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Episode 74 Buy Episode

The Risk Business: Triaging Risk in the Amalgamated Federal Circuit and Family Court of Australia

Law as stated: 1 February 2023 What is this? This episode was published and is accurate as at this date.
FCFCOA Senior Judicial Registrars Brett McGrath and Sharney Jenkinson lead David and a live CLCNSW audience through changes to the amalgamated Court, the Court's Lighthouse Project, and the concept of risk in parenting matters.
Substantive Law Substantive Law
1 February 2023
Brett McGrath and Sharney Jenkinson
1 hour = 1 CPD point
How does it work?
What area(s) of law does this episode consider?Family violence, the amalgamation of the Federal Circuit and Family Court of Australia (FCFCOA) and the Court’s Lighthouse Project.
Why is this  topic relevant?Family violence is a pervasive and insidious behavior, which confronts family law practitioners across the country on a day-to-day basis. It’s a perennial problem with few easy answers.

Recently, the freshly amalgamated FCFCOA’s own data – arising out of matters screened as part of its Lighthouse Project – found that 54% of parties to a family law matter allege a child has been abused or is at risk of abuse, 64% allege they have experienced family violence, and 57% allege a child has experienced family violence.

Understanding these behaviours, the changes brought about by the amalgamation and the Court’s Lighthouse Project is a key skill for family law practitioners.

What legislation is considered in this episode?Family Law Act 1975 (Cth)
What are the main points?
  • The main focus of the amalgamated FCFCOA is solutions and early dispute resolution.
  • By merging the former courts, there is now one point of entry into the family law system rather than two. The process is streamlined with a single set of rules which allows the process to be more tailored and solution driven.
  • The Court embeds parenting dispute resolution conferences in the process. These are usually reserved for parties who do not have the means for private mediation or dispute resolution.
  • If parties have the means, the Court will make an order pursuant to section 13C of the Family Law Act that the parties go outside the Court for mediation.
  • Court Child Experts can now also attend certain dispute resolution procedures to ensure the interests of the child are considered.
  • Another benefit of the amalgamation is that 80% of interim applications in the new Court are now being dealt with by Senior Judicial Registrars.
  • The Court going online – partly because of COVID-19 – has meant that matters from different regions, especially regional matters, can be heard remotely. They do not have to be packed into a short amount of time due to the travelling circuit only being in the region for a specific period.
  • This additionally saves the parties money and time, as they do not have to travel into court and risk it being adjourned.
  • Another factor is safety. Despite having safety plans in the Court, the Court can’t protect victims of family violence when travelling to Court. By being online, the risk of violence occurring outside of the Court is removed.
  • The Lighthouse Project involves risk screening, triage and potentially listing on the Evatt list. The process begins with parties being sent a link to an online tool when they file for parenting orders.
  • That tool screens for risks that are relevant to proceedings, including mental health, family violence and perpetrator behaviours.
  • The results of this screening process are confidential and are never seen by the registrar. Depending on the judgement of risk by the tool, the Court will determine case management and triage moving forward.
  • If required, a high risk case will be assessed by an Evatt registrar to determine whether it goes onto the Evatt list. A matter on the Evatt list has specific case management procedures such as documents from other bodies being requested automatically.
What are the practical takeaways?
  • Post-amalgamation, there are different procedures that have to be undertaken before entering the Court system, including filing a Genuine Steps Certificate that indicates the parties have made a genuine attempt to resolve matters. This differs from a section 60I certificate.
  • Before the first court date, the respondent must file their response material. A judicial registrar will triage risk and determine case management for the matter going forward.
  • Look at the various materials available on the FCFCOA website. There is a practitioner and litigant’s guide to the Evatt list, fact sheets and regular updates to the profession.
Show notesFamily Court of Australia, Annual Report 2020-2021, 2021

Federal Circuit and Family Court of Australia, Annual Reports 2021-22, 2022

Federal Circuit and Family Court of Australia, Guide for Practitioners in the Evatt List

Federal Circuit and Family Court of Australia, Information sheet for Parties – Lighthouse risk screening

Federal Circuit and Family Court of Australia, Updates to the Profession

David Turner:

 

 

 

 

 

1:00

Hello and welcome to Hearsay: The Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host David Turner. Hearsay: The Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services and Hearsay: The Legal Podcast is how we’re improving the experience of CPD.

The episode that you’re about to hear was recorded during a special live session of the podcast at the CLCNSW Quarterly Conference in November 2022. This was a first for the podcast, and you may hear some slight differences to our usual recordings.

This session included a question and answer session with the audience. These questions have been re-recorded in the studio by Hearsay for clarity.

Welcome back, everyone in the room and online who’s dialing in. Thanks very much for joining us for this last leg of the quarterly conference. My name’s David Turner. I’m the host of Hearsay the Legal Podcast, which is a subscription CPD podcast for lawyers and anyone interested in the law. We’re doing something a little bit different this afternoon, rather than presenting a seminar, we’re going to be interviewing two judicial registrars from the Federal Circuit and Family Court of Australia about two topics. One, practice in the court after the amalgamation of the two courts and also on the Lighthouse Project, which is an innovative approach to assessing and then responding to the risk of family violence in the court. So, I’d like to welcome to the show Brett McGrath and Sharney Jenkinson, both senior Judicial Registrars of the Federal Circuit and Family Court of Australia, the FCFCOA.

Brett McGrath:Well done.
DT:

2:00

It just rolls off the tongue, doesn’t it? I should say that we’re recording today’s episode for release on the podcast. If you have any questions or comments throughout the course of the recording, please feel free to let us know. We might have some time for questions or comments at the end there, but just bear in mind, we are recording today. So, family violence is a pervasive and insidious behavior, which confronts family law practitioners such as yourselves across the country on a day-to-day basis and it’s a perennial problem with few easy answers. Recently the freshly amalgamated FCFCOA published some of their own data arising out of matters screened as part of the Lighthouse Project, which we’ll be discussing today, that says that 54% of parties to family law matters allege that a child has been abused or is at risk of abuse in that matter, and 64% allege that they have experienced family violence. So, with me today, Brett McGrath and Sharney Jenkinson. Thank you so much for joining us at the quarterly conference. Thank you so much for joining me on Hearsay: The Legal Podcast.
Sharney Jenkinson:Thank you for having us.
BM:Thanks, David.
DT:Now, before we dive into our first topic, which is practice and procedure in the freshly amalgamated court, I want to know a little bit about your career history. So, Brett, maybe I’ll start with you. How did you come to be sitting on the bench?
BM: 3:00

 

 

 

 

 

 

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5:00

Well, my career started firstly in practice out in south western Sydney. I worked for a firm out there doing legal aid matters, primarily, running my own interim hearings for clients because, in that region, there weren’t too many people that had enough money to hire barristers. So, it was the junior practitioners who would have to run their interim hearings. So, I was there for about 7 years and then went to a national firm before going to the court, initially for a maternity leave cover, David. I was only meant to be there for 12 months to begin with but that was halfway through 2019 and then COVID struck about 8 months later and so, the court kindly offered me a permanent role to keep me on. It was an exciting time to come to the court because, of course, we have the Chief Justice, we have the new CEO and it was when the merger was coming through, but also the COVID period where we shift drastically from almost a Dickensian way, having everyone turn up at 9:30 for lists to going online within 2 weeks virtually and so, I was given the responsibility of the National COVID-19 list, which was the urgent list for matters for parties who were in distress as a result of COVID which was an idea that was launched with the Chief Justice and also the women’s legal groups from Queensland as an initial idea because there was concern about a lot of family violence that would occur during COVID and parents and children who might be stuck because of lockdown arrangements and what have you and that was all conducted online on a national basis and then I was appointed to Senior Judicial Registrar before the merger. So, now I conduct the interim hearings based in the Sydney registry. I also conduct dispute resolution conferences, and I’ll talk a little bit more about that. I know that’s on your agenda, David, for dispute resolution in the court and I’m also now the director for dispute resolution nationally. It’s been a very rewarding time there on the bench compared to practice and, certainly, if anyone was thinking about a career path, I don’t know what you think Sharney, but I think it’s exceptionally rewarding to be able to have an impact on the lives of people, also for children and to be given that responsibility to help them through what is perhaps some of the most traumatic periods that they’ll go through in their lives.
DT:Absolutely. I’m going to come back and ask you about your experience on the bench during COVID-19, a little bit later. That’s on the agenda for today and maybe some of the silver linings that have come out in terms of practice and procedure as a result of that experience but first you mentioned that your experience in the court started at a very early stage in your legal practice. Has that given you some sympathy for the younger advocates that are appearing in front of you? Are you an easy judicial registrar to appear before if you’re a little green.
BM:I could ask Sharney what her view about my temperament on the bench is.
SJ:I never appeared in front of you, Brett. I don’t know what you’re talking about.
BM:

 

 

6:00

I was really fortunate that in practice as a young solicitor appearing before judges across Sydney, Wollongong and Parramatta, and as far as advice, if you have a matter at court, hang around and sit and watch the other matters when they are running, because then you’re not on the pressure cooker of listening to what the bench is asking and it’s really critical to be able to do that and I learned particularly early on that being prepared is absolutely critical and you can see when that doesn’t happen but no I think you get more out of practitioners and professionals when you start to channel everyone towards a solution and one that’s obviously within the range of the law and that doesn’t mean brow beating them, certainly. It’s keeping discipline, but ensuring that everyone treats everyone with respect because we are the court. That’s an expectation and if we aren’t setting that standard, how can we expect litigants who are usually struggling with communication with each other or certainly aren’t displaying the best of human behaviors. If we aren’t displaying that to practitioners from the bench, then it’s difficult to try and get that reciprocated and some respect for that authority that we are conveying.
DT:Absolutely. Sharney, does your path to the bench look a bit like Brett’s or is it a bit different?
SJ:

7:00

 

 

 

 

 

 

 

8:00

Mine’s a bit different actually. So, I’m from Victoria. I know, I’m sorry. So, I started similar to how Brett began in a small suburban firm in Melbourne. It was the principal and me. So, I did a lot of appearance work. She was an ICL with a huge number of ICL files. So, I got to have my finger in a lot of those matters. I did that for about 4 years and then I went to the bar.

TIP: That acronym that Sharney just mentioned stands for Independent Children’s Lawyer.Brett and Sharney will mention ICLs a few times. Basically, their responsibility is to – as the name suggests – independently represent the child’s best interests.

They’re appointed by the Court under section 68L of the Family Law Act 1975 (Cth), either on its own initiative or on application.

So, I was at the bar for just under 10 years. Again through COVID and through lockdowns and practiced in those situations and then in 2021 was when the merger was happening and they were recruiting more registrars and I was told there’s these positions going, have you thought about applying? And so I applied, so I started on the 30th of August and the merger was on the 1st of September. So, I only had the new system to learn. I didn’t have to adapt between the two, which was nice.

DT:Well, yeah, absolutely. We’ve been saying it’s a fresh amalgamation or I’ve been saying it’s a fresh amalgamation, but of course it has been amalgamated since the 1st of September, 2021. Sharney, maybe I’ll start with you. What were some of the drivers of the amalgamation and its consequences? And maybe we can talk about that through the lens of some of the matters that would’ve been before the court on the 30th of August that are now on the 1st of September before the combined court.
SJ:

 

9:00

 

 

 

 

 

 

 

10:00

Well, the main consequence, and I don’t have the statistics, Brett’s the statistics man, but the main consequence is that there is a real focus now on solutions and early dispute resolution in matters. So, matters are now being managed at the early stages by registrars. Interim hearings are mostly being conducted by senior registrars. There’s a much earlier focus on dispute resolution coming in at an early stage in the matter and the idea then is that by that all happening at an early stage, the people who don’t actually need to be focused on a final hearing, rather than turning up on the first court date and being told, “okay, here’s your trial date and here’s all the things you need to do to prepare for trial.” And rather than having trial on the mind, practitioners and parties are being encouraged to think what’s actually in dispute between you? How can we get this resolved? What do we need to get this resolved? And then if at the end of all of that process you’re not able to resolve, okay, well then you can go to a judge and a judge will make a decision and of course, it also means then that there’s better availability for the judges because they’re not dealing with necessarily so many directions hearings and interim hearings. So, they are free and able to focus on the trial work. So, one of the main drivers is that will then mean that party’s able to exit the system a lot more quickly. They’re not waiting months, years for a trial date. They’re not attending multiple hearings because things have changed while they’re waiting and then filing affidavits about how much they hate each other that then the other party responds to, and then everybody’s just all in a state of conflict when actually they were just arguing over what should happen on Easter. So, that’s really the idea. The people who don’t need to be there for long and hard, get them out as quickly as possible.
BM:

 

 

 

 

 

11:00

 

 

 

 

 

 

 

12:00

 

 

 

 

 

 

 

13:00

Yeah, and I think the court structure, how it looked, you had the Family Court and the Federal Circuit Court of Australia. I’m conscious that usually in these audiences, there are people who practice family law, love it, and the other half have avoided it like the plague, but it’s still important that everyone gets an understanding. So, there were two courts and what you had though were two sets of rules, two different sets of forms and two different points of entry into the family law system, which was really difficult and I know that the attendees here, you’d know dealing with people who are self-represented litigants often fall in that cusp where they don’t meet the means test to have legal aid, but they also can’t quite afford to have a lawyer themselves. How confusing that would’ve been for them, let alone lawyers who would get confused by which court to file in and why. So, a big driver was to have that single point of entry. So, everyone comes into Division 2 on that, and we had the amalgamation of the rules and the Federal Circuit Court, you’d see a judge on the first day it was called the rocket docket. So, the judge would be there, they would hear the directions and make directions for valuations to be dealt with or people to go and do drug testing and what have you but all those delegations also fell within the power of a registrar to do and so in the Family Court you had registrars who would have the matter usually at first instance, unless it was urgent, they were making those directions. So, what we’ve seen through the, is what Sharney was saying, is that now judges similar to what happened in the old Family Court, now in both Divisions 1 and 2, you will have judges there to do the work, not to give the directions and what have you at that first instance, but it’s judicial registrars who are the ones that you’ll see on their first occasion and firstly they’ll triage risk and then they’ll also push parties to gear shift away from that notion of we are gearing up for a final hearing for a judge to determine it. As I usually say, there’s no perfect solution for children of separated parents. It’s much better that decision comes from them than strangers like us and what that case management pathway really encourages and ensures is core business is that people have that shift of trying to resolve the dispute as much as they can. If not in its entirety, certainly narrow it down so that there’s a less expensive trial and there’s less issues for a judge to have to canvas at a final hearing and so one thing that you’ll hear about constantly in family law is the case management pathway and that’s what we’re talking about where that’s the registrar led portion is the front end, where we try and get you to dispute resolution or you might come for an interim hearing before the likes of Sharney or myself but then if after we try to resolve the dispute, we’ve dealt with your interim matters and got the matter on track, if you still haven’t resolved it, that’s when a judge now comes in and we’re finding that so far that parties are adhering to that quite well. We’d like to thank all members of the profession who are involved because it was certainly a big transition for all of you, certainly in the community legal centre sector. It’s only worked because the profession has also helped get on board with the merger and the new rules and understanding them as well. So, that’s where we are moving to is that resolution of dispute early on and if we need to have a trial, then so be it but the judges are now available to make those determinations because they have the time.
DT:Post-amalgamation, both of you have a greater set of responsibilities and powers to deal with case management and triage. Maybe to help us (me) understand a little bit better, can you talk me through an example or a hypothetical of the first court date and what that might look like in terms of my pathways to alternative dispute resolution post-amalgamation versus what I might have experienced on my first court date pre-amalgamation.
BM:

 

14:00

 

 

 

 

 

 

 

 

 

15:00

 

 

 

 

 

 

 

16:00

 

 

 

 

 

 

 

 

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18:00

I’ll take that one to start with and Sharney will happily correct me if I go astray. So, coming into the new court system. Firstly, there’s a lot of pre-action procedures that you need to go through and what you now file is what we call a Genuine Steps Certificate. So, that ensures that the parties have made a genuine attempt to resolve matters. So, previously, of course, there’s a Section 60I certificate for those familiar with parenting matters, which is where you have to go to family dispute resolution, try and resolve the dispute, unless, of course there’s always the caveat if it’s urgent or if there’s family violence and there was an exemption for that. That still is the case, but there also now needs to be a genuine attempt to try and resolve the property matters as well before coming in. So, practitioners and parties need to certify they’ve made genuine attempts to do that. They’ve sent offers to each other and it’s not just going, “oh, we’re separated, we’re running to court.” That’s now not part of the pathway. So, it’s a lot of front loading there on that front. Then when you hit your first day, unless it’s an urgent matter where you’ve come before someone like Sharney or me or a judge depending on the degree of the urgency or risk. For an interim application, if it’s a stock standard, we’re separating, we’ve got parenting matters or property matters or both, then you’ll go before a judicial registrar on the first day and that was generally from the point of filing about six weeks to two months away. You’re expected, if you’re the respondent, to file your response material before that first return date and then once you’re at the first return date, that’s when the judicial registrar will go through the risk issues, we’ll look at case managing the matter forward, ensuring those genuine steps have been taken before filing, and we’ll set you on the pathway if there’s any interim applications that should be pressed a date for an interim hearing before usually a senior judicial registrar and about 80% of interim applications are now being dealt with by senior judicial registrars across the court or if there are no interim applications, it’s then going to dispute resolution and so that can either be inside the court. We have a new dispute resolution pathway. Of course, there’s the old conciliation conference. We’ve always had that for property disputes. You now have the opportunity, though, within the court post-merger and it’s embedded in the pathway for dedicated dispute resolution conferences for parenting matters as well. They’re internally in the court. That’s usually reserved for parties who don’t have the means for private mediation or dispute resolution. If you do have the means, the court will make an order pursuant to 13C that you go outside the court and do that with a private mediator or if you have an ICL, a COMP mediation might be something that’s ordered but you get one dispute resolution event after your interim applications are generally dealt with because we want you to try and resolve your matter on a final basis. The other exciting aspect of the court dispute resolution regime is that we now have the Court Child Experts in family therapy guys in some of the conferences as well and they really apply that child focused lens and that social science lens to parenting matters which really assists the parties now to have that co-mediation model where it might be discussing a report that the parties have in a confidential setting, of course, as well, a report they might have children’s views or what would be age appropriate as far as orders because as we know, a lot of the matters that come before the court aren’t necessarily legal problems or questions. There’s a range of outcomes usually but there’s a social science bent to it and so we’re finding having the resource of the Court Child Experts there in that setting has been extraordinary and we are finding that settlements of what we call legacy matters, so the matters filed pre 1 September last year, but also the new matters as well that we’re having a lot of success.

TIP: Those experts that Brett just mentioned – Court Child Experts – are employees of the Court who work in the Court’s Children’s Service. They are qualified psychologists or social workers who have specialist knowledge about children involved in family proceedings.

They have a couple of roles that they can fulfil. They can act as either a family consultant or a family counsellor – which have slightly different purposes. If appointed as a family consultant, they conduct assessments and prepare reports as ordered by the Court. This role is similar to the role of family consultant from private practice.

However, as a family counsellor, they can undertake other duties including:

●      Providing advice about children in dispute resolution conferences.

●      Conducting triage interviews as part of the Lighthouse Project.

 More on that a bit later.

Again, as Sharney said, we wish we didn’t have a job but unfortunately we do, because we want to make sure parties aren’t stuck in the system for very long. So, we will make every attempt we can to assist parties to get out of that system as quickly, efficiently, and cost effectively as possible which I think is a quote from the overarching purpose.

SJ:Might be the overarching purpose of the court.
BM:Might be the overarching purpose.
DT:Does sound like the overarching purpose. Thank you for explaining that. It sounds like in a nutshell, pre-amalgamation case management was really about reaching that end goal of a final hearing. Post-amalgamation, it’s really about finding a pathway out.
BM:That’s right, David and we had a conciliation conference in the rules for property matters, but you would try mediation outside of the court for parenting, but there was no obligation to try and mediate once you’re in the court system. So, it’s a pivot that is certainly yielding benefit to parties and certainly for legacy matters. We had a lot of parties say, “gee, I wish we had this three years ago when we were in the court system.” And I said, “well, we have it now.
DT:Of course so many of those ADR tools were always available or available before September, 2021 but amending the rules to really encourage, even require interacting with those tools, it sounds like is really paying dividends.
BM: 19:00Absolutely and you said ADR, so alternative dispute resolution. One of our mantras within the court is that it’s not alternative anymore.
DT:No. That’s true.
BM:In the family law system dispute resolution is now core business and we’ll resolve your dispute, as was the overarching purpose, it’s much better if the parties can sit down and do it themselves. If not, we have the resources of senior judicial registrars at an interim stage and judges, but also judges in the final hearing if it comes to that.
SJ:I think if I were to add to that as well, that at every event, whether it is a directions hearing, a mention, an interim hearing, a dispute resolution conference, there is a focus on what are the issues that are actually in dispute here? What are the solutions that can be put forward by everybody involved to try and deal with that dispute? So, the days of, “well, let’s just come in and tell the court everything we hate about each other for the past 20 years, and hopefully something will fall out.” Parties and practitioners in particular have to take an active role and are definitely encouraged and, in some cases, required to take an active role in what can we do to help this family solve its problems.
DT: 20:00Brett, I wanted to turn to your experience during COVID-19. Of course you started as judicial registrar during that period. And you saw the widespread use of electronic means for conducting hearings, for conducting lists. What are some of the things that the FCFCOA has learned from that experience that are now persisting in our sort of post-COVID era?
BM:

 

 

 

 

21:00

Yeah, that’s a great question, David and as I said the court did an extraordinary job and we’re really proud of the fact that we still maintained almost a 98% clearance rate of matters that came into the court during that period. So, that’s the number of matters that come in versus the matters that are finalised. We were still clearing about 98%, which was consistent with face-to-face before we were online and what we found, because we’re a national court as well, so it used to be that you’d have to file in a registry, you then appear in that registry. You get that bank of judges, you get that bank of registrars. One aspect and there are a couple, but firstly is that going online it’s really made us a national court now. So, in any given day, Sharney or I might have a matter from Adelaide, Parramatta and Sydney listed before us for interim hearing online.
SJ:Well, today I had two Sydneys, a Newcastle and a Parramatta.
BM:

 

 

 

 

 

22:00

 

 

 

 

 

 

23:00

So, it means that we will be able to allocate the resources and use our resources in the court to their greatest potential, which is great. So, it’s really activating our human resources from there. The second is, and links to that is the access to justice piece. In circuits in the previous court, you might have to wait six weeks or three months for the circuit to roll around and you would be one of 60 matters for a judge to try and deal with on 4 days. Now with the availability of online, again, if you’re from a rural or regional area in particular, it gives you that accessibility to the resources of the justice system that just seemed impossible or a massive hurdle, which psychologically, emotionally, but also financially could be potentially devastating for people to have to fly into Sydney for a court hearing that could potentially get adjourned for some reason. So, we’re finding that’s. With the overarching purpose as well, enabling parties to run their matters more cost effectively. Third, is that particularly for legally aided matters and in practice we all know that, legal aid, you might get a certain, cents on the dollar versus what you would actually have, a return because you’d only get money for a certain amount of mentions, but you’d have to turn up to court, you’re 3 hours out of the day to travel there for 15 minutes before a judge or a registrar. Now, by being online, all of the directions lists are online. So, you are in your office when you’re conducting these lists. You can have your clients there and finally, there’s lots of benefits, but the ones I’ll highlight is particularly for matters involving serious risk or family violence, is that rather than having parties have to physically be in court, yes, we would always have safety plans at the court and we’re very conscious of that and still do, but there was also the inescapable problem of if there’s public transport was the only option. An example might be a party coming from Bowral to Sydney for a matter. There’s only one or two trains that go into the city at that time and that then come back. So, you might have a scenario where, yes, at the court time, everyone’s conscious of it and doing all they can to ensure safety, but what happens when you have to take a public transport home with someone like that? Whereas now it offers that ability for dispute resolution conferences as well, but also for court hearings and turning up to court for victims to be able to be in a safe space where they aren’t fish out of water and they certainly don’t have to come in across the perpetrator necessarily in an artificial court setting.
DT:That’s probably a good lead into our main topic for today, which is the Lighthouse Project. As I mentioned, the Lighthouse Project’s an innovative way of assessing and then responding to family violence risk in the FCFCOA. Sharney, I might start with you. Can you tell us a little bit about what the project is and how it came about?
SJ:

24:00

Sure. Well, the first thing is it’s not just about risk of family violence. Family violence is one of the risk factors but it is a project that’s been piloted in three registries up till now, and as of Monday is going to roll out across 15 registries, which is the majority, certainly the majority of our larger registries. It’s a project that is designed to identify and manage risk early on. So, I’ll just tell you how it works. The first thing that happens is that at the point of filing when a client files or a practitioner files an application that seeks any form of parenting orders, and by that I mean live with, spend time with, it’s not child support and whatnot, but parenting orders, that client will receive by email and invitation to complete an online risk screening tool and that is a great tool. I’ve seen it used, I’ve completed it myself to see how user friendly it is and anyone who’s been in my court will know I have zero IT skills and I can manage it.
DT:It’s sort of 15 minutes, use on any device.
SJ:

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31:00

 

 

 

 

 

 

 

32:00

That’s right. You can do it on a phone, on a tablet, on a computer. There are a ways that clients can be assisted if they don’t have access to anything but it’s very much click the button and occasionally enter in information on the screen. So, the clients receive a request to do that. There are sections now in the Act. That is completely confidential. It is completely inadmissible. The judicial officer that never sees it. It cannot be subpoenaed. You cannot be cross-examined on it and I think that’s an important thing that people don’t always realise is clients don’t need to be in any way concerned, they can do it in the privacy of their own home without their lawyer and they can honestly complete that risk screen. And nobody will ever know. In fact, we don’t even know and we’re not allowed to ask if they’ve even done it. So, I can’t even say to a party, “well, have you done the risk screen?” That’s totally off limits. It screens for a variety of areas of risk. It screens for family violence risk, for mental health, drug and alcohol and also something that I didn’t realise is that it screens for perpetrator behaviour as well. So, somebody who is at risk through particular attitudes or experiences of potentially being a risk of a perpetrator of violence, which I think is something unique that you don’t get in a lot of those outreach programs. So, once the client completes the risk screen, the matter might be assessed as high, medium, or low risk.

TIP: The Lighthouse Project pilot was launched for trial in December 2020.

According to the annual report of the Court for 2021-2022, since launch of the project 4,203 eligible matters were filed in the pilot registries. In 94% of these eligible cases, at least one party was sent a risk screen. Remarkably, responsiveness to the screen was significant, with 41% of risk screens completed by litigants within 24 hours.

In the result according to the report, 60% of screens were classified as High Risk, 17% were classified as Medium Risk and 23% were classified as Low Risk.

If it’s low risk, it goes through the normal case management pathway that Brett has been discussing. If it’s high risk or if it screens as risk for any of the factors, then it’s reviewed by a triage counselor and those are specialist social scientists, social workers, psychologists, counselors who are employed by the court to undertake a triage screening role. It might be something straightforward as in refer this person to a service or make sure that they know to request a safety plan. If they do have to come into court, it might be making a referral to drug and alcohol services, family violence services, mental health services. There’s a variety of things that can happen and the triage counselors in high risk cases have an interview with the person, again, completely confidential, completely inadmissible. It’s not recorded anywhere on the court file, and nobody can be asked about it in court or in the witness box and the idea there is that obviously there’s a huge population coming to our court who have these risk factors and as we all know, sometimes the law is a bit of a blunt instrument and we’re not always equipped with the tools, the external tools, the social science tools, the community resources. We don’t necessarily always have access to those. So, we can get parties linked in with those services that assist them, obviously to be able to better parent their children, to be more safe in the community, and also to better conduct their matter because they don’t have these other issues that are hanging over their heads. Sorry, this is a bit of a long answer. Once they’ve had the interview with the triage counselor, then there might be an assessment by an Evatt registrar of whether the matter goes into the Evatt list. So, the Lighthouse Project is the overall project of the risk screening, the triage and the Evatt list. The Evatt list is the specific case management pathway within the court. It’s similar to a Magellan list for the family lawyers where we deal with child abuse. It’s similar to an indigenous list where there’s particular considerations that are relevant to particular communities but the main difference with the Evatt list is you can only be placed into that list after completing the risk screen and being assessed as needing to go into that list by the Evatt registrar. So, you can’t rock up to court and say, “I’d like to go into the Evatt list, please.” I’m an Evatt registrar, but I can’t order you into the Evatt list. It has to be done through that process and through that confidential process. So, potentially somebody is in the Evatt list and their lawyer might not know why. Hopefully their lawyer will have a conversation with them when they get the email about being placed into the Evatt list but I don’t know why. I don’t know who screened. I don’t know what they screened for. I just know that this is a matter that is in this case management pathway. So, the law is still exactly the same. Best interest of the child are still the paramount consideration. The case is still decided on the evidence that’s put forward by the parties and by the experts, but it’s the management and the resourcing for those cases that is different. So, if a matter is placed into the Evatt list, automatically the Evatt Registrar will request documents and information from the Department of Child Protection in the relevant state and from the police. So, rather than having to go to a directions hearing and ask for those things in the normal management pathway, those things happen automatically in an Evatt matter. They’re also appointed an independent children’s lawyer and they are sent for an Evatt report. So, that’s an internally administered report, very similar to a child impact report, that is, what are the issues here? How do these issues impact upon this child? And potentially, if possible, identifying some ways that those impacts upon the child can be dealt with and can be administered. The Evatt registrars regularly check in on the Evatt list matters. So, they have regular chambers events or directions hearings where they can check on the progress of cases. So, for example, if the registrar has requested police material by X date, not long after that, they will go back and check has this material been provided? So, there’s that constant checking in on the matters and the Evatt reports are specialised dates set aside for the Evatt list. So, somebody else can’t come in and say, “well, I want that report.” Those reports are only for the Evatt list, which means they’re typically able to be completed quite quickly and that’s certainly been the experience in Parramatta anyway. Once all the information is ready, if there’s an interim hearing, then the Evatt registrar will put the matter into an Evatt list interim hearing spot, which again, are dedicated spots for Evatt matters. So, they can’t be taken up by other matters and have these high risk cases potentially being put off the spaces will be made. There were timeframes in the pilot and I understand there will be timeframes going forward to have everything from filing to interim hearing dealt with as quickly as possible in a very time efficient fashion. Then there’s a determination made because some of these matters might not be appropriate for dispute resolution depending on what the risk issues are. So, there’s a determination made about whether or not it should have a dispute resolution event and then again, if the matter hasn’t been able to resolve with the reports, with the ICL, with all the information then there are, again, specialist Evatt trial dates, which means that the matters, again, should be accommodated much more quickly. So, the overall program really focuses on early intervention and outreach for people who might not know that these services are available, and then if it is going down a litigation pathway, dealing with that in a way that the issues can be addressed as quickly as possible and as comprehensively as possible with as much information as possible.

DT:Thank you so much for that comprehensive answer.
SJ:Sorry that was a really long-winded answer, but it’s a big project.
DT:

 

 

 

33:00

Well, it is and it sounds like at its core, the purpose is and it links back to what we were discussing before in terms of how non-Evatt list matters are being managed post-amalgamation. Post-amalgamation, we have this focus on dispute resolution. We won’t call it alternative dispute resolution, but on early exits from the court process. The Evatt list is a way of, it sounds to me, of identifying the matters where that approach may put the parties at risk and taking a approach of prioritising those matters for a more formal approach to their resolution to ensure that focus on not alternative dispute resolution that would otherwise apply doesn’t result in placing someone at risk or placing someone In the family court process for longer than 12 months. I think the sort of backstop for a trial date in the pilot was 12 months.
SJ:It was. It was 6 weeks for an interim and 12 months for a trial. That’s exactly right and if they raise a risk of drug and alcohol, that’s more likely to be exacerbated by stress and prolonged litigation. If there is a risk of family violence, that’s going to come to the fore potentially a lot more in circumstances where there’s prolonged waits and no answer and uncertainty. If there is a risk of mental health, that’s going to be exacerbated by prolonged litigation and also we have an obligation as a society that if there are kids in environments where they’re at risk, we need to get in there and we need to deal with that, and we need to deal with that and so it’s something that I’m really proud to be a part of. It’s very easy for a court to say, not our problem and that’s not what the court’s doing. The court’s saying, well, if you’re coming to us with these, we are going to try and help you fix them.
DT: 34:00It’s a great example of a really tailored approach to case management where you don’t have a one size fits all, everyone needs to try and resolve things amicably or everyone needs to follow the process and prepare the case for trial as quickly as possible, you have horses for courses but at the top of the recording, I mentioned some of the statistics that came out of the Lighthouse Project. So, those were from the screening questionnaire that pilot participants were completing. Just over half of all responses indicated an allegation of child abuse. Almost two thirds, an allegation of partner violence. When you saw those statistics coming out of those, early screening questionnaire responses, did that surprise you or did that sort of confirm a narrative that you already understood about the sorts of matters that were coming before the court?
SJ:

35:00

I didn’t find it surprising, unfortunately because we were seeing these families every day. We just didn’t always have the tools that we needed to assist those families, whereas now we do and we will going forward. The other thing to keep in mind with those statistics is the screening process is voluntary. Both parties don’t have to screen, only one party has to screen in order for it to trigger this triage and potential Evatt process and as I say it, screens for other things, not just family violence. So, I think one of the statistics I saw was there was a 70% uptake. So, 70% of people in the pilot registries were completing the risk screen. So, there’s a 30% out there, we don’t know exactly what’s happening with them and they will potentially miss the opportunity to get that resource and to get that case management pathway if they don’t undertake the screen. So, my advice to the lawyers is tell your clients you’re going to get this email from the court and it is very important that you complete this because that will give us a much better picture and enable us to access those people who otherwise won’t have access to those services.
DT:

36:00

Is there a bit of a selection bias in those statistics in that there are early resolution pathways, whether that’s in the form of family dispute resolution centres, or we’ve talked about collaborative law approaches for those who can afford the private service of collaborative law. We talked about that on the show before. A lot of matters that can resolve amicably resolving amicably before they reach your courtroom and is that why we might see a much higher than in the general population rate of these risk factors in the screening questionnaire?
SJ:I don’t know, because I don’t know that’s something that’s been studied, so I can’t say for certain with any data, but certainly populations of people coming to our court have a higher rate of personality disorders, mental health problems, drug and alcohol problems than the general population. Now, whether they come to us because of those things or they are unable to resolve their dispute because of those things, I’m not sure but certainly, as I understand it, it’s a much higher prevalence in our population than in the world at large.
DT:

37:00

Now, Sharney, you are an Evatt list registrar. There is this tension between dispute resolution without a final hearing being, if it’s possible, a preferable outcome for everyone. Brett, I think you said earlier today that a result that both parents can agree on is better than one imposed by a stranger. How do you as an Evatt list registrar, balance the desirability of that with making sure that you’re not placing anyone at risk.
SJ:

 

 

 

 

38:00

Well, I think in any dispute resolution process, whether you are doing the dispute resolution or making the referrals, you have to assess whether or not that can be done in a way that is safe and obviously the court and the legal aid bodies and a lot of the service providers offer ways of mediating or things like that online, where a party can still maintain autonomy over their life while still being able to be safe. There are ways that can be done, so we would make that assessment but one of the things that certainly surprised me about the Evatt list is actually that because we have so much information, so early on in a proceeding, and because we have the ICL and we have the support services linked in there’s often quite a willingness to actually try and come to a resolution where parties know what the issues are, they know what’s what, they have an independent children’s lawyer who can assist them, they know what the department thinks, they know what the police think and so there’s actually quite a high rate of negotiated settlements in the Evatt list.
DT:That’s fantastic.
BM:

 

 

 

 

 

39:00

 

 

 

 

 

 

40:00

Yeah and to pick up on that often we find that we get people at a crisis juncture and then they come into the court and as Sharney said once that infrastructure’s put in place through that triage process and then having everyone on board, that’s when it’s cooled down perhaps a little bit but then when you ameliorate that risk by putting some scaffolding in place and those supports parties, then they get a bit of a sense of where they can go and that’s where dispute resolution can come in and we as judicial registrars and senior judicial registrars, we go through comprehensive dispute resolution training with Senior Judicial Registrar, Anne-Marie Rice, who heads that. We are all by delegation family dispute resolution practitioners, which means we are also subject to the regulations of family dispute resolution practitioners. So, as Sharney said, we test for negotiability. We have to test for risk before sending a matter for dispute resolution as well and, certainly I’m aware of scenarios where there’s been the worst of family violence you could possibly think of with criminal charges pending and what have you but the victim has said, I don’t want to be on the stand and go through the legal process of being cross-examined, they would rather abandon the process than have to go through that but dispute resolution in a shuttle setting with a senior judicial registrar and also a Court Child Expert and an independent children’s lawyer offered a pathway for that person to say, “I’m comfortable” because, as Sharney said, regain some control and autonomy over their lives rather than thinking that a judge is going to be best placed to make that decision and that determination. So, we are seeing that there’s certainly those benefits where it can be done in a very safe setting and also there’s a two-step process within the court because any order that’s made, the registrar still has to be satisfied that it’s in the children’s best interests and that people are protected from harm and certainly in circumstances where that is clearly evident that’s not, or that there’s a power imbalance that only becomes evident through the course of the dispute resolution conference, registrars will not make the order. It’s not a get a consent position at any cost. Absolutely not. Our delegation and our sworn duty is to implement the Act, which is to ensure that the best interest of children are maintained, and if they are, to have the benefit of meaningful relationship with each parent, but to be protected from harm and risk and harm and risk absolutely overrides every single day and we take that very seriously and so, I hope that gives some confidence to everyone, that if you’re in that process, certainly within the court, we have those regulations we’re subject to, but that delegation means that there’s that safety net as well, that parties, just because they’re saying yes, there’s that other layer of check and balance of being in the court with a registrar. They’re present to make the order.
SJ:Registrars will do that. I’ve done it.
BM:I have. I have, yep.
SJ:

41:00

I’ve said, “if you just send me these orders, based upon what I’ve read, you’re going to have to come and make some submissions about why those orders are in the child’s best interest because as it stands at the moment, I don’t think they are, I’m not confident they are.” It’s not done as a matter of course, we’re not trying to drag people into court for no reason, but if we’ve got a concern, we will raise it and ask the parties questions about it for sure.
DT:To the extent you can, could you give us an illustrative example of the sort of orders that you might see coming up by consent that you wouldn’t be comfortable with?
SJ:

 

 

 

 

42:00

I can, in a broad sense. So, I can recall a matter that was in the Evatt list and what I had read was some material from the police and the department where there were some concerns about some substance use issues by one of the parents. The matter had gone off for a little while and certain things had been done, and they presented me with a set of consent orders for a very gradual increase in time that the child was going to spend with that parent moving to unsupervised and I asked for more information because based upon what I’d read, I didn’t see that that was appropriate but what transpired was that in the time between when I’d had it and when they’d sent me the orders and gone off to mediation there had been a period of drug and alcohol counseling. There had been some clean drug screens. The independent children’s lawyer was very confident about the protective mechanisms that were put in place for that child and so in those circumstances, everybody, including the other parent, the parent with whom the children lived, agreed that this was appropriate. The parent that the children lived with was empowered to know if there was a problem, this is what I do, this is who I contact, and so I was satisfied that the combination of the work that had been done by the parent with the issues and the ability to act protectively in the parent who didn’t have the issues meant that I was prepared to make the orders, but that was not evident from what I received.
DT:Thank you for that and I think that illustrates that you are open to being persuaded.
SJ:Oh, of course.
DT:

 

43:00

Just before we move on from that topic, Brett, you mentioned that as a family dispute resolution practitioner you are looking for and testing for negotiability in a matter before you send someone for conciliation. That’s a useful thing to know how to do for practitioners as well because practitioners are also in the position of having to weigh up, “well, there are allegations of family violence here, but there’s a possibility of a negotiated outcome here. I don’t know whether to recommend that as an option or not.” Can you tell us a little bit about how you would test for that and how you would be satisfied of that?
BM:

 

 

 

 

 

44:00

 

 

 

 

 

 

 

45:00

 

 

 

 

 

 

 

 

46:00

 

 

 

 

 

 

 

47:00

Yeah, it’s certainly when the matter comes before the court, of course, reading the file, we have the notice of risks, which are filed as well and you can see where the matter is at and also the ambit of the dispute about how far away they are. Certainly the court will pose the question to the practitioners, you know your clients better than what we do, about whether or not you think that there’s a possibility that dispute resolution would offer a pathway for your client and the parties to try and resolve the dispute. The other thing to talk about is really about the process. So, that’s really important in dispute resolution is to outline to them what it would look like and what it offers. So, as Sharney said, a judge or a senior judicial registrar at an interim or final hearing is a blunt instrument. They’ll look at the paperwork and they’ve only got a limited amount of time to do that. So, it offers that degree of autonomy for a client where they may not have had that or felt that before and if they’re with you as their solicitor, they’ve got you to advise them through that process. Also, that the process is controlled by someone from the court and it’s totally confidential. So, we do a part one and part two. So, we have an initial touch base with the clients and with their solicitors and we always recommend the solicitors attend because we’ll firstly outline the process and say it will be a senior registrar, judicial registrar. Orders can be made, but it can’t be forced upon you in any way. It’s not a hearing of that kind. Also, we test the structure. Are you comfortable being on screen or in the presence of the other party? If not, we can offer shuttle. So, it’s just me who will be on screen. If we have a Court Child Expert, it’s the offering that’s not really available to the court unless it’s, I know you mentioned David, collaborative law. I think that’s something that people are doing there but certainly within the court, to have someone who has that social science experience who’ve dealt with families in distress and made recommendations about children and families, they’ll be there to assist and also anytime that we should take a break or terminate the conference, there’s that element of control that they have over that process as well. It’s not like another court event where you have to turn up, you have to be there and be present when you’re present. If there’s a comfort level, absolutely take a break at any time or terminate the conference as well from there. So, by outlining the process to them, would they be comfortable in that setting? Do they think that they could then sit down and discuss some of those motions or even narrow the issues in dispute? There still might be some of the big ticket items, whether it’s parental responsibility or live with or what have you, but even if it’s a narrowing of the issues that it, hopefully, as Sharney said, takes some of the pressure off parties when they’re coming into the court system or going into a hearing from there. So, I’d suggest that practitioners tease that out with their clients. Give them an overview of the process from there and sometimes parties will be reluctant, but I’ve certainly found that when I’ve given that overview to them when they’re walk in going, “oh, I’m not too sure.” And also articulated the element of confidentiality, saying that it can’t turn up in an affidavit anything that’s said today and the judge won’t know what goes on and it’s certainly a client’s opportunity, which is really unique to sit down with often a decision maker like Sharney or I in a confidential setting and a Court Child Expert with their experience in the court and tease out their ideas. We have a bit more of an evaluative model where if the parties are comfortable, we give a view about where the matter might go, or provide suggestions and solutions to the parties and adopt that model as well and when parties say that they might have that opportunity because how often are they able to directly communicate with the court and ask them questions? It’s very rare in a confidential setting where there won’t be blow back on them and so certainly outline that to them, that’s their shot and it’s remarkable, David, when you say to people, this is usually what I start with, is there anything that you’ve always wanted to tell the court or let them know and I’m happy for you to tell me now, and then they get it off their chest and they feel like they’ve been heard and often with conflict that we’ve got, it’s high conflict, not necessarily family violence, but high conflict, being heard is really important to them that they’ve got that across the line. So, even if there’s no result at the end, again, we’re not here to try and get results for the sake of it. We’ve had dramatic turnarounds where people have been able to discuss their case and they might have a light bulb moment and question what they’re doing and then it might assist at very least with the carriage of the matter and to make that far more streamlined and consistent.
DT:Thank you very much. Now, Sharney, you mentioned a little bit earlier quite recent news. The experiences we’ve been talking about with the Lighthouse Project and the Evatt list have been from the pilot in three registries. As of Monday we’ve heard that that’s going to be rolled out more broadly. So, clearly the pilot’s been a success. Can you tell us a little bit about the rollout?
SJ:

 

48:00

Well, it will be as of Monday and it will be in 15 registries which is certainly most of the major capital cities and the larger registries. So, going from, Brisbane, Adelaide, and Parramatta to now being in Sydney and Melbourne and very large registries, it is a little bit of a watch this space because we don’t know. As I say, we had a 70% uptake in screening for the pilot project. We’re hoping that will continue in those larger registries. There are already the resources there ready to go. So, anything filed from Monday that has a parenting component, and the email goes to the client directly. That’s the only time the court will communicate directly with a represented party but it goes to them directly so that they can complete that tool in their own time at their own home without any pressure. Sometimes clients don’t feel comfortable even saying things to their own lawyers as good as everybody is and as much as we might all try to ask the right questions. There are some things that people don’t even feel comfortable talking to their lawyers about. So, they do it in their own home, in their own time, when it suits them and they feel comfortable and ready. I can’t really say exactly what will happen because I don’t know, I don’t know how many filings there are going to be and how many people are going to undertake the tool, but it’s all there, ready to go. We’re ready, willing and able.
DT:Fantastic. So, I suppose anyone in the room or watching online who’s representing or advising someone on a matter that might be filed in the Sydney registry, encourage them to complete that screening questionnaire.
SJ:Absolutely.
DT: 49:00Because even if it’s not the sort of matter that might benefit from the tools that are there in the Evatt list, it’s going to help to understand the prevalence of this issue.
SJ:And because it does screen for a multitude of factors as well. It screens for mental health and children’s mental health and things like that, that may not be readily apparent to them. They might not walk in the door and say, “I think I might have issues with my mental health.” But the way that the triage questionnaire works, if you answer yes to certain questions, it unlocks other questions. So, somebody who is going to screen at low risk is probably going to be able to burn through that reasonably quickly so it won’t be too much of a burden on them but there are certain things that if they do indicate a positive answer, that then unlocks further things and unpacks that further. So, I mean it’s free, it’s confidential. All it costs them is time and they might be then able to access a whole range of services that they might not know were available to them. So, why wouldn’t you do it?
DT:

50:00

Absolutely. Since this new approach in practice and procedure is being rolled out more broadly as of Monday, we probably need to do a bit of reading up on it. There’s a practitioner’s guide to the Evatt list available online, isn’t there?
SJ:There is, yes. So, there is a practitioner’s guide, there’s a litigant guide as well. There’s fact sheets on the court’s website. There’s regular updates to the profession on the court’s website. There’s been at least one, if not two come out in recent weeks about the Evatt list. There is loads of information out there and I looked at it today because I thought you might ask me that question and the information sheet is really digestible. It’s easy for clients to understand and it’s easy for practitioners to understand, even if you don’t do a lot of family law, that basic information that you need to give your clients is all right there and the Evatt registrars are all highly trained, specialised people as well. So, if a matter does get put into the Evatt list, those people are very approachable, obviously they can’t give legal advice, but with that practice and procedure they communicate regularly with everybody and they’re there to deal with matters as they arise. That’s one of the advantages to it, is you have somebody who’s dedicated to focusing just on that.
DT: 51:00Now, we’re nearly out of time. I’m looking at the clock. I think we’re 5:00 on the dot. If everything we’ve just talked about is in one ear and out the other, is there one thing that you’d like us all to take away from today? Brett, maybe you can give us your one key takeaway from today.
BM:Probably the key takeaway again is that it’s a new world order for the court and the emphasis that you can tell your clients really is that if unfortunately they need to come to the court that we are doing everything we can and allocating all the resources we can to ensuring that firstly parties and children are safe, and that if you have a dispute, that we will try and resolve that as quickly, efficiently, and inexpensively as possible. That’s our mission and you can have some confidence, certainly we have confidence, in the statistics and things coming from the last 12 months that that’s an experience hopefully that they will have.
DT:Sharney, is there anything you don’t want us to forget?
SJ:

52:00

I think the one thing tied up in all of this is it’s about solutions. Solutions and resolutions and so know what the problem is and know some possible solutions to approach any court event or any conference with a client, really, and that’ll stand you in good stead.
DT:Thank you very much, Brett and Sharney. Now, I’m conscious that we are keeping you from drinks, so I’ll ask if anyone has any questions, but we might just limit it to one or two.
Hearsay:The questions you’re about to hear were re-recorded in the Hearsay studio for clarity.

I have some concerns around a cultural lens and cognitive ability. When designing these tools was ability taken into consideration?

SJ:

 

 

 

53:00

I asked that question myself and the answer is yes. So, somebody who has difficulty accessing technology, it has to be prearranged. You can’t just rock into the court and say, “can you please help me complete my risk screen?” But yes, there are facilities that the court can arrange for people who have both difficulties accessing the technology or difficulties actually completing the screen. There is even an option to do it on pen and paper as well. That won’t be the majority of people, but I agree with you. That was one of the first questions I asked is; what about somebody who isn’t able to process this? It’s currently only available in English but we also have, again, if people need an interpreter to assist them with that, then that option is available as well.
Hearsay:How about a cultural lens? Does the process consider cultural perspectives and was there a cultural input into this process?
SJ:

 

 

 

 

54:00

I don’t know about the second one because I came on board when the pilot was already underway. I know that there was a lot of consultation, but I can’t assist you with specifically who it was with. I know now that we have indigenous liaison officers at the court and people like that who are certainly making sure that those types of cultural issues are dealt with. So, I can’t give you a specific about that. In terms of the trust, there’s only so much we can do, but it is confidential. Nobody else knows about it. It’s optional, doesn’t have to be done and the triage counselors, whilst they are people who are employed by the court, they are not the same people who would then be doing a report or doing anything that would be involved in the litigation and they are specialist people with specialist training. I’ll be the first to put my hand up and say, it’s not a job that I feel I would be qualified to do. They are people who are highly qualified at as the best they can trying to build a rapport with a person that means that they can provide that person with assistance. So, we’re doing the best we can. It’s not perfect, but we are definitely working towards perfection.
Hearsay:I was wondering whether the affidavit material gets into the triage process or just the questionnaire?
SJ:

 

 

 

55:00

I’m actually not sure. It’s certainly based on the questionnaire. I’m not sure to be honest. Certainly that’s not the focus because it would be looked at by the Evatt registrar when the Evatt registrar does their assessment but the triage counselor is really a separate thing to the litigation. So, one would hope that something that is in the affidavit would also be captured by the questionnaire. It’s usually tends to be more the opposite, that things might be captured by the questionnaire that for whatever reason, the lawyer hasn’t seen necessary to put in the affidavit. So, it’s usually more the other way. Well and no findings, no consequences are made from that. So, a party might see themself as being very high risk and the other party doesn’t. The screen just triggers the initial, do you need triage? Is this a run of the mill? I don’t like to say that, but a straightforward matter and then the triage counselors and the registrars are the ones who then make the determination about putting it in the list. The triage process is more about what does this person need, irrespective of what’s going on in the court process.
BM:

 

 

 

56:00

Risk screening is a constant within the court. It’s not just at the start and then if it doesn’t, of course when material crops up, the court, of its own volition, will order material from the police or the Department of Children Welfare from whichever state, by 69 ZW and often something will come up from there as well. So, risk screening is a constant, deliberate job that we have moving forward. So, yes, you’re correct. It might turn up in an affidavit that’s filed down the track, or grandma might decide to join the proceedings and say, “actually, this is catastrophic.” Or a previous charge for a partner might turn up in the police material that no one’s disclosed or knew about and I know that certainly happened where suddenly the whole case has changed. So, certainly to give some comfort that at every stage we know how people’s lives are fluid and, it’s like they are in a game show, they can’t remember their date of birth when they walk in and ask a questionnaire. So, it’s certainly a part of an ongoing process.
Hearsay:Would grandma be asked to fill out a questionnaire if she’s joined later on?
SJ:Yeah. Any party seeking orders. So, an applicant, a respondent, if there’s multiple respondents, nobody has to do it, but they would all get the opportunity. I can say I have had that happen where I have had a matter listed before me for interim, only one party has filed. Then a respondent files their material and then I get an email from the Evatt registrar saying, “actually, we need to move this to an Evatt listing because it’s now Evatt.” Now, I don’t know whether one party just screened late or whether it was the respondents screen. It’s none of my business but that certainly is an ongoing process. So, it’s not a one and done.
Hearsay:You mentioned before that you can’t refer it to the Evatt list. Is that possible?
SJ: 57:00Probably shouldn’t have said that. So, a judicial registrar or a senior registrar can’t say like they can with a Magellan list or an indigenous list, “I’m putting you in that list.” That’s not an option that’s available. I’m in a slightly different position because as an Evatt registrar, if that determination hasn’t been made, but it has screened high, for example, if it’s already listed before me then there is a bit of a difference there where I can go to the Evatt Registrar and say, yay or nay based upon what I’ve heard, make a recommendation but your average run of the mill matter in an average run of the mill listing it’s happened once in 12 months that I’ve been asked to do that. So, most of the time it’s not an issue. The key difference is people keep saying, “how do we get on the Evatt list?” And well, that’s how you get on by doing the risk screening tool. It’s the only way. That’s not to say that we don’t deal with high risk matters every day and in normal lists and that’s not to say that we’re not live to those issues every day and in normal lists, but for this program, that’s the way in.
BM:

58:00

And that’s one other real benefit of being a national court, but also the diversity of the roles we have. I do dispute resolution, but I’m also an Evatt Senior Judicial Registrar and there’s a cross pollination that we have found with a skillset within the court where certainly at an interim hearing, I will try and encourage parties to settle to start with rather than think, “oh, okay, well you’re in, I’m going to hear you.” That might not be appropriate. And similarly, if we’re in that role where it might be that we have had Evatt matters and we can see the resources that are available externally and certainly know what parties might need to do or what we’ve seen in that list, if they’re not in the Evatt list, if we’ve got an interim hearing, parties may not have suggested certain risk scaffolding. We pose that question to the parties. Have you thought about this? If I were to make that order, what’s your view? So, that expertise is constantly building within the court, which is really rewarding…
SJ:Yeah. I agree.
BM:… from my perspective to be able to help and that’s where having that cross section really helps. So, if you’re not in the Evatt list, don’t think that you’re precluded from us suggesting that there are other external assistance programs or what have you. It’s certainly assisting and lifting the skills base of everybody across the court.
DT: 59:00Brett, Sharney, thanks so much for sharing your time and your insights with us today. I’ve really learned a lot as a non-family law practitioner and I hope that everyone in the room, especially those who are practicing in the Sydney registry, where they’ll very soon be interacting with the Evatt list have learned something too. As I mentioned at the start, this has been a live recording of Hearsay: The Legal Podcast. If you like this format of CPD, if you like the interview format, if you like hearing stories from practitioners rather than seminars, there is a special 50% discount on Hearsay: The Legal Podcast subscriptions for CLC lawyers. So, I encourage you to log on at htlp.com.au and check us out. Thanks very much.

 

Ross Davis:

 

1:00:00

As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank our guests Brett and Sharney for coming on the show. If you want to hear more family law, check out episode 61 with Belinda Li on the subject of international parental child abduction.

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