Paper - ICL Practice - Focus on Court-based role

A paper concerning the education session delivered to Tasmanian family law practitioners 25 November 2022


Judge Sandra Taglieri – Division 2 FCFCOA

Justice McGuire – Division 1 FCFCOA

Kristen Wylie – Tasmania Legal Aid


JUDGE TAGLIERI: When I was appointed, I perceived there was an opportunity for the Judges of the court to provide valuable input for professional development of practitioners in relation to the Independent Children’s Lawyers’ practice. This coincided with Tasmania Legal Aid’s project for the Practice Standards and Guidelines for ICLs (“the Guidelines”), and so we saw an opportunity to address the Practice Standards in an education session, targeted at providing practical insight and guidance.

This education session is in two parts. Part 1, addressing the Guidelines, Case planning and advocacy. Part 2 of this session will involve participants forming groups to address a Case Study.

At the end of Part 1 of the session, we hope that you will have a better understanding of the Guidelines. The Guidelines are very detailed and excellent, but, finding time in your busy practice to read them, understand them, and then put them into practice is often difficult.

Justice McGuire of Division 1 of our Court has kindly made time to join us in this session. He will add his valued experience and opinions about ICL practice.

Court-related aspects of the ICL Practice Standards

MS WYLIE: Today’s session is primarily focusing on Part 5 of the Guidelines. I’m going to touch briefly on the sections that deal with conduct and some of the primary functions of the ICL role because it’s a background to the critical work of and ICL in their court-based role.

Case planning and developing a clear case concept is the most fundamental part of the ICL role, and it is essential to good advocacy, and her Honour is going to deal with this part of the role in detail.

Practice Standard 7 deals with the ICL as ‘honest broker’. As you go about your work as an ICL it’s important to honour your role as honest broker, and to consider not only whether you are conducting the role impartially and independently, but also that you are seen to be doing so.

Remember that litigants cannot see or know everything that you do, and if you are not communicating your case plan, they will make assumptions in that vacuum of information, and often they will let you know about that.

As an honest broker, you should be organised, methodical and evidence-based. You must communicate, explain, and you must actively strive to limit the scope of the dispute. A good ICL starts work on identifying the scope of the dispute very early, and then actively considers opportunities to settle or limit the issues in dispute.

Never underestimate the effectiveness of a well-timed ICL conference, and it is something that you need to be thinking about at all stages of your case: “Is this an opportunity for a conference?” and “Will a conference make a difference at this point?” Getting that timing right is crucial.

Practice Standard 8 deals with what you should do upon your appointment. In addition to the usual steps that you take upon appointment, I commend to you the questionnaire which is included in Appendix 1. The questionnaire will assist you with your case planning, particularly around what evidence you will gather. It will also help you in your assessment of risk and safety planning, and it will help you plan the child’s participation. For example, suggestions on where the child would be comfortable meeting the ICL. It is not for the ICL to make those assumptions. It is recommended you ask questions about the child’s interests, what the parent and the child like to do together, the child’s personality, and things like a fun fact or something unique about the child that the ICL should know.

Practice Standard 9 deals with risk assessment and management. Risk assessment and management is not just the Court’s job, it is your job, too. It is remains your job at every stage throughout your appointment, and the consideration of risk should be part of your case plan.  Risk assessment requires evidence to be gathered and put before the Court. It requires you to actively seek orders and make arrangements that mitigate risks to the child.

Risk is prevalent in this jurisdiction. As at the launch of the Guidelines in June 2022:

  • More than 60 per cent of matters filed in Hobart and 70 per cent of the matters filed in Launceston are mandatorily referred to Child Safety Service either due to allegations of child abuse or family violence; and
  • Allegations of child abuse are made in more than 46 per cent of matters filed in both Hobart and Launceston. 

Practice Standard 10 deals with family violence, and it is part of the risk assessment process as well.  Allegations that a child has experienced family violence are made in 52 per cent of matters in Hobart and 56 per cent of matters in Launceston.  A recent survey found that 80 per cent of Tasmania Legal Aid files included allegations of family violence.

This prevalence of family violence requires us to use a trauma-informed approach, and gathering evidence, not just about family violence itself but also the impact of that on the child and their family.  Family violence impacts the way a child, and their family, both experience and participate in proceedings.

JUDGE TAGLIERI: I observe that each practice standard is not a standalone guidance. For example, the guidance and steps that are recommended to be taken in Practice Standard 8, regarding what an ICL should do when they are appointed, are important to the case planning and evidence gathering stages which are covered by Practice Standards 12 to 14.

It is important to understand how each of these Guidelines are interrelated and operate cooperatively to ensure good practice as ICL, and to understand the overall context of the guidance. When developing a case plan for the litigation aspects of the ICL’s role, you have to start by reading all of the material, as Practice Standard 8 urges you to do. However, it is important to do it before you start to plan how you are going to run the proceedings before the Court.

The documents in this jurisdiction are filed in a chronological order and they give a logical overview of the case and how it progresses.  The Rules of Court dictate that process, and if filed documents are read in the order in which they are filed they give you a clear picture of what has commenced the dispute, what is occurring, and this gives insight into where the litigation is going. I recommend that you read all the documents on the Commonwealth Courts Portal (“the Portal”) in chronological order.

The documents will familiarise you with the subject matter of the dispute. It frames the scope of the dispute, the status of the proceedings, the agreed or disputed facts and the evidence upon which each of the parties will rely. It also familiarises you with the issues for the child when you come into the proceedings. As ICLs may be appointed at any point in the proceedings, the litigation may have been going on for a short time or a long time, it is important that you promptly gain an appreciation of any urgent issues from the child’s perspective.

I would recommend that you prepare your chronology at the same time as reading the materials. A chronology of the history of the dispute and the history of the parties is a ‘checkpoint’ and is invaluable. It enables you at any time, such has when you are asked a question in court, to look at the document and give a reliable answer to when things happened.

It is very easy when you are in practice and busy to slip into reading some documents rather than the entire record and not prepare a chronology.   However, I would strongly urge you to do so, and to continue doing it after you’ve been appointed.  Read documents as they are filed and update your chronology. The Chronology is the first part of your Case plan.

Next you need to identify how many components to your case planning there might be. That might seem like an odd statement, but there might be issues that need to be determined quickly, and so you need to develop a case plan for determining that particular issue. Then, there are broader, longer term issues for which you need a more extensive case plan.

I would recommend that you look at devising a case plan that has at least two parts. The first part is for urgent issues or interim issues and the second part, of which the first is a subset, incorporating the end goal. This step is distinguishable from Practice Standard 11 and what it contemplates. Practice Standard 11 relates to your relationship with the other parties and keeping them informed, where this case planning is purely in respect of litigation as covered in Practice Standards 12 to 14. I will call it the Litigation case plan.

In short, the litigation case plan is a strategic tool which assists you as the ICL, and assists the Court in promoting an outcome in the proceedings that is in the best interests of the child. You need to prepare it soon after your appointment and update it as litigation proceeds. It is a forensic exercise, and I want to emphasise that when you read the relevant material and prepare your chronology, soon after your appointment you need to think critically as it is the first step of the litigation case plan. Do not just accept what is written; analyse and contrast the versions of evidence in the affidavits so that you can also define the issues.

It is also an opportunity to identify whether and when to hold an ICL conference to narrow issues or reach a settlement. Work the ICL conference into your case plan,(which I will expand upon shortly, so that when you first come before the court, you can say, “Well, since my appointment, we’ve identified these issues. We’ve had an ICL conference. Now, this is not in issue, your Honour. This will be of great assistance to the court and the parties.

JUSTICE McGUIRE: The most important thing early on is to develop a strategy from the materials you have. It is important to do this because the child is not present, but your focus is on the child. For instance, you might need to develop a strategy by considering any existing reports, doctor’s reports, and child safety reports.

You have to keep a mind open to systems abuse. The parties may want the child to be examined, but it is traumatic to interview the child.  It involves the child in the process which we, fundamentally, do not want to do. So, develop a child-focused strategy. You might not need the child to be interviewed.

Consider chairing a conference at any stage of proceedings, but especially consider an early one. We know from interim hearings that a lot of matters resolve at the interim stage. There is a lot of pent up emotion in family law proceedings, and an interim hearing will often achieve a result. It steadies things, and conferences do the same. Bring yourself as the honest broker and try to move the parties away from their own self-interest in the proceedings.

You involve the child without the child being involved, but your strategy is focused on the child. You have to work out what level of involvement that you are going to have from the child. A 15-year-old might want to be practically involved: “I want to tell someone. I want to talk with the judge .....”. You have to protect the child from the emotion associated with the breakdown of their parents’ relationship.

An ICL conference is part of your strategy, and when the situation changes you can convene another one. The best result for children is when their parents are involved in the decision making rather than just delegating it to the judge. If the parties can be involved at a conference stage, they are empowered. As a result, the child benefits.

All the strategy should be focused on the child, and on the balance between quarantining them from the proceedings on the one hand and involving them, whilst protecting them emotionally, on the other.

Case planning and advocacy

JUDGE TAGLIERI: A case plan in legal proceedings is analogous to a road map. It should show the start and finish of the parenting proceedings and the best way to take the journey on the analogous road map. Like a road journey, the proceedings can be taken via different routes. Which route is taken, I suspect, is carried in an ICL’s head in many cases, but that can be problematic. You might think you have things covered and know where you are heading and how you will get there, but this carries risk that you will get lost along the way. To avoid getting lost, prepare a written case plan from soon after being engaged.

Documenting a case plan

This can be done in different ways. Some use butcher’s paper and diagrammatically set out the steps and tasks to be undertaken, others a whiteboard. My view is that these are impractical and less than ideal given the volume of cases ICL’s have. It might be suitable for Counsel, engaged at a later time in a proceedings. I recommend using a Word-format table.

The benefit of a table is that it is created and saved on a computer and can be added to or deleted, allowing for amendment of the case plan as the proceedings continue and new facts or issues emerge. The table concept also works perfectly well as it allows for chronological organisation of key facts and events, which can be utilised at later stages to assist in preparing affidavits and Case Outline documents for hearings and submissions.

Before preparing your Case plan, read all materials that have been filed by the parties, the court orders, and everything that has been electronically filed. As you go, begin documenting the chronology of the history of the dispute and the proceedings.

By reference to the chronology created in the table from the electronically filed documents, identify what are agreed facts, where in the affidavit material you have read demonstrates the agreement. This is done by notations in a separate column in your table.

The next thing to note in your case plan are key facts in dispute. So, there might be a dispute about a graphic allegation of family violence. For example, “Did the husband strangle the wife during a certain incident, and whether she was traumatised and/or the child witnesses this?” It is common to have divergent accounts about alleged family violence. You need to capture those divergent accounts in your case plan. This is because the existence of family violence is material and important to determining what parenting orders are in a child’s best interest. Being able to tell the Court where the competing evidence about such a dispute can be found assists the Court, but also enables the ICL to ascertain what can be done to assist the Court in resolving the dispute.

In yet another column in the table, identify the relevant section 60CC considerations and note forensically what the evidence read identifies about those issues. That is, is there agreement about some, and if there is dispute about others, what does the evidence say about why? Always note in the table where the evidence is found to demonstrate the agreement or dispute. This approach assists you when you are addressing the Court, enabling you to easily find passages in affidavits to support a submission such as “there is no controversy about the nature of each party’s relationship with the child” and you can refer to the judge to “paragraph X and Y of the respective affidavits”. This assists the Court enormously.

Most importantly, once you have gone through the process described and documented a case plan, you should form a preliminary view about relevant issues:

  • What, if any, risk issues are there for the child? Are there concerns about physical abuse or a sexual abuse allegation? Are there mental health or substance abuse issues relating to one or both parents?
  • How do you assess the best interests of the child based on your consideration of the s60CC factors?

Be in a position to make submissions, if required, at this juncture about what the Court must decide, whether in regards to parental responsibility, spend time with arrangements and other parenting orders.

JUSTICE McGUIRE: Be brave in forming a view. It will help the parties, and it is not a view you are stuck with forever. Don’t think, “I can never change this. I’m going to look silly”. But, just as her Honour said: on the material before you, early on, if you can form a view, then it is going to be helpful to everyone, especially the Court. 

Next stages?

JUDGE TAGLIERI:   Most importantly, once you have prepared the case plan, you should also be in a position to make forensic decisions about future conduct of your case.  I refer to this aspect of the ICL role (and any practitioner’s role) as the time to undertake a “What”, “Where”, “How” analysis.

This entails forensic enquiry and resolution of:

  • What facts or issues in dispute need to be explored and/or enquired about to assist the Court?
  • Where is evidence about the disputed facts or issues likely to be found?
  • How am I, as the ICL charged with protecting the interests of this child, going to find how to resolve the disputes in the best interests of the child, and help the judge? 

At this point of an ICL’s involvement, you might think, “I’ll just ask Judge to order a Family Report”, or, “maybe we will issue subpoenas”.

They may be good ideas, but I would urge you all to really think forensically about where the best evidence is likely to be found, meaning reliable and objective evidence and whether it can be gathered more efficiently and conveniently from other sources.

While a Family Report is exceptionally useful in some instances where there is a serious factual dispute impacting on the interests of a child, the Court Child Expert can only do so much.  If equipped only with the subjective accounts given by each parent, their views will have limited value.

So, it may be that you need to ask for a section 69ZW report, subpoenaed materials, or you may need to interview witnesses and prepare affidavit material. Witnesses might include school counsellors, teachers, medical practitioners and objective third parties that may have witnessed an alleged event on which one party places emphasis.

Independent and objective evidence will be of most assistance to the Court in resolving the disputes about facts and issues.

At this stage, build your case plan by inserting the actions to be taken after you have undertaken the “What”, “Where”, “How” analysis. Document the future actions to be taken, including if a specialist expert opinion is required and you need to seek an order for appointment of a Single Expert.

Do not automatically conclude that you need an expert report, or you need a Family Report. Think about it forensically and ensure you have a clear pathway in the case plan for future conduct of your case, in the child’s best interest and as efficiently as possible to avoid the potential trauma of the litigation that children are known to experience.

The Case plan should also document what you know about future court events, so you have a timeline to work to for completion of tasks identified at the “What”, “Where”, “How” analysis stage. This will enable you to make helpful and succinct submissions to the court when you appear about the issues and what steps are required in the conduct of the proceedings.

So for example, if a mental health assessment of a parent(s) is required – you can make a cohesive, persuasive submission at the point in time and be ready to articulate it well rather than saying, “there is a mental health risk issue, we might need this or that to assist the court”.

JUSTICE McGUIRE: Yes. I can’t emphasise the strategy enough. Don’t come into court and ask for a suite of orders. “We want this, this, this and this”. Have a strategy for your child and your factual background. You’ve got the job because of your professional skills and your experience, but you might develop, for instance, a strategy away from litigation. You might think, “We can resolve this. I will get the information.  These are two intelligent people. They’ve got a dispute. We will try and resolve it without going near courts”, or you might have to go into court quickly, such as if you’ve formed an opinion that the child’s with an abusive parent. Get in there quickly, but get the information to support it.

If you need a psychiatrist, get one. But don’t get one just because you can and because Legal Aid will pay for it. Use your experts according to how you need them. It’s all about getting a result. It’s about your professional skill and experience and that’s what you bring to the job, that focus. It’s all about the strategy.

MS WYLIE: A concern over the years is the tendency to go and get a report that’s a “burger with the lot”, instead of limiting ourselves to what are the precise forensic issues that need to be addressed by expert evidence. You may only need one or two terms of reference, but including extensive terms can be problematic. You might be able to find an expert, who’s prepared to express an opinion about those one or two terms, but not be able to find an expert, and/or the parties, or Legal Aid, not being able to afford to pay for the report.  Always have in mind doing least harm and avoid doing unnecessary examinations of anybody. We should be avoiding this and the associated costs.

McGUIRE J: Yes. And if you get an expert’s report, limit its ambit where possible. All too often we see on a brief to an expert, a psychiatrist or someone, “Who do you think the child should live with”. It is the role of the court, not the expert, to make the ultimate determination about what is in the child’s best interests and what parenting orders should be made.

JUDGE TAGLIERI: The process that I’ve been describing so far in the litigation and case plan involves reading all the materials, identifying your agreed facts, what’s in dispute, what’s not in dispute, documenting all that, identifying what evidence you need to gather still, or if you need to gather any further evidence, and by that point, having formed a preliminary view, you will know whether you need to ask for orders of an interim nature.

If you have a preliminary view and have held an ICL conference, but if the parties have not reached agreement, it may be necessary to seek interim orders if the current status is not in the child’s interests.

Beyond that though, your job is not done. You are only halfway there because you need to determine, the rest of the road map for the balance of the proceedings. How are you going to get this litigation resolved as efficiently as possible, and in the best interests of the children? What does that mean? You need to map out your steps to the final hearing. So, if you have got to the point where you determine that the interim orders that are in place, or the parenting agreement that exists, can stay there for now then you should formulate a preliminary view, based on the material that is available to you, about what orders you want the Court to make as final orders. 

Case planning and advocacy – (continued)

In cases where an ICL is appointed, there is a good chance that, if left unassisted, there was risk that the parents would run their own agendas. The ICL serves a critical purpose of stopping this from happening. Take interventions based on the case plan you have developed with the expertise, skill and knowledge that you have, so to ensure final orders are made as efficiently as possible in the children’s best interests.

JUSTICE McGUIRE: You accept that it’s your case plan. Do not fall into the trap of becoming the advocate or the solicitor for one or other of the parties. I did a matter yesterday with an application to discharge an ICL and one of the complaints of one of the parents was that the ICL had an issue with these subpoenas. Well, that’s your case plan, not theirs. All too often they will expect you to do their job for them, and you then run into some problems of being impartial. But it is your case plan. You are not told by anyone else how to do it.  Make sure that it’s yours and you follow your plan.

JUDGE TAGLIERI: Communication of the case plan is also an important part of your role. Ms Wylie will add to these remarks.

MS WYLIE: It is important to have control of your own case plan, but also to be communicating your view and plans for future conduct of the proceedings. I am not saying you give the parents the whole case plan, but they should know how you intend to go about your task, the steps that you intend to take, things like whether you are going to call a conference, or the points at which you will consider calling one, how and where you are going to meet the child. They should know all those things, and when they don’t know it, that’s when they’re going to start making demands that you do all kinds of things or complain that you haven’t issued subpoenas or done something else.

I recommend to you the ICL checklist at Appendix 3 of the Guidelines. It is not a case plan, I need to make that very clear, but it is a useful tool to support you in developing your case plan.

You add considerable value by having and expressing a view, and I cannot understate that. Do not be scared about forming a view as long as you are able to point to the evidence upon which that view is based. So, forming and communicating a view about interim issues, as well as your case plan, is really important.

JUDGE TAGLIERI: I need to mention the use of the Voluntary Information Sharing Scheme that we have with Tasmania Police. It is a wonderful, exceptionally useful service and is very helpful for ICLs. However, some caution is needed about use of the information you receive by using the service.

I have had instances where information obtained through the Voluntary Information Sharing Scheme raises concerns about self-incrimination and prejudices the administration of the criminal justice system. As an ICL, I want you to use the Voluntary Information Sharing Scheme to progress your case plan and to advance the child’s best interests, but be alive to questions of admissibility of evidence and to not prejudicing criminal prosecutions.

If you have obtained the information under the Voluntary Information Sharing Scheme rather than by s 69ZW report ordered by a judge, you will see the information before the Court does. If you seek to tender that information and parties do not take an objection as they are not be appraised of what is in it, suddenly there is a problem because a person has not having been given a certificate under s 128 of the Evidence Act to prevent that evidence being relied upon in a criminal prosecution.

As an officer of the court, you need to be alive to this and ensure the report/information is not disclosed in a manner that will prejudice the criminal prosecution. You see the information first and a judge cannot pre-empt or see what is in it until you tender it, by then it may be too late.

MS WYLIE: I really recommend speaking to the co-located officials. It’s an extremely useful thing for the ICL to do, and they are more than happy to speak with us, which is great. But it is your job to work out how to get that information before the court in an admissible form. So whether it’s a report or whether it’s a subpoena, that’s something that you need to consider given the flavour of the information that you receive, and you also need to consider carefully how you draw any subpoena that you might issue, because there are risks that flow from issuing hurriedly drawn subpoenas, and when crafting the subpoena you need to consider what information the court requires, but seek to specifically exclude or seek orders around the release of information that could place any party at risk.

JUDGE TAGLIERI: Relevant to the topic of the Voluntary Information Sharing Scheme, is that the ICL, who often is the first to be given access to the information, needs to be mindful of the Court’s obligation to afford procedural fairness to parties. If you are going to rely on the information, unless there is a good reason, it should be disclosed to the parties before you refer to it or rely on it in Court.

As an ICL, you are in a privileged role. You are probably going to have latitude given to you by people like police and child safety services. However, you have to at all times, while being conscious of your role in representing the interests of a child, be acutely aware that the Court has to afford procedural fairness. A sure way of losing the confidence of the parents is for you to not afford fairness to them. This is one example of a situation that may lead to allegations of bias about an ICL, which arise from time to time as mentioned by Justice McGuire. Approach both parties in a fair manner at all times, in spite of any views you may have formed.

Other aspects of ICL advocacy

JUDGE TAGLIERI: I will now address some particular issues that may arise at the interim hearing and steps thereafter.

The Court ordinarily makes interim determinations on untested affidavit material. I have noticed that it is rare for objection to be taken to affidavit material. I appreciate that the children’s matters, a number of the Rules of evidence do not apply, but in cases where there are serious allegations and the Court is required to conduct a risk assessment and does have discretion to order that those rules do apply.

Even in cases where an order is not made that the rules of evidence apply, as an ICL, if you have seen affidavits that are poorly drafted, contain objectionable material, or is simply highly offensive and inflammatory, turn your mind to whether you should take objections in a sensible and circumspect manner.

Question from audience:

We see affidavits filed by litigants in person, and they are extremely inflammatory, but as ICL, sometimes you have got to weigh up having an argument in court about the admissibility of statements on which you think that the judicial officer is not going to place particular reliance. And I’m just wondering, when do you argue the point, and when do you let it go because the Court is not going to put much weight on it.

JUSTICE McGUIRE: But there is nothing wrong with you saying it, in fact, you should. “Your Honour, I’ve got this affidavit. I’ve read it.  I’ve considered it. There’s no material that’s probative, circumstantial. I submit you can’t put any weight on it.”

JUDGE TAGLIERI: I suggest, that an alternate approach may be “There are paragraphs X, Y and Z that are objectionable in my submission, for these reasons”, and succinctly state what they are. It assists the decision maker. I agree, however, that if you form the view that it is a matter of weight and the judge is going to deal with it properly, then tell the judge that. On the other hand, if it is something such as a statement you consider to be plainly false based on an objective record, I consider that you have a duty to tell the judge, so that the Court is not misled.

Role of ICL at hearing

JUDGE TAGLIERI: It is important that, as an ICL, you have a good structure for how you run your case. I suggest a structure as follows.

You should make a brief opening which identifies for the Court:

  • What, if anything, is agreed and whether any orders that can be made by consent;
  • What is in dispute and what the judge has to decide; and
  • What you are recommending the orders should be about those disputed matters.

Then, in the course of the hearing, you should ask the Court to read affidavits into evidence and tender documents you are relying on.

In the course of the other parties putting their cases, you take objections as necessary. If you are relying on documents, I suggest that you have a bundle either in hard copy to hand up at the hearing or electronically filed before the hearing, preferably when you file a case outline.

Make a closing submission, but confine those to what is in issue, and tell the Court why you are recommending the orders which you seek and the evidence supporting your recommendations.

The submissions need to involve qualitative analysis of the respective parties’ cases and your view at that interim/final stage about what the court is to decide. I have noticed that often in the interim hearing the practice is to make submissions “at large”. I find that unhelpful because there is a clear decision-making pathway that judges have to follow in determining parenting cases.

Address parental responsibility if it is in issue. Make submissions about whether equal shared responsibility is rebutted and why. If your position is that there should still be equal shared parental responsibility despite the rebuttal, make that submission and state why, by reference to case law and by reference to the evidence that is before the Court.

Then address the time the child is to spend with each parent, because that will be informed by what the Court decides about parental responsibility. Do not make submissions at large; do it in a structured forensic way.

JUSTICE McGUIRE: A judge does not have to hear an interim matter, but be robust in submitting the need for one if a matter requires one. You might also need to bring the matter on for a further, more-informed interim hearing as evidence is filed and the issues evolve. It is not a case of “Well, we’ve already had one. We won’t get another.” If you feel that a further interim hearing is needed, seek one from the Court.

JUDGE TAGLIERI: If you have formed a view at the time of the interim hearing, that there is a clear case management pathway to the final hearing, then it is of assistance to the Court if you identify what that pathway is. Then the Court can make the procedural orders and not wait for another appointment to actually move the case along. Anticipate what the outcome of the interim hearing might be and prepare a position: “if the judge orders X, then this is what we need to do to get to the final hearing” or “if the judge orders Y, then that is what we have to do to get to the final hearing”. The intent being to resolve the matter for the child with efficiency and with as minimal conflict as possible. That is proactive ICL practice rather than reactive ICL practice, and proactive practice is what I encourage you all to do.

QUESTION FROM AUDIENCE: How can ICLs be proactive when the tendency is for the process to be dictated by the national system and a uniform case management pathway? For example, if a matter need final resolution urgently, how do we achieve this?

JUDGE TAGLIERI: My quick answer to that is, if it’s urgent or there are serious risk issues or for another reason the matter needs a judge’s attention, submit strongly to that effect and apply for the matter to be put into a judge’s list for interim hearing or to a Compliance and Readiness Hearing. The key is being in a position to tell the registrar why the matter needs a judge’s attention. This comes back to having developed a good case plan and having relevant information at your fingertips.

MS WYLIE: Returning to the issue of expert reports, the Guidelines gives you guidance on the steps that you need to take before an interim hearing, which includes considering whether expert evidence or a Family Report is appropriate. As an ICL you should, if it is your view that expert evidence is required, prepare draft terms of reference and make inquiries about expert availability, cost and timing. I note that there are significant challenges in finding appropriate experts in all parts of the Tasmania, and report sometimes entail prohibitive costs that simply cannot be met.

In these cases, do your legwork early and raise it with the Court as early as possible, including any barriers to this evidence being adduced along with possible solutions. Sometimes hard calls need to be made, such as limiting the scope of the type of evidence required to reduce the cost or changing the type of expertise required in order to expand the pool of people on which you can draw.

Also, I urge you to actively consider throughout the matter if the TLA Cross-Examination Scheme might apply. This is particularly relevant if a party becomes unrepresented mid-case, as you want to avoid a situation where a hearing cannot proceed because one party becomes unrepresented at the last minute and new counsel cannot be instructed on short notice.

Finally, Practice Standard 5 asks that as ICL you respect the long-term and ongoing nature of the child-parent relationship, and you avoid the possibility of further trauma or detriment to the child. This is also apposite during cross-examination of witnesses at the hearing. You should try and do no harm and to be the honest broker. Remember that these families are going to leave the courtroom and face co-parenting for the rest of their lives. Attacks on credit are seldom helpful, and should be reserved for the most critical of issues that are determinative to the case.

JUSTICE McGUIRE: Utilise reports produced under section 11F of the Family Law Act 1975 when appropriate. Use your judgment as to when they are necessary; do not just request one because they are available, keeping in mind that it may involve an extra interview with the child.  The Court Child Experts, and certainly judges, find them really helpful for early settlement negotiations. I sometimes find them more valuable than the longer-format Family Report further into proceedings. A section 11F report can assist you to isolate the issues and will clearly state them for you and the parties. Use those reports as an ICL forming your views and your case plan.

Conclusion – Part 1 of session

JUDGE TAGLIERI: We have identified the importance of reading the materials, identifying agreed and disputed facts, identifying issues in dispute, and so on. Doing these things to formulate the litigation case plan and comply with best practice. The Case plan may evolving because, as parties file their materials, the issues might narrow or they might enlarge. Every time that happens, you need to review your case plan and modify as required. If you have created it as a table and saved it electronically, then you can easily amend it.

PART 1 OF THE EDUCATION SESSION CLOSED. Participants formed groups to discuss the Case Study, formulate concepts of a Case plan and receive input from the speakers.