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The ICL has an obligation to provide a written statement of the actual costs incurred by the ICL up to and including the trial to the court and to each party refer to FLR r If costs are an issue in the matter, then it may be essential to strictly comply with the cost-related rules to obtain an appropriate court order. Parties must be notified of these guidelines when an ICL is appointed and LAQ will advise if any further steps need to be taken in relation to costs at the appropriate time.
Submissions must be based on the evidence available. In the event the ICL forms a preliminary view, it may be appropriate to inform the court at the commencement of the hearing of that view. It may not be possible to form a final view in relation to the matter until after the evidence is tested by cross-examination and at times, a concluded position may not be possible. It may be appropriate to provide draft orders to the court and parties. Draft order s preparation can assist in facilitating a resolution to some if not all of the issues in dispute.
A solicitor must not confer with …more than one lay witness including a party or client at the same time about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing and where it would affect evidence to be given by any of those witnesses unless.. The ICL should consider whether copies of any orders, reasons for judgment or copies of any of the material filed in the court, should be provided, by leave of the court, to any professional involved with the family or the police or the department.
An ICL has the right to appeal orders made by the court but should only do so in appropriate circumstances. When another party appeals, the ICL should participate in the appeal proceedings where appropriate. 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.
Arguably, s 67ZA could relate to a lawyer receiving direct instructions from a child. In any event, if the lawyer, in whichever role, receives direct evidence of child abuse then they should carefully consider their position and determine if the department requires notification. Assuming the section applies to the ICL, an ICL may make a similar notification if the ICL has reasonable grounds for suspecting that a child has been ill treated, or is at risk of being ill treated; or has been exposed or subjected, or is at risk of being exposed or subjected to behaviour which psychologically harms the child.
The obligation to notify does not apply if the ICL knows the authority has been previously notified about the abuse or risk. While there is some protection given in the FLA s 67ZB for this type of notification, it is recommended the ICL take due care before notifying the department. In particular, the ICL will need to consider how they can maintain their duties generally and specifically to act impartially in the matter if they are a notifier.
If a notification is made, then it may result in the ICL having to discontinue their involvement in the matter. For the ICL in particular, the notification, or more pointedly their possession of information upon which the notification is made, may mean they will need to be a witness in the proceedings. These publications provide practical hints and useful information for representing clients affected by violence.
Lawyers have a responsibility to assist clients to be safe. Extra steps must be taken when advising a client who has experienced domestic or family violence. Consider the following:. See the Family law and domestic violence advice worksheet Annexure A which is a comprehensive checklist for giving advice in this area. If the client is in danger, make an urgent application for a temporary protection order. A court can make a temporary protection order if it is satisfied it is necessary or desirable see DV Act ss 44— Obtain clear instructions on living arrangements to determine if the order will, or needs to have the effect of, evicting the respondent to the proceedings from his or her premises.
Consider the DV Act ss 63—64 which outlines that a court can impose an ouster condition to prohibit a respondent from returning to the former matrimonial home, and what will happen next. The client must be given a clear explanation of the application and court procedure. The explanation must cover all possible options and likely outcomes of the application. This includes the legal prohibitions placed on the respondent, the procedure if breaches occur, and the necessity and availability of a variation or revocation of the order or certain conditions if required.
This is especially important if a reconciliation is likely. If a client has a grant of aid for representation, then there is an expectation that a lawyer will complete the D V 1 Form — Application for a Protection Order form. All sections must be completed with special attention being given those questions outlining the history and recent incidences of domestic or family violence. Consider which conditions should be included in the protection order and reality test these with the client. Tailor the conditions to allow for any family law orders, particularly parenting orders.
Consider any future family law implications of the proposed conditions on the order. Allow for parenting orders or property settlement-related orders. Consider whether the parties are likely to reconcile and whether the protection order should anticipate this possibility.
Also consider whether it is likely the parties may attend a legal aid conference and whether the order should anticipate this possibility. A lawyer should not act as an authorised person on behalf of an aggrieved spouse in an application for a protection order because the contents of the application will become hearsay only. It is preferable to have the client, a family member or an associated professional complete the application and for a lawyer to appear as their legal representative.
However if the lawyer believes it would be better that they make the application on behalf of the client, and there is no-one else available, the lawyer should obtain a written authority from the client. The relevant section of the application must be completed and signed and witnessed. Any lawyer who is not admitted as a solicitor or barrister will need to appear in court as an authorised person and must have a written authority and seek leave.
A hearsay affidavit may be prepared outlining that the authorised person confirms the application was prepared from instructions provided by the aggrieved spouse and that the application is true and correct to the best of their knowledge. This affidavit can be tendered to support the application. The application is signed and witnessed by a Justice of the Peace, Commissioner for Declarations or solicitor. Depending on the local magistrates court registry practice, it may be necessary to file one or four copies with the original application some courts scan the application and send it to police.
Additional copies may be needed if there are family or friends named in the application. Retain a copy of the application on file and for the client. If the matter is urgent, request the matter to be listed before the next available court. If this is not the case, obtain a mention date in approximately four weeks timeframes will vary from registry to registry. The police will try to serve the application on the respondent in the meantime. If the protection order is contested and listed for hearing, the lawyers make arrangements to collect relevant evidence for the hearing early in the process.
Some courts may make trial directions prior to trial. Witnesses to specific acts of domestic or family violence need to be organised well in advance and the lawyer should attempt to speak with them prior to the hearing to determine what they will be able to say. It may be prudent to confirm an order will not be a criminal conviction, although criminal penalties apply to breaches, and qualifications allowing for contact will be included if appropriate. The consent procedure could also be explained in case the respondent wishes to write to the court in advance and does not wish to attend in person.
Consent orders can be made by the court although the court may conduct a hearing if it is in the interests of justice, and may refuse to make or vary the order if it poses a risk to the safety of the aggrieved spouse or people named on the order see the DV Act s The respondent may offer undertakings at any stage of the proceedings. An undertaking is simply a written agreement between the parties about their future conduct eg they will make no further contact with the other party. A disadvantage of an undertaking is that it is not enforceable by the police.
However, it may be useful as evidence in future applications. Ensure appropriate arrangements have been made with the client for their appearance at court. If there are security or safety issues, it may be wise to meet the client at the office and accompany them to the court. In extreme cases the court staff and police should be informed of any concerns.
Check the client understands the court attendance procedure and is correctly advised about the need to bring other witnesses or documentation. Allow sufficient time to confer with the client and with the other party or legal representative prior to court. At some court houses, there is a safety room that is available for women. Some safety rooms enable direct access in and out of the court room. This can be arranged with the local violence prevention worker, court security or a court staff member on arrival at court. Shield the client from any unnecessary conflict, or even contact with the other party if appropriate.
This may mean that the client does not enter the court when the matter is called on. Separate rooms are sometimes available for an aggrieved spouse and support workers to wait prior to their applications being heard. Negotiate with the respondent as this may result in either an undertaking to consent or an expression of a desire to contest. Either way, this means that the client will not be required in court. Explain the negotiations to the client at all times. Ensure that the client's position is not compromised in any way and always seek instructions before agreeing to any proposals.
Do not advise the client to consent to an undertaking if they need the protection of a protection order and the protection of the police to enforce it.
If a respondent consents to an order, the matter will be called on and both parties will make their appearances. The magistrate can then be advised that the respondent has agreed to consent. The terms of the order will then be discussed and the effect of the order may be explained to the respondent. The parties are then asked to wait for the orders to be typed.
The aggrieved spouse gives evidence to support the application and will be subjected to cross examination. Note the sections of the DV Act regarding practice and procedure including the ability to have a client deemed a protected witness DV Act, ss — All witnesses are called before the respondent has the opportunity to respond. The same cross examination and re-examination process applies.
Final submissions are then made and the magistrate gives judgment. The rules of evidence do not strictly apply to these proceedings s however the hearings follow the usual court process and where possible evidentiary rules are upheld. There is a positive obligation for any person who applies for a protection order to disclose any family law orders they are a party to DV Act s 77 ; these should be attached to the application form.
It is important to understand the consequences of inconsistencies between the orders and to prepare any matter to address this issue. FLA s 68Q provides that protection orders inconsistent with parenting orders or injunctions are invalid. This must be explained to the client. However a state court determining a protection order application whether to make or vary such an order may, under the FLA s 68R, revive, vary, discharge or suspend a parenting order; a recovery order; an injunction under the FLA s 68D or s ; an undertaking; a registered parenting plan or a recognisance, if any of these provide or imply for a person to spend time with a child.
The state court does not need to apply the following FLA provisions when making the new parenting order:. If the state court exercises the power when making a temporary protection order or a temporary variation to such an order, then the revival, variation or suspension of a family law order ceases to have effect at the earlier of the time the interim order stops being in force and the end of the 21 day period starting when the interim order was made.
Duty lawyers must have completed the domestic and family violence duty lawyer training provided by Legal Aid Queensland. The duty lawyer service is for unrepresented applicants aggrieved and respondents who are to appear in court on the day. Duty lawyers must arrive at least 30 minutes prior to commencement of court to commence seeing prospective clients, take instructions and provide advice.
There should be rooms allocated for the duty lawyers to speak with clients. Duty lawyers should consult the court list if available from the domestic and family violence duty lawyer clerk or court staff. Duty lawyers should have access to:. Client instructions will depend on their decisions in their matter which might include:. If reasonably practical and considering service demands, duty lawyers should attempt limited negotiations with legal representatives for the other party or police prosecutor. Duty lawyers may negotiate issues such as amending, substituting or withdrawing proposed conditions in order to reach an agreement on a temporary or final basis.
Duty lawyers should also consider exemptions to conditions for family dispute resolution, or reaching an agreement on consent without admissions basis for the court to may make a temporary protection order or a protection order DV Act s Duty lawyers are not to attempt to negotiate in matters requiring complex and lengthy negotiations.
Duty lawyers are to adjourn these matters and advise parties to apply for legal aid or get private legal representation for the hearing of the application for a protection order, and for family dispute resolution for any related parenting matters. It will also not be practical for duty lawyers to undertake protracted negotiations across multiple mentions of a proceeding.
The duty lawyer should if appropriate, assist with the completion of a legal aid application form, and provide advice to the client on whether they are likely to be financially eligible for a grant of legal aid. The duty lawyer may assist with applying for an adjournment and with short or procedural mentions. The duty lawyer may appear for an unrepresented party if they have limited ability to appear on their own behalf.
The duty lawyer should consider any disability, literacy, language barrier or cultural issue, and geographical location when determining the level of assistance with representation. Priority should be given to assisting the most vulnerable unrepresented parties. When representing a client, announce your appearance as a domestic and family violence duty lawyer at each appearance.
After each appearance, record the following information on the Domestic and family violence duty lawyer form:. If the duty lawyer considers an appeal should be made, the duty lawyer should discuss this with the client and provide advice about time limits and procedures for an appeal. This advice must be recorded on the Domestic and family violence duty lawyer form. The duty lawyer must complete any necessary administrative work within three working days of the appearance. This includes:. In certain locations representation services can also be provided for certain court events.
Duty lawyers must have completed the domestic and family violence duty lawyer enhanced service training provided by Legal Aid Queensland. Duty lawyers must arrive at least 30 minutes prior to commencement of court to commence seeing prospective clients, take instructions and provide advice and identify matters that might require a representation service. Duty lawyers should be aware of and comply with any agreed intake protocol and any memorandum of understanding for the court they are appearing in. If reasonably practical and considering service demands, duty lawyers should attempt negotiations with legal representatives for the other party or police prosecutor.
Duty lawyers should also consider exemptions to conditions for family dispute resolution, or reaching an agreement on a consent without admissions basis for the court to make a temporary protection order or a protection order DV Act s Duty lawyers can attempt to negotiate in matters requiring complex and lengthy negotiations but duty lawyers should consider applying to adjourn these matters and assist parties likely to be eligible, to apply for legal aid for representation for the hearing of the application for a protection order, and for family dispute resolution for any related parenting matters.
If parties are unlikely to be eligible for legal aid they should be advised to get private legal representation. It will generally not be practical for duty lawyers to undertake protracted negotiations across multiple mentions of a proceeding and again consideration should be given to applying for legal aid.
The duty lawyer can assist with applying for an adjournment and with short or procedural mentions. The duty lawyer can appear for an unrepresented party if they have limited ability to appear on their own behalf. The duty lawyer should consider any disability, literacy, language barrier or cultural issues, and geographical location when determining the level of assistance with representation.
The duty lawyer should consider appearing for an unrepresented party if such assistance is likely to assist the court to resolve the matter. When representing a client, a duty lawyer should announce their appearance as a domestic and family violence duty lawyer. After each appearance, the duty lawyer should record the following information on the Domestic and family violence duty lawyer form:. Careful consideration should be given by the duty lawyer as to whether it is appropriate for them to represent a client as duty lawyer in.
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Record information when giving telephone advice as this will save the need for its repetition at a later time. The lawyer must be aware of and comply with the Best practice guidelines for lawyers for working with people who have experienced domestic violence. In-house lawyers are expected to use the relevant letters and documents contained in the VisualFiles precedent package where applicable.
If there are current proceedings on foot the lawyer should file a Notice of Address for Service in the relevant childrens court registry. The Notice of Address for Service should be served on all other parties. Communications with the department must take the same form as with any other party to the proceedings. If the department is a professional party in the proceedings, be aware the authorised departmental officer is unlikely to be legally represented until late in the proceedings. Take particular care to accurately record the details of any conversations with departmental officers.
Where possible, consider confirming conversations with departmental officers in writing. Communications with an unrepresented party must take the same form as with another lawyer. Consider sending a letter to the party confirming the details of the conversation. The CPA s 51L outlines parents may have a support person attend and participate in a family group meeting on their behalf and legal representatives can act in this role. The convenor must give the parent and their support person a reasonable opportunity to attend and participate in a family group meeting being convened to develop or review a case plan for the child.
Subject to a grant of aid, the lawyer should attend the family group meetings convened by the department during the term of the matter. The lawyer should tell the client they can potentially attend the family group meetings with the client, and the lawyer should encourage the client to advise them of any family group meetings organised by the department. Be aware that matters discussed at family group meetings are admissible in any court proceedings except in a criminal proceeding.
The lawyer should attend all court mentions of the matter in accordance with the grant of aid. When hearing a child protection proceeding, a childrens court may make or vary a protection order against a parent DV Act s If an order is sought in the child protection proceedings but an existing protection order is already in force against a parent of a child, the court must consider whether the existing protection order needs to be varied, given the child protection circumstances. The DVA s 43 outlines the process the court must use.
Consider any allegations of domestic or family violence in the proceedings or any protection orders already in force, and whether an application for a protection order is better pursued in the childrens court or through a magistrates court see acting in domestic or family violence matters above. From time to time a lawyer may need to request a matter adjournment. Only apply for an adjournment if it is necessary for the efficient conduct of the case.
Be mindful that child protection matters should be dealt with as quickly as possible in the best interests of the child. If the lawyer intents to request an adjournment, notify all parties of this intention and the reasons why the adjournment is being sought. If the department is a party, the lawyer should serve copies of the affidavit material on both the relevant Child Safety Service Centre and also the Court Services Unit.
The lawyer should also consider the CPA ss 66—67, 68 and whether to make an application for orders:. Consider making an order to appoint a separate representative if the facts of the case warrant such an order, particularly if the matter will be contested or if the department is applying for a long term guardianship order. The role and responsibilities of the separate representative must be explained to the client. Prior to the mention date, the lawyer must contact the relevant court to determine the applicable practices and procedures in that registry, for example in some places where childrens courts are constituted the magistrate will require legal representatives to remain seated throughout any appearance.
The lawyer should arrive early at court on the mention date. Advise the court on the material intended to be relied on to support any application for interim orders or for interim orders to be discharged.follow url
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Make reference to relevant CPA sections and procedural rules. The CPA s 5B sets out a series of 14 general principles for ensuring the safety, wellbeing and best interests of a child, and s 5C sets out additional principles for Aboriginal or Torres Strait Islander children. Consider and provide advice on any possible review or appeal of the decision. Provide the client with a sealed copy of any orders made in due course. The lawyer should ensure they receive copies of every order from the relevant registry or Child Safety Service Centre and place these orders on the file.
If the client makes a decision to consent to the proposed child protection order, obtain the client's signed, dated and witnessed consent to the order. The lawyer should also obtain signed, dated and witnessed instructions at each stage of the proceedings, including details of advice provided to the client on the client's options and rights generally. The purpose of the court ordered conference is to decide the matters in dispute and to try to resolve them.
The lawyer must attend the court ordered conference, subject to a grant of legal aid being available. The client may also have a support person in attendance at the discretion of the conference convenor. At the court ordered conference, the lawyer must advise the parties of any settlement prospects and assist making recommendations for the future conduct of the case.
If department files subsequent material containing court ordered conference communications, make representations to the department to withdraw the affidavit material. If the material is not withdrawn, the lawyer should make an application to the court to disregard that material. The matter will be mentioned again after a court ordered conference. The CPA s outlines the court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate. The burden of proof required by the court is on the balance of probabilities.
The Child Protection Bill Qld explanatory notes of state:. If no agreement has been reached between the parties and the matter is proceeding to a contested hearing, the lawyer should use this mention to obtain directions on the steps that need to be taken to prepare the matter for trial. At the mention, the lawyer must seek directions for matter preparation and filing dates for each party.
The lawyer should seek a direction that the department file its material first, followed by any separate representative. Make sure sufficient time is allowed for the client to file their material in response. Immediately after the mention, seek aid on behalf of the client to prepare trial material and for trial attendance. Seek aid for counsel in complex matters.
Once a trial date has been obtained, write to the client advising of the trial dates and also provide a timetable for filing material, explaining any filing dates they must comply with. Advise the client they need to attend court and prepare affidavits. 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.
Where matters are proceeding to a contested hearing, the department will usually engage Crown Law to appear at trial. Where Crown Law is not available the department may engage members of the private bar. Counsel is instructed by the applicant for the child protection order. The lawyer should liaise directly with those officers to prepare the matter for trial. Where a matter is contested and listed for hearing, the lawyer will need to consider each affidavit and exhibit to be relied on at the hearing, and give appropriate notice if a person is required to attend the court for cross-examination.
Also consider any material filed in any previous proceedings, any protection orders and obtain affidavits from witnesses to support the client's application. Witnesses will need to be organised well in advance. When calling a witness, attempt to provide their evidence to the court via affidavit material filed and served on the parties. Clear advice needs to be given to the client about swearing the affidavit and the implications of making false or misleading statements. The lawyer should be aware of any relevant conditions which may prevent the client from adequately proofing affidavit material eg illiteracy, language difficulties or diminished cognitive functioning and the relevant jurat should be used and complied with in those circumstances.
If the client is seeking an alternative child protection order to what the department seeks, develop an appropriate case plan which reflects the order sought by the client. The lawyer must request the department provide copies of departmental file material. The department maintains both a paper file and an electronic file and lawyers should seek access to the documents contained on both parts of the file.
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. Check the client understands the court attendance procedure and is advised about the need to bring other witnesses or documentation.
Allow for sufficient time to confer with the client, the department and other parties prior to court. The lawyer should shield the client from any unnecessary conflict. Consider negotiating with departmental officers or other lawyers as this may result in either a consent or an expression of a desire to contest. Explain the negotiations to the client at all times and ensure the client's position is not compromised in any way.
The lawyer must seek instructions before agreeing to any orders. Prepare the client for the trial process including preparations for giving evidence and also cross examination. The CPA s notes the childrens court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate. The balance of probabilities is the burden of proof required for any matter before the court is. The court will normally follow the usual course of litigation. The lawyer should ensure that the department presents its case first and ensure objections to evidence are made in the usual way and in accordance with the accepted rules of evidence during the proceedings.
The magistrate can then indicate when the rules are to be dispensed with. The lawyer should take accurate records of the proceedings including witness names and times of hearing. It is also recommended the instructing solicitor maintain an adequate summary of questions and answers during the course of the trial.
A solicitor must not confer with …more than one lay witness including a party or client at the same time about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing and where it would affect evidence to be given by any of those witnesses unless … there are reasonable grounds r The lawyer should consider merit in every case and determine whether grounds of appeal exist, and whether an appeal should be lodged.
If the lawyer thinks an appeal should be lodged, they must discuss this option with the client.
If the appeal is meritorious help the client complete and lodge the Notice of Appeal and the Application for aid form. The application for aid should contain sufficient information to allow the merits of any appeal to be assessed. In-house lawyers must consult with their principal lawyer and the Family Law and Civil Justice Services director about the merits of any appeal before making an application for aid to appeal.
After the matter is concluded the lawyer should write to their client informing them of the outcome and provide sealed copies of orders made and the reasons for judgment, or advise the expected date of judgment if known. Where a child protection order has been made, advise the client and confirm in writing their rights concerning QCAT proceedings. The lawyer should also indicate which departmental decisions are open to review in that forum:.
The lawyer should ensure all accounts are finalised in a timely manner at the conclusion of the matter. The duty lawyer service is for unrepresented parties, including a child or young person the subject of an application, who are to appear in court on the day and non-parties who would like to make an application to appear and make submissions in court on the day. A duty lawyer must have completed the child protection duty lawyer training provided by Legal Aid Queensland.
A duty lawyer must arrive at least 30 minutes prior to commencement of court to begin seeing prospective clients, take instructions and provide advice. There should be a room allocated for the duty lawyer to speak with clients. A duty lawyer should have access to:. Prior to providing legal advice, the duty lawyer should request clients to complete personal details, financial details and declaration sections on the child protection duty lawyer form. The age of the child is not a determining factor as to whether the client can access a duty lawyer.
This should include details of:. A duty lawyer should if appropriate, assist with the completion of a legal aid application form, and provide advice to the client on whether they are likely to be financially eligible for a grant of legal aid. If a duty lawyer considers an appeal should be made, the duty lawyer should discuss this with the client and provide advice about time limits and procedures for an appeal. This advice must be recorded on the child protection duty lawyer form.
LAQ has developed standards for lawyers who are appointed to act as a separate representative in line with to the CPA provisions. These standards apply to both childrens court and QCAT matters. All separate representatives should observe the standards as they indicate what is expected of separate representatives during the course of a matter. The following recommended standards of behaviour and practice need to be read in conjunction with existing professional and ethical standards governing the profession, judicial directions, practice directions, protocols, case law and related legislation.
This responsibility imposes the duty to act impartially, to present direct evidence to the court or QCAT about the child, the child's safety, wellbeing and best interests and their views and wishes, to make submissions with regard to all of the evidence before the court or QCAT, and to assist the court or QCAT in making a decision that is in the best interests of the child. The CPA s outlines while the lawyer is not a party to the proceeding on the application, they must do anything required to be done by a party and may do anything permitted to be done by a party.
The other parties to the proceeding must act in relation to the proceeding as if the lawyer were a party to the proceeding. The separate representative must comply with any rules, regulations, practice directions, protocols and case management guidelines that may arise in relation to the role. The separate representative cannot offer the child a confidential relationship. The child needs to be aware of the basis of the relationship needs to be made aware the court and the separate representative will listen to what they have to say but neither are bound by those views and wishes.
This will include assistance with:. This will include:. It is expected in-house lawyers will use the relevant letters and documents contained in the precedent package LAQ staff access only. Any documentation the separate representative provides to report writers or other experts must be retrieved from the expert and destroyed at the conclusion of the matter. Where possible, the separate representative must consider confirming conversations with departmental officers in writing. Consider sending a letter to the party confirming the conversation details.
The separate representative should use plain English at all times when communicating with unrepresented parties. Separate representatives should refer to referred to the QLS Guidelines for solicitors. After receiving file material from LAQ, the separate representative should file a Notice of Address for Service in the relevant registry.
The sealed Notice of Address for Service should be served on all other parties. If a party is legally represented, the initial letter for the party will be sent to their legal representative. The separate representative may also forward a questionnaire to parties or their solicitors with the initial letter or subsequent correspondence, for the party to answer and return along with blank authorities for third persons to release information to them. The separate representative should take care to communicate in plain and uncomplicated language in all written or verbal communications.
Avoid any legalese. Once appointed the separate representative should consider whether it is appropriate to write to each child to introduce themself and enclose copies of relevant information sheets. During their appointment the separate representative may have reason to talk to non-parties interested in the proceedings.
Take into consideration that in accordance with the CPA s the court may hear submissions from a member of the child's family or anyone else the court considers is able to inform it on any matter relevant to the proceeding. The lawyer should accurately record the details of all conversations with non-parties and must take special care to not provide confidential information or documents to them, unless directed. During their appointment, the lawyer may need to communicate with other people who are working with the child including counsellors, school teachers and other persons.
If the separate representative has obtained information about these persons during their department file inspection they should notify the department of their intention to contact the person prior to contacting the person. The lawyer should accurately record the details of all conversations with other professionals and should take special care not to provide confidential information or documents to them. If the lawyer decides confidential information should be disclosed to other professionals in line with one or more of the exceptions noted in the CPA s 3 , they should notify the department of this view and request they consider making the disclosure.
If the department will not make the disclosure and agree the disclosure is required, the lawyer must give careful consideration to the disclosures appropriateness in line with the CPA s 3 , or whether to seek directions from the court. The lawyer should initially obtain copies of the following documents please note this list is provided as a guide only and is not exhaustive :. The lawyer will usually be required to sign a Records Management Services — Access to information — interim receipt form. While performing the physical inspection the lawyer must clearly tag each of the documents that require copying.
Once the documents have been photocopied and approved, the Child Safety Service Centre will forward the documents to the lawyer by. Further inspections may be required during the course of the matter; and the lawyer should follow the same procedures outlined above in those circumstances.
The procedures outlined above will apply to their inspection. Child Safety Service Centre will only provide the lawyer with copies of the requested documents requested. The lawyer needs to provide the report writer with these documents. The separate representative should consider whether a social assessment report or other expert report is required. Consider why the report is being obtained and whether the report is necessary in the circumstances. Separate representatives should carefully consider the type of report required, including which persons need to take part in the assessment.
If the assessment will involve both the parties and the child, the departmental officers involved in the matter must also be interviewed as a party to the proceedings. If the lawyer thinks the report should be obtained as part of the departmental case, then contact the department and request they obtain it. If the department refuses to obtain the report, or if the lawyer determines it is not appropriate for the department to obtain the report, consider applying for a grant of aid to obtain this report.
Where the costs of a report are likely to exceed the costs paid at LAQ rates, contact the department and request financial assistance to obtain the report. The lawyer should be aware departmental policy dictates that where the department are contributing to the cost of the report, then the department will usually want input into who will be engaged, the terms of the letter of instruction, and what documentation will be provided to the expert.
In these circumstances, the process for briefing the expert is similar to briefing a single expert in the family law jurisdiction. Where a joint brief of an expert is not appropriate in the circumstances, consider applying for a grant of aid to cover additional costs. Please note that such requests must be made prior to any costs being incurred. Consult with other separate representatives or experts before selecting an expert. Brief the expert with a clear letter of instruction referral along with all information and documentation necessary to complete the assessment.
In the brief to the expert clearly mark the material as confidential and not to be disclosed in line with CPA s A copy of the affidavit and report should be filed in the registry and served on all parties. When hearing a child protection proceeding, a childrens court may make or vary a protection order against a parent the DV Act s If a protection order is already in force against a parent of a child for whom an order is sought in the child protection proceedings, the court must consider the existing order and whether it needs to be varied, given the child protection proceedings.
The DV Act s 43 outlines the process to be used by the court. It is anticipated the separate representative will meet with the child during the term of their appointment. It is best practice to avoid meeting with the child alone and thus avoid becoming a witness in the proceedings. Therefore any meeting with the child should ideally be facilitated by the social assessment report writer. These meetings are reportable and should be conducted on that basis.
The lawyer must avoid exposing the child to a systems abuse risk. When meeting with a child the lawyer should explain their role as their separate representative and answer any questions the child has about the legal process. The lawyer should be mindful that matters discussed at family group meetings are admissible in any court proceedings except in a criminal proceeding.
If an earlier case plan is in existence consider the outcomes and goals which have already been achieved by the family, and which do not need to be included in the new case plan. The lawyer may request that previous outcomes be included in the case plan with a notation that the goal has been achieved by the family.
Where a case plan has been reviewed, remind the department of their obligation under the CPA s 51X of to file a copy of the review report along with the revised case plan. From time to time a lawyer may need to request an adjournment of proceedings for a child protection order application. If the lawyer intends to request an adjournment, they should notify all parties of this intention and the reasons why the adjournment is being sought. At each mention of the matter, the lawyer should consider whether any interim orders relating to the child are necessary, for example an interim order granting temporary custody of the child to the department.
The lawyer should review the current case plan and assess its appropriateness before each mention. On the mention day, the lawyer should arrive early at court. The lawyer must advise the court of the material they intend to rely on to support any application for interim orders or for interim orders to be discharged. The court may ask for the submissions that support a position. The lawyer should make reference to relevant sections of the CPA and the relevant procedural rules.
When considering submissions as a separate representative, the lawyer should consider the principles stated in the CPA ss 5A—5C, where relevant. The CPA s 5A outlines the safety, wellbeing and best interests of a child are paramount for administering the Act. The CPA s 5B sets out a series of 14 general principles for ensuring the safety, wellbeing and the best interests of a child and s 5C sets out additional principles for Aboriginal or Torres Strait Islander children.
The separate representative should ensure copies of every order are received from the relevant registry or Child Safety Service Centre and placed on file. If a lawyer forms a view in relation to the matter, that view should be communicated to the parties through their solicitors if they are represented or directly if they are not represented , as soon as practicable after forming the view. If the parties reach an agreement the lawyer cannot support, refer the matter to the court; the lawyer should make submissions stating their view.
The purpose of the court ordered conference is to decide or resolve the matters in dispute. At the court ordered conference the lawyer should advise the parties of their view and of any prospects of settlement. They should assist in making recommendations for the future conduct of the case. Communications at a court ordered conference are confidential and can not be used in any court proceeding unless all parties consent to their use. If the lawyer wishes to advise the court of the court ordered conference communication content, they must first obtain the consent of the parties.
If subsequent material filed by the department contains court ordered conference communications, ask the department to withdraw the material. The matter will be mentioned again after the court ordered conference. However, the CPA s notes the court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate. The court must be satisfied on the balance of probabilities for any matter before the court. The Child Protection Bill explanatory notes state:.
The court is inquisitorial, and may use whatever means it wishes to inform itself. If the parties do not reach an agreement and the matter is proceeding to a contested hearing, the lawyer should use this mention to obtain directions on the steps that need to be taken to prepare the matter for trial. At the mention, the lawyer should seek directions for matter preparation and filing dates for each party.
They should request the department file its material first, followed by their material and allow sufficient time for the parents to file their material in response. Immediately after the mention, aid should be sought to prepare material for trial and trial attendance. For complex matters seek aid for counsel. The brief to counsel must include all relevant court documentation including any trial plan, copies of any subpoenaed material available or summary of same if necessary, however copies of material should be sought if the matter is progressing to a trial , copies of relevant diary notes, correspondence and other documentation.
If matters are proceeding to a contested hearing, the department will usually engage Crown Law to appear at trial. Where Crown Law is not available, the department may engage members of the private bar. Officially counsel is instructed by the applicant for the child protection order. The lawyer should liaise with those officers and any legal representatives of the parents to prepare the matter for trial.
Where a matter is contested and listed for hearing, consider each affidavit and exhibit to be relied on at hearing, and give appropriate notice if a person is required to attend the court for cross-examination. When calling a witness the lawyer should attempt to provide that evidence to the court via affidavit material filed and served on the parties. A separate representative should serve all parties with their material. If the parties to the proceeding refuse to call a relevant witness, the separate representative should consider calling that witness.
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Therefore it is normal practice for the separate representative to cross examine all relevant witnesses regardless of whose case they are called in. Any witness who will receive a subpoena should be given advance notice and be served as soon as possible. Make attempts to accommodate expert witnesses and the timing of their evidence where practical. Make the court aware of any scheduling difficulties at the earliest opportunity.
The CPA s notes a childrens court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate. The balance of probabilities is the burden of proof required for any matter before the court. The lawyer should ensure the department presents its case first and ensure objections to evidence are made in the usual way and in accordance with the accepted rules of evidence during the proceedings.
It is recommended the lawyer maintain an adequate summary of questions and answers during the course of the trial. The lawyer is personally responsible for instructing any counsel retained during the course of the proceedings. The lawyer must consider whether grounds of appeal exist in every case. In-house lawyers must consult with their principal lawyer and the Law, Civil Justice and Advice Services director about the merits of any appeal before making an application for aid to appeal.
If a lawyer is served with a Notice of Appeal , they should request a grant of legal aid. Following the completion of any contested matter, or the court making orders agreed to by the parties, the lawyer should consider whether it is appropriate to meet with the child and explain the outcome of the proceedings. Where appropriate, consider the best way to communicate this information to the child taking into account the child's age and ability to understand.
It is best practice to meet with the child in the presence of the report writer who can assist if the child is unhappy with the outcome.