all court events for the matter.

    Before each court event the separate representative should:

    • obtain an appropriate grant of aid to attend
    • consider whether settlement or the resolution of issues between the parties is possible prior to the court event
    • ensure the parties’ have been served with any updating material
    • consider whether an interim order in favour of the department or other suitable person is necessary in the circumstances.

    If a separate representative can’t attend court for a mention because the court is in a remote area or they have other court commitments, either engage an appropriately qualified agent or notify the court of their inability to attend, in writing at least five working days prior to the mention and request arrangements be made to appear by telephone.

    LAQ’s in-house separate representatives are prepared to undertake town agency matters for other members of the panel, subject to appropriate notice being given and appropriate staff being available.

     

    Australian Solicitors Conduct Rules relevant to mentions and interim hearings

    A solicitor must not, in the presence of any of the parties or solicitors, deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court (r 18.1).

    A solicitor must not deceive or knowingly or recklessly mislead the court and must take all necessary steps to correct any misleading statements made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading (rr 19.1–19.2).

    A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which are within their knowledge and are not protected by privilege and that the solicitor has reasonable grounds to believe would support an argument against granting relief or limiting its terms adversely to the client (r 19.4).

    A solicitor must, at the appropriate time in the hearing of a case if the court has not yet been informed of that matter, inform the court of any binding authority, where there is no binding authority, any authority decided by an Australian appellate court and any applicable legislation known to the solicitor and which the solicitor has reasonable grounds to believe to be directly on point, against the client’s case (rr 19.6, 19.8).

    A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension (r 19.11).

    A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless the court has first communicated with the solicitor…or the opponent has consented beforehand…a solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication… (rr 22.5–22.6).

    A solicitor must take steps to inform the opponent as soon as possible after the solicitor has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact and the grounds of the application, and must try, with the opponent’s consent, to inform the court of that application promptly (r 22.8).

    G19. Applications for adjournments

    From time to time a lawyer may need to request an adjournment of proceedings for a child protection order application. The lawyer must only apply for an adjournment if it is in the best interests of the child to do so, being mindful that it is in the child’s best interests for the application to be heard as early as possible.

    If the lawyer intends to request an adjournment, they should notify all parties of this intention and the reasons why the adjournment is being sought.

    G20. Applications on adjournment

    At each mention of the matter, the lawyer should consider whether any interim orders relating to the child are necessary, for example an interim order granting temporary custody of the child to the department. The lawyer must consider whether the child/ren would be at an unacceptable risk of suffering harm during the adjournment period if interim orders were not made.

    The lawyer should review the current case plan and assess its appropriateness before each mention.

    Consider the CPA ss 66–68 and whether to make an application for orders:

    1. regarding things the court could direct the parties to do during the adjournment
    2. restricting a parent’s contact with the child
    3. authorising the department to have contact with the child
    4. requiring a social assessment report be prepared about the child and the child’s family and filed in court
    5. authorising a medical examination or treatment of the child and requiring the examination or treatment report be filed in court
    6. for the child’s contact with their family during the adjournment period
    7. requiring the department to convene a family group meeting to develop or revise a case plan and file the plan in the court; or to consider, make recommendations about, or otherwise deal with another matter relating to the child’s wellbeing and protection and care needs
    8. to hold a conference between the parties to decide the matter in dispute or to try to resolve the matters before the proceeding continues, and/or
    9. for a protection order.

    Prior to the mention day, the lawyer should make contact with the relevant court to determine the registry’s applicable practices and procedures, for example, in some places where a childrens court is constituted, the magistrate will require legal representatives to remain seated throughout any appearance.

    On the mention day, the lawyer should arrive early at court. The lawyer must advise the court of the material they intend to rely on to support any application for interim orders or for interim orders to be discharged. The court may ask for the submissions that support a position. The lawyer should make reference to relevant sections of the CPA and the relevant procedural rules.

    When considering submissions as a separate representative, the lawyer should consider the principles stated in the CPA ss 5A–5C, where relevant. The CPA s 5A outlines the safety, wellbeing and best interests of a child are paramount for administering the Act. The CPA s 5B sets out a series of 14 general principles for ensuring the safety, wellbeing and the best interests of a child and s 5C sets out additional principles for Aboriginal or Torres Strait Islander children. The separate representative should also consider s 9 ‘What is harm’ and s 10 ‘Who is a child in need of protection’ and any other relevant sections of the CPA.

    After each interim hearing, the lawyer should consider whether or not to advise the child/children of outcome of the hearing and the effect of any orders made by the court.

    The separate representative should ensure copies of every order are received from the relevant registry or Child Safety Service Centre and placed on file.

    G21. Entering into negotiations

    If a lawyer forms a view in relation to the matter, that view should be communicated to the parties through their solicitors (if they are represented) or directly (if they are not represented), as soon as practicable after forming the view.

    In entering into negotiations, keep in mind the separate representative’s role to act in the best interests of the child.

    When considering any settlement proposals, consider the appropriateness of child’s case plan and the type/s of child protection order/s proposed and whether the case plan requires amendment before any order/s are made.

    If the parties reach an agreement the lawyer cannot support, refer the matter to the court; the lawyer should make submissions stating their view.

    G22. Court ordered conference

    The purpose of the court ordered conference is to decide or resolve the matters in dispute. The lawyer must attend the court ordered conference, subject to a grant of legal aid being available.

    At the court ordered conference the lawyer should advise the parties of their view and of any prospects of settlement. They should assist in making recommendations for the future conduct of the case.

    At the conclusion of the conference, the convener will prepare a written report that is filed in court, but not served on the parties, containing the conference outcome including whether an agreement has been reached, and the order/s the parties will seek.

    Communications at a court ordered conference are confidential and can not be used in any court proceeding unless all parties consent to their use. If the lawyer wishes to advise the court of the court ordered conference communication content, they must first obtain the consent of the parties.

    If subsequent material filed by the department contains court ordered conference communications, ask the department to withdraw the material. If the material is not withdrawn, the lawyer should make an application to the court to disregard that material.

    G23. Mention following the court ordered conference

    The matter will be mentioned again after the court ordered conference. If an agreement has been reached, the parties can request the court make the order/s at this mention. However, the CPA s 105 notes the court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate. The court must be satisfied on the balance of probabilities for any matter before the court. The Child Protection Bill 1998 explanatory notes state:

    The court is inquisitorial, and may use whatever means it wishes to inform itself. For example, the court may accept a submission from interested family members, or may ask to speak to the child in the magistrate’s office.

    If the parties do not reach an agreement and the matter is proceeding to a contested hearing, the lawyer should use this mention to obtain directions on the steps that need to be taken to prepare the matter for trial.

    Key tasks to prepare for the mention:

    1. develop a case theory where possible
    2. prepare a plan for the trial – what are the issues? What evidence is needed to support each of the parties’ applications? How long will it take to prepare for trial?
    3. consider whether expert witnesses and a social assessment report are needed, or whether an existing report needs updating
    4. identify the current case plan’s review date; will it need to be reviewed prior to the trial?
    5. consider the likely number of witnesses and trial length– include time assessment for opening statements, the need for further evidence in chief, cross-examination, re-examination and submissions
    6. subject to a grant of legal aid, confirm counsel’s availability to be briefed
    7. request a date for hearing and filing directions, and
    8. consider whether the matter is complex and should be listed before a specialist childrens court magistrate.

    At the mention, the lawyer should seek directions for matter preparation and filing dates for each party. They should request the department file its material first, followed by their material and allow sufficient time for the parents to file their material in response.

    Immediately after the mention, aid should be sought to prepare material for trial and trial attendance. For complex matters seek aid for counsel.

    The lawyer should seek trial directions where the matter will be listed for trial.

    G24. Briefing counsel

    Counsel may be briefed to appear for the separate representative at a hearing in line with LAQ’s funding policies outlined in the Grants Handbook.

    The lawyer should retain and brief counsel as soon as practicable. The brief to counsel must include all relevant court documentation including any trial plan, copies of any subpoenaed material available (or summary of same if necessary, however copies of material should be sought if the matter is progressing to a trial), copies of relevant diary notes, correspondence and other documentation.

    ‘Instructions to Counsel’ should set out the trial dates and registry in which the proceedings are listed for hearing, the basic premise of the case, list the witnesses to be called by each party, a statement outlining the relevance of that evidence and confirmation of fees payable in line with LAQ’s Scale of Fees.

    G25. Conference with counsel

    The lawyer should arrange a conference with counsel as early as practicable.

    G26. Departmental preparation for trial

    If matters are proceeding to a contested hearing, the department will usually engage Crown Law to appear at trial. Where Crown Law is not available, the department may engage members of the private bar.

    Officially counsel is instructed by the applicant for the child protection order. In practice the matter is usually prepared by the department’s court coordinator in the local Child Safety Service Centre in conjunction with an officer from the department’s Court Services Unit. The lawyer should liaise with those officers and any legal representatives of the parents to prepare the matter for trial.

    G27. Evidence and witnesses

    Where a matter is contested and listed for hearing, consider each affidavit and exhibit to be relied on at hearing, and give appropriate notice if a person is required to attend the court for cross-examination. In addition to departmental officers and the parent/s, consider any health practitioners that have undertaken any examinations, assessments, or treatments, any counsellors engaged in a therapeutic role, police officers that have provided statements or information and any other experts that have been engaged and produced reports.

    Witnesses will need to be organised well in advance. When calling a witness the lawyer should attempt to provide that evidence to the court via affidavit material filed and served on the parties.

    A separate representative should serve all parties with their material. If the department is a party the separate representative should serve any material on both the relevant Child Safety Service Centre and the department’s Court Services Unit.

    The separate representative should ensure the parties call all the relevant witnesses to ensure that the matter can be determined in the child’s best interests. If the parties to the proceeding refuse to call a relevant witness, the separate representative should consider calling that witness.

    When calling a witness, the lawyer is responsible for ensuring the witnesses’ attendance at the hearing.

    It is the separate representative’s to test the case of each of the parties at trial. Therefore it is normal practice for the separate representative to cross examine all relevant witnesses regardless of whose case they are called in.

    G28. Issuing subpoenas

    Any witness who will receive a subpoena should be given advance notice and be served as soon as possible. Make attempts to accommodate expert witnesses and the timing of their evidence where practical. Make the court aware of any scheduling difficulties at the earliest opportunity.

    G29. Preparation for trial

    When preparing for trial:

    1. ensure an updated grant of aid is available
    2. if a counsel grant of aid has been approved, confirm counsel for the trial by letter, setting out trial dates and fees payable in line with LAQ’s Scale of Fees
    3. issue subpoenas — together with conduct monies, and provide notice to all parties
    4. inspect any material returned under subpoena on behalf of the other parties
    5. inspect the department’s files in their entirety
    6. consider requesting a copy of any protection order application/s or order/s from the relevant magistrates court registry
    7. consider asking the court to make or vary a protection order on behalf of one of the parties, and whether the child/ren should be named on the order
    8. inform witnesses of trial dates and ensure they have a copy of their affidavits or evidence, their availability to give evidence and arrange times for their attendance for cross examination to minimise waiting time
    9. prepare objections to affidavits and documents to be tendered
    10. liaise with the other parties/their lawyers to prepare and file material in accordance with court directions
    11. consider whether the matter is appropriate to be dealt with on the papers, for example if the alleged harm is admitted, the appropriate type of order has been agreed and the only issue in dispute is the length of the order or the appropriateness of the case plan, and
    12. consider meeting with the child to advise them of the trial, how the trial will be conducted, the evidence to be placed before the court about the child’s views and wishes, and details of what is considered to be in the child’s best interests which will be put to the court.

    G30. Trials

    The separate representative’s role at the hearing includes:

    • testing the parties’ and their witnesses’ evidence by cross examination
    • ensuring all relevant evidence is before the court regarding the safety, wellbeing and best interests of the child
    • to present the child’s views and wishes where they can be ascertained
    • to facilitate negotiations wherever it is appropriate, and
    • to make submissions based on the evidence before the court, highlighting the alternative orders open to the court on the evidence, and proposing orders that are in the best interests of the child (in the separate representative’s opinion).

    G31. Attend the trial and instruct counsel

    The CPA s 105 notes a childrens court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate. The balance of probabilities is the burden of proof required for any matter before the court. The court will normally follow the usual course of litigation. The lawyer should ensure the department presents its case first and ensure objections to evidence are made in the usual way and in accordance with the accepted rules of evidence during the proceedings. The magistrate can then indicate when the rules are to be dispensed with.

    The lawyer should take accurate records of the proceedings including witness names and times of hearing. It is recommended the lawyer maintain an adequate summary of questions and answers during the course of the trial.

    The lawyer is personally responsible for instructing any counsel retained during the course of the proceedings.

     

    Australian Solicitors Conduct Rules relevant to trials

    A solicitor must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the solicitor contrary to the true position and is believed by the solicitor to have been made by mistake (r 19.12).

    A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension (r 19.11).

    …in proceedings in which an allegation of sexual assault, indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence, a solicitor must not ask that witness a question or pursue a line of questioning of that witness which is intended to mislead or confuse the witness or ...be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive and …must take into account any particular vulnerability of the witness in the manner and tone of the questions that the solicitor asks (r 21.8).

    A solicitor must not take any step to prevent or discourage a prospective witness or a witness from conferring with an opponent or being interviewed by or on behalf of any other person involved in proceedings (r 23).

    A solicitor must not advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or coach a witness by advising what answers the witness should give to questions which might be asked (r 24).

    A solicitor must not confer with …more than one lay witness (including a party or client) at the same time about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing and where (it) would affect evidence to be given by any of those witnesses unless ...(there are) reasonable grounds (r 25).

    A solicitor must not confer with …any witness (including a party or client) called by the solicitor on any matter related to the proceedings while that witness remains under cross-examination (with some “special circumstance” exceptions) (r 26).

    In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing (r 27.1)

    A solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice (r 28).

    G32. Appeals

    The lawyer must consider whether grounds of appeal exist in every case. If another party doesn’t lodge an appeal, request a grant of legal aid and if successful, lodge the appeal.

    Lawyers should be aware of the relevant time limits and observe them in all cases.

    In-house lawyers must consult with their principal lawyer and the Law, Civil Justice and Advice Services director about the merits of any appeal before making an application for aid to appeal.

    If a lawyer is served with a Notice of Appeal, they should request a grant of legal aid.

    G33. Provision of information to the child

    Following the completion of any contested matter, or the court making orders agreed to by the parties, the lawyer should consider whether it is appropriate to meet with the child and explain the outcome of the proceedings.

    Where appropriate, consider the best way to communicate this information to the child taking into account the child's age and ability to understand. It is best practice to meet with the child in the presence of the report writer who can assist if the child is unhappy with the outcome.

    If an order is made, inform the child of their rights in care and the standards of care that should be provided to them by the department, as appropriate. Where appropriate the lawyer should also inform the child of their rights to commence proceedings in QCAT and provide an indication of which departmental decisions are open to review.

    The child should also be informed of their right to apply to revoke or vary the order made should their or their parents’ circumstances change in the future.

    If a lawyer becomes aware the child is eligible to apply for criminal compensation or to commence negligence or other proceedings arising from their time in care or the circumstances by which they came into care, then they should bring these matters to the department’s attention and the child’s attention if appropriate.

    G34. Completion of the separate representative's role

    The separate representative's role ends when an application is decided or withdrawn. If there is an appeal in relation to the application, the separate representative’s role ends when the appeal is decided or withdrawn.

    In exceptional circumstances, the department and the other parties may ask a separate representative to attend a further family group meeting after the proceedings have concluded if they think the separate representative will make a useful contribution to a case plan’s development or review at the meeting. In those instances the lawyer should provide LAQ with sufficient information to determine the merits of funding the separate representative’s ongoing involvement.

    The lawyer should also ensure that all accounts are finalised in a timely manner.

    Part H – Acting in arbitration matters


    Once the Arbitration Grants Officer receives a legal assistance application and the matter fits within the parameters of the Arbitration Service, the Arbitration Grants Officer will forward a letter of invitation to the other party inviting them to participate in the Arbitration Service.

    Once both parties’ consent is received, the firm/lawyer will be given a PA1 grant of aid and will be sent an arbitration pack.

    H1. Letter of introduction

    After a grant of legal aid has been issued, the lawyer must send a letter to the client asking them to make an appointment and enclose the instruction check list for the client to complete prior to interview (the instruction check list will be supplied by the Arbitration Service).

    The letter should include in details of supporting documentation required for the arbitration process.

    H2. Initial interview with client

    For property matters, the lawyer must advise the client about the FLA ss 10L–10P, 13E–13K, 72, 79(4).

    The lawyer should check with the client to ensure all parenting matters have been resolved.

    They should discuss various options for resolution or determination with the client and advise to the client about:

    • mediation including LAQ’s family dispute resolution services
    • counselling
    • arbitration (if property dispute)
    • pre-action procedures (see FLR r 1.05 and sch 1) (Note these procedures must be complied with prior to the filing of any application in a court. Some matters may be exempt from compliance)
    • family dispute resolution service attendance requirement should be fully discussed with the client (FLA ss 60I, 60J)
    • the duty of disclosure (FLR ch 13, and FCCR pt 14, div 14.2)
    • potentially making an offer to settle (FLA s 117C, and FLR pt 10.01)
    • confirm the client's understanding of cost implications as far as legal aid is concerned and their rights and obligations under the FLA and the FLR ch 19.
    Note:

    The current FamCA pre-action procedures set out in the FLR should continue to apply to property proceedings whenever commenced in the FamCA. The pre-action procedures have not been extended to property proceedings commenced in the FCCA.

    The lawyer should consider any applications that may need to be made to preserve property, to secure the client’s position regarding property matters and obtain instructions to collect appropriate evidence to support such application.

    The lawyer must complete and explain to the client:

    • the client agreement to arbitrate
    • notice to pay costs and
    • retrospective contribution forms.

    These must be returned to the Arbitration Grants Officer within two weeks.

    The lawyer must complete the Arbitration statement with the client, providing supporting documents such as valuations of property or chattels, SIF statements from superannuation funds, bank statements, pay slips, mortgage documents etc (the arbitration may not proceed without supporting documentation). All sections must be completed.

    The Arbitration statement must be returned to the Arbitration Grants Officer within 28 calendar days of the arbitration pack issue date.

    The lawyer should send the client a letter attaching a copy of their Arbitration statement and supporting material and outlining the next step in the process, including the need to make a further appointment once the other party’s Arbitration statement is received and the need to prepare a response document.

    Australian Solicitors Conduct Rules relevant to advice

    A solicitor must provide clear and timely advice to assist the client to understand the relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of engagement (r 7.1).

    A solicitor must inform the client about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation (r 7).

    A solicitor must follow a client’s lawful, proper and competent instructions (r 8).

    H3. After the initial interview and following completion of the Arbitration statement

    The Arbitration Grants Officer will copy both parties’ Arbitration statements and supporting material and provide a copy of each to the other party’s lawyer, as part of the discovery process.

    Once the Arbitration statements with supporting documentation have been exchanged, each party must complete an Arbitration response within 14 calendar days.

    The lawyer must review the Arbitration statements with their client and prepare an Arbitration response, with the necessary supporting documents.

    The lawyer must also explain to the client their ability or election to make oral submissions by telephone.

    Both the Arbitration response and the election as to oral submissions are required within 14 calendar days of the Arbitration response issuing to the firm.

    The lawyer must make extension of time requests to comply with these time limits in writing, addressed to the Arbitration Grants Officer and sent to the other party’s solicitor.

    The Arbitration Grants Officer will send copies of approved extension of time requests to both parties.

    The Arbitration Grants Officer must be notified in writing if parties are negotiating a possible settlement prior to arbitration.

    If legal aid is required for a property valuation or medical report, make these requests in writing and forward a copy to the Arbitration Grants Officer. The Arbitration Grants Officer will copy the Arbitration response documents with supporting material prepared by both parties and exchange these as part of the discovery process. The Arbitration Grants Officer forwards a copy of all arbitration material to the arbitrator.

    The arbitrator has 14 calendar days from receipt of all material to make requests for further information. This request is sent to the Arbitration Grants Officer who forwards it to both parties through their solicitors.

    If the arbitrator requests further information or materials make another appointment with the client to clarify those matters where further information (if required) and provide this information to the arbitrator.

    The lawyer must provide a response and supporting documents within seven calendar days of request.

    A copy of each party’s response to the arbitrators request for further information will be provided to the other party and to the arbitrator.

    If the parties’ chose to make oral submissions the arbitrator will provide possible dates for this to occur. The Arbitration Grants Officer will notify both parties’ solicitors in writing of these dates. Both parties’ solicitors are expected to liaise to determine the most convenient date to nominate and to send a joint letter to the Arbitration Grants Officer advising the nominated date and the contact telephone numbers to be used for the oral submissions.

    The arbitrator will separately contact each lawyer to confirm the date, time, telephone number and process for submissions.

    Submissions will be collected over the telephone, via a conference call initiated by the arbitrator on the jointly agreed date and time, with each party having a 30 minutes time limit.

    The arbitrator will issue an award within 14 calendar days of the oral submissions, except in cases where the arbitrator has requested further material from a party/the parties during the submissions. In such a circumstance the arbitrator arranges a time to produce the further information during the oral submissions. The arbitrator will then issue the award 14 calendar days after that time.

    H4. Final Interview with client

    Once the client’s award is received the lawyer must write to the client informing them of the outcome, provide a copy of the arbitral award and explain the terms to the client. It may be necessary make an appointment with the client to explain the award terms.

    Inform the client of their award obligations and issues relating to the ‘slip rule’. Inform the client of the process of attaching the arbitral award to an Application for Consent Orders to be filed in a court. Inform the client of the likely implications of refusing to sign consent orders attaching the arbitral award.

    If superannuation forms part of the award and a splitting order is included, you must provide 28 days notice to the superannuation trustee of the proposed order. This must be done before the consent orders can be lodged to avoid any requisition.

    The lawyer should ensure all accounts are finalised in a timely manner by submitting any accounts as soon as practicable to the Arbitration Grants Officer.

    If a grant of aid for conveyancing is required the lawyer must notify the Arbitration Grants Officer immediately in writing and send a copy of this request to the other party.

    Once the final account has been paid legal aid will issue a retrospective invoice to the client and a copy to the solicitor.

    Please be aware any monies from settlement must be held in a trust account until legal aid is paid. Once the client’s debt with legal aid is settled the money can be released to the client. If money is released before the client’s legal aid debt is paid, the firm will be responsible for the debt.

    Lawyers must not communicate directly with the arbitrator.

    The lawyer must provide the Arbitration Grants Officer with a copy of any correspondence sent between parties in relation to property matters.

    Annexures

    A. Family law and domestic violence advice worksheet (PDF,41KB)


    Document effective date

    24 July 2014



    Last modified: 13 October 2014 3:28PM
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    Case Management Standards - family law