Legal Process Meeting 21 June 2017

AUSCRIPT AUSTRALASIA PTY LIMITED
ACN 110 028 825
T: 1800 AUSCRIPT (1800 287 274)
E:
W:

TRANSCRIPT OF PROCEEDINGS

TRANSCRIPT IN CONFIDENCE

O/N H-794262

ROYAL COMMISSION INTO THE CHILD PROTECTION AND

YOUTH DETENTION SYSTEMS OF THE NORTHERN TERRITORY

LEGAL PROCESS MEETING

PARTICIPANTS:

THE HONOURABLE MARGARET WHITE AO, Commissioner

MICK GOODA, Commissioner

PETER CALLAGHAN SC, Chair

PIP MARTIN

BRIANNA BELL

BEN MASON

MAXINE CARLTON

KRISTY BLOOMFIELD

MATT FAWKNER

MAURICE SGARBOSSA

ANNELIESE HEY

THOMASIN OPIE

GABRIELLE BROWN

DARWIN

WEDNESDAY, 21 JUNE 2017

TRANSCRIBED BUT NOT RECORDED BY AUSCRIPT AUSTRALASIA PTY LIMITED

.LEGAL PROCESS MEETING 21.6.17P-1

©Auscript Australasia Pty LimitedTranscript in Confidence

COMMISSIONER M. WHITE AO: Convening a meeting, but it’s convenient to have it here in the hearing room, because there’s more room. When we’ve had these informal meetings with other groups, we’ve done it in a higher room in the convention centre or a hotel or something like that. So that’s how it works.

MR CALLAGHAN: ..... I will proceed to chair it, the meeting

COMMISSIONER WHITE: Yes. Would you do that? Thank you very much, Mr Callaghan.

MR CALLAGHAN: and thank everyone for attending the meeting. We might commence by just confirming who we have here. And if I can ask you to – from this end of the table – identify yourselves and your background or where you’re from, just in brief terms, before we go any further. Can I indicate that even though this is in the nature of an informal sort of a meeting, it is going to be recorded. There are microphones on the table. But we have 10 lawyers and I think four microphones. So you can do the maths

COMMISSIONER WHITE: Share .....

MR CALLAGHAN: and we will all share, if we can. So if you can swing that microphone along as you go, we will get the identities of the participants on the record, first of all.

MS MARTIN: Pip Martin. I was the managing civil solicitor at NAAJA for six years, between 2010 and 2016.

MS BELL: Brianna Bell. I’m a civil lawyer in NAAJA’s Katherine office.

MR MASON: Ben Mason. I was a family lawyer at CAALAS from 2012 to 2016.

MS CARLTON: Maxine Carlton, an Aboriginal field officer and also support officer with CAALAS for 13 years.

MS BLOOMFIELD: Kristy Bloomfield from Aboriginal Legal Aid. Yes, I’ve worked as an Aboriginal legal support officer.

MR FAWKNER: Matt Fawkner. I’m the principal legal officer for the Katherine Women’s Information and Legal Service.

MR SGARBOSSA: Maurice Sgarbossa. I’m at Legal Aid, and I work in the child protection jurisdiction. And I have been there since 2012.

MS HEY: And Anneliese Hey, also a Legal Aid family lawyer and child protection lawyer.

.LEGAL PROCESS MEETING 21.6.17P-2

©Auscript Australasia Pty LimitedTranscript in Confidence

MS OPIE: I’m Thomasin Opie. I’m the managing practitioner of Legal Aid’s Katherine office, and I work in child protection as well as crime. So I deal with a lot of the youth involved in the Youth Justice System, which often obviously links with child protection matters.

MS BROWN: And Gabrielle Brown from Solicitor for the Northern Territory. I’m the managing lawyer of the child protection team for the NT Government.

MR CALLAGHAN: Thank you all. As you all know, you have prepared statements which will become part of the record in the Commission. And they’re extremely useful. Today is an opportunity, though, for you to give voice to at least some parts of those statements, because there are common themes that run through them. And we do have this really quite extraordinary situation of 10 lawyers all gathered at one table, and I thought we might start with the very concept of lawyers and what they bring to the child protection system. If I could begin with you, Ms Brown. You’ve said in your statement that parents should access lawyers straightaway: that’s your belief as to the way in which the system can work best.

MS BROWN: It could work much better, if people did access lawyers more quickly. Not all people want a lawyer or need a lawyer, but most of them do.

MR CALLAGHAN: And Ms Martin, you have indicated that you would pick up referrals from the Department. Is that right?

MS MARTIN: From time to time we picked up referrals from the Department. We had an ongoing plan to encourage early referrals. And sometimes there was some resistance to that, but when we met – when we had the time to meet with the Department, we were able to talk about the common ground that we had in resolving child protection issues early, and then some early referrals would start coming. So with changes of staff in both organisations, that went up and down; but certainly that’s something that we were interested in receiving.

MR CALLAGHAN: Well, I will come back to that concept of the engagement and discussion between them; but Ms Bloomfield, you noticed in your time at CAALAS that – not so much in the way of referrals. Is that right?

MS BLOOMFIELD: Yes, that’s right. Look, having worked in the Legal Service for 15 years, and also 13 years at CAALAS – throughout my time we did get the referrals from ..... or Territory Families would come through with our clients as a first point of contact for myself. But then throughout the years we stopped getting referrals, and no clients would come through with their paperwork saying that they’ve got referred from ..... Territory Families to come through to see us. Yes.

MR CALLAGHAN: And was it even a problem with clients not knowing that they could?

.LEGAL PROCESS MEETING 21.6.17P-3

©Auscript Australasia Pty LimitedTranscript in Confidence

MS BLOOMFIELD: Well, that’s right, yes; because when we would visit the communities and – you know, do our community legal education in the remote communities, often our clients out there in the bush were unable to – didn’t quite understand that they did have to – you know, seek legal advice or – before the children were taken or even – yes, and that .....

MR CALLAGHAN: And Ms Bell, that ties in with what you’ve said, I think, about clients not necessarily – or not seeking legal advice when they could and should. You have some theories, I think, as to why that might have been. Is that so?

MS BELL: Yes. One of my biggest concerns is yes, parents not accessing legal advice as early as they could – in the early stages of engagement, we spend a lot of time making sure people understand the system; but even more broadly than just parents themselves seeking legal advice, I feel quite concerned that often broader extended family members who may be able to step in to court proceedings to take over from parents are also not getting the advice that they need.

COMMISSIONER WHITE: Can I just ask this question. It comes through a lot of the personal stories and statements from people, as well. There’s a bit of a sense that they don’t understand that it’s actually a legal problem that they might have. Child protection looks very personal, family-oriented; their connections with the legal system will be in the criminal law field: and therefore they don’t think these are things for lawyers. Is there any sense that that might be the case here, too?

MS BELL: I would think so. And I’ve spent quite a bit of time, I think, in my statement talking about the historical aspects in this jurisdiction. And I think the sad state of affairs still, and particularly in remote areas, is that a lot of clients don’t even realise that they’ve got rights to come to court and really strongly fight against what’s happening. It’s a concern that I hold.

COMMISSIONER WHITE: Yes. Yes, indeed.

MR CALLAGHAN: And if there’s going to be a lawyer, somebody has got to pay for it. Ms Hey, you’ve said some things about the difficulties in getting grants of aid for different types of matters. Is that right? Grants of aid are rarely provided for .....

MS HEY: So grants of aid are most commonly provided when Territory Families applies for a protection order. For any stage prior to the protection order, including temporary protection orders, there are almost never grants of aid available to parties, even if they do seek legal advice at those early stages.

MR CALLAGHAN: Yes. And Mr Sgarbossa, there are challenges with people from remote areas when it comes to legal representation. Is that correct?

MR SGARBOSSA: Yes. One of the primary things is when they do receive documents – if they do – I would endorse what Ms Bloomfield previously said: that they often don’t understand the nature of that document. And that seems to be quite

.LEGAL PROCESS MEETING 21.6.17P-4

©Auscript Australasia Pty LimitedTranscript in Confidence

common. The other thing is that of course actually contacting them, being able to bring them in and get instructions, explain to them what the court process is and so on, so forth, especially if there’s an interpreter required, proves to be extremely challenging. And that’s particularly so in remote areas.

MR CALLAGHAN: Yes. Absolutely.

MR SGARBOSSA: Yes.

MR CALLAGHAN: All right. Look, they’re some of the issues involved with legal representation; but one thing that lawyers can and do bring to hopefully any process is an understanding as to the value of mediation. It doesn’t matter what your background is; as a lawyer, at some point you will have been taught or will have experienced the value of mediation. Mr Fawkner, you agree with that?

MR FAWKNER: Certainly. Yes.

MR CALLAGHAN: You’ve spoken about the need for more collaboration between parties. Is that right?

MR FAWKNER: Yes. One of the biggest difficulties that we’ve found at our service is getting the parents to understand what the problem actually is. They get an application, and it can be quite detailed, getting the instructions and explaining to them that these are concerns in a way that they understand, and once – and it has been my experience that once the parents understand what the concerns are, then a lot of the times they’re happy to address them and do something about them, but it’s just understanding between department-speak and the reality on the ground and what’s happening in the family.

COMMISSIONER GOODA: Mr Fawkner, how often would that happen? Like, we’ve been hearing it constantly: “People didn’t know what was happening.”

MR FAWKNER: It’s more often than not. It’s very rare for it not to be the case is probably the better way to explain it.

MR CALLAGHAN: Right.

COMMISSIONER GOODA: So you’re saying if people actually understood what was happening, it would make the whole process

MR FAWKNER: Yes.

COMMISSIONER GOODA: less confronting?

MR FAWKNER: Yes. Most definitely. And if they understand how the process works – one of the things that I’ve found very effective is use of a whiteboard, and I use pictures and – to describe the process and what’s happening and the concerns,

.LEGAL PROCESS MEETING 21.6.17P-5

and you can see the light go on, you know. It’s not – it’s just a communication problem. It’s not a lack of understanding the concepts; it’s conveying the concepts in a way that the parent can understand it.

MR CALLAGHAN: In a way, and if we’re going to get value of things like mediation in the right forum – and then if I can come back to you, Ms Hey.

COMMISSIONER WHITE: Can – just before you do, Mr Callaghan – sorry – I just wanted to follow up. You say you find – in your paragraph in your statement, you talk about pictorial representations, and I take it you’re referring to the use of the whiteboard. Do you think – and perhaps they have it in their armoury – departmental people who come and talk to families need to have different equipment for doing that, that they could explain it more graphically, the way you do?

MR FAWKNER: Well, in the recent – just recently, I’ve come across, working with caseworkers, where they’ve set up safety plans, and the safety plan is pictograms, and it works really, really well, but that’s only a – from my experience, that’s a recent development.

COMMISSIONER WHITE: Right.

MR FAWKNER: And if

COMMISSIONER WHITE: Because that’s language-neutral, of course.

MR FAWKNER: Yes. And if the same thing could be used across the board between everybody involved in the process, with what – the judge’s position, what parental responsibility and daily care and control mean. Like, you know, who can – really complex legal concepts. And once a parent understands it, then instructions follow.

COMMISSIONER WHITE: Well, shared parental responsibility seems to be a stumbling block for a lot of people.

MR FAWKNER: Well

COMMISSIONER WHITE: Even quite sophisticated people don’t know those parameters. I can

MR FAWKNER: Correct.

COMMISSIONER WHITE: see there’s some resonance there.

MR FAWKNER: I think that’s some striking consensus for a total of 10 lawyers.

MR CALLAGHAN: I was about to get Ms Hey to just distinguish between the concepts of case conferencing and mediation. We’ve started off on mediation, but if

.LEGAL PROCESS MEETING 21.6.17P-6

you could just make the point, as you have in your statement, I think, they’re not the same thing and don’t get the same result.

MS HEY: Yes. They’re not the same thing. In 2015, the practice directions introduced case conferencing, which is normally court-ordered, and it’s a chance for all of the parties and all of their lawyers, and the support people, if they’re involved with the parties, to meet and largely do what mediation does, in that we discuss the issues, we try and reach a resolution, and if one can’t be reached, we try and narrow the issues in dispute so that we can present a statement of issues to the court. However, in our view, that’s not the same thing as mediation that’s chaired by an independent person. We’re not necessarily saying that mediation should be more formal, but I think the independence of the chairperson is important, and the legislation certainly envisages two kinds of mediation – or very similar – CEO-initiated or court-initiated mediation that are chaired by independent people, and I think that level of transparency can be really important to parents and it can remove the perception of bias that Territory Families are controlling everything.

MR CALLAGHAN: And

COMMISSIONER WHITE: And where do you – where are the independent chairs drawn from?

MS HEY: They’re not. So they’re not funded. There are regulations set in place so that the CEO mediation has framework, but it’s not funded, and the court-initiated mediation has no regulation and no funding at the moment.

MR CALLAGHAN: And I think that’s a consensus that comes through ..... the sections are there in the Act, but Mr Mason, to your knowledge, a mediation under section 49?

MR MASON: 49 I’m not so much relied on and use, but section 127, where I request that the court make an order for ..... mediation – I’m familiar with that, and that has always been quite fruitful, and again, similar problem as far as who is going to be the convener. In our case, most of the times I’ve used it it has been the Local Court registrar who we use, and I think that was quite key: someone who was neutral and respected by all parties.

MR CALLAGHAN: And how have you found the approach of Territory Families towards applications for mediation?

MR MASON: On all but one occasion, they opposed it, yes, which is surprising, considering when I make – prior to making the application, I first – and the court, I think rightfully so, expects that I make arrangements ..... propose a particular convener, that I speak with the convener first. So full well I’ve spoken to my counterpart at the department and made them aware that the Local Court registrar has agreed to be the mediator; despite this fact, they will oppose it. Yes.

.LEGAL PROCESS MEETING 21.6.17P-7

MR CALLAGHAN: Ms Bell, your experiences with mediation under either section 49 or section 127?

MS BELL: I haven’t had experience with mediation per se under either section. I – the comment that I would offer is that I likewise have found the department to be quite fixed in their positions with respect to applications, and in the case conferencing process, the ones that I’ve done so far have very much tended – the negotiation part of them has tended to be very brief, and they’ve largely been more directed towards, “Well, let’s nut out our statement of issues to put before the court because we know we’re not going to agree on this.”

MR CALLAGHAN: All right. Ms Brown, we might come back to you for the last word on mediation. I think you’ve referred to it in your statement, but you’ve indicated it’s not currently the practice due to lack of funding; is that right?

MS BROWN: The section 49 CEO-directed or instigated mediation was working for a couple of years, 2010, 2011, 2012, when there was funding for the family group conferencing program in Alice Springs. The reports from people involved in that was that Territory Families were very much engaged in that and it was very successful. The funding stopped in late 2011, early 2012, and it has never been re-funded. So in my experience, we’ve never done any formal mediations of our own volition, but we often will have a case conference or a case meeting or a family meeting with the parties involved, which isn’t necessarily mediation, but it’s, “Let’s all talk about what the issues are,” and I know that case managers in the communities regularly do that before applications are made before the court and before children are taken into care. Particularly, Nhulunbuy office are extremely good at having family conferencing before it gets to the stage of intervention.