Guide for Independent Children’s Lawyers in the Evatt List | Federal Circuit and Family Court of Australia

The Evatt List is a specialist list developed by the Courts where a highly qualified team of Senior Judicial Registrars, Registrars, Court Child Experts and court staff, in consultation with Judges, are allocated to manage eligible cases that are considered to be high risk, through more intensive case management and resources.

1. Introduction and purpose

1.1 This guide summarises the involvement and role of an Independent Children’s Lawyer (ICL) in the Evatt List, which is a specialist list established in the Federal Circuit and Family Court of Australia Division 2 (FCFCOA) to resolve high risk matters. This guide should be read in conjunction with the Guide for Practitioners.

1.2 The Evatt List has been created to ensure that families who are the most vulnerable are provided with appropriate resources, support and timely court events. It is a case management pathway that responds to the particular needs of the family as efficiently and effectively as possible to minimise the risk of further trauma and harm.

1.3 The Evatt List is a specialised case management pathway for matters where parenting orders, or parenting and financial orders, are sought. It does not include:

matters involving only financial and/or property orders
child support only matters
child maintenance only matters, or
contravention applications.

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

complete the online Family DOORS Triage risk screening questionnaire
be identified as high risk during the triage and risk screening process, including a review by a Triage Counsellor, and
be assessed as appropriate for inclusion on the Evatt List by an Evatt Judicial Registrar in accordance with Family Law Practice Direction: Evatt List.

1.5 In accordance with the Central Practice Direction: Family Law Case Management, matters placed on the Evatt List will be listed for a final hearing within 12 months from the date of filing, subject to parties complying with relevant orders and directions, and in consideration of the family safety risks.

1.6 Nothing in this guide affects the Courts' discretion to conduct the list or case management of each particular matter in a manner it considers appropriate.

1.7 Amendments will be made to the guide as appropriate. ICLs should check the website for the current version of the guide.

1.8 For further information on Lighthouse risk screening please refer to the FCFCOA website and the Information Sheet for Practitioners.

Legislative framework

1.9 Part IIA of the Family Law Act 1975 (Cth) prevents the disclosure, and admission into evidence, of information that is provided in connection with a family safety risk screening process carried out by the Court in relation to a party to proceedings under the Act. This part provides that:

a party cannot be asked to disclose whether or not they undertook risk screening
the risk screen answers, classification and referrals as a result of the screening process cannot be used as evidence in a proceeding, and
information shared or provided by a party to a Triage Counsellor (acting in the role of a family counsellor) in the course of conducting risk screening cannot be disclosed, or used as evidence.

1.10 The confidentiality and admissibility provisions (sections 10U and 10V Family Law Act 1975) are intended to ensure that a ‘family safety risk screening person’, including a court officer or Triage Counsellor, cannot be compelled to disclose risk screening information, including to state or territory agencies, or in the context of proceedings in state or territory courts or tribunals. These provisions ensure that parties are able to freely and confidently participate in the family safety risk screening process, without fear that the information they provide may be used against them in other contexts.

Exceptions to disclosure are contained in section 10U(6) Family Law Act 1975.

2. The pathway for Evatt List matters

2.1 The Evatt List involves a dedicated specialist team, including highly skilled and trained Senior Judicial Registrars (SJR), Judicial Registrars and Court Child Experts who, in consultation with Judges have close oversight of the matters. The team approach is adaptable and flexible to the requirements of each particular matter. The Evatt Judicial Registrar will take on the primary role of managing the matter from a procedural perspective and will liaise with the relevant Judge and SJR as needed. The Evatt Judicial Registrar will conduct regular chambers events to ensure compliance with orders/directions, obtain information from state and territory courts and agencies, and liaise with Court Children’s Service as and when required.

2.2 This guide explains the various events in the Evatt List and gives an overview of the purpose of those events and who will conduct them.

2.3 A major initiative of the Evatt List, is the early and front ended proactive case management of the matter by the Evatt Judicial Registrar prior to its first listing date and Interim Hearing. This approach is designed to assist the Judge or SJR make the most appropriate decision as soon as practical, based on the evidence gathered by the Evatt Judicial Registrar and parties.

2.4 A broad summary of the events that take place in the Evatt List are:

Step 1 Within 5–10 days of review by Triage Counsellor

Evatt Determination Event

Following receipt of a referral from the Triage Counsellor, the Evatt Judicial Registrar reviews the matter to determine if the matter will be placed onto the Evatt List in accordance with Family Law Practice Direction – Evatt List.

If the matter is placed on the Evatt List, the Evatt Judicial Registrar may make an order for a Child Impact Report (pursuant to section 62G) to be undertaken by Court Children’s Service and gather any other information the Court may require to make an informed decision, for example, from police, other courts, or the child welfare authority. Orders may also be made for service, and the filing of documents such as financial statements where relevant. The matter will then proceed at the Evatt First Return Event.

Step 2 Within 6–8 weeks after Evatt Determination Event

Evatt First Return Event

Parties will be required to appear at this court event, via Microsoft Teams, unless otherwise indicated.

The Evatt Judicial Registrar will address any procedural requirements, such as subpoena requests, and additional reports and identify, as appropriate, the case management of the parenting and the financial applications. This may include listing the matter for Interim Hearing. The Evatt Judicial Registrar may conduct subsequent case management actions in chambers to ensure the Interim Hearing proceeds on the listed date.

At all stages, noting the focus on safety and risk, the case management will ensure that the financial component will not delay, or prevent hearings or steps taken in the parenting proceedings, which may include bifurcation of proceedings.

An Evatt First Return date will only be adjourned in exceptional circumstances and parties are expected to be prepared and have complied with the previous orders.

If there are any safety concerns, and a safety at court plan has not already been put into place, please contact the Evatt Judicial Registrar’s chambers to identify options.

In some cases an Evatt Second Return Event will be necessary to ensure the matter is progressing as effectively as possible.

Step 3 Within 10–12 weeks after Evatt Determination Event

Interim Hearing

The Judge or SJR will address any urgent issues and decide what evidence and information should be gathered to allow proceedings to move toward finalisation. This may include identifying the need for expert reports, section 62G final reports, or progression and/or resolution of any financial or property orders. The Judge or SJR may consider referring the matter to Family Dispute Resolution, if it is safe to do so, or may decide the matter should be fast tracked to trial if the risk is significant and escalating.

Step 4 Within 8 months after Evatt Determination Event

Evatt Mention

The Evatt Judicial Registrar will check on the progression of any interim orders, outcomes of any dispute resolution or conciliation conferences and identify next case management steps and opportunity for settlement prior to trial.

If the matter does not resolve then the Evatt Judicial Registrar will review the matter to prepare for trial, noting that trial directions will be made at the Compliance and Readiness Hearing (CRH) including in relation to:

timing and need for a final Court Children's Service Report such as a family report
single expert reports
application of section 102NA
valuations (if financial orders are sought), and
resolution/progression of any financial orders, noting that the matter cannot be listed for a CRH until both the parenting and financial causes of action are ready to proceed.

Final trial directions will be made at the CRH.

Step 5 Within 10–12 months after Evatt Determination Event

CRH and trial date allocation

The matter will be listed for a CRH before a Judge and parties will be expected to comply with the requirements of Central Practice Direction: Family Law Case Management with respect to documents filed.

The matter will be listed for trial before a Judge who has been nominated to hear Evatt matters.

3. ICL appointment in an Evatt List matter

3.1 It is anticipated that an ICL will be appointed in an Evatt List matter at the time it is designated to the Evatt List by the Evatt Judicial Registrar. Within 5–10 business days of a party screening as high risk in the Family DOORS Triage and being referred, a listing will take place before an Evatt Judicial Registrar. No appearances are required at this event.

3.2 The purpose of the chambers listing before the Evatt Judicial Registrar will be to consider:

whether the matter is suitable for the Evatt List
any section 60I exemption or short notice application
whether the matter should be referred to the Magellan Registrar (if there are allegations of sexual abuse, serious or escalating physical abuse against a subject child, or exposure of a subject child to recent, significant and/or escalating family violence resulting in serious psychological harm)
making directions for the filing of material in Response
orders for an ICL
what directions might be needed to gather information about the matter from external sources, for example, orders to the state or territory child welfare authorities and police, requesting files from other courts for Family Violence/Intervention orders or related proceedings
whether a section 91B order for the intervention of the state child welfare organisation is appropriate
filing of subpoenas
orders for a priority section 62G Child Impact Report to be undertaken by Court Children’s Service
disclosure/ financial statements
exchange of documents, and
listing the matter for the Evatt First Return and Interim Hearing.

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

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

4. ICL involvement in an Evatt List matter

4.1 Upon the appointment of the ICL, a Notice of Address for Service should be filed as soon as possible. In accordance with s68LA (5A), consideration should be given to meeting with the child/ren upon the appointment, and before the Interim Hearing.

4.2 Given that a section 62G Child Impact Report will be considered and ordered by the Evatt Judicial Registrar at the Evatt Determination Event, it is not anticipated that a private Family Report will be needed before the Interim Hearing. However, it is hoped that the ICL will be able to offer some guidance and suggestion to the Court as to the appropriate report that might be needed for the matter at a final hearing. If it is identified that a further report is required in order to meet the target time frame for a final hearing, consideration of any section 62G report will occur at the interim and/or the Evatt Mention.

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

inspection of material produced by police or the child welfare agency
inspection of any state court files requested by the Evatt Judicial Registrar
consideration of any subpoenas to issue to gather evidence relevant for any determination the Court must make on an interlocutory or final basis
meeting the child/ren
making contact with treating health professionals and schools
making enquiries with contact centres and/or supervisors
making submissions to the judicial officer at the Interim Hearing as to the most appropriate parenting orders for the child/ren
considering the most appropriate report for the matter on a final basis, including any external experts report or Family Report, and
considering dispute resolution options (if safe to do so).

5. The Evatt First Return Event and Interim Hearing

Evatt First Return Event

5.1 The Evatt First Return will be an appearance event before the Evatt Judicial Registrar within 6–8 weeks of allocation of a matter on the Evatt List. This appearance event will generally be conducted via Microsoft Teams.

5.2 The purpose of this event is to allow for an opportunity to:

speak with the parties about the expectations and case management approach of the Evatt List
hear the parties on any issue such as ICL appointments, any Applications in a Proceeding, interlocutory or administrative issues that can be progressed by consent (although the Evatt Judicial Registrar will, as appropriate, determine any issues that would otherwise inhibit the progression of the matter)
determine case management strategy for any parenting and, separately financial relief sought
ensure general case management including compliance with previous orders with respect to service and/or filing of material, considering whether further material needs to be obtained, confirming appointment of ICL, and
confirm next listing event and timing including whether the matter is to proceed straight to Interim Hearing or involve a chambers case management event prior to the Interim Hearing.

Only in exceptional circumstances will this First Return Event not be listed or adjourned. This might, for example, occur where the matter needs to proceed to an urgent ex-parte hearing immediately after the Evatt determination event or has had the benefit of an urgent Interim Hearing listing prior to Evatt Listing.

Interim Hearing

The Interim Hearing will likely take place before either the SJR or Judge within 10–12 weeks of the matter being designated as high risk and allocated to the Evatt List. The parties and their lawyers are expected to attend, however safety at court plans should be implemented where needed.

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

5.4 By the Interim Hearing, the judicial officer should have before them:

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

5.5 The purpose of the Interim Hearing will be to:

conduct an Interim Hearing to determine any interlocutory orders and Applications in a Proceeding
undertake case management to determine the future conduct of the matter through the Evatt List
identify whether there are opportunities for resolution or for the matter to be fast tracked to trial, and
list the matter for mention before the Evatt Judicial Registrar who has had the carriage of the matter for further case management.

5.6 To avoid any delays in the preparation of its reports by the Court Children’s Service, at the Interim Hearing and/or the Evatt Mention, the judicial officer will consider whether a Family Report should be ordered pursuant to section 62G of the Family Law Act 1975.

6. Evatt Mention and Case Management

6.1 Following the finalisation of all interlocutory issues (including dispute resolution opportunities), the matter will be listed for mention before the Evatt Judicial Registrar no later than 8 months from the date of being placed on the Evatt List, or such other date as the judicial officer considers to be appropriate, taking into account the circumstances and needs of the matter. This may also include an additional registrar-led compliance check to enable the release of material or expert reports, as well as consideration of subpoenas and any other procedural orders.

6.2 The purpose of the mention will be to review the progression of the matter, compliance with previous orders, and move the matter onto the next step with a view to finalisation, either through settlement or listing for CRH before a Judge.

6.3 If the Evatt Mention is required, the Evatt Judicial Registrar will:

confirm compliance with previous orders and/or directions made by the Judge/SJR
consider any settlement/Family Dispute Resolution options, particularly if the parties now have the benefit of the expert’s reports
if financial orders are sought, consider the outcome of any conciliation conferences and readiness to proceed
consider any costs orders for non-compliance, and
list the matter for CRH.

6.4 To prepare a matter for the CRH and trial at the Evatt Mention, the Judicial Registrar will:

ensure, by the making of relevant orders, that any required single expert report will address the specific issues in the matter, and that the report can be prepared in a timely manner,
make directions for the filing and serving of amended Application/Response and affidavits of evidence-in-chief
confirm with parties the realistically anticipated length of the trial
make any further procedural orders deemed necessary in the management of the matter, and
to ensure the parties are able to comply with the requirements of the Central Practice Direction prior to the CRH.

6.5 The parties and their lawyers are expected to attend the Evatt Mention in person (subject to any safety at court plan).

7. CRH and Trial

7.1 The matter will be listed for a CRH before a Judge approximately 10 months after being placed on the Evatt List.

The matter will be listed for trial before a Judge who has been nominated to hear Evatt matters.

The Judge who conducts the CRH will make trial directions which may include:

release of any single expert reports
a trial plan, for example, setting out the number of witnesses and days for trial
list the matter before a Judge for trial
make any procedural orders deemed necessary in the management of the matter, and
consider if there are any Family Dispute Resolution options in the matter (if safe to do so).

7.2 The parties and their lawyers are expected to attend the CRH in person (subject to any safety at court plan). Prior to the CRH, each party will be required to comply with the requirements of Central Practice Direction: Family Law Case Management with respect to documents filed.

7.3 Division 12A Family Law Act 1975 (Cth) applies to Evatt List matters however the nature of the evidence of some witnesses may fall within the exception in section 69ZT(3)(a).

8. Safety at court planning

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

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

9. Further practice information

9.1 This guide applies to all matters in the Evatt List.

9.2 Other practice information on matters commenced in the FCFCOA is available on the Court’s website.

10. Communications in an Evatt List matter

10.1 When communicating with the Court about an Evatt List matter, ICLs are to put their requests in writing by eFiling the request as correspondence and emailing the Court, copying in each other party to the proceeding, confirming that the request has been eFiled.

10.2 When emailing in an Evatt List matter, it is expected that a party will:

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

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

11. Enquiries and contact information

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

12. Commonwealth Courts Portal

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