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Theme 3 - Empowering and collaborative duty lawyer practice

Empowering clients and working collaboratively with court stakeholders

Empowering and collaborative duty lawyer practice

As duty lawyers we play a critical role in:

  • Empowering vulnerable clients to understand their rights, responsibilities and options
  • Promoting and supporting clients’ safe participation in proceedings
  • Fostering productive and collaborative working relationships with court stakeholders to ensure the efficient running of the court lists
  • Ensuring clients are referred to Court Support Services where they require additional specialist non-legal supports.

1. Daily coordination and triage meetings

The Royal Commission into Family Violence recommended the requirement to hold daily family violence coordination and triage meetings.

At each court location, court staff should facilitate a daily coordination meeting before hearings begin in a family violence list. It is essential family violence duty lawyers attend these morning meetings. The meetings are typically chaired by the Family Violence Registrar and the following matters may be discussed:

  • High-risk cases that are to be given priority.
  • Identifying cases which have complex and diverse needs and may involve other organisations or require referrals.
  • Confirming matters where an interpreter is required.
  • Liaising with duty lawyer services to manage conflicts.
  • Obtaining information from applicant and respondent support practitioners about perpetrator risk and victim safety measures.

The aim of these meetings is to improve and coordinate assessed risk to determine listing priorities. For example, identified affected family members who are at high risk of harm are to be given priority over cases with lower risk.

During meetings, stakeholders may openly exchange information about cases. These agencies are authorised information sharing entities (ISEs). Under Part 5A of the Family Violence Protection Act 2008, ISEs are permitted to share information with each other for the purposes of assessing and managing risk of family violence. Legal Services are not prescribed ISEs under this scheme. While participating in these meeting, it is vital that you maintain client confidentiality.

2. Client interviews

The client interview is an integral part of a duty lawyer’s work. The interview process assists in setting the client’s expectations about the duty lawyer service and what they can expect at court.

The interview process is also crucial in being able to determine and respond to the client’s legal and non-legal issues. Ultimately, the quality of the interview can also influence a client’s perception about their lawyer’s attitude or willingness to help them.

In a time-pressured environment, it can be challenging for duty lawyers to develop rapport and trust with their client. The following are tips and principles to support client engagement during a duty lawyer interview:

  • Introduce yourself to the client with your name and role.
  • Where court facilities permit, take your client to a private room before commencing the interview.
  • Where a support person is present, clarify their relationship to the client to ensure there are no ethical or safety related issues with them being present during the interview.
  • Explain how you will be assisting them at court and cover duty of confidentiality issues.
  • While taking instructions, before correcting a client's statement or understanding, you should first acknowledge the client’s perspective of the situation so that they feel heard.
  • Without colluding with violence supporting narratives, demonstrate empathy about the client’s situation.
  • Clients may have unrelated or co-existing issues they may want to discuss with you. Where time does not permit or you do not have expertise to answer these questions, you still should affirm they are important and explain why you are unable to address them. You should make a note of these needs and provide information and/or referrals at the end of the service.
  • During the interview if you identify safety risk indicators in the client’s instruction, discuss and motivate the client to consider referrals to the applicant or respondent support workers, or other services.
  • Prior to appearing in Court, duty lawyers should confirm the client’s instructions and what their submissions to the Magistrate will be. Where you are not going to make certain submission because they will be prejudicial to your client’s position, it is important that you give your client notice of this. You should affirm that you have listened to what they have said but explain why it would not be looked on favourably by the Court or achieve the result they desire.
  • At the end of your interview or following your in-court advocacy for the client, you should reiterate what the next steps are. This should include information about how they get a copy of their order, whether referrals will be made and/or if there will be any further assistance from your office.

Essential Training and Resources

Family Violence Law and Practice Course (CLC/panel practitioner access via LawHub)

3. Promoting victim-survivor agency in police applications

In FVIO proceedings where police are the applicants, police must seek the views of affected family members (AFMs).[footnote 1] However, police are not bound to act on AFM instructions. Police decisions will be based on their own assessment of risk.

When an AFM disagrees with police, this creates a conflict of interest between the police and AFM. When such a conflict occurs, AFMs should have access to independent legal advice to promote their involvement and understanding of their rights in proceedings. Duty lawyers assisting AFMs in this situation, will need to understand the information informing the police’s assessment of risk. Practitioners should then take their client’s instructions to ensure the information relied on by police is accurate and up to date.

Police prosecutors have a duty to ensure all relevant evidence is led to inform the Court in the determination of the application.[footnote 2] An AFMs position in relation to a police application is relevant to the Court in determining whether it has power to include certain conditions in final orders.[footnote 3] Where there have been multiple adjournments, practitioners should confirm when police last spoke with the AFM. This is to ensure police are not relying on historical information, which may be outdated and incorrect.

If practitioners have concerns that their client may be minimising safety concerns, it is appropriate to offer them a referral to the Applicant Family Violence Practitioner for further risk assessment and safety planning. Where an AFM has children in their care, practitioners should advise that police are mandated to report physical or sexual abuse to child protection authorities. Practitioners should advise clients about the potential for child protection involvement if police form the view that the AFM primary carer is not taking reasonable steps to act protectively for the children.

4. Improving the client experience in hearings

For many people, involvement in family violence proceedings will be their first interaction with the legal system and appearing before a magistrate will be anxiety provoking. For victims of family violence, appearing in court in the presence of their abuser can be traumatising. Legal services staff should be aware and advise AFMs of the appearance options available to them. Legal services staff should not assume remote appearance will always be appropriate for AFMs. For example, the AFM may still be living with the respondent, children may be present in the home, or the AFM may not have suitable technology to participate effectively in the hearing. For more information about assessing safe participation in online hearings, please refer to section 6 below - Client Safety in Online Hearings.

General tips

  • Prepare your client for what they can expect in the hearing, including basic court etiquette and protocols.
  • For AFMs attending court:
    • gauge their feelings around their level of safety.
    • where available, ask whether they would prefer using safe witness facilities, be seated behind a screen out of view of the Respondent or remain in the safe waiting area during the hearing.
    • where they have been referred to the Applicant Support Worker, whether they need their support in court during the hearing.
  • Explain what your role will be as their advocate, confirm their instructions and confirm what your submissions will be.
  • Prior to entering the Court, ensure you and your client’s mobile phones are turned off or on silent.
  • Try to ensure a reasonable physical proximity between the parties whilst they are entering and leaving the court room
  • If your client requires an interpreter, ensure that the interpreter comes into court and is seated next to your client.

Essential Training

Court Ethics and Etiquette for Lawyers Course

CLC/panel practitioners: please contact VLA’s Professional Legal Education for access (ple@vla.vic.gov.au)

5. Working collaboratively with court stakeholders

Working in the family violence list

To ensure effective running of the list, it is important to develop and foster working relationships with Family Violence Registrar, Police, support services and other duty lawyer services. Despite the adversarial and time pressured environment of court, duty lawyers should maintain respectful, courteous and professional communications with court stakeholders.

When starting in a new court location, it is helpful to chat with colleagues in your office about local practices and expectations about how stakeholders communicate with each other during the day at Court. For example, at some locations, electronic spreadsheets may be used by stakeholders to communicate and track the progress of matters. At some locations, police will provide instruction slips to the duty lawyers once their position is confirmed.

It is good practice to regularly liaise with the Family Violence Registrar to provide updates as to how referred matters are progressing and if there are any reasons for delays.

Court Support Services

Lawyers should be aware of the support services available at SFVCs and use them to better assist affected family members (AFMs) and Respondents. These include applicant and respondent court practitioners, LGBTIQ+ practitioner services, culturally safe services for Aboriginal and Torres Strait Islander court users through Umalek Balit, court network staff, VLA Aboriginal Community Engagement Officers and Information and Referral Officers.

6. Client safety in online hearings

The development of online hearings for family violence intervention order matters has created new safety challenges for clients. For example:

  • Parties to proceedings continuing to cohabitate at the same residence. How do the parties participate in the online hearing without interference or surveillance from the other?
  • A client has dependent young children in their care. How do they participate in the online hearing without exposing the children to the legal proceedings?
  • The AFM’s location is not known to the Respondent and needs to be kept confidential due to serious safety concerns. How can the AFM participate in the hearing while keeping their location confidential?

VLA, FCLC, WLS and MCV have jointly developed a resource to build practitioners’ awareness of relevant safety considerations and the options available to promote client safety in the online hearing environment. This guide is not meant as a substitute for specialist family violence risk assessment and safety planning. In line with best practice, lawyers are encouraged to continue to refer clients to family violence support services for expert advice and assistance with developing a safety plan based on their preferred method of participation.

Return to the Overview of the Best Practice Framework's key themes

Return to Theme 1 - SFVC 'safety aware' legal services

Return to Theme 2 - The nature of family violence

Proceed to Theme 4 – Identifying and responding to co-existing legal issues

Footnotes

[1] See 5.12.1, Victoria Police, Code of Practice For The Investigation Of Family Violence (Edition 3 V4 2019)

[2] See 5.12.2, Victoria Police, Code of Practice For The Investigation Of Family Violence (Edition 3 V4 2019)

[3] See section 75, Family Violence Protection Act 2008

Updated