Legal Aid Queensland

Case Management Standards

Go Search
Home
Home
Services
Legal information
Publications
Media centre
Careers
About us
Skip Navigation LinksHome > About us > Policies and procedures > Case Management Standards > Case Management Standards - family law

Case Management Standards - family law 

These standards are currently under review


Introduction

Part A - General
A1. Initial interview
A2. Grant of aid
A3. Management of the client and file
A4. Counsel
A5. Completion of matter
A6. Initial/Final Contribution
A7. Appeal
A8. Checklist

Part B – Case Management Standards specific to representing client at a Legal Aid Family Dispute Resolution Conference
B1. Initial interview
B2. Negotiation 
B3. Attending the family dispute resolution conference
B4. Confirm outcome with client
B5. Consent Orders

Part C – Case Management Standards specific to parenting orders and property settlement
C1. Letter of introduction
C2. Initial interview with client
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. Hearing of interim issues
C11. Prior to each further court event
C12. Case Assessment Conference [CAC]
C13. Procedural Hearing/Mention
C14. Child abuse cases 
C15. Family violence cases 
C16. Matters to be considered prior to conciliation conferences – property matters
C17. Conciliation conferences
C18. Preparation for trial in the FMC
C19. LAT (Less Adversarial Trials) and Docket System in the Family Court
C20. Magellan cases
C21. Property proceedings – trial
C22. Further preparation for trial – both courts
C23. Brief Counsel for trial
C24. Conference with Counsel
C25. Attend at the hearing and instruct Counsel
C26. Appeals
C27. Delays in Judgments

Part D – Case Management Standards specific to domestic violence
D1. Telephone instruction/advice
D2. Initial interview
D3. Urgent temporary orders
D4. Court procedure
D5. Implications of application
D6. Completion of DV 1 application form
D7. Acting as an authorised person
D8. Lodging an application for mention
D9. Service 
D10. Evidence and witnesses
D11. Negotiations with the respondent/solicitor 
D12. Arrangements for court
D13. The court process 
D14. The application 
D15. Impact of Family Law Act and parenting orders

Part E – Case Management Standards specific to acting as an Independent Children’s Lawyer
E1. Notice of address for service and other notices
E2. Letter directly to the represented litigant
E3. Communication with a self represented litigant
E4. Letter to Child Dispute Resolution Services
E5. Letter to Department
E6. Meeting the children
E7. Dealing with criticism of the Independent Children’s Lawyer
E8. Right of the child to direct representation
E9. Conference/telephone other parties
E10. Contacting other witnesses
E11. Case management
E12. Preparation for hearing of interim issues
E13. Family Reports & other expert reports
E14. After determination of interim issues
E15. Dealing with supervisors
E16. LAT (Less Adversarial Trials)
E17. Magellan matters
E18. Preparation of material
E19. Briefing Counsel
E20. Costs
E21. Trial
E22. At the conclusion of the trial
E23. Delays in Judgments
E24. Appeals
E25. When child abuse is suspected

Part F – Case Management Standards specific to acting as Separate Representative – Child Protection
F1. Acting as a Separate Representative
F2. Conduct of separate representation files
F3. Inhouse precedent package
F4. Confidentiality
F5. Dealing with the Department
F6. Dealing with unrepresented parties
F7. Notice of Address for Service
F8. Letters to parties and/or their legal representatives
F9. Letters to the child/children
F10. Dealing with non-parties
F11. Dealing with other people working with the child/family
F12. Attendance at the Department to inspect file
F13. Social assessment reports
F14. Engaging a report writer
F15. Meeting with the child/children
F16. Family Group Meetings
F17. Attending court events 
F18. Applications for adjournments 
F19. Applications on adjournment
F20. Entering into negotiations
F21. Court Ordered Conference
F22. Mention following the Court Ordered Conference 
F23. Briefing Counsel
F24. Conference with Counsel
F25. Departmental preparation for trial
F26. Evidence and witnesses
F27. Issuing of subpoenas
F28. Preparation for trial
F29. Trials
F30. Attend the trial and instruct Counsel
F31. Appeals
F32. Provision of information to the child
F33. Completion of the Separate Representative's role

Part G – Case Management Standards specific to Child Protection
G1. Telephone instruction/advice
G2. Letter of introduction
G3. Initial interview
G4. Inhouse precedent package
G5. Completion of notice of Address for Service
G6. Dealing with the Department
G7. Dealing with unrepresented parties
G8. Family Group Meetings
G9. Prior to each further court event
G10. Attending mentions
G11. Applications for adjournments 
G12. Applications on adjournment
G13. Consents and instructions 
G14. Court Ordered Conference
G15. Mention following the Court Ordered Conference 
G16. Write to client advising of date of trial
G17. Briefing counsel
G18. Departmental preparation for trial
G19. Evidence and witnesses
G20. Issuing of subpoenas
G21. Arrangements for court
G22. Preparation for trial
G23. Brief Counsel for trial
G24. Conference with Counsel
G25. The court process 
G26. Attend at the hearing and instructing Counsel 
G27. Appeals
G28. Client care at the conclusion of the matter

Part H – Case Management Standards specific to Arbitration
H1. Letter of introduction
H2. Initial interview with client
H3. Documentation
H4. Post award 
H5. Review process

Annexures
A. Client Information Sheet
B. Case Management Checklist – Family Law Practice
C. Guidelines for working with interpreters
D. Legal Aid Family Dispute Resolution Conference Supporting Documents
E. Legal Aid Family Dispute Resolution Conference Client Instruction Checklist – parenting orders/property
F. Best Practice Guidelines for lawyers working with clients who have experienced domestic and family violence
G. Legal Aid Family Dispute Resolution Solicitor Conference Assessment Sheet
H. Pre Action Procedure Checklist – Financial Matters
I. Pre Action Procedure Checklist – Parenting Matters
J. Subpoena Checklist – Family Court of Australia
K. Request for DNA Parentage Testing
L. Child Support Checklist
M. Advice Checklist
N. Factors relevant in determining parenting orders – Part VII Family Law Act
O. Subpoena Checklist – Federal Magistrates Court of Australia
P. Best Practice Guidelines for lawyers providing legal services to Aboriginal and Torres Strait Islander clients
Q. Suggested trial directions – Children’s Court
R. Family Dispute Resolution Conference – Preparation Form (Property)

Introduction

These Case Management Standards have been prepared to assist Legal Aid Queensland staff and preferred suppliers who practice in the family law jurisdiction including child protection and domestic violence. They cover the following areas of practice:

  • Representing a client at family dispute resolution conference
  • Parenting orders and property matters
  • Domestic violence matters
  • Acting as an Independent Children’s Lawyer
  • Acting as a Separate Representative – Child Protection
  • Party representation – child protection
  • Arbitration

They represent the minimum work necessary to be undertaken in representing the client or when acting as Independent Children’s Lawyer or a Separate Representative. The objective of these standards is to assist officers in achieving an 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.

For in-house practitioners an extensive precedent package is available. Use of the precedents, where they are appropriate, is required. Reference to relevant precedents is noted throughout the Case Management Standards. The letters identified are not an exhaustive list of documents in the precedent package that may be relevant to a particular file. They are identified to assist the practitioner in their filework and prompt them to use the precedents available.

Throughout these Case Management Standards [CMS], reference is made to each of the Family Court of Australia [Family Court] and the Federal Magistrates Court [FMC] where appropriate and collectively these courts will be referred to as the “Family Law Courts”.

These CMS should be read in conjunction with and not in substitution of the Family Law Act [FLAct]; Family Law Rules [FLRules]; Practice Directions & Guidelines and Case Management Guidelines [CMG] of the Family Court of Australia [Family Court] and the Federal Magistrates Act 1999 [FMAct] and the Federal Magistrates Court Rules 2001 [FMCRules] which may issue 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 violence. Please note that the FMCRules incorporate those designated as FMCRules, the adoption of specified FLRules, pursuant to s43 of the FMAct if the FMCRules are insufficient, the rules made under the FLAct apply with necessary modification so far as they are capable of application and subject to any directions of the FMC, and Rule 1.05 FMCRules specifically provides that “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”. Where possible we have identified the relevant rules to be applied in both courts.

All notes taken on a file can be subject to administrative access by a client or Right to Information. Appropriate care should be taken when recording information on a file.

Part A - General

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 practitioner is to 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. In property disputes clients should also be advised of availability of LAQ’s Property Arbitration Program.

When providing advice to a client in relation to the family law matters, then information as required by the Family Law Act and the Family Law Rules must be provided [sections 12A, 12B, 12C, 12D, 12E and s63DA, FLRULE 2.03, 4.13, 4.23, FMCRules apply FLRule Part 2.2]. A Checklist setting out the matters to be addressed in provided in the Annexure M - Advice Checklist.

A2. Grant of aid

Approving Authority: The approving authority of a grant of aid is Legal Aid Queensland (LAQ). Generally, the date aid is effective is the date the application is received by LAQ. A grant of aid must exist before any work can be done on the file. The Practitioner 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 Practitioner must not commence work until appropriate arrangements for the payment of the contribution have been made with the client.

Confirmation of this grant of aid should be provided to the other party or parties to proceedings pursuant to s28 of the Legal Aid Queensland Act. This is an ongoing responsibility should the parties to proceedings change.

Payment: LAQ will pay the practitioner in accordance with LAQ’s set schedule of fees less the initial contribution from the client (where applicable). The schedule of fees includes the scales of fees, rules for payment of accounts and claiming guidelines provided by LAQ. The practitioner is to explain to the client the policy in relation to retrospective contributions and ensure that the client signs and returns the Payment of Costs form prior to commencing work on the file.

A3. Management of the client and file

Following approval for a grant of aid, an initial letter, enclosing a Client Information Sheet - Annexure A - should be sent to the client by the practitioner. The client must be informed of their obligations and rights in relation to costs payable for work to be done on behalf of the client and any rights to recovery of costs from another party to proceedings. Special attention should be paid to Rules 19.03 and 19.04 in relation to notification to the client. For the FMCt – refer to Part 21 FMRules.

If the matter is urgent and it is not appropriate to send the initial letter to the client, the Client Information Sheet must be given to the client by the practitioner at the first interview with the client. An appropriate record must appear on the file. Where one exists, the standard letter is used.

The practitioner must communicate regularly with the client. The practitioner should copy and forward to the client relevant substantive correspondence sent or received on behalf of the client. The practitioner must keep on the client’s file copies of all filenotes, correspondence sent or received and all documents received or prepared on behalf of the client.

The practitioner must be aware of and comply with the Best Practice Guidelines for lawyers working with clients who have experienced domestic and family violence. A copy of the Best Practice Guidelines is attached as Annexure F.

The practitioner must be aware of and comply with the Best Practice Guidelines for lawyers providing legal services to Aboriginal and Torres Strait Islander clients. A copy of the Best Practice Guidelines is attached at Annexure P.

The practitioner must be aware of and comply with the Guidelines for lawyers working with Interpreters. A copy of the guidelines is attached at Annexure C.

Where possible the practitioner should consider requesting permission to use out-of-court electronic means to attend, make submissions, give evidence or adduce evidence from a witness which previously have been considered by attendances in person – Part XI Dvn 2 FLAct R5.06 & R5.07, R12.12 & R16.08 FLRules and sections 66 to 73 Federal Magistrates Act 1999.[FMAct]

A4. Counsel

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/independent children’s lawyer’s/separate representative’s instructions.
  3. Copy of all relevant material – including court documentation, filenotes, 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 practitioner, or the LAQ proforma invoice if the client is represented by a preferred supplier.

A5. Completion of matter

The client is to 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 enclosing a sealed copy of any orders is to 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.

The Practitioner should notify LAQ of the outcome of a file when submitting their final account for payment and finalising the file.

For in-house matters that are dealt with as Magellan matters or Less Adversarial Proceedings, confirmation of the conclusion of the matter should be provided to Grants as part of the finalisation of the file.

A6. Initial/Final Contribution

The Practitioner must ensure that the initial or final contribution has been paid or arrangements entered into for the payment of the final contribution.

A7. Appeal

The Practitioner should consider the appropriateness of any orders which have been made and the potential merit for appeal or review. If appropriate the matter should be discussed with the client including:

  • the time frame for an appeal
  • risk of a less favourable outcome
  • potential liability for costs if unsuccessful
  • effect of appeal on the execution of order

and all time limits must be observed.

A8. Checklist

A Family Law Practice case management checklist is attached as Annexure B for use by the practitioner and placement on the inside of the file. This checklist should be used for all in-house files and completed at each relevant stage.

Part B – Case Management Standards specific to representing client at a Legal Aid Family Dispute Resolution Conference

B1. Initial interview

Note:

Client will have completed a Client Conference Assessment Sheet possibly PRIOR to the solicitor having an initial interview with the client. The initial interview with the client 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. Care should be taken 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.

The practitioner conducting the initial interview with the client must be an admitted solicitor and the practitioner is to:

  1. Obtain full particulars of the nature of the dispute, the history of the marriage/relationship, current arrangements for the children and matrimonial property. Annexure E is a client instruction checklist;
  2. Obtain instructions as to the reasons for the breakdown of the relationship/marriage and whether there is any family violence and if so, is there a Protection Order in force;
  3. Consider whether the matter falls within the exceptions to compulsory family dispute resolution as provided in s60I(9) of the FLAct and, if so, seek appropriate funding for litigation;
  4. If the matter does not fall within the exceptions to compulsory family dispute resolution as provided in s60I(9) of the FLAct and, after obtaining the appropriate grant of aid (F1A grant), complete the solicitor conference assessment sheet at Annexure G, and return it to Legal Aid Dispute Resolution Services no later than 48 hours before the start of the conference;
  5. Explain Legal Aid 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;
  6. Explain the Solicitor’s role and the client's role at the family dispute resolution conference;
  7. Explain the Confidentiality provisions and expected conduct of the parties at the family dispute resolution conference;
  8. Request copies of any court documentation relevant to the matter (see Annexure D - List of Supporting Documents);
  9. Confirm whether the client is willing to participate in the family dispute resolution conference despite any history of family violence. Determine if the client is willing to be in the same room as the other party or if the family dispute resolution conference be held in separate rooms. Be sympathetic to the emotions and concerns that the client may have;
  10. If the principal dispute relates to parenting orders:
    1. check with the client that property settlement matters have been finalised or are not an issue. Also check what the situation is with regard to child support and whether it is an underlying issue affecting the parties’ attitudes to parenting orders. If these are relevant matters, a further advice session to discuss these matters with the client should be arranged as soon as possible and all relevant time limitations should be discussed with the client;

    2. discuss a detailed proposal to be put to the other party and in doing so provide advice in relation to:

      i. generally in relation to s60B, s60CA, s60CC and s61DA and s64B. Further, the client must be advised of consequences of an order relating to pursuant to s65DAA, s65DAC and s65DAE (see Annexure N)
      ii. the obligations created by parenting orders pursuant to s65M, s65N, s65NA and s65P
      iii. the option of entering into a parenting plan pursuant to s63DA, where to get assistance in preparing a parenting plan and what matters may be dealt with in the parenting plan pursuant to s63C.
  1. If the principal dispute concerns Property Settlement:
    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 there is a very high level of 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 to discuss these other matter with the client may be necessary and all relevant time limitations should be discussed with the client;
    2.  discuss the availability of supporting documents with the client and provide them with a list of documents to produce with the Property Preparation Form before the dispute resolution conference. If the parties own real estate, the client should obtain at least one and preferably three Market Appraisals in writing of the property or properties to attach to the Property Preparation Form (see Annexure R) for exchange with the other party before the dispute resolution conference;
    3. advise the client generally in relation to s79(4) and s75(2) of the FLAct and draw up a proposal.

Note:

INSTITUTING PROCEEDINGS AND TIME LIMITATIONS - s44 FL Act– 12 month time limitation period 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 practitioner 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

The following action is required for a family dispute resolution conference:

  1. Arrange for the client to attend for a brief interview for 15 to 30 minutes prior to the time scheduled for the family dispute resolution conference in order to bring the practitioner up to date with any recent developments between the parties or with regard to the children, to confirm the issues and concerns of the client and the Confidentiality provisions, and remind the client of the family dispute resolution conference procedure. If concerns have been raised in relation to family violence or there are other safety concerns then the practitioner should accompany their client to the conference venue rather than arrange to meet the client at the conference venue;

If the family dispute resolution conference is not to proceed then the client needs to be informed in writing.

  1. During the family dispute resolution conference the practitioner should:
    1. Allow the client to do most of the talking (some clients will request the practitioner’s assistance and may find speaking for themselves too difficult. You should encourage your client where possible to speak for themselves and prompt them if they forget to raise any relevant issues);
    2. Assist where necessary to summarise the client's concerns and proposals or supply necessary details omitted by the client;
    3. Ask for a private meeting if the client becomes distressed or otherwise requires legal advice;
    4. If the client starts to interrupt when someone else is speaking, quietly remind them that interrupting is not permitted;
    5. 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. Legal Aid implications and consequences of agreement or failure to reach agreement should also be discussed. 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;
    6. Advise the client in relation to the use and effect of a parenting plan and/or court orders.
    7. 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 to the Family Dispute Resolution Practitioner that the information is not to be disclosed.
    8. Ensure that any agreement reached is explained in detail to the client, the client understands the practical implications of the agreement and the agreement is fully understood by the client.

Note:

While a practitioner may prepare a draft proposed agreement based on their client’s instructions, this draft is not to be used at the commencement of the family dispute resolution conference to limit the process. All parties to the family dispute resolution conference are to 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 an agreement was reached by the parties but it is not intended to file Consent Orders, the practitioner is to write a letter to the client confirming the agreement and enclosing a typed copy of the agreement.

If an agreement was reached and it is intended to file Consent Orders, the practitioner is to write a letter to the client confirming this and enclosing the typed proposed Consent Orders and other relevant court – see B5 below.

If no agreement is reached, confirm this in writing with the client and provide to the client advice as to 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 with the intention of filing Consent Orders in court, aid is granted for the preparation of the orders unless advised otherwise by Legal Aid Queensland (this is part of the F1A grant of aid). A final interview with the client is required to check and sign the Consent Orders. If this is not possible, then a final letter of advice should be sent to the client enclosing the Consent Orders for signature. Refer to Part 10.4 of the FLRules in relation to Consent Orders.

Part C – Case Management Standards specific to parenting orders and property settlement

C1. Letter of introduction

The practitioner is to forward a letter to the client requesting an appointment be made and enclosing the instruction check list for completion by the client prior to interview - see Annexure E.

C2. Initial interview with client

For property matters, the practitioner should advise the client generally in relation to s72 and s79(4) of the FLAct.

For parenting issues, the practitioner should advise the client generally concerning sections of the FLAct:

s60B – objects and principles

s60CA – best interests are paramount consideration

s60CC, s61F – factors used to determine best interests

s60I & s60J – requirements for attending family dispute resolution services before court proceedings are commenced [if applicable] (see separate section – C4.)

s61DA, s65DAA, s65DAC and s65DAE – the presumption of equal shared parental responsibility and the consequences of shared or equal shared parental responsibility orders

s63DA – the option of the use of parenting plans rather than court orders (see separate section ­– C3.)

s65M – s65P – the general obligations created by parenting orders

In addition, unless the practitioner has reasonable grounds to believe that the client already has been given documents containing the following information, the practitioner is required to provide to the client the information relating to:

  1. non-court based family services and court proceedings and services prescribed by s12B
  2. services available to help with a reconciliation between the parties to a marriage prescribed by s12C [note this does not have to be provided if there is no reasonable possibility of a reconciliation]
  3. family counseling services available to assist the parties and the child or children to adjust to the consequences of Part VII orders prescribed by s12D

The practitioner should discuss with the client various options for resolution or determination and advise as to:

  • mediation including family dispute resolution services offered by Legal Aid Queensland
  • counselling
  • arbitration (if property dispute)
  • pre-action procedures [PAPs] R1.05 & Sch 1 FLRules – Checklist – Annexures H and I (Note these procedures must be complied with prior to the filing of any application in the Family Court of Australia. Some matters may be exempt from compliance.)
  • s60I and s60J apply to almost all proceedings commenced under the FLAct from 1 July 2007 – the requirements for attending family dispute resolution services should be fully discussed with the client.
  • duty of disclosure – Chp 13 FLRules and Part 14 Division 14.2 Obligation to Disclose FMCRules
  • any family violence order that is needed to be filed
  • the making of an offer to settle – s117C FLAct, Part 10.01 FLRules
  • confirm the client's understanding of cost implications as far as Legal Aid is concerned and their rights and obligations under the FLAct and FLRules – Chp 19
  • the appropriate court in which to commence proceedings.

Consideration should be given to advising the client about whether an appointment of an Independent Children’s Lawyer is likely should court proceedings be commenced. Give consideration to the facts of the case and whether they warrant such an order – RE: K (1994) FLC 92-461 and s68L & s68LA FLAct and Rule 8.02 FLRules. The role and responsibilities of the Independent Children’s Lawyer must be explained to the client and the obligations of the client must be discussed.

Instructions need to be taken to approach the other party, if this has not already occurred, to attempt to resolve the matter.

The practitioner takes instructions to prepare the court application and supporting material. [Chps 2, 4 and 5 FLRules or Part 4 FMCRules].

C3. Parenting plans

The FLAct encourages parents to make use of parenting plans to document agreements about parenting arrangements, such as with whom a child is to live, 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 (Prior to 1 July 2006 a parenting plan did not create a legal obligation unless 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. the effect of this is that if a contravention of a parenting order is alleged, it will be a sufficient defence to show that the conduct was permitted under a subsequent parenting plan;
  3. the court can only in exceptional circumstances (such as a need to protect the child from harm or likely use of coercion or duress to enter into a parenting plan), order that a parenting order may only be varied by a subsequent order of the court and not a parenting plan.

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

Grants officers will need to obtain copies/details not only of any parenting orders, but also of any parenting plans, when considering applications for aid for interim hearings. They will also need to consider if the relevant dispute resolution requirements have been complied with.

C4. Compulsory dispute resolution

The introduction of compulsory family dispute resolution before filing applications for parenting orders has been phased in over time in line with the establishment of support services such as Family Relationship Centres. The dispute resolution phases:

  • Phase 1 – From 1 July 2006 to 30 June 2007 –

Parents encouraged to attend dispute resolution with the aim of making a genuine effort to settle their parenting dispute. The current Family Court pre-action procedures (PAPS) set out in the Family Law Rules will apply and will also be extended to other courts exercising family law jurisdiction, such as the Federal Magistrates Court.

  • Phase 2 – Mid 2007 to 30 June 2008 –

Applies to applications for parenting orders where the parties have not previously made an application for a parenting order (therefore new parenting matters). A court will be unable to hear an application for a parenting order unless the applicant has filed a certificate by an accredited family dispute resolution practitioner (FDRP) about attending dispute resolution services. There are five different types of certificates that can be issued by a FDRP – that a person did not attend because they failed to attend or the other party failed to attend; that a conference was not arranged because it would not be appropriate to conduct the service; that a person did attend and all parties made a genuine effort to resolve the issues, that a person did attend but they or the other parties did not make a genuine effort to resolve the issue, and that the conference was commenced but it was terminated by the FDRP as it would not be appropriate to conduct the same.

  • Phase 3 – 1 July 2008 onwards –

Phase 2 will apply to all parenting matters.

Practitioners should be aware that under Schedule 7A of the FLRegulations, family dispute resolution practitioners (FDRPs) have a discretion to give, or not to give, their surname on a certificate and to sign, or not to sign, a certificate.

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

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

(Note – The current Family Court PAPS set out in the FLRules should continue to apply to property proceedings whenever commenced in the Family Court. The PAPS do not appear to have been extended to property proceedings commenced in the Federal Magistrates Court.)

Before filing – reasonable and genuine attempts at settlement must be made by the client – R5.03 FLRules [note the exceptions to this].

C5. Prepare documentation

Family Court

  • Application for Final Orders Initiating Application [as at 16/3/2007 this is currently being trialed by the Family Law Courts] – refer to Chps 2 & 4 FLRules
  • Application in a Case or Initiating application (interim/procedural/ancillary/ interlocutory or incidental order) – refer to Chps 2 and 5 FLRules.
  • Affidavit – setting out evidence supporting the Application in a Case or for trial, the final orders sought.
  • Consider if Notice of Abuse or Family Violence is required – Form 4 –. Consider s60K & s67Z FLAct & Part 2.3 FLRules
  • Remember to give client relevant brochures – Part 2.2 FLRules for details s12F FLAct
  • Consider who must be a party to the proceedings – Chp 6 FLRules and Part 11 FMCRules

Federal Magistrates Court

  • Initiating Application [as at 16/3/2007 this is currently being trialed by the Family Law Courts, (final and if required interim/procedural/ancillary/interlocutory or incidental order) Part 4 FMCRules
  • Affidavit – setting out evidence supporting Application
  • Consider if Notice of Abuse or Family Violence is required – Form 4 – Consider s60K & s67Z FLAct

For documents to be filed refer to Chp 2 FLRules – Tables 2.1 and 2.2; DVOs [s60CF & R2.05]

The practitioner should consider any applications that may need to be made to preserve property or in the case of children’s matters, to secure the client’s position in relation to children’s matters and obtains instructions to collect appropriate evidence to support such application. The practitioner should also consider whether subpoenas should issue and material made available in relation to the application in a case – In the FCt see Chp 15 – R15.21 FLRules for the limitation on the number of subpoenas allowed and Part 15.3 FLRules generally in relation to subpoenas. In the FMC refer to Part 15, Division 15.3 FMCRules, special note is also made to the Notice to Practitioners Brisbane Registry issued by the FMC on 31 October 2005. Annexures J and O provides some further assistance.

If the documentation is lengthy and includes an application for interim orders, the practitioner 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. Clear advice needs to be given to the client about swearing the affidavit and the implications of making false or misleading statements. [s117AB FLAct; Part 15.2 FLRules & Part 15 Division 15.4 FMCRules – Affidavits].

When taking instructions and preparing the client’s material regards should be had when parenting orders are being sought to the matters specified in Annexure N.


Special note:

should also be made of provisions of s117AB – if the court is satisfied that a party knowingly made a false allegation or statement in the proceedings, the court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings.
Attention should be given to the development of a case plan which will need to be reviewed with the client from time to time throughout the matter.

C6. Costs

There is an obligation to provide to the court and to each party a written statement of the actual costs incurred up to and including the trial. R19.04 (4) FLRules. This is a Rule not often enforced by the FCt.

Independent Children’s Lawyers (ICLs) need to be aware of the rules in the FCt and the FMC in relation to costs. FLRules Chp 19 and FMCRules Chp 1 Part 21.

If the matter is one in which costs are an issue, then strict compliance with the rules in relation to costs may be essential to obtaining an appropriate court order.

C7. Filing the documentation at court

When filing the application and supporting documents in the Family Law Courts, the practitioner should include a letter to the Registry requesting waiver of fees on the basis that the client is legally aided. A copy of the letter from LAQ confirming the grant of aid can be downloaded and printed via e-lodge.

NOTE: As of 1 July 2010, waivers do not exist in relation to an application for consent orders.

In property proceedings – once filed, reference should be had to Rules 12.02 FLRules in relation to documentation that must be exchanged prior to the first court date. Reference should also be made to the disclosure requirements in the FMC – Part 14 FMCRules.

There is yet to be provided any clear demarcation tools to determine what matters should be filed in which of the Family Law Courts. Magellan matters fall into a separate category and they discussed later in these standards. For all other matters, both courts deal with complex matters but it would seem that if a matter is likely to require an extended forensic examination of either facts or the law or the trial of the matter is likely to be extended beyond 2 to 3 days, the proceedings should be in the Family Court of Australia. These may not be apparent until the proceedings are commenced and a practitioner should be mindful that a particular matter may need to be transferred to the appropriate court at some point during the course of the proceedings.

C8. Write to client advising of date of hearing

Once the application is filed, the practitioner advises the client of the hearing date and provides an understanding of the next step involved in the process i.e. Counselling, Case Assessment Conference, Procedural Hearing, Interim Hearing, Conciliation Conference, Day 1 of Trial [Dvn 12A] for the Family Court or Trial [Family Court or FMC] and the need for the client's attendance [Chps 12 FLRules, generally a client should attend each Ct event unless excused FMC]. This information can be provided by letter or by arranging a meeting with the client. The event of course, is subject to the events that exist in the court in which the matter is listed.

The client must be advised in writing of the date for any and all of the following (as appropriate):

  • the hearing to determine interim issues
  • a Procedural Hearing/Mention
  • Case Assessment Conference
  • Conciliation Conference
  • Day 1 – Less Adversarial Proceedings [Children’s Cases Program]
  • Day 2 – Less Adversarial Proceedings [Children’s Cases Program]
  • Trial
  • Appeal listings (as they may arise).

The need for the client to attend and an explanation of the purpose of each of these court events must be provided to the client and confirmed in writing. 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. In the Family Court service of all relevant documents and brochures is required pursuant to Chps 2 & 7 FLRules. Serve all parties – Chp 6 FLRules. In the FMC – refer to Part 6 of the FMCRules.

For applications without notice in the FCt – refer to Part 5.3 FLRules.

For urgent applications in the FMC – refer to Part 5 FMCRules.

For applications relating to Maintenance, Cross-Vesting, Medical Procedures, Child Support, Nullity and Validity of Marriage or Divorce/Annulment and Passports – Refer to Part 4.2 FLRules for matters in the FCt. For such matters in the FMC refer to general provisions for applications – Part 10 How to conduct proceedings and Rules 4.08 to 4.10 from the FLRules.

When acting for the Respondent – the same processes apply but reference should be had to Chp 9 FLRules when dealing with FCt matters. In the FMC there is no distinction between applicants and respondents.

It is possible to adjourn the hearing administratively and this can be done by all parties writing to the court requesting the adjournment Part 12.5 FLRules; Rule 10.02 FMCRules – Adjournment of First Court Date.


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 or Federal Magistrate is not appropriate and all correspondence should be to the Duty Registrar, the Registrar, or the Associate of the relevant judicial officer.

C10. Hearing of interim issues

The client must be in attendance at 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 – (Family Court R5.06 FLRules & FMC – s67 FMAct).

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 upon which 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 reference should be made to the relevant evidence supporting those submissions. Reference should be made to relevant sections of the FLAct, the relevant procedural rules and appropriate case law. In particular the case of Goode & Goode [2006] FamCA 1346 needs to be considered when preparing submissions for interim hearings.

When considering submissions, regard should be had to the matter referred to in Annexure N.

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 pursuant the client’s instructions and using the terminology required by the FLAct.

At the conclusion of the Interim Hearing, directions may be made by either court for a final hearing and a practitioner 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 outcome of the hearing and their rights and obligations as a result of the orders made by court. Consider and provide advice in relation to any possible review or appeal of the decision. This advice should confirm in writing to the client the outcome of the hearing and provide in due course a sealed copy of any orders made. Inform the client of the next court event and the need for the client to attend. Review the case plan for the matter with the client.

Note Chp 10 CMG – FCt and Part 10 FMCRules.

C11. Prior to each further court event

Prior to each court event the practitioner:

  1. obtains an appropriate grant of aid to attend
  2. considers the possibility of settlement prior to the court event and the filing of consent orders
  3. advises the client as to costs pursuant to Chp 19 FLRules/Part 21 – Costs FMCRules
  4. obtains from the client all relevant documentation to be exchanged pursuant to Part 12.2 FLRules for each court event in the FCt / Part 14 – Disclosure FMCRules
  5. considers any necessary adjournment – Part 12.5 FLRules.

C12. Case Assessment Conference [CAC]

At the CAC [FCt] the practitioner advises the court of any prospects of settlement and assists in making recommendations for the future conduct of the case. Review the case plan for the matter with the client - Rule 12.03 FLRules.

C13. Procedural Hearing/Mention

At the Procedural Hearing, the practitioner advises the court fully 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 identifies all matters relevant to fulfilling the Main Purpose of the FLRules. This is appropriate practice in both the FCt Rule 12.04 FLRules and the FMC – Rule 10.01 FMCRules. Assistance is also provided to the court in determining the next appropriate court event.

Directions may be made by either court for a final hearing and a practitioner 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. Matters to consider are:

  • Is the matter ready for trial? Do other things need to occur or does time need to be allowed to have steps undertaken or progress to be made in relation to aspects of the matter e.g. 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
  • The need for expert witnesses and a conference of experts if appropriate
  • The need for a Family Report [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 practitioner must ensure that there is a grant of aid to attend this court event in the FCt. Directions will be given for the preparation of the matter for trial – Rule 12.07 FLRules and Part 10 FMCRules.

Immediately after the court event, when directions for trial are made, aid should be sought for the preparation of material for trial and attendance at any other court event prior to the final hearing. Practitioners should assess the evidence needed to assist the court in determining the issues in dispute keeping in mind the legislative framework that applies. Consideration should also be given to how to adduce that evidence before the court pursuant to the rules of evidence [as far as they apply].

C14. Child abuse cases

Pursuant to s60K FLAct when a document filed alleges 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. In both the FCt and the FMC Part 2.3 of the FLRules applies and provides a Form 4 must be filed and served. The Form 4 sets out the allegations of abuse or risk of abuse.

When these matters are raised in the material, then at a hearing for the determination of interim issues, the CAC, a procedural hearing or at any other time, consideration should be given to the appointment of Independent Children’s Lawyer s68L, RE: K (1994) FLC 92-461, the intervention of the Department of Communities (Child Safety Services) - s91B, and order for the production of documents or information from a prescribed State Authority – s69ZW and any other appropriate interim order required. The practitioner should also consider the need and suitability for further counselling in the matter.

Consideration is needed as to whether a matter should be referred to the Magellan Judge for inclusion in the list of cases to be determined using the Magellan case management system in the FCt. These cases are considered at C20. If the matter is in the FMC, consideration should be given to transferring the matter to the FCt if is considered a candidate for allocation to Magellan.

C15. Family violence cases

Pursuant to s60K when a document filed alleges family violence or risk of 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 FCt and the FMC Part 2.3 of the FLRules applies and provides for a Form 4 to be filed and served. The Form 4 sets out the allegations of family violence or risk of family violence.

C16. Matters to be considered prior to conciliation conferences – property matters

In property matters, the practitioner ensures all required documentation is exchanged 7 days prior to the Conciliation Conference. For details refer to Rule 12.05 FLRules and the Conciliation Conference Document.
At the FMC the court will make orders/directions for the preparation of the matter for a conciliation conference. Rule 10.05 FMCRules.

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.

C17. Conciliation conferences

Attendance by the client is required. FLRules – rule 12.11 and FMCRules – Rule 10.05(3). A letter should be sent to the client informing them of the date of the conciliation conference, confirming their attendance is required and setting up a meeting prior to that date to prepare.

The practitioner, with the client, should also consider all options for settlement and make a genuine effort to reach agreement about relevant matters in issue. FLRules 12.06 and FMCRules 10.05. Always consider the filing of an offer. In the FCt Rule 10.06 FLRules provides that an offer must be made within 28 days after the conciliation conference or such further time as ordered.

C18. Preparation for trial in the FMC

Once directions are made for the preparation of a matter for trial in the FMC, a request for aid must be made on behalf of the client to comply with the directions. The client should be informed of the result of that request for aid.

The filing of any material to be relied upon at trial must be filed in compliance with court’s directions. When preparing the material, give consideration to the matters referred to in Annexure N in relation to parenting arrangements, and for property proceedings those matters referred to in s72 and s79(4) of the Family Law Act.

Are the orders sought in the application/response consistent with your instructions? Do you need to file an amended application?

Affidavits – refer to FMCRules Part 15, Division 15.4

Subpoenas – refer to Part 15, Division 15.3 FMCRules. Special note is also made to the Notice to Practitioners Brisbane Registry issued by the FMC on 31 October 2005. There are limitations on the use of subpoenae.

Service of material.

Once the court documents have been filed they need to be served on all parties. In the FMC – refer to Part 6 of the FMCRules.

C19. LAT (Less Adversarial Trials) and Docket System in the Family Court

The less adversarial system of legal procedures prescribed under Division 12A of the Family Law Act and provided for in Chp 16A of the FLRules, will apply in both the courts to:

  • All parenting, child maintenance, and parentage proceedings filed after 1 July 2006 (but not Hague convention, contempt or contravention applications, applications relating to medical procedures, child support applications, or applications relating to a passport);
  • All proceedings to which the parties consent to the matter being determined in a less adversarial manner (and the court grants leave) – for example, parenting proceedings commenced before 1 July 2006 and property proceedings whenever commenced.

The FMC will incorporate the less adversarial procedures into the court’s existing case management processes (in particular the docket system).

The Family Court has established LAT as the system of case management for matters in the less adversarial stream. Matters not in that stream will be case managed in the usual manner being the Case Management system implemented in the Family Court in late 2001. With the introduction of the Docket system in the Family Court, there is very little difference between LAT and non-LAT matters. The only difference appears to be that only in LAT matters are parties required to file questionnaires, be sworn to give evidence on Day 1 and will a family consultant have been automatically appointed to a matter prior to Day 1.Parenting matters where there are serious allegations of abuse will still be dealt with in the Magellan stream in the Family Court. See separate section on Magellan Cases and Trials.

If the parties have both property and children’s proceedings before the court, the parenting proceedings may be a LAT matter either because the proceedings were commenced after 1 July 2006 or because the parties have consented to those proceedings being dealt with in the program. If the parties do not consent to the property proceedings being dealt with in the program, the court may have to consider two trials.
Interim applications will be determined in the usual manner before a matter progresses to Day 1 of LAT or Day 1 in a Judges docket. It should be noted the Family Court intends to abolish a regular Duty List process. The Family Court is expected to focus on complex matters for hearing, urgent interim applications and those matters within their exclusive jurisdiction.

Some features of LAT matters:

  • The hearing will commence on the first day of the program. The proceedings will be recorded. Pursuant to R16A.10 FLRules – the parties and the family consultant must be sworn. [note R1.12 FLRules, the Ct may dispense with compliance of any of the rules.]
  • Proceedings are less adversarial, less formal and rules kept to a minimum.
  • Greater flexibility – court able to respond to specific needs of the case as they arise, the matter may be listed for mention when necessary.
  • Less time in court – less documents, fewer witnesses.
  • Parties will see mostly the same judge and family consultant.
  • “Meetings” or appearances will be by telephone when appropriate.
  • Case is judge managed – judge decides the issues to be determined, the evidence to be called, the way the evidence is received, the subpoenas to be issued, and the manner in which the hearing is conducted.
  • Technical rules of evidence will usually not apply except when the judge decides they should apply to particular issues for special reasons.

Pathway for LAT Matters

The matters which are to progress to the LAT may be adjourned at the conclusion of a case assessment conference or an interim hearing [as may be appropriate depending on the application] to a date to be fixed for the first day of the less adversarial trial.

Day One (commencement of hearing) – The parties will have completed a questionnaire [Rule 16A.07] which is provided to the Judge. The Family Consultant will be in court on the first day to speak with the parties, provide information to the judge, assist the parties to resolve the matter and assist the Judge and the parties to identify the issues if the matter does not resolve. The Family Consultant may have seen the parties and the children prior the first day in preparation of Day 1. Parties may speak directly to the Judge even though represented. The parties will be sworn in if they are to speak for themselves. All exchanges form part of the evidence and are recorded. The issues are identified and documented. The Judge issues directions about what evidence he/she requires. The Judge may order that a Family Report be prepared by the Family Consultant [orders are usually made pursuant to s11F and s62G FLAct.]. No party may file or serve a document without leave first obtained from the Judge. Anything said or done by the parties during the hearing process in the course of receiving assistance from the Family Consultant is not privileged.

It is not envisaged that Counsel will be briefed to appear at this stage.

It is very important the client is properly prepared to speak to the Judge directly if the client elects to do so.

Day Two – Family Report if any, may be available. Cross-examination of witnesses including Family Consultant may occur. The Judge may determine discrete issues. Further directions for final stage if the matter does not resolve.

Counsel may be required at this stage, depending upon the matters to be determined at this stage. Discrete issues may have to be set down for hearing at Stage One. Careful consideration of the issues and purpose of each stage needs to be undertaken and appropriate grants of aid applied for in a timely manner.

Day Three and beyond (conclusion of hearing) – run in a fairly traditional way with more formal application of the rules of evidence, only the issues identified at Stage One which have not already been determined in the earlier stages are addressed. Counsel will normally appear at this stage. Counsel may need to be briefed with transcripts of the evidence received during the earlier stages – this may depend on availability of funding and complexity of the issues. At this stage the court does not propose to provide transcripts and the parties need to maintain appropriate notes from Days one and two.
The matter may be listed if necessary before the Judge at any stage so that problems are addressed as they arise. Some Judges will deal with procedural matters in chambers. Others will have the matter listed for mention. Care should be taken to seek a party’s consent in relation to any matters placed before the court in this manner. At all times, correspondence is to be with the Judge’s Associate and NOT the Judge directly and cc’d to the parties.

Docket System – this system of case management has been introduced into the FCt. Each Judge will run their docket in their own way to ensure the flexibility needed for the management of any particular case.

Essentially the three stages above have been adopted but there is no requirement for a questionnaire to be filed and there is no automatic involvement of the Family Consultant.

Property Matters – there is no set stage of matters for property proceedings. Once the conciliation conference has been conducted directions are made for the determination of a matter in the usual way.


Note:

At the time of writing these standards, the FCt was yet to finalise a definitive pathway for LAT matters or the Docket system.

Note the use of subpoena is governed by Rule 16A.08 FLRules and in the FMC refer to Part 15, Division 15.3 FMCRules. Special note is also made to the Notice to Practitioners Brisbane Registry issued by the FMC on 31 October 2005. See Annexure J and Annexure O. Also consider s69ZW.

C20. Magellan cases

The Family Court has a separate case management system for matters involving allegations of child sexual abuse and serious physical abuse. If such matters are commenced in the FMC, consideration should be given to transferring them to the Family Court as soon as possible. Note: s33B FLAct and s39 FMAct.

If a matter is identified by a judicial officer or the parties and the judicial officer at a conciliation conference, mention, directions hearing or interim hearing agree, as possibly 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 next 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 for the determination of interim issues and consider making directions for preparation of the matter for final hearing. If an Independent Children’s Lawyer is not already involved in the matter, consideration may be given to appointing one. Because the matter is under the control of the Judge, there may be more than one directions hearing or interim hearing, dependent upon the Judge’s directions for the involvement of an Independent Children’s Lawyer, a family consultant, expert reports, subpoenas, the filing of further material or other matters.

The role of the Independent Children’s Lawyer is not different in these proceedings. It can mean they are required to undertake additional investigations, but the general description of the role is not different.

There is a protocol with the Department of Communities (Child Safety Services) in Queensland, and in some other states for the provision of reports [Magellan Reports] providing a summary of the involvement of the Department with the family. The court may issue a request for the provision of this report or for documentation or information pursuant to s69ZW FLAct.

The final hearing of a Magellan matter is not different to a traditional trial because the issues in dispute are most likely to require a thorough forensic investigation into the allegations of abuse, the investigations undertaken if any by the Police and Department of Communities (Child Safety Services) and other matters.

Whilst the court events are similar to the traditional court events used in the Family Court, there are separate grants of aid.

C21. Property proceedings – trial

If the only issues in dispute involve Property Settlement, then directions for trial are issued by the Judge/Federal Magistrate when the matter is listed on Day one or mention following the conciliation conference. The practitioner needs to be able to confirm the issues in dispute, identify the asset pool, identify agreed values or seek directions for the appointment of a single expert to provide evidence as to valuations and be able to list the witnesses intended to called to give evidence. Directions for the proportion for trial will be determined.

C22. Further preparation for trial – both courts

Refer to Part 16.2 FLRules. When preparing for trial, the practitioner should:

  1. ensure an updated grant of aid
  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 compliance with the trial directions
  4. confirm Counsel for the trial – by letter setting out trial dates and fees payable pursuant to Legal Aid Scale of Fees
  5. issue Subpoenas - together with conduct monies (see subpoena Checklist at Annexure J and Annexure O
  6. inform witnesses of trial dates and ensure they have a copy of their affidavits or evidence, that they are available for giving evidence and arrange times for their attendance for the purposes of 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 that for some documents to be accepted you 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 subpoena to issue if necessary)
  9. comply with Rule 16.03 FLRules/Part 15 FMCRules in relation to appropriate notices regarding objections to affidavits and documents to be tendered
  10. liaise with the other parties/their legal representatives for the preparation and filing of material pursuant to court directions [e.g. a Joint Case Summary Document - refer to Chp 6.7 CMG FCt, Case Outline FMC]. (Regard should be had to the matters referred to in Annexure N)
  11. file the Summary of Argument or Case Outline in accordance with court directions.

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.

C23. Brief Counsel for trial

The practitioner 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 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 and if appropriate a draft Joint Case Summary Document and Summary of Argument/Case Outline for settling.

Instructions to Counsel 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. [e.g. previously agreed facts].

C24. Conference with Counsel

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

C25. Attend at the hearing and instruct Counsel

The practitioner should ensure all required witnesses are available for giving evidence and arrange times for their attendance for the purposes of cross examination to minimise waiting time. The practitioner 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 answer should be maintained by the instructing solicitor. As an instructing Solicitor, a practitioner should be taking careful note of the evidence to assist Counsel with their cross-examination and submissions.

A full filenote 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.

After the trial is concluded – write to the client informing them of the outcome and provide sealed copies of orders made or advising of the expected date of Judgment 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.

C26. Appeals

Following Final Judgment being delivered by the court, write to the client informing them of the orders made and Reasons for Judgment, supplying copies of both sets of documents if they are available.

Consider the appropriateness or otherwise of appeal and inform the client of their options in relation to appeals - Refer to Part X Family Law Act and Chp 22 FLRules. S20 FMAct.

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 practitioners should consult with their coordinator and the Family Law Consultant about the case for a preliminary view on the prospects of an appeal] and assist the client in completing the Legal Aid Application Form.
  3. provided legal aid funding is available to the client, the practitioner must assist the client to complete and lodge the Notice of Appeal.

Usually, a directions hearing is set for before an Appeal Court Judge 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 ultimate the matter is listed before the either a single Appeal Judge or the full court of the Family Court. 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.

Practitioners are required to instruct Counsel at the hearing of the appeal. It is best that the same solicitor 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 advising of the expected date of Judgment if known. Upon receipt of Judgment, 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 Consultant before any request for further aid is made. Ensure all accounts are finalised in a timely manner.

C27. Delays in Judgments

If at any time there is an extended and unexplained delay in receiving a Judgment, this should be brought to the attention of the Family Law Consultant. There is a protocol to be followed when chasing up an outstanding Judgment from the courts.

Part D – Case Management Standards specific to domestic violence

D1. Telephone instruction/advice

Information should be recorded when giving telephone advice as this will save the need for its repetition at a later time. The practitioner must be aware of and comply with the Best Practice Guidelines for Lawyers for working with clients who have experienced violence. A Copy of the Best Practice Guidelines are at Annexure F.

D2. Initial interview

At the initial interview with the client, the practitioner should:

Administrative and legal requirements

  1. ensure the client has the information sheet
  2. obtain full particulars of the other party, including nature of relationship and current address
  3. explain the practitioner’s role, and the limitations of that role
  4. explain the client’s role
  5. request copies of any court documentation relevant to the matter
  6. obtain a comprehensive account of the history of the relationship and of acts of domestic violence committed during that time (be as specific as possible with these instructions)
  7. obtain detailed instructions on any recent acts of domestic violence, and in particular what motivated the immediate desire to seek protection
  8. obtain instructions on why there is a likelihood that domestic violence will occur again
  9. with reference to s20 of the Domestic and Family Violence Protection Act, the practitioner should determine whether an application to the court would be likely to succeed on the basis of the instructions and information to hand (the practitioner should explain these considerations to the client, and deal with the possibility that corroborating evidence may be required)
  10. obtain information on children or other persons who may also need or wish to be included on an order as aggrieved persons (explain the requirements in this regard)
  11. obtain information on the conditions which are sought to be included on a Protection order and the need for any qualifications
  12. ascertain whether an interpreter will be required for subsequent attendances.

Non administrative or legal requirements

  1. 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
  2. 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
  3. be familiar with other needs or issues that may be addressed such as children, accommodation, counselling, financial support, property settlement and ideas of reconciliation, and be prepared to offer meaningful advice and support
  4. be focused in your approach to 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).

D3. Urgent temporary orders

If, after obtaining instructions on the history of domestic violence and the most recent incident, it becomes apparent the client is in danger of physical injury or his/her property is in danger of substantial damage (s32 requirements for ex-parte temporary order), an urgent application for a temporary protection order may be made. Obtain clear instructions on living arrangements as to whether the order will, or needs to have the effect of, evicting the respondent to the proceedings from his or her premises. Extreme care must be taken in making ex-parte applications that require such a condition as Magistrates may be reluctant to make these orders.

D4. Court procedure

A clear explanation of the application and court procedure must be given to the client. All possible options and likely outcomes of the application need to be covered.

D5. Implications of application

The practitioner should discuss the effects and implications of an application 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 should the need arise. This is especially important if there is a likelihood that there will be a reconciliation.

D6. Completion of DV 1 application form

An application in the prescribed form is completed by the client with the practitioner’s guidance and assistance. All sections are completed with special attention being given to the substantive sections, those being Nos. 13, 14 and 15 (history and recent incident of domestic violence and likelihood of recurrence). Any aggrieved persons are listed and reasons for their inclusion are also contained within Nos. 13, 14 and 15. Any weapons should be declared and the required conditions must be decided upon. Include qualifications in relation to contact, property settlement, possible reconciliation or attendance at a legal aid conference.

D7. Acting as an authorised person

Should the practitioner believe that it would be better for that person to make the application on behalf of the client, as an authorised person (s14, s60), a written authority should be obtained (see Work Instructions Manual Appendix 2). The relevant section of the application is completed. The practitioner signs the application and has it witnessed. The practitioner is required to seek the leave of the court to act as an authorised person. Any practitioner who is not admitted as a solicitor or barrister needs to appear as an authorised person and must have a written authority and seek the leave of the court.

A disadvantage of such an application, is that the contents of the application become hearsay only. It is preferable to have the client complete the application and for a practitioner to appear as an authorised person only.

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

D8. Lodging an application for mention

The application is signed and witnessed by a Justice of the Peace or Commissioner for Declarations. Six copies of the application are made and the original and four copies are filed in the Magistrates Court Registry.

A copy is retained on file and one for the client. If the matter is urgent and an ex-parte temporary order is required, the practitioner needs to ask for the matter to be listed before the next available court. If this is not the case, a mention date in approximately two weeks is obtained. Efforts are made by the Police to serve the respondent in the meantime.

D9. Service

The Police are required to serve the application on the respondent. Private service is not sufficient for an application, but can be used for an application to revoke or vary.

D10. Evidence and witnesses

These matters will only usually arise if the application for a protection order is contested and listed for hearing. Doctors’ reports evidencing injuries, previous protection orders, and statements from witnesses may be necessary to support your client's application. Witnesses to specific acts of domestic violence need to be organised well in advance and the practitioner should attempt to speak with them prior to the hearing to determine what they will be able to say.

D11. Negotiations with the respondent/solicitor

It may be appropriate for the practitioner to write to the respondent or their solicitor as to the future conduct of the case. A more detailed explanation of the allegations can be provided as well as some brief information on the legislative requirements and the likely outcome of the application. It may be prudent to confirm that an order will not be a criminal conviction, although criminal penalties apply to breaches and that qualifications allowing for contact will be included if appropriate. The procedure for consent could also be explained in case the respondent wishes to write to the court in advance and does not wish to attend in person. Undertakings may be offered by the respondent at any stage of the proceedings.

D12. 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 may be informed of your concerns.

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

D13. 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. The practitioner may negotiate with the respondent and this may result in either an undertaking to consent or an expression of a desire to contest. Either way, your 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.

D14. The application

If a respondent consents to an order, the matter will be called on and both parties will make their appearances. The Magistrate will ask what is the position of the parties, and will be told by either party 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, the aggrieved spouse gives evidence to support the application and will be subjected to cross examination. 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 (s84) however the hearings follow the usual court process and where possible evidentiary rules are upheld.

The Work Instructions Manual deals in detail with the process of the application in the courtroom.

D15. Impact of Family Law Act and parenting orders

Care should be taken to ensure that appropriate orders are made to ensure consistency between parenting orders or other order under Part VII under the FLAct [as amended to 2006] and the Domestic Violence Order.

Consideration needs to be given to Division 11 of Part VII of the FLAct.

It is important to understand the consequences of any inconsistency between the orders and to prepare any matter to address this issue. S68Q of the FLAct provides that domestic violence orders inconsistent with parenting orders or injunctions will be invalid. This must be explained to the client.

The court determining a domestic violence application [whether to make or vary such an order] may revive, vary, discharge or suspend a parenting order; a recovery order; an injunction under s68D or s114; an undertaking; a registered parenting plan or a recognisance, to the extent to which any of these provide expressly or impliedly 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 domestic violence order [final or interim] and if the court has before it material 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 domestic violence order or interim variation to a domestic violence order.
  3. The court must have regard to the purposes of Division 11 [i.e. resolve inconsistencies; ensure people are not exposed to family violence (defined under the FLACt) and to achieve the objects and principles of the FLAct.
  4. The court must have regard to the best interests of the child.
  5. The court must be satisfied it is appropriate to vary, discharge or suspend the order, injunction because the person has been exposed to or is likely to be exposed to family violence [defined under FLAct] as a result of the operation of the order or injunction.

In making the “new” parenting order, the court need not apply the following provisions of the FLAct:

  • s65C – who may apply for a parenting order
  • s65F(2) – the requirement of the parties to attend counseling
  • s60CG – the need to consider a risk of family violence [defined under FLAct]
  • s69N – the requirement to transfer proceedings
  • any provision that would otherwise make best interest of the child paramount. [note best interests are still taken into account even if not paramount – s68R (5)(b)]
  • any provision of the act or rules specified in the regulations under the FLAct.

The court also has the discretion to consider the views of the children and any provisions of the FLAct or Rules that may pursuant to the regulations no apply. [s68S(2)]

The court may dispense with any otherwise applicable Rules of Court. [s68R(3)]

If the court exercises the power when making an interim domestic violence order or an interim variation to such an order – then the revival, variation or suspension ceases to have effect at the earlier of the time the interim order stops being in force and the end of the period of 21 days starting when the interim order was made.

No appeal lies in relation to the revival, variation or suspension.

Part E – Case Management Standards specific to acting as an Independent Children’s Lawyer

Legal Aid Queensland in conjunction with private practitioners has developed Best Practice standards for Solicitors acting as an Independent Children’s Lawyer [ICL]. In addition National Legal Aid has developed Guidelines for Independent Children’s Lawyers, which are intended to provide guidance to the ICL in fulfilling his/her role. These Guidelines have been endorsed by the Family Court and the Federal Magistrates Court. All ICLs must read these documents and be familiar with them as they provide an indication of what can be expected of the ICL during the course of the matter.

The ICL must also be familiar with the Protocol that exists between the Department of Communities (Child Safety Services) [QLD] (the Department) and the Family Law Courts. This 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 has a paramount responsibility 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 having regard to all the evidence before the court.

There are positive obligations on the ICL. They are:

  1. form an independent view, based on the evidence, of what is in the best interests of the child
  2. act in relation to the proceedings in what the ICL believes to be in the best interests of the child
  3. make a submission to the court suggesting it adopt a course of action, if the ICL is satisfied that 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 courts attention
  7. endeavour to minimise the trauma to the child/ren associated with the proceedings
  8. facilitate an agreed resolution to extent it is in the best interests of the child.

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

The ICL is not obliged to disclose to the court and cannot be required to disclose to the court any information the child communicates to the ICL. They may however disclose any information communicated by the child if the ICL considers 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 – refer s68LA FLAct.

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 in-house ICLs.

Generally, the ICL must be familiar with the court’s Family Violence Policy and other relevant best practice guidelines and protocols relating to the investigation of child abuse.

Particular care needs to be taken in matters involving cross-cultural and religious issues and appropriate investigations undertaken, and where appropriate evidence placed before the court. When representing Indigenous children, the ICL should liaise with the Family Court Aboriginal and Torres Strait Islander Family Consultants or a relevant agency – with the aim being to appropriately consider the need of the child to maintain “a connection to culture” and how this can be effectively considered by the court in its determination.

Particular sensitivity should be applied when dealing with children with physical, intellectual, mental or emotional disability. Information from a treating specialist may be of assistance and appropriate liaisons should be undertaken.

The ICL must conduct the case in accordance with the Costs Protocols and Capping Restrictions pursuant to the Commonwealth Funding Guidelines.

E1. Notice of address for service and other notices

As soon as the file is received, the following must be undertaken:

  1. file & serve Notice of Address for Service – Form 8 – refer R8.02 FLRules / Rule 6.01 FMCRules
  2. inform the parties and their solicitors, by initial letters, of the appointment of the ICL, providing them with a copy of brochures prepared to explain the role of the ICL and the Family Report process, requesting they complete a questionnaire and sign relevant authorities to obtain information in relation to the family
  3. notify of funding under the Legal Aid Queensland Act and requirements for payment of costs under the Commonwealth Guidelines.

E2. 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 role of the ICL and enclose the necessary explanatory brochures and inform them that all further communication must be through their legal representative.

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

E3. Communication with a self represented litigant

All communication with a self represented party will need to be undertaken with care so as not to create the impression of bias and to ensure that the ICL remains independent, objective and focused on promoting the best interests of the children.

The other party should be advised of the fact of communications directly with the self represented litigant.

E4. Letter to Child Dispute Resolution Services

A letter should be sent to the Family Consultant [at the Family Court if one is involved in the proceedings at the time the ICL is appointed] informing them of the appointment of the ICL. The Family Consultant should be requested 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, recommendations for case management, any further counselling/therapy recommendations, details of any child abuse notifications. At no time should details of any confidential counselling be sought.

The ICL needs to be familiar with the provisions of the act concerning the role of a Family Consultant (see Part III of the FLAct).

E5. Letter to Department

Where the file indicates that the Department has been involved in the matter and a s91B Order is made, notification of the appointment of the ICL should be provided to the Department. A subpoena should be issued by the ICL to obtain the relevant documents from the Department unless an order is made under s69ZW of the FLAct. Inspection of all documents returned should be undertaken before a subpoena is issued.

Subpoenas – refer to Part 15.3 FLRules and Part 15A, Division 15.A.1 FMCRules. Special note should be made of the new procedures for seeking leave to inspect in the FMC (refer Rule 15A.13(1)) requiring the filing of a Notice to Inspect. Note also that all parties including ICLs must not issue more than 5 subpoenae in a proceedings without leave of the court (refer to Rule 15A.05).

E6. Meeting the children

It is expected that arrangements will be made, where practical and appropriate in each case, for the ICL to meet with the children. The appropriateness of such a meeting and how, when, where and with whom it will be conducted, will need to considered having regard to the need for the child to be informed of the role of the ICL, the court process, how the court will be informed of the child’s views and the information that the ICL may need to obtain in relation to the child.

The ICL cannot offer the child a confidential relationship. The child needs to be made aware of the basis of the relationship, and in particular should be advised that the court will be advised of the child’s views, though neither the court nor the ICL is bound by them.

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

The ICL has a responsibility not to become a witness in the proceedings, and care should be taken to make appropriate arrangements when meeting with children. It is suggested that meeting the children should be arranged through the Family Consultant, the Family Report Writer or other professional already involved with the children. It is not the role of the ICL 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 – refer s68LA FLAct.

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

E7. Dealing with criticism of the Independent Children’s Lawyer

An ICL may be the subject of criticism by either party. This may develop into abuse or harassment. The ICL should make clear and accurate records of any telephone conversations, limit contact by the 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. Legal Aid Queensland should be made aware of any concerns and intended actions.

If there is a letter of complaint in relation to an in-house ICL, this should be immediately referred to the Director, Family Law, Civil Justice and Advice Services.

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

E8. 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 ss69ZV & 100B FLAct and Part 15.1 FLRules, for case guardians refer to Part 6.3 FLRules & Part 11 FMCRules).

E9. Conference/telephone other parties

The ICL should talk to the solicitors for the parties 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 Order of the Court was made appointing the ICL. This may assist in providing the ICL 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 ICL should consider the appropriateness of negotiations with the parties and/or their legal representatives. A legal aid 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 should be recorded accurately and legible notes kept on the file.

E10. Contacting other witnesses

In gathering evidence, the ICL should consider obtaining information and/or reports from medical practitioners, teachers, counsellors etc. The ICL should include details of their role, the information required and how the information is intended to be used. Normally an authority from the parties is required. Refer to letters in Precedent Package to schools, doctors and the like.

It should be noted there is no confidentiality in the discussions with the ICL and the ICL must make the witnesses aware of this.

E11. Case management

The ICL is able to do anything permitted of a party pursuant to the FLRules and must comply with the FLRules and do anything required by them as if they were a party. Care needs to be taken that the ICL is also familiar with the FMCRules and that compliance is maintained with those rules.

A case plan should be developed with the assistance of the Family Report Writer and Family Consultant and reviewed by the ICL during the course of the proceedings regularly.

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 affect 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.

All documents filed must be served (Rule 7.04 FLRules & Chp 1 Part 2 and Part 6 FMCRules).

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 the ICL does not believe is the best interests of the children – then the ICL must not agree to the arrangement and the matter must be referred to the court for its consideration. The ICL must bring to the attention of the court, all those matters which caused the ICL to form the view that they could not agree to the arrangement (refer T & N unreported decision of Moore J. Nov 2003).

E12. Preparation for hearing of interim issues

Normally, this is the first court event attended by the ICL. Consideration should be given to the following in contemplation of this hearing:

  1. subpoenas – refer to Part 15.3 FLRules/Chp 1 Part 15A FMCRules - note Annexure J, Annexure O & consider s69ZW
  2. expert evidence – refer to Part 15.5 FLRules/Chp 1 Part 15A FMCRules
  3. reports from treating experts /professionals
  4. evidence of those matters relevant to the appropriate provisions of:
    • s61C – each parent has parental responsibility subject to a court order
    • s60CA – best interests are paramount consideration
    • s61DA, s65DAA, s65DAC and s65DAE – the presumption of equal shared parental responsibility and the consequences of shared or equal shared parental responsibility orders
    • s65DAB – the recent parenting plan
    • s60B – objects and principles
    • s60CC, s61F – Factors used to determine best interests
    • s60I & s60J– requirements for attending family dispute resolution services before court proceedings are commenced [if applicable]

    The ICL should also keep in mind the following sections:

    • s63DA – the option of the use of parenting plans rather than court orders
    • s65M – s65P – 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 the determination of the matter e.g. FMC/FCt [including LATS or Magellan].

At the Interim Hearing, all relevant material in the possession of the ICL should be placed before the court pursuant to the rules of evidence [as they apply – see Part VII, Division 12A FLAct]. Note the matters referred to in Annexure N.

Like other practitioners, the ICL should be prepared to make submissions about the directions the court will need to make to progress the matter and be able to inform the court about the issues, witnesses, proposed directions and length of trial. The ICL is there to ensure that the focus of the dispute remains on the relevant issues that will assist the parties to resolve, or the court determine, parenting arrangements 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 does time need to be allowed to have steps undertaken or progress to be made in relation to aspects of the matter e.g. counselling, completion of course?)
  • 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 and a conference of experts if appropriate
  • the need for a Family Report
  • speaking to proposed Counsel and confirming availability.

The determination of directions to prepare a matter for trial provides a further opportunity for settlement negotiations. The ICL must ensure that there is a grant of aid to attend this court event in the FCt. Directions will be given for the preparation of the matter for trial (refer Part 12.02 FLRules and Part 10 FMCRules).

Immediately after the court event, when directions for trial are made, aid should be sought for the preparation of material for trial 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. Consideration should also be given to how to adduce that evidence before the court pursuant to the rules of evidence [as far as they apply]. It is important to remember that it is not the role of the ICL to adduce evidence to establish the case of a party.

(Refer T and S (2001) FLC 93-086).

E13. Family Reports & other expert reports

The ICL should consider making private arrangements for the preparation of a Report or the Appointment of a Single Expert Witness (refer Part 15.5 FLRules and Part 15 FMCRules). If the matter is before the FCt and is a LAT matter, then this matter should be dealt with on the first return date (see Chp 16A FLRules).

hen considering the need for a Family Report or any other type of expert report – any special needs of the children should be considered. In addition, the ICL should be wary of obtaining unnecessary reports and exposure of the child to systems abuse. If there are already reports or there is existing information that can utilised by the court, a family report may not be necessary initially.

The ICL must comply with Part 15.5 FLRules and Part 15 FMCRules when engaging and instructing the report writer. An appropriately qualified & experienced expert should be engaged. Proper instructions should be given to the report writer. Refer to Expert Referral Document in the Precedent Package and the matters referred to in Annexure N when briefing the expert.

The ICL is not bound by the recommendations of the report writer and it should be noted that the report is one piece of the evidence. The ICL does however need to make submissions based on the evidence before the court – all of the evidence.

E14. After determination of interim issues

Where the arrangements for the children break down, the ICL should take steps to minimise the impact on the children. Matters to consider include:

  • re-listing the matter
  • application 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 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 Conference, or following an appropriate period of time, the ICL should consider the state of the evidence and determine whether there should be any further or updating Expert Evidence.

In Contravention Applications the role of the ICL is very limited. Generally, the role is not an active one. However, where the ICL considers such proceedings are detrimental to the best interests of the children, or the ICL’s presence may further the children’s best interests, they 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.

E15. Dealing with supervisors

The expectations of supervision, when time spent with a child is not supervised at a contact centre, should be explained to the proposed supervisor in detail by the ICL or the Family Report Writer. The proposed supervisor should be spoken to directly 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 fully appreciate the role and responsibility of being a supervisor. The ICL needs to use their best endeavours to ensure that 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 any 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 that the supervisor keep a diary of events surrounding supervision and confirm that 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 the responsibilities they have as a supervisor. A copy of this letter should also be provided to the parties.

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, it is usual for the centre to have their own introduction process. Each centre has its own requirements and the ICL should be familiar with the details. It is important that the centre is aware of the arrangements to give effect to the parenting orders and leave of the court may be necessary to provide the centre with all appropriate information.

E16. LAT (Less Adversarial Trials)

The less adversarial system of legal procedures prescribed under Division 12A of the Family Law Act, will apply in both the Federal Magistrates Court and the Family Court to:

  • all parenting, child maintenance, and parentage proceedings filed after 1 July 2006 (but not Hague convention, contempt or contravention applications, applications relating to medical procedures, child support applications, or applications relating to a passport)
  • all proceedings to which the parties consent to the matter being determined in a less adversarial manner (and the court grants leave) – for example, parenting proceedings commenced before 1 July 2006 and property proceedings whenever commenced.

The Federal Magistrates Court will incorporate the less adversarial procedures into the court’s existing case management processes (in particular the docket system).

The Family Court has established LAT as the system of case management for matters in the less adversarial stream. The new Docket System is very similar. Refer to section C18 of these standards. Parenting matters where there are serious allegations of abuse will still be dealt with in the Magellan stream in the Family Court. See separate section on Magellan Cases and Trials (C20).

If the parties have both property and children’s proceedings before the court, the parenting proceedings may be in LAT either because the proceedings were commenced after 1 July 2006 or because the parties have consented to those proceedings being dealt with in the program. If the parties do not consent to the property proceedings being dealt with in the program, the court may have to consider two trials.

Refer to C19 for further information.

E17. Magellan matters

Refer to C20 for further information.

E18. Preparation of material

Preparation for trial in either of the Family Law Courts has already been discussed at C18 and C19. The same standards apply to the ICL as to any other practitioner.

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

  • iIs 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 and a conference of experts if appropriate
  • the need for a family report
  • speaking to proposed Counsel and confirming date availability.

Part of the preparation for the trial needs to include a consideration of what orders should ultimately be made by the court. It is appropriate to have formed a preliminary view at the commencement of trial and consideration to matters such as ongoing involvement of counsellors is not inappropriate. For example if there is to be ongoing monitoring or assistance given to the parties and their children, s65L of the FLAct 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.

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

E19. 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. Legal Aid Queensland guidelines do not normally enable Counsel to be engaged for a hearing of the interim issues, although it is possible in exceptional circumstances.

As soon as trial dates are set and aid for the trial has been approved, 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 Legal Aid Queensland 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 of any subpoenaed material available [or summary of same], 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 pursuant to Legal Aid Scale of Fees.

E20. Costs

There is an obligation on the ICL to provide to the court and to each party a written statement of the actual costs incurred by the ICL up to and including the trial (refer Rule 19.04 (4) FLRules. This is a rule not often enforced by the FCt).

ICLs need to be aware of the rules in the FCt and the FMC in relation to costs (refer FLRules Chp 19 and FMCRules Chp 1 Part 21).

If the matter is one in which costs are an issue, then strict compliance with the rules in relation to costs may be essential to obtaining an appropriate court order.

The Commonwealth Government Guidelines contain the requirement for the recovery of the costs of the ICL in certain circumstances. Notice in relation to the Guidelines must be given to the parties when the ICL is appointed and LAQ will advise the ICL if any further steps need to be taken in relation to costs at the appropriate time.

ICLs should be mindful of the parties capacity to meet costs and 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 experts report.

E21. Trial

It is part of the duties of the ICL to provide to the court, in proper format, the views of the child and to make submissions suggesting the adoption of a course of action that is in the best interests of the child. The submissions and view of the ICL must be based on the evidence available. In the event that 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 for the ICL 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 the court and the parties with draft orders. Preparation of draft orders can assist in facilitating a resolution to some if not all of the issues in dispute.

In making submissions, the ICL should assist the court in bringing together all the threads of the case.

E22. 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 to any professional involved with the family or the police or the Department of Child Safety.

In appropriate matters, the ICL should make arrangements for the orders to be explained to the children.

E23. Delays in Judgments

If at any time there is an extended and unexplained delay in receiving a Judgment, this should be brought to the attention of the Family Law Consultant. There is a protocol to be followed when chasing up an outstanding Judgment from the courts.

E24. Appeals

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

Consideration should be given to meeting with the children to explain the appeal process.

E25. 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 (see s67ZA FLAct). The section refers to a “lawyer independently representing a child’s interests”. Elsewhere in the FLAct the ICL is referred to as the Independent Children’s Lawyer, which is a term with a special meaning. Arguably, s67ZA could relate to a lawyer receiving direct instructions from a child. In any event, if the lawyer, in whichever role, is in receipt of direct evidence of abuse of a child then they should carefully consider their position and determine if a notification to the Department is required.

Assuming the section applies to the ICL, a similar notification may be made by the ICL 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 person knows that the authority has previously been notified about the abuse or risk. If such a situation arises, a practitioner should consult the Family Law Consultant.

Whilst there is some protection given pursuant to s67ZB in relation to such a notification, it is recommended that care be taken 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 lawyer 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 witness in the proceedings.

Part F – Case Management Standards specific to acting as Separate Representative – Child Protection

F1. Acting as a Separate Representative

LAQ in conjunction with private practitioners has developed standards for solicitors who are appointed to act as a Separate Representative pursuant to the provisions of the Child Protection Act (CPA). These standards apply to both Children’s Court and Queensland Civil and Administrative Tribunal (QCAT) matters. All Separate Representatives should observe the standards as they provide an indication of what can be expected of a Separate Representative during the course of a matter. The following are recommended minimum standards of behaviour and practice and 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.

It is important to note that while the legislation provides limited guidance as to the role of the Separate Representative it does not provide any guidance as to how this role is to be performed or the powers, duties and rights of the Separate Representative.

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 Separate Representative has a paramount responsibility to act in the best interests of each of the children they represent. This responsibility carries with it a duty to act impartially, to present direct evidence to the court or QCAT about the child, the child's wishes and matters relevant to the child's welfare, to make submissions having 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 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 and in particular needs to be made aware that the court and the Separate Representative will listen to what they have to say but that neither are bound by those wishes.

It should be remembered at all times that the role of the Separate Representative relates to the proceedings presently before the court or tribunal and ultimately that role will cease. The parties, including the Department of Communities (Child Safety Services) (the Department) and the child will possibly have some ongoing involvement with each other after the role of the Separate Representative ceases. Care should be taken by the Separate Representative to ensure that good relations between the parties can be maintained after the role of the Separate Representative ceases.

F2. Conduct of separate representation files

Practitioners undertaking Separate Representation services in child protection and/or QCAT proceedings are subject to all provisions of the Service Agreement and Undertaking in relation to the conduct of these matters.

In the conduct of these matters, practitioners will no doubt utilise the services of other lawyers and support staff to assist in the running of the Separate Representative’s file. This will include assisting in:

  • gathering evidence
  • issuing subpoenas
  • attending at court for uncontested mentions and the making of previously agreed orders by consent
  • arranging appointments for assessments
  • the preparation of the case for mention, conference and hearing
  • arranging attendance of witnesses at court or the tribunal.

Any assistance must be subject to the supervision of the Separate Representative at all times.

All substantive decisions in relation to the conduct of the case and any exercise of discretion will be taken personally by the Separate Representative, or an appropriately qualified agent (i.e., 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 peruse file material
  • 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.

Subject to appropriate notice being given and appropriate staff being available the inhouse Separate Representatives are prepared to undertake town agency matters for other members of the Panel.

F3. Inhouse precedent package

Where applicable it is expected that in house practitioners will use the relevant letters and documents contained in the precedent package.

F4. Confidentiality

The Separate Representative is bound by the confidentiality provisions of the Child Protection Act 1999 and in particular s188 which provides that as a ‘receiver’ of information about another person's affairs the Separate Representative cannot give access to this information unless the disclosure is for a purpose directly related to the child's protection or welfare or is otherwise required or permitted by law.

Any provision of documentation to report writers or other experts should be accompanied by a reminder of the confidentiality provisions. Any documentation provided to report writers or other experts by the Separate Representative must be retrieved from the expert and destroyed at the conclusion of the matter.

F5. Dealing with the Department

Communications with the Department should take the same form as with any other party to the proceedings. It should also be taken into consideration that although a professional party in the proceedings, the Departmental person is unlikely to be legally represented until late in the proceedings. Particular care should be taken to accurately record the details of any conversations with Departmental officers. Where possible the Separate Representative should confirm conversations with Departmental officers in writing.

F6. Dealing with unrepresented parties

Communications with an unrepresented party should take the same form as with another legal practitioner. Particular care should be taken to accurately record the details of any conversations with the unrepresented party. The Separate Representative should consider sending a letter to the party confirming the details of the conversation.

At all times the Separate Representative should use plain English when communicating with unrepresented parties.

F7. Notice of Address for Service

Upon receipt of the file material from LAQ the Separate Representative should file a Notice of Address for Service in the relevant registry.

The Notice of Address for Service should be served on all other parties. In the case of the Department the practitioner should serve a copy of the Notice of Address for Service on both the relevant Child Safety Service Centre and also the Court Services Unit.

F8. Letters to parties and/or their legal representatives

Within five (5) days of their appointment the Separate Representative should send a letter to the parties advising their appointment and explaining the role of the Separate Representative in the proceedings. They should also enclose a copy of the relevant LAQ factsheet. If the party is unrepresented the Separate Representative may forward a Questionnaire with the initial letter to be answered by the party and returned to the Separate Representative along with blank authorities for third persons to release information to the Separate Representative.

If the party is legally represented, the initial letter will be sent to the legal representative along with a copy of the relevant LAQ factsheet. The Separate Representative may also forward to the legal representative a copy of the questionnaire and blank authorities requesting that they have their client complete them and return them to the Separate Representative.

Following on from the initial letters, the Separate Representative should talk to the solicitors or the parties, as the case may be, to determine in an informal way, if possible, any sources of information that the Separate Representative may need to contact and to gain an early insight into the attitudes of the parties and their solicitors.

In all written or verbal communications the Separate Representative should take care to adopt Plain English guidelines.

F9. Letters to the child/children

Upon their appointment the Separate Representative should consider whether it is appropriate to write to the child/children to introduce themselves and enclose copies of relevant information sheets. In deciding whether this is appropriate, the Separate Representative should take into consideration the age and ability of the child to understand, the child's knowledge of the proceedings and the reasons for the appointment of the Separate Representative.

F10. Dealing with non-parties

During the course of their appointment the Separate Representative may have reason to talk to non-parties interested in the proceedings. The Separate Representative should take into consideration that, in accordance with the legislation, these persons are not parties to the proceedings but the court may hear submissions from a member of the child's family or anyone else the court considers relevant to the proceedings and may refer them for legal advice in this regard.

The Separate Representative should accurately record the details of all conversations with non-parties and should take special care not to provide confidential information or documents to them.

F11. Dealing with other people working with the child/family

During the course of their appointment the Separate Representative may need to communicate with other people who are working with the child including counsellors, school teachers and other persons. Care should be taken in these discussions as these persons have an ongoing relationship with the child or the child's family which will outlive the involvement of the Separate Representative.

If information about these persons has initially been obtained by the Separate Representative from their perusal of the Department’s file the Separate Representative should, prior to contacting the person, notify the Department of their intention to contact the person. The Separate Representative may require the assistance of departmental personnel to obtain further information from the person or to facilitate contact with the person.

The Separate Representative 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.

F12. Attendance at the Department to inspect file

Upon their appointment 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 computer and paper file material.

Initially the Separate Representative should obtain copies of the following documents (please note this list is provided as a guide only and is not exhaustive):

  • notifications, investigations and assessments
  • SCAN minutes
  • Family Group minutes
  • any external assessments or reports e.g. medical or educational
  • child and parental strengths and needs assessments
  • copies of case notes relating to observations of contact or conversations with other professionals e.g. school or doctors
  • relevant police checks
  • carer assessments
  • case plan
  • other relevant case notes.

The Separate Representative 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 the release of the material must be approved by senior staff.

It is anticipated that after performing the physical inspection the Separate Representative will clearly tag each of the documents of which the Separate Representative requires copies.

Once the documents have been photocopied and approved those documents will be forwarded to the Separate Representative by the Child Safety Service Centre.

Over the course of the matter it may be necessary for further inspections to occur and the Separate Representative should follow the procedures outlined above in those circumstances.

Where a Separate Representative is unable, due to distance, to inspect the Departmental file they may ask the social assessment report writer to assist with the file inspection. In these circumstances the Separate Representative should inform the relevant Departmental officer the name of the person who will be undertaking the inspection and the procedure outlined above will apply to their inspection. The Child Safety Service Centre will only provide copies of the documents requested to the Separate Representative who will then need to provide the report writer with the documents received.

F13. Social assessment reports

The Separate Representative should consider whether a Social Assessment Report or other expert report is required. The Separate Representative should be wary of obtaining unnecessary reports and exposing the child to systems abuse. The Separate Representative must consider why the report is being obtained and whether in the circumstances the report is necessary.
Separate Representatives should carefully consider what type of report is required including which persons need to take part in the assessment. If the assessment is to involve the parties as well as 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 Separate Representative 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 the determination of the matter;
  • determine whether obtaining a social assessment or other report will assist the court or QCAT in its determination of:
    • the outstanding issues before the court or QCAT and
    • the orders that will best promote the best interests of the child;
  • consider whether the required report should properly be obtained by the Department, for example where the Department alleges that a parent has psychiatric issues that require an assessment then the Department should obtain and pay for that report as part of their case.

Where the Separate Representative considers that the report should be obtained as part of the Departmental case, then they should contact the Department and request them to obtain it. It is good practice to make such a request in writing and to provide a copy of the request to the Departmental Court Services Unit. Where the Department refuses to obtain the report and the Separate Representative determines that the report is necessary in determining the child’s best interests, then the Separate Representative may apply 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, then the Separate Representative may contact the Department and request financial assistance in obtaining the report. Separate Representatives should be aware that Departmental policy dictates that where the Department are contributing to the cost of the report, then the Department will usually want some input into who is to be engaged, the terms of the brief, and what material is to 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 the Separate Representative determines that a joint brief of the expert is not appropriate in the circumstances, they may apply to LAQ for payment of additional costs. Please note that such requests must be made prior to any costs being incurred.

If the Separate Representative decides to obtain a report, letters should be sent to each of the parties, including the Department, notifying them that a report will be prepared, the name of the report writer and enclosing relevant LAQ factsheets.

F14. Engaging a report writer

The Separate Representative should engage an expert having carefully considered the issues to be addressed and the qualifications and experience of the expert. In selecting an expert the Separate Representative may consult with other Separate Representatives or experts. The Separate Representative should brief the expert with a clearly completed referral including all information and documentation necessary to complete the assessment. The referral should specify the issues the expert is to address in their report whilst not fettering the assessment process of the expert. The Separate Representative should clearly mark in the brief to the expert that the material is confidential and must not be disclosed.

The Separate Representative is not bound to adopt the recommendations of the expert in submissions. The recommendations are to be considered as one part of the evidence before the court and all of the evidence must be evaluated in context.

Where an expert produces a report the report 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. In the case of the Department the Separate Representative should serve a copy of the affidavit and report on both the relevant Child Safety Service Centre and also the Court Services Unit.

F15. Meeting with the child/children

It is anticipated that the Separate Representative will meet with the child/children during the term of their appointment. Before meeting with the child consideration needs to be given as to 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 children may have on the children.

In order to protect their independence the Separate Representative should consider meeting the child away from the Departmental offices. It is best practice for the Separate Representative to avoid meeting with the child alone and thus avoid becoming a witness in the proceedings. Accordingly any meeting with the child/children 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. Any such meetings should be conducted on the basis that they are reportable.

The Separate Representative should take particular care to avoid exposing the child to a risk of systems abuse. The Separate Representative may exercise their discretion not to meet the child where they have determined that meeting with the child is not in the child’s best interests.

When meeting with a child the Separate Representative should explain their role and answer any questions that the child has about the legal process. The Separate Representative should also explain that while their role is to present the child’s wishes to the court it is ultimately the court who will make a decision about the matter.

F16. Family Group Meetings

S51L of the Child Protection Act provides that Separate Representatives attend and participate in family group meetings.

Subject to a grant of aid the Separate Representative should attend Family Group Meetings arranged by the Department during the term of the matter.

Separate Representatives should be mindful that matters discussed at Family Group Meetings are admissible in the court proceedings.

Attention should be given to the development of an appropriate case plan which reflects the parent’s capacity to engage with support, therapeutic or other services. Prior to the meeting the Separate Representative should also ascertain what assistance or support the child requires in their current placement and what interventions would be in the child’s best interests.

If an earlier case plan is in existence consideration should also be given to 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 Separate Representative may request that previous outcomes be included in the case plan with a notation that the goal has been achieved by the family.

Where a Separate Representative does not agree with case plan outcomes or actions proposed by the Department, then they should ensure their disagreement is noted in the case plan document.

Separate Representatives should take care to ensure that the goals and outcomes listed in the case plan are achievable by the family and the department and include some mechanism to measure progress in achieving the case plan goals.

Where a case plan has been reviewed, the Separate Representative should draw the Department’s attention to their obligation under s51X of the CPA to file a copy of the review report along with the revised case plan.

F17. Attending court events

The Separate Representative should attend all court events in the matter in accordance with their grant of aid.

Prior to each court event the Separate Representative should:

  1. obtain an appropriate grant of aid to attend
  2. consider the possibility of settlement prior to the court event
  3. ensure they have been served with any updating material
  4. consider whether an interim order in favour of the Department or other suitable person is necessary in the circumstances.

Where a Separate Representative is unable to attend court for a court event due to the court being in a remote area or their other court commitments, the Separate Representative should notify the court, in writing, at least five working days prior to the court mention of their inability to attend and request arrangements be made for them to take part in the court event by telephone.

Where the Separate Representative is unable to engage an agent to appear, and arrangements for them to appear by telephone have not been made, then the Separate Representative must provide detailed written submissions to the court, and copies to each of the parties, prior to the mention of the matter. These submissions should include an indication of the Separate Representative’s position in relation to any temporary orders, for example, a temporary order granting custody to the Department.

The Separate Representative must also be contactable by telephone during the time of the mention.

Subject to appropriate notice being given and appropriate staff being available the inhouse Separate Representatives are prepared to undertake town agency matters for other members of the Panel.

F18. Applications for adjournments

From time to time the Separate Representative may need to request that a matter be adjourned. The Separate Representative should only make an application for an adjournment if it is in the best interests of the child to do so bearing in mind that child protection matters should be dealt with as quickly as possible in the best interests of the child.

Where the Separate Representative intends to obtain an adjournment they should notify all parties of their intention and the reasons why the adjournment is being sought.

F19. Applications on adjournment

At each mention of the matter the Separate Representative should consider their position in relation to any temporary orders relating to the child/children, for example an order that the chief executive have interim custody of the children. The Separate Representative should be mindful of any need to secure the child’s protection during the adjournment period and whether an interim order is necessary to secure that protection.

Prior to each court event the Separate Representative should also review the current case plan and assess its appropriateness.

The Separate Representative should also consider s67 & s68 of the CPA and whether application should be made for orders for:

  1. a social assessment report
  2. medical examination or treatment of the child
  3. contact with the family during the adjournment period
  4. the convening of a family group meeting
  5. the convening of a court ordered conference.

Prior to the day of the mention the Separate Representative should make contact with the relevant court to ascertain the applicable practices and procedures in that registry, for example, in some Children’s Courts the Magistrate will require legal representatives to remain seated throughout any appearance.

On the day of the mention the Separate Representative should ensure their attendance in a timely manner. The court will need to be advised of the material upon which the Separate Representative intends to rely to support any application for interim orders or for interim orders to be discharged. The court may ask for the submissions which support the Separate Representative’s position. Reference should be made to relevant sections of the CPA and the relevant procedural rules.

When considering submissions, regard should be had to the matters referred to in ss 5, 9, 10, 59 and any other relevant sections of the CPA.

Following each interim hearing the Separate Representative 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 that copies of every order are received from the relevant registry and placed on the file.

F20. Entering into negotiations

If the Separate Representative forms a view in relation to the matter that view should be made known to the parties through their solicitors if they are represented and directly if they are not, as soon as practicable after the view is formed.

In entering into negotiations the Separate Representative should keep in mind their role to act in the best interests of the child.

In considering any settlement proposals the Separate Representative should have regard to the appropriateness of the case plan in relation to the children and whether the case plan requires amendment prior to any orders being made.

If the parties reach an agreement with which the Separate Representative is unable to agree, the matter should be referred to the court and the Separate Representative should make submissions stating their view.

F21. Court Ordered Conference

The purpose of the Court Ordered Conference is to decide the matters in dispute or to try to resolve them. The Separate Representative must, subject to a grant of legal aid, attend the Court Ordered Conference.

At the Court Ordered Conference the Separate Representative should advise the parties of their view and of any prospects of settlement. The Separate Representative should assist in making recommendations for the future conduct of the case.

At the conclusion of the conference the conference convener will prepare a written report for the Magistrate on the outcome of the conference including whether an agreement has been reached.

Where an agreement has been reached, the report will reflect the agreement and the order sought and the report is to be signed by the convener, the parties and legal representatives and placed on the court file. Separate Representatives should also sign the report and ensure they receive a copy of the report from the conference convenor.

Communications at a Court Ordered Conference are confidential and can only be used in court proceedings with the consent of all of the parties. If the Separate Representative wishes to advise the court of the content of communications at the Court Ordered Conference they should first obtain the consent of the parties.

In the event that subsequent Departmental material contains communications from the Court Ordered Conference representations should be made the Department to withdraw the material. In the event the material is not withdrawn then the Separate Representative should make an application to the court to disregard that material.

F22. Mention following the Court Ordered Conference

The matter will be mentioned again after the conclusion of the Court Ordered Conference. If an agreement has been reached then orders can be made at this mention.

Where no consent has been reached and the matter is proceeding to a contested hearing the Separate Representative should use this court event to obtain directions on the steps that need to be taken for the preparation of the matter for trial.

Things to do to prepare for the mention:

  1. Where possible develop a case theory.
  2. Prepare a plan for the trial – What are the issues? What evidence is needed to support each of the parties application? How long will it take to prepare for trial?
  3. Consider the need for expert witnesses and a social assessment report or an update to an existing report.
  4. Ascertain the review date for the current case plan and whether it will need to be reviewed prior to the trial.
  5. Consider the likely number of witnesses and the length of trial – include assessment of time for opening statements, need for further evidence in chief, cross-examination, re-examination and submissions.
  6. Speak to proposed Counsel and confirm their availability.
  7. Request a date for hearing and where possible filing directions.
  8. Consider whether the matter is complex and should be listed before a specialist Children’s Court Magistrate.

At the mention, the Separate Representative should seek directions for the preparation of the matter and filing dates for each party. The Separate Representative should seek that the Department file its material first, then the Separate Representative and ensure that sufficient time is allowed for the parents to file their material in response.

Immediately after the mention, aid should be sought on for the preparation of material for trial and attendance at the trial. Where the matter is complex aid should be sought for Counsel.

Where the matter has been listed for trial, it is suggested that the Separate Representative seek trial directions in a form similar to those set out in Annexure Q.

F23. Briefing Counsel

Having consideration to the funding policy of LAQ, Counsel may be briefed to appear for the Separate Representative at a hearing.

The Separate Representative 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 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 as to the relevance of that evidence and confirmation of fees payable pursuant to Legal Aid Scale of Fees.

F24. Conference with Counsel

The Separate Representative should arrange a conference with Counsel as early as practicable.

F25. 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 are 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 Court Coordinator in the local Child Safety Service Centre in conjunction with the relevant departmental officer in the Court Services Unit. The Separate Representative should liaise with those officers and any legal representatives of the parents with regard to preparation of the matter for trial.

F26. Evidence and witnesses

These matters will only usually arise if the application for a protection order is contested and listed for hearing. Doctors' reports evidencing injuries, previous protection orders, and statements from witnesses may be necessary to support the party’s competing applications. Witnesses will need to be organised well in advance. Where the Separate Representative is calling a witness they should attempt to provide that evidence to the court by way of affidavit material filed and served on the parties.

If the Separate Representative is seeking an alternative child protection order to that sought by the Department attention should be given to the development of an appropriate case plan which reflects the order sought by the Separate Representative.

The Separate Representative should serve all parties with their material. In the case of the Department the Separate Representative should serve any material on both the relevant Child Safety Service Centre and also the Court Services Unit.

The Separate Representative should ensure that the parties call all the relevant witnesses to ensure that the matter can be determined in the child’s best interests. Where both parties refuse to call a relevant witness the Separate Representative should consider calling that witness on behalf of the Separate Representative.

Where the Separate Representative is calling a witness it is their responsibility to ensure the witnesses’ attendance at the hearing.

It is the role of the Separate Representative to test the case of each of the parties at trial. In this regard it would be normal practice for the Separate Representative to cross examine all relevant witnesses regardless of whose case they are called in.

F27. 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.

F28. Preparation for trial

When preparing for trial, the Separate Representative should:

  1. ensure an updated grant of aid
  2. confirm Counsel for the trial – by letter setting out trial dates and fees payable pursuant to Legal Aid Scale of Fees
  3. issue Subpoenas – together with conduct monies
  4. inspect any material returned under subpoena on behalf of the other parties
  5. inspect the Departmental file in its entirety
  6. inform witnesses of trial dates and ensure they have a copy of their affidavits or evidence, that they are available for giving evidence and arrange times for their attendance for the purposes of cross examination to minimise waiting time
  7. prepare objections to affidavits and documents to be tendered
  8. liaise with the other parties/their practitioners for the preparation and filing of material in accordance with court directions
  9. consider whether the matter is an appropriate matter to be dealt with on the papers for eg harm is admitted, the appropriate type of order has been agreed and the only issue in dispute is the length of the order
  10. consider meeting with the child to advise them of the trial, how the trial will be conducted and the evidence that the Separate Representative will place before the court about the child’s wishes.

F29. Trials

The role of the Separate Representative at the hearing includes:

  • to test the evidence of the parties and their witnesses by cross examination
  • to ensure all relevant evidence as to the welfare of the child is before the court
  • to present the views and wishes of the child where they are able to be ascertained
  • to facilitate negotiations wherever it is appropriate
  • 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, in the opinion of the Separate Representative, are in the best interests of the child.

F30. Attend the trial and instruct Counsel

While s105 of the CPA gives the court the ability to dispense with the rules of evidence the hearing of any contested matter in the Children’s Court will normally follow the usual course of litigation. In this regard Separate Representatives should ensure that the Department presents its’ case first and that during the proceedings objections to evidence are made in the usual way and in accordance with the accepted rules of evidence. The Magistrate can then indicate when the rules are to be dispensed with.

The Separate Representative should take accurate records of the proceedings including witness names and times of hearing. It is also recommended that during the course of the trial an adequate summary of questions and answers be maintained.

The Separate Representative is personally responsible for instructions to Counsel during the course of the proceedings.

F31. Appeals

Where a Separate Representative is served with a Notice of Appeal, an Application for Legal Aid should be forwarded to Legal Aid Queensland with sufficient information so that the merits of any appeal can be assessed.

F32. Provision of information to the child

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

Where the Separate Representative deems it is appropriate they should consider how best to communicate this information to the child taking into consideration the child's age and ability to understand. In this regard it would be best practice for the Separate Representative to meet with the child in the presence of the report writer who can assist in the event that the child is unhappy with the outcome.

Where an order is made it may also be appropriate for the Separate Representative to provide information to the child on the child's rights in care and the standards of care that should be provided to the child by the Department.

  1. Where appropriate the Separate Representative should also inform the child/children of their rights to commence proceedings in QCAT and provide an indication of which departmental decisions are open to review.

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

Where the Separate Representative becomes aware that 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 the Separate Representative should bring these matters to the attention of the Department and, if they consider it appropriate, also to the attention of the child.

F33. Completion of the Separate Representative's role

The Separate Representative's role ends upon completion of the proceedings. If an application for appeal is lodged this may be upon the final determination of the appeal matter.

In exceptional circumstances a Separate Representative may be asked by the Department and the other parties to attend a further Family Group Meeting after the conclusion of proceedings. In those instances the Separate Representative should provide Legal Aid with sufficient information to determine the merits of funding any ongoing involvement of the Separate Representative.

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

Part G – Case Management Standards specific to Child Protection

G1. Telephone instruction/advice

Information should be recorded when giving telephone advice as this will save the need for its repetition at a later time. The practitioner must be aware of and comply with the Best Practice Guidelines for Lawyers for working with clients who have experienced violence. A Copy of the Best Practice Guidelines are at Annexure F.

G2. Letter of introduction

Upon receipt of a relevant grant of aid the practitioner is to forward a letter to the client requesting an appointment be made.

G3. Initial interview

At the initial interview with the client, the practitioner should:

Administrative and legal requirements

  1. ensure the client has the information sheet (Annexure A)
  2. obtain full particulars of any other parties, including the nature of relationship, their dates of birth and current address
  3. obtain full particulars of the Child Safety Service Centre involved with the client including details of the relevant Child Safety Officer
  4. explain the practitioner'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 Children’s Court or QCAT and request copies of any documentation relevant to the matter
  7. obtain a comprehensive account of the history of the intervention by the Department 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. obtain instructions on any actions the client has taken to address the protective concerns
  10. obtain information on where the child/children are currently placed and whether there are any alternative placement options
  11. ascertain whether the client or the child/children are Indigenous and whether a recognised entity is involved in the matter
  12. ascertain whether there is a current case plan in place in relation to the child/children
  13. ascertain whether there is an upcoming Family Group Meeting or Court Ordered Conference
  14. ascertain whether a separate representative has been appointed in relation to the child/children
  15. ascertain whether an interpreter will be required for subsequent attendances.

Non administrative or legal requirements

  1. 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
  2. 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
  3. 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
  4. be focused in your approach to 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)
  5. in all written or verbal communications the practitioner should take care to adopt the Plain English guidelines.

G4. Inhouse precedent package

Where applicable it is expected that in house practitioners will use the relevant letters and documents contained in the precedent package.

G5. Completion of notice of Address for Service

If there are current proceedings on foot the practitioner should file a Notice of Address for Service in the relevant Children’s Court registry.

The Notice of Address for Service should be served on all other parties. In the case of the Department, the practitioner should serve a copy of the Notice of Address for Service on both the relevant Child Safety Service Centre and also the Court Services Unit.

G6. Dealing with the Department

Communications with the Department should take the same form as with another party to the proceedings. It should also be taken into consideration that although a professional party in the proceedings, the Departmental person is unlikely to be legally represented until late in the proceedings. Particular care should be taken to accurately record the details of any conversations with the nominated officer or other Departmental person. The practitioner should consider confirming conversations with departmental officers in writing.

G7. Dealing with unrepresented parties

Communications with an unrepresented party should take the same form as with another legal practitioner. Particular care should be taken to accurately record the details of any conversations with the unrepresented party. The practitioner should consider sending a letter to the party confirming the details of the conversation.

G8. Family Group Meetings

S51L of the Child Protection Act (CPA) provides that parents may have a support person attend and participate in family group meeting on their behalf and that legal representatives can act in this role.

Subject to a grant of aid the practitioner should attend Family Group Meetings arranged by the Department during the term of the matter. Practitioners should alert their clients to the possibility of the practitioner attending Family Group Meetings with them and should encourage clients to provide the practitioner of notice of any Family Group Meetings. Family Group Meetings are used to provide families with information about the child and to negotiate the matters in dispute.

Practitioners should be mindful that matters discussed at Family Group Meetings are admissible in the court proceedings.

Attention should be given to the development of an appropriate case plan which reflects the client’s capacity to engage with support, therapeutic or other services. If an earlier case plan is in existence consideration should also be given to the outcomes and goals which have already been achieved by the client and which do not need to be included in the new case plan. The practitioner may request that previous outcomes be included in the case plan with a notation that the goal has been achieved by the client.

Where a practitioner or the client does not agree with outcomes or actions proposed by the Department then they should ask the departmental staff to note that disagreement in the case plan document.

Practitioners should take care to ensure that the goals and outcomes listed in the case plan are achievable by the client and include some mechanism to measure the client’s progress in achieving the case plan goals for example instead of an outcome which says the client will submit to drug testing the practitioner should push for an outcome which can be measured i.e. 5 clear drug tests in a 3 month period.

G9. Prior to each further court event

Prior to each court event the practitioner should:

  1. obtain an appropriate grant of aid to attend
  2. consider the possibility of settlement prior to the court event, consider the possibility of the client making no objection to the making of the order and consider filing a consent to the proposed order where appropriate
  3. obtain from the client all relevant documentation
  4. consider any necessary adjournment
  5. consider whether or not an interim order in favour of the Department or other suitable person is necessary in the circumstances.

G10. Attending mentions

The legal practitioner should attend all court mentions of the matter in accordance with their grant of aid. If a practitioner is unable to attend court for a mention due to the court being in a remote area, the practitioner should notify the court, in writing, at least five working days prior to the court mention of their inability to attend and request arrangements be made for them to take part in the mention by telephone. If these arrangements are unable to be made, the practitioner must provide detailed written submissions to the court, and copies to each of the parties, prior to the mention of the matter. These submissions should include a reference to whether the client is agreeable to any interim orders in favour of the Department or other suitable person. The practitioner must also be contactable by telephone during the time of the mention.

G11. Applications for adjournments

From time to time the legal practitioner may need to request that a matter be adjourned. The legal practitioner should only make application for an adjournment if it is necessary for the efficient conduct in the case. The legal practitioner must be mindful that child protection matters should be dealt with as quickly as possible in the best interests of the child.

G12. Applications on adjournment

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

In considering such an application the practitioner should be mindful of any need to secure the child’s protection during the adjournment period and whether an interim order is necessary to ensure the child’s safety.

In the event that additional material in support of the client’s position is available the practitioner should ensure that this material is placed before the court by way of affidavit and that the affidavit material is filed and served on all parties prior to the mention date. In the case of the Department, the practitioner should serve copies of the affidavit material on both the relevant Child Safety Service Centre and also the Court Services Unit.

The practitioner should also consider s67 & s68 of the CPA and whether application should be made for orders for:

  1. a social assessment report
  2. medical examination or treatment of the child
  3. contact with the family during the adjournment period
  4. the convening of a family group meeting
  5. the convening of a court ordered conference
  6. the appointment of a separate representative.

Consideration should be given to an order for the appointment of a separate representative if the facts of the case warrant such an order, if the matter is to be contested or if the Department are applying for a long term guardianship order in relation to the child/children. The role & responsibilities of the separate representative must be explained to the client and the obligations of the client must be discussed with them.

Prior to the day of the mention the practitioner should make contact with the relevant court to ascertain the applicable practices and procedures in that registry, for example, in some Children’s Courts the Magistrate will require legal representatives to remain seated throughout any appearance.

On the day of the hearing, ensure attendance in a timely manner. The court will need to be advised of the material upon which the practitioner intends to rely to support their client’s application. The practitioner will also be asked for the submissions which support their client’s case. In this regard reference should be made to relevant sections of the CPA, relevant procedural rules and any material which has been filed in the matter.

When considering submissions, regard should be had to the matters referred to in ss 5, 9, 10, 59 and any other relevant sections of the CPA.

Following each mention the practitioner should advise the client in writing of the outcome and their rights and obligations as a result of any orders made by the court. The practitioner should also consider and provide advice in relation to any possible review or appeal of the decision. This advice should be confirmed in writing to the client and this advice should also advise of the next court date and the need for the client to attend. In due course the practitioner should provide the client with a sealed copy of any orders made.

The practitioner should ensure that copies of every order are received from the relevant registry and placed on their file.

G13. Consents and instructions

If the client makes a decision to consent to the proposed child protection order the practitioner should obtain the client's signed, dated and witnessed consent to the order. The practitioner 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 rights of election and rights generally.

G14. Court Ordered Conference

The purpose of the Court Ordered Conference is to decide the matters in dispute and to try to resolve them. The practitioner must, subject to a grant of legal aid, attend the Court Ordered Conference. At the discretion of the conference convenor the client may also have a support person in attendance.

At the Court Ordered Conference the practitioner should advise the parties of any prospects of settlement and assist in making recommendations for the future conduct of the case.

At the conclusion of the conference the convener will prepare a written report for the Magistrate on the outcome of the conference. This report is signed by the convener, the parties and legal representatives and placed on the court file. Practitioners should ensure they receive a copy of the report from the conference convenor.

Communications at a Court Ordered Conference are confidential and can only be used in court proceedings with the consent of all of the parties. If the practitioner wishes to advise the court of the content of communications at the Court Ordered Conference they should first obtain the consent of the relevant departmental officers and the separate representative if one has been appointed.

In the event that subsequent departmental material contains communications from the Court Ordered Conference representations should be made the Department that the affidavit material be withdrawn. In the event the material is not withdrawn then the practitioner should make an application to the court to disregard that material.

G15. Mention following the Court Ordered Conference

The matter will be mentioned again after the conclusion of the court ordered conference. The practitioner should use this court event to obtain orders by consent where this is possible.

In the event that the matter is contested the practitioner should use this mention to obtain directions for the preparation of the matter for trial.

Things to do to prepare for the mention:

  1. letter to client to inform of mention date, request their attendance and explain the relevance of this court event
  2. prepare a plan for the trial – What are the client’s instructions? What evidence is needed to support their application? How long will it take to prepare for trial? What experts are needed?
  3. review the current case plan with the client and assess the evidence needed to support the client’s case and how to get that evidence before the court
  4. ascertain whether the case plan has been filed by the Department
  5. ascertain the review date for the current case plan and whether the case plan will still be current at the time of the trial or whether it needs to be reviewed
  6. consider whether the matter is ready to proceed to trial
  7. consider the likely number of witnesses and the length of trial – include assessment of time for opening statements, need for further evidence in chief, cross-examination, re-examination and submissions
  8. the need for expert witnesses and a social assessment report or an update to an existing report
  9. speak to proposed Counsel and confirm date availability
  10. canvass options for settlement
  11. if the matter cannot be resolved request that it be set down for hearing
  12. consider whether the matter is complex and should be listed before a specialist Children’s Court Magistrate.

At the mention, the practitioner should seek directions for the preparation of the matter and filing dates for each party. The practitioner should seek that the Department file its material first and ensure that sufficient time is allowed for the client to file their material in response.

Immediately after the mention, aid should be sought on behalf of the client for the preparation of material for trial and attendance at the trial.

G16. Write to client advising of date of trial

Once a trial date has been obtained the practitioner should write to the client advising the trial dates and also any relevant timetable for the filing of material. The need for the client to attend and an explanation of any filing dates be provided to the client and confirmed in writing.

G17. Briefing counsel

Having consideration to the funding policy of LAQ, Counsel may be briefed to appear for complex matters.

G18. 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.

Officially 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 the relevant departmental officer in the Court Services Unit. The practitioner should liaise directly with those officers with regard to preparation of the matter for trial.

G19. Evidence and witnesses

Where a matter is contested evidence should be gathered and presented to the court by way of affidavit. Doctors' reports evidencing injuries, previous protection orders, and statements from witnesses may be necessary to support the client's application. Witnesses will need to be organised well in advance and the practitioner should attempt to speak with them prior to the hearing to determine what they will be able to say.

Witness’ evidence should be provided to the court by way of affidavit and filed and served on the parties. In the case of the Department the practitioner should serve copies of the affidavit material on both the relevant Child Safety Service Centre and also the Court Services Unit.

If the client’s affidavit is lengthy the practitioner should prepare the material 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.

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

If the client is seeking an alternative child protection order to that sought by the Department attention should be given to the development of an appropriate case plan which reflects the order sought by the client.

Practitioners should make endeavors for the Department to provide them with copies of the Departmental file material. The Department maintains both a paper file and an electronic file and practitioners should seek access to the documents contained on both parts of the file.

Where the Department refuses access to the file the practitioner should subpoena it.

G20. 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 problems at the earliest opportunity.

G21. 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 may be informed of your concerns.

Check the client understands the procedure for the court attendance and is advised correctly in relation to the need to bring other witnesses or documentation. Allow for sufficient time to confer with your client and with the Department prior to court.

G22. Preparation for trial

When preparing for trial, the practitioner should:

  1. ensure an updated grant of aid
  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. confirm Counsel for the trial – by letter setting out trial dates and fees payable pursuant to Legal Aid Scale of Fees
  4. issue Subpoenas - together with conduct monies
  5. inspect any material returned under subpoena on behalf of the other parties
  6. inform witnesses of trial dates and ensure they have a copy of their affidavits or evidence, that they are available for giving evidence and arrange times for their attendance for the purposes of cross examination to minimise waiting time
  7. prepare objections to affidavits and documents to be tendered
  8. advise the other parties which of their witnesses are required for cross examination
  9. liaise with the other parties/their practitioners for the preparation and filing pursuant to court directions
  10. consider whether the matter is an appropriate matter to be dealt with on the papers for e.g. harm is admitted, the appropriate type of order has been agreed and the only issue in dispute is the length of the order and this could be dealt with by way of submissions.

G23. Brief Counsel for trial

The practitioner 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] and copies of all relevant Departmental material.

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, 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.

G24. Conference with Counsel

The practitioner should consider the appropriateness of conferences with Counsel and arrange conferences with Counsel and the client as early as practicable.

G25. The court process

The practitioner should shield the client from any unnecessary conflict, or even contact with departmental officers if appropriate. The practitioner may negotiate with departmental officers and this may result in either a consent or an expression of a desire to contest. The practitioner should explain the negotiations to the client at all times and ensure that the client's position is not compromised in any way. Practitioners must seek instructions before agreeing to any orders.

The client should be prepared for the trial process including preparation for the giving of evidence and also cross examination.

G26. Attend at the hearing and instructing Counsel

While s105 of the CPA gives the court the ability to dispense with the rules of evidence the hearing of any contested matter should still follow the normal course of litigation. In this regard practitioners should ensure that the Department presents its case first and that during the proceedings objections to evidence are made in the usual way and in accordance with the accepted rules of evidence. The Magistrate can then indicate when the rules are to be dispensed with.

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

G27. Appeals

In every case the practitioner should consider whether an appeal should be lodged. If the practitioner considers an appeal should be lodged they must discuss this option with the client. If a client wishes to appeal the practitioner should examine the merit and make a determination as to whether grounds of appeal exist.

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

If the appeal is meritorious the practitioner must assist the client to complete and lodge the Notice of Appeal and the Legal Aid Application Form. An Application for Legal Aid should be forwarded to Legal Aid Queensland with sufficient information so that the merits of any appeal can be assessed.

Inhouse practitioners must consult with their coordinator or the Family Law Consultant about the merits of the case before making an application for aid to appeal.

If an appeal is considered appropriate the practitioner should:

  1. take instructions from the client
  2. advise the client of the appeal process and possible outcomes
  3. seek a grant of aid for obtaining an advice on appeal and assist the client in completing the Legal Aid Application Form
  4. assist the client to complete and lodge the Notice of Appeal.

G28. Client care at the conclusion of the matter

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

Where a child protection order has been made, the practitioner should advise the client and confirm in writing their rights concerning proceedings in QCAT. In this regard the practitioner should provide an indication of which departmental decisions are open to review in that forum i.e.

  1. decisions in relation to a supervision matter sated in a child protection order (s78 CPA)
  2. decisions about placement of the child (s86(2) CPA)
  3. a decision to withhold information from the parents about the child (s86(4) CPA)
  4. restrictions on contact between the parent and the child (s87(2) CPA).

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

At the conclusion of the matter the practitioner should ensure all accounts are finalised in a timely manner.

Part H – Case Management Standards specific to Arbitration

H1. Letter of introduction

The practitioner should forward a letter to the client requesting an appointment be made within 7 days of notice that a grant of aid has issued for arbitration.

H2. Initial interview with client

The practitioner should advise the client generally in relation to sections 13, 72, 75, 79(4) and 90 of the Family Law Act relating to arbitration. The practitioner should advise the client what type of documentation will be required by the client for the arbitration process. The practitioner should advise the client of the process involved in the arbitration and advise of settlement options. The practitioner should have the client sign the Agreement to Arbitrate and return it to Legal Aid Queensland within 7 days of receipt of the Arbitration Pack.

H3. Documentation

The practitioner is to return to Legal Aid Queensland within 28 days of receipt of the Arbitration Pack, the Arbitration Statement in triplicate signed by the client. The practitioner is to return to Legal Aid Queensland a Response to Arbitration Statement in triplicate within 14 days receipt of the other party’s Arbitration Statement. The Response to Arbitration Statement is necessary as it provides the opportunity to elect not to deliver oral submissions and assists in identifying issues or facts that are agreed or still in dispute. If these documents are voluminous, the practitioner may prepare them in draft and forward them to the client for perusal with a letter requesting that they arrange a further appointment for signature and advise of any changes to that appointment.

H4. Post award

The practitioner should forward a letter to the client requesting an appointment when the Arbitral Award is delivered to the practitioner. The practitioner should also prepare the Application for Consent Orders, to be signed by the client at this meeting. At the interview the practitioner is to explain the terms of the award to the client and answer any queries the client may have in relation to the award, and obtain from the client a copy of the marriage certificate. Where the other party refuses to sign consent orders the practitioner should also advise the client of the procedure necessary to seek registration of the award.

H5. Review process

The practitioner should consider the appropriateness of any award which has been made. If appropriate the practitioner should advise the client of options available to review that arbitral award.

Annexures

  1. Client Information Sheet (PDF, 63 KB)
  2. Case Management Checklist – Family Law Practice (PDF, 67 KB)
  3. Guidelines for working with interpreters (PDF, 126 KB)
  4. Legal Aid Family Dispute Resolution Conference Supporting Documents (PDF, 60 KB)
  5. Legal Aid Family Dispute Resolution Conference Client Instruction Checklist – parenting orders/property (PDF, 68 KB)
  6. Best Practice Guidelines for lawyers working with clients who have experienced domestic and family violence
  7. Legal Aid Family Dispute Resolution Solicitor Conference Assessment Sheet (PDF, 70 KB)
  8. Pre Action Procedure Checklist – Financial Matters (PDF, 67 KB)
  9. Pre Action Procedure Checklist – Parenting Matters (PDF, 67 KB)
  10. Subpoena Checklist – Family Court of Australia (PDF, 64 KB)
  11. Request for DNA Parentage Testing (PDF, 63 KB)
  12. Child Support Checklist (PDF, 63 KB)
  13. Advice Checklist (PDF, 80 KB)
  14. Factors relevant in determining parenting orders – Part VII Family Law Act (PDF, 70 KB)
  15. Subpoena Checklist – Federal Magistrates Court of Australia (PDF, 60 KB)
  16. Best Practice Guidelines for lawyers providing legal services to Aboriginal and Torres Strait Islander clients (PDF, 358 KB)
  17. Suggested trial directions – Children’s Court (PDF, 59 KB)
  18. Family Dispute Resolution Conference – Preparation Form (Property) (PDF, 77 KB)


Last modified: 25 October 2012 3:47PM
Page Contact:

Copyright | Disclaimer | Privacy | Access keys | Other languages
© Legal Aid Queensland 2006

Case Management Standards - family law