Guide for an Independent Children’s Lawyer in the Evatt List

 

1.    Introduction and purpose

2.    Risk screening

3.    Family DOORS Triage

4.    The Evatt List team

5.    The pathway for Evatt List matters

6.    ICL appointment in an Evatt List case

7.    ICL involvement in an Evatt List case

8.    The first Court event

9.    Trial directions

10.   The compliance check

11.   The trial

12.   Safety planning at Court

13.   Further practice information

14.   Communications in an Evatt List case

15.   Enquiries and contact information

16.   Commonwealth Courts Portal

 

1. Introduction and purpose

1.1 This Guide summarises the involvement and role of an Independent Children’s Lawyer (ICL) in the Evatt List, which is a specialist list established in the Federal Circuit and Family Court of Australia to resolve high risk matters.

1.2 The Evatt List is being trialled in the following registries:

  • Adelaide
  • Brisbane, and
  • Parramatta.

1.3 The Evatt List has been created to ensure that families who are the most vulnerable are provided with appropriate resources and support which aims to strengthen safety and wellbeing. It is a case management system that responds to the particular needs of the family as efficiently and effectively as possible to minimise the risk of further trauma and harm to the family.

1.4 The Evatt List is a specialised case management pathway for cases where the application to the Court is for parenting orders only. It does not include:

  • cases where parenting and property orders are sought together
  • child support cases
  • child maintenance cases, or
  • contravention applications.

1.5 In order to be referred to the Evatt List, at least one of the parties to the proceedings must:

  • complete an online risk screen questionnaire called ‘Family DOORS Triage’, and
  • return as ‘high risk’ through the Family DOORS Triage screening process.

An Evatt List Judicial Registrar will review the case and determine whether it is appropriate for the Evatt List.

1.6 The aim of the Evatt List is to have a case finalised within nine to 12 months of initial filing.

1.7 Nothing in this Guide affects the Court’s discretion to conduct the list in a manner it considers appropriate.

1.8 Amendments will appear on the Guide as appropriate. ICL’s should check the website for the current version of the Guide.

2. Risk screening

2.1 The Court, in conjunction with Relationships Australia, South Australia and Professor Jennifer McIntosh, has developed a bespoke universal risk screening tool called Family DOORS Triage for use within the Court. DOORS stands for ‘Detection Of Overall Risk Screen’.

2.2 Based on Family Law DOORS, Family DOORS Triage is an evidence based universal screening framework developed to assist with detection of risk and support the development of tailored responses. Court users filing or responding to a family law parenting only application at one of the pilot registries will be asked to complete an online risk screening questionnaire – Family DOORS Triage.

2.3 The questionnaire is completely voluntary, however at the earliest stages of a matter, the party/ies are encouraged by the Court to undertake the screening on several occasions. The responses to the screen will be used by the Court’s Family Counsellors (Court Child Experts acting in the role of Family Counsellors) to assess the steps needed upon completion of the questionnaire. However, the other party will not gain access to the answers. Furthermore, the answers cannot be used as evidence in Court.

3. Family DOORS Triage

3.1 After a client completes the Family DOORS Triage, a dedicated team within the Court will triage cases according to their identified level of risk. The team will include Family DOORS Triage Family Counsellors, Judicial Registrars, Family DOORS Triage Case Coordinators and Legal Case Managers.

3.2 The Family DOORS Triage screening process will consider a range of safety risks that frequently arise in family law proceedings, including child abuse and neglect, family violence, mental health issues and drug or alcohol misuse.

3.3 Upon completion of the Family DOORS Triage, there are three possible screening outcomes, namely, low risk (‘green’ pathway), moderate risk (‘amber’ pathway) and high risk (‘red’ pathway). Those that screen as high risk will be considered for the Evatt List.

4. The Evatt List team

4.1 The leader of the Evatt List team is the Evatt List Judge. The pilot sees a ‘one Judge, one family’ model, resulting in the close oversight of an Evatt List case by the Docket Judge in each matter.

4.2 The Evatt List Judge is supported by a Senior Judicial Registrar (SJR), Evatt List Judicial Registrars, Associate to the SJR, Court Child Experts, Legal Case Manager and Case Coordinator. This Guide includes an explanation of the various events in the Evatt List and who will conduct those events. Depending upon the case, there can be changes or overlaps to who conducts the events, but ultimate management of the case belongs to the Evatt Judge.

4.3 The Evatt List Judicial Registrar will take on the primary role of managing the case from a procedural perspective and will liaise with the Evatt List Judge and SJR as needed for the appropriate ongoing management/conduct of the case. The Evatt List Judicial Registrar will conduct regular chambers events to ensure compliance with orders/directions, pursue information, obtain state Court files and liaise with the Court Children’s Service, as and when required.

5. The pathway for Evatt List matters

5.1 A broad summary of the events that will take place in the Evatt List is set out below:

Step 1 Within 3–5 days of screen

Before First Court event

The Evatt List Judicial Registrar reviews the case to confirm it is appropriate for the Evatt List.

The Evatt List Judicial Registrar may make an order for a s.62G report undertaken by Court Children’s Service and gathers any information the Court might need to make a decision, for example, documents from the Police, other Courts, or the child welfare department.

Step 2 Within 8–12 weeks

First Court event

The Judge or Senior Judicial Registrar will address any urgent issues and decide what evidence and information needs to be gathered to get the case ready for a trial.

Step 3 Within 3–6 months

Second Court event

A plan will be made for the trial and directions made to get the case ready.

This may include a specialised report being ordered by the Court.

Family Dispute Resolution might be considered if it is safe to do so.

Step 4 Within 6–9 months

Compliance check

The Evatt List Judicial Registrar will check that the evidence, any specialised report, and/or other information is filed or available to the Court in readiness for the trial.

If the case is ready, it will be referred to a trial. If it is not ready for a trial, it will be referred to the Judge.

Step 5 Within 9–12 months

Trial before the Judge.

6. ICL appointment in an Evatt List case

6.1 It is anticipated that an ICL will be appointed in an Evatt List case at the time it is designated as such by the Evatt List Judicial Registrar. Within five business days of a client screening as high risk in the Family DOORS Triage, a chambers listing will take place before an Evatt List Judicial Registrar in chambers. No appearances are required at this event.

6.2 The purpose of the chambers listing before the Evatt List Judicial Registrar will be to:

  • confirm whether the matter is suitable for the Evatt List
  • consider (if required) any s.60I exemption or short notice application
  • refer the matter to the Magellan Registrar (if there are allegations of sexual abuse, serious or escalating physical abuse against a subject child, or exposure of a subject child to recent, significant and/or escalating family violence resulting in serious psychological harm)
  • make directions for the filing of material in Response
  • consider orders for an ICL
  • consider what directions might be needed to gather information about the case from external sources, for example, s.69ZW orders to the state child welfare organisation and state Police, requesting files from other Courts for Family Violence/Intervention orders or related proceedings, s.91B order for the intervention of the state child welfare organisation, and filing of subpoenas
  • consider orders for a s.62G report undertaken by Court Children’s Service, and
  • list the matter for the first Court event.

6.3 There may be another chambers event before the Evatt List Judicial Registrar to check compliance with the directions made, make inspections orders, or to follow up on the information gathering process. The aim is for there to be as much independent evidence before the Court by the time the matter is listed for the first Court event so that it is meaningful and informed.

6.4 If an ICL is appointed, the Legal Case Manager will electronically send the Court documents to the relevant Legal Aid authority, along with the First Chambers order made by the Evatt List Judicial Registrar. Such order will confirm the designation of the matter to the Evatt List.

7. ICL involvement in an Evatt List case

7.1 Upon the appointment of the ICL, a Notice of Address for Service should be filed as soon as possible. Consideration should be given to, where appropriate, meeting with the child/ren upon the appointment, and before the first Court event.

7.2 Given that a s.62G report will be considered and ordered by the Evatt List Judicial Registrar at the first Chambers event, it is not anticipated that a private Family Report will be needed before the first Court event. However, it is hoped that the ICL can offer some guidance and suggestion to the Court as to the appropriate report that might be needed for the case at a final hearing. In order to meet the target time frame for a final hearing within nine to 12 months, consideration of any s.62G report will occur at the first Court event before the Evatt List Judge or Senior Judicial Registrar.

7.3 It is understood and acknowledged that each legal aid body will have different resourcing available at different times. It is anticipated however, that an ICL will consider the following:

  • inspection of material produced pursuant to any s.69ZW order
  • inspection of any state court files requested by the Evatt List Judicial Registrar
  • consideration of any subpoenas to issue to gather evidence relevant for any determination the Court must make on an interlocutory or final basis
  • meeting the child/ren
  • making contact with treating health professionals and schools
  • making enquiries with contact centres and/or supervisor’s
  • making submissions to the judicial officer at the first Court event as to the most appropriate parenting orders for the child/ren
  • considering the most appropriate report for the matter on a final basis, including any external experts report or Family Report, and
  • considering FDR options (if safe to do so).

8. The first Court event

8.1 The first Court event will likely take place before the Evatt List Judge or SJR within eight to 12 weeks of the case being designated as high risk and appropriate for the Evatt List. The parties and their lawyers are expected to attend, however, safety plans should be implemented where needed.

8.2 The procedural work of the Evatt List Judicial Registrar in the lead-up to this event is aimed at having as much information before the Court to make a decision. To minimise trauma and risk to families by repeated court attendances, it is very unlikely that the first Court event will be adjourned, and the matter will be expected to proceed on the date that it is listed.

8.3 By the first Court event, the judicial officer should have before them:

  • any information available from the Police or child welfare authority pursuant to any s.69ZW orders made by the Evatt List Judicial Registrar in chambers
  • family violence orders, and
  • a s.62G report undertaken by Court Children’s Service (preferably in writing, but orally in cases of genuine urgency).

8.4 The purpose of the first Court event will be to:

  • conduct an interim hearing to determine any Applications in a Proceeding
  • undertake case management to determine the future conduct of the case through the Evatt List, and
  • make trial directions – providing there are no outstanding Applications in a Proceeding.

8.5 To avoid any delays in the preparation of its reports by the Court Children’s Service, at the first Court event, the judicial officer will consider whether a Family Report should be ordered pursuant to s.62G of the Family Law Act 1975 (Cth).

9. Trial directions

9.1 Within three to six months of the matter being designated as an Evatt List matter, it is anticipated that trial directions will be made by either the Judge or the Senior Judicial Registrar. In doing so, the judicial officer will:

  • consider whether a single expert report should be ordered and ensure that the framing of the Orders for such report addresses the specific issues in the matter, and that the report can be prepared in a timely manner
  • make directions for the filing and serving of amended Application/Response and affidavits of evidence-in-chief
  • make a trial plan e.g. number of witnesses, days for trial
  • list the matter for a compliance check before the Evatt List Judicial Registrar
  • make any further procedural orders deemed necessary in the management of the case, and
  • consider if there are any FDR options in the matter (if safe to do so).

9.2 The parties and their lawyers are expected to attend for the trial directions (subject to any safety plan). Prior to the trial directions listing, each party will be required to complete a Trial Plan form which requires them to consider who the witnesses will be including expert witnesses, whether any witnesses will require interpreters or be coming from overseas or interstate, and the number of estimated trial days. It also requires information about the issues in dispute, any Family Violence Orders or criminal proceedings and whether a party is unrepresented or may become unrepresented (for s.102NA purposes). The Legal Case Manager will contact the parties about the completion of this form.

10. The compliance check

10.1 The compliance check will likely take place before the Evatt List Judicial Registrar approximately eight to 12 weeks after the trial directions are made or such other date as considered appropriate by the judicial officer, and subject to the likely timeframe for preparation of any experts report.

10.2 If the trial directions have been complied with, and the Family/Experts report has been released, the parties can complete and forward to the Court no later than 48 hours prior to the compliance check listing, a single form called ‘Compliance Certification’. If the Evatt List Judicial Registrar is satisfied of the compliance, and there is no change to the estimated hearing days, the compliance check may be vacated and the matter immediately referred for trial dates.

10.3 If the compliance check is still required, the Evatt Judicial Registrar will:

  • check there is compliance with the trial directions made by the Judge/SJR
  • allow one adjournment only for non-compliance. If there is no compliance on the second compliance check, the matter will be listed before the Evatt Judge for undefended hearing/further case management directions
  • consider any settlement/FDR options, particularly if the parties now have the benefit of the experts report
  • consider any costs orders for non-compliance, and
  • list the matter for trial.

11. The trial

11.1 Trials of Evatt List matters are given priority and it is hoped they can take place within nine to 12 months of the case being designated as an Evatt List matter. However, this will be subject to timeframes for preparation of reports and the parties’ compliance with the Court’s directions.

11.2 Division 12A applies to Evatt List cases however the nature of the evidence of some witnesses may fall within the exception in s.69ZT(3)(a).

12. Safety planning at Court

12.1 It is expected that the Evatt List will involve the most vulnerable and at-risk litigants. As such, it is essential that parties feel safe participating in court events.

12.2 It is paramount that any safety concerns are brought to the attention of the Court (via the Legal Case Manager) so that safety planning can be arranged for Court events throughout the Evatt List pathway. The Court will facilitate safety plans and will consider any reasonable request for attendance by electronic communication.

13. Further practice information

13.1 This Guide applies to all cases in the Evatt list.

13.2 Other practice information on cases commenced in the Federal Circuit and Family Court of Australia is available on the Court’s website.

14. Communications in an Evatt List case

14.1 When communicating with the registry about an Evatt List case, ICL’s are to put their requests in writing by eFiling the request as correspondence and emailing the Registry, copying in each other party to the proceeding, confirming that the request has been eFiled.

14.2 When emailing in an Evatt List case, it is expected that a party will:

  • address the email to the specified email address and not to the Evatt List Judicial Registrar directly
  • clearly state the Court’s file number, parties’ names, and any Court dates in the subject heading
  • provide a clear description of any attached documents in the body of the email, and
  • copy the message to all other parties (if applicable).

14.3 Any communication to the Court from a party must be about non-controversial matters and are not to be without notice to the other parties’. For any controversial matters, an Application in a Proceeding will need to be filed.

15. Enquiries and contact information

15.1 Contact details for the Court’s registries are available on the Court’s website.

16. Commonwealth Courts Portal

16.1 Filed documents in a case can be viewed by parties or those authorised by a party on the Commonwealth Courts Portal (CCP). The CCP provides web-based services for Court users to access information about cases before the Court. Parties may register for the CCP to gain access to documents which have been eFiled, as well as orders of the Court, judgments, and listing events (past or future).