Conciliation conferences

This service description provides information about the purpose and use of conciliation conferences in Children’s Court proceedings.

Introduction

The purpose of a conciliation conference (CC) under the CYFA is to give the parties an opportunity to agree or advise on the action that should be taken in the best interests of the child.

The focus is on finding common ground and agreeing on a way forward to protect a child and promote their healthy development.

Conciliation conferences are an alternative model of dispute resolution in matters where an agreement cannot be reached and an application in the family division cannot be resolved.

A CC is to be considered from the 2nd mention date, so as to reduce the number of adjournments and the length of the court process and to finalise arrangements for children and families. A CC is booked when the proving of a protection application, permanent care order application, breach/vary/revoke/extension of a protection order, conditions of an order or disposition are not consented to by a party to the proceedings

Refer to the Concilation conference page on the Children’s Court of Victoria website for the guidelines on CCs and further details regarding the roles and responsibilities of participants.

See Conciliation conference flowchart for a step by step guide.

Preparation for a CC

Conference Intake Officer

All matters referred to a CC undergo an eligibility assessment and risk assessment, undertaken by the Conference Intake Officer (CIO) of the Children’s Court. The assessment pertains to security concerns, custody, risk issues, interpreters and contact details of the parties to attend. The CIO will determine where the conference is to occur (Melbourne Children’s Court or off-site location) and will arrange security, as necessary. The CIO will confirm with all parties as to where the CC will be held.

Exchange of information documents

A CC requires preparation by all parties prior to the conference and decision makers must be present at the conference. All parties attending a CC are required to complete an ‘Information exchange document’.

Child protection must file a ‘Conciliation conference addendum report’ at least 10 days, but no more than 14 days prior to the date fixed for the CC. This report must be filed with the CIO and given to all parties and the CPLO. These requirements are formalised via an order on the court file. Failure to comply with this requirement may result in the cancellation of the CC and court costs may be sought against the department.

Legal practitioners representing other parties must file the information exchange document with the CIO at least seven days, but no more than 14 days, prior to the date of the CC.

These documents are designed to facilitate early preparation for the CC by all parties. This provides the department with the opportunity to be aware of the other parties’ position and to prepare for the CC through consultation with the supervisor and/or team manager.

CC addendum report

The ‘Information exchange document’ prepared by the department is in the form of the conciliation conference addendum report (see Conciliation conference addendum report guide - advice for guidance in preparing a report). It is not confidential and forms part of the court file. You do not need to prepare any other addendum report for the CC.

The CC addendum report is separated into part A and part B.

Part A outlines the department’s concerns, the current strengths within the family and the case plan. Part B should only be completed where there are new facts and circumstances since filing the application/disposition report and/or there is a change in the disposition or conditions. The reasons for the change in disposition and/or conditions need to be articulated.

Legal advice regarding the CC addendum report should be sought prior to it being exchanged with the other parties. The final report must be provided to the CPLO lawyer at the same time it is filed with the CIO – a minimum of 10 days prior to the CC date and not prior to 14 days.

If changes in circumstances arise within the 10 day period between exchanging the CC addendum report with all the parties and the CC being held, then Part B must be completed. Liaise with CPLO regarding the exchange of the new information with all parties prior to the CC. There should be no new information presented at the CC hearing.

CC addendum report – lawyers and unrepresented parties

The ‘Information exchange document’ prepared by the other parties remains confidential, is not placed on the court file and should not be referred to in future court reports. The proceedings of a CC are subject to confidentiality (s. 226, CYFA).

CPLO will provide you with a copy of the ‘Information exchange document’ prepared by the legal representatives of the other parties or by the unrepresented parties. Upon receiving the document you should seek legal advice and discuss the contents of the report with your supervisor/court officer and team manager. This will facilitate preparation, careful planning and negotiation at the CC.

Attendance at the CC

A CC is attended by the child's parent and the child protection practitioner and their supervisor/court officer.

The child's and the child's parents' legal representatives may attend the CC.

The court may order that any of the following attend the CC:

  • the child
  • relatives of the child
  • in the case of an Aboriginal child, or if the child's parent is an Aboriginal person, a member of the child's Aboriginal community
  • in the case of a child from an ethnic background, a member of the appropriate ethnic community chosen or agreed to by the child or their parent
  • if the child or the child's parent has a disability, an advocate for the child or the parent
  • any other support person for the child, requested by the child.

The CPLO attends CCs at minimum for the latter part of the CC (during the negotiating stage) and may attend for the duration of the CC in complex matters.

The child protection practitioner must attend the CC with the supervisor or court officer with the authority to make decisions and to reach an agreement, where possible. This promotes participation by everyone and ensures decisions are made in the best interests of the child. A court officer must not attend without the allocated child protection practitioner who has the working relationship with the family, as the CC is a forum where the knowledge of the child and family and their circumstances is critical.

The convenor may: permit other people to attend the CC, require that a specified person not attend the CC; or may require a person to leave the CC. If others need to attend the CC, the child protection practitioner should discuss this with the CPLO lawyer and inform the CIO.

Children’s attendance at the CC

While the legislation makes provisions for the child to attend a CC, in practice it is expected that the child or young person meets with their lawyer prior to the CC and there is a presumption that they do not need to attend. However, where the child or young person maintains that they want to attend the CC, despite being informed of the possible impact that attending may have on the child’s activities, routine or whether they may be distressed by the discussion, then the lawyer and child protection practitioner must discuss this prior to the CC.

Options such as participation by shuttle conference, being available for updates by telephone or arranging for a support person to be present during the conference, need to be explored between the child protection practitioner, the child’s lawyer, the family and the convenor. When booking a CC consideration needs to be given as to the time that it is to be held, particularly if the family have school aged children. It may be more appropriate to arrange a CC for early in the morning, so as to avoid the children attending the CC or the family being required to organise child care arrangements.

Breaks during the CC

If during the CC you feel threatened or intimidated request a break from the convenor of the CC and discuss your concerns with the convenor.

If during the CC you wish to seek legal advice, request a break from the convenor of the CC.

Shuttle conference

Where the CIO identifies risk issues in a particular case, then the CIO will determine whether these can been resolved by conducting a CC in a way that adequately addresses the risk issue. One format is for the CC to be conducted as a shuttle conference. This involves all parties being in separate rooms and the convenor attends each room exchanging information and presenting proposals between the parties.

CC outcomes

If agreement is reached, the CPLO will complete the minutes of the proposed orders (using the minutes blue form: ‘Children’s Court – Family Division’) and the conditions (pink form) for the Children’s Court. If there has been a change to the disposition during the negotiations at the CC, then the CPLO will write a notation on the minutes indicating the reason for this, for the Magistrates’ information. Magistrates require this information so as to make the order.

If agreement cannot be reached at the CC, the matter is booked for a directions hearing and a final contest hearing. Prior to the CC determine how many witnesses will be required to give evidence, as this will determine the number of dates booked for the contest hearing if the matter does not settle.

If agreement cannot be reached, there are circumstances where the matter is referred back to the Court for a mention hearing or booked for a further CC. Dates for these hearings are determined in consultation with the court coordinator at the end of the CC.

All parties must return to court after the CC until the Magistrate hears the outcome of the conference and finalises the matter.

Update court screen in CRIS.

Vacating/cancelling a CC

You must discuss the possibility of cancelling (also referred to as ‘vacating’) a CC with CPLO and the CIO.

What happens at the conclusion of a CC?

Convenors are required to provide written reports to the court after finalisation of the CC. The written report by the convenor following a CC is admissible in the proceedings of the family division. The court may consider the report in determining what finding or order to make in respect of the application.

Time and place of CC

Conciliation conferences are booked to occur in allocated timeslots. These are 9.30am, 11.30am or 1.30pm on each day. CCs are held at the Children's Court precinct for Melbourne matters.

Role of convenors

The role of the convenor at a CC is to act as an independent chairperson under the authority of the Court. The convenor is therefore responsible for controlling the proceedings and ensuring that each participant has the opportunity to participate fully.

When conducting a CC, convenors should ensure that decisions are made in the child's best interests.

When conducting the CC, the convenor should:

  • create an environment where everyone feels able to discuss and negotiate the issues in dispute and encourage the parties, particularly families, to directly participate and contribute to the process
  • clearly explain how the conference will be conducted
  • deal with any power imbalances that arise in the conference
  • take control if a party becomes antagonistic or aggressive
  • give a 'court perspective' to help parties 'reality test' their positions and provide information to assist parties to identify those matters which may be central to a court, if it were considering the case
  • assist the parties to identify/clarify the facts, views, interests and opinions of parties to the conference and to identify and clarify areas of agreement
  • develop options and consider alternatives for negotiation and settlement
  • structure the process to ensure that each party understands the problems and options for settlement
  • outline how each party's views/options for settlement promote, or fail to promote, the best interests of the child
  • introduce options or opinions that could be considered by parties
  • set out the parameters within which negotiation may take place
  • help parties to understand the consequences of not settling at conference (including likely outcomes open to the Court)
  • endeavour to establish agreements or settlement in appropriate cases
  • ensure that the written agreement is accurate and is understood by the parties.

Process for conducting the CC

The convenor will initially meet with the parties to establish who is in attendance and to resolve any questions that may arise about the appropriateness of a person's participation in the CC. The convenor will determine whether the parties wish to meet together or whether there is good reason for the conference to proceed in separate rooms.

When commencing the CC, the convenor will outline their role, the purpose of a CC, how the conference will be conducted, how the conference fits within the court hearing process and that where it is not possible or appropriate to reach a final agreement it remains the purpose of a CC to identify what has been agreed and what are the points of disagreement.

The convenor will emphasise the central consideration will always be the best interests of the child.

The convenor will request the child protection practitioner to outline the basis of the court application, the current situation and proposed action. The convenor will then request that family members express their interests in relation to the application and respond to the department's proposals. Family members may speak for themselves or have their views expressed via their legal representatives.

When all parties have expressed their views, the convenor may encourage the parties to talk directly with each other as a means of clarifying their respective views. The convenor will assist the parties to explore options for the purpose of settlement.

If the conference is not considering options that appropriately safeguard the best interests of the child, the convenor may provide further options for the parties to consider. Parties will be asked to identify how the options are in the best interests of the child. The convenor will discuss the options with the parties and may meet separately with them if required, to ensure they understand the proposed options.

The convenor will work with the parties to seek the best possible outcome in the best interests of the child and at the same time act to ensure that any agreement is within the legal parameters. Where an agreement is for a particular disposition the convenor will advise participants that the court is the final arbiter and may not make the order despite agreement between the parties.

If the agreement is to recommend a second conference, the convenor must identify with the participants the issues for a second conference.

If the agreement is to proceed to a contested hearing, the convenor will identify with the parties areas or case issues which are not in dispute.

Role of child protection practitioners

The child protection practitioner's role is to attend the conference well prepared and clearly outline the department's views regarding the best interests of the child and to maintain flexibility in decision making when considering proposals.

The CC process is also assisted where child protection practitioners are legally represented or have the necessary authority to negotiate a range of possible outcomes that would lead to settlement. See below for the role of the CPLO in CCs. Legal advice can be sought from the CPLO either prior to, or if necessary during, a CC.

The allocated child protection practitioner and either their supervisor or a divisional court officer attend the CC.

The supervisor or a divisional court officer is required to attend the CC as they have the authority to make decisions and negotiate proposals that would lead to settlement. See Negotiating a settlement - advice.

Child protection is able to request that the CC be suspended to allow practitioners the opportunity to seek legal advice from the CPLO regarding proposals that are recommended. Child protection should utilise this process to ensure they have access to legal advice and to consult with senior managers, if required. Additionally, practitioners should seek legal advice from the CPLO prior to the conference if they have any legal queries regarding the matter before the conference.

Role of family and community members

A CC may include the participation of family and community members such as extended family members, a member of the child's cultural background or professionals involved with the child or family. Conciliation conferences aim to encourage families and community members to be involved and empowered in the decisions made about children.

Family or community members may contribute to the resolution of the protective concerns or act as a support to the child or family. They are not to act as an advocate for one party against another. The role of these persons is to express their views, which may include making appropriate requests of the service system or challenge the child protection practitioner to be clear about the concerns. Child protection practitioners need to be cognisant when family or community members are present during the CC and to consider each proposal on its merits.

Role of lawyers

A lawyer is required to adopt a role that is not adversarial. A lawyer maintains the role of an advocate representing a client. The strength of the process is in the way that it allows a meaningful exchange between child protection and the family about the best interests of the child.

A lawyer participating in the CC should:

  • be available for the CC at the time arranged and for the whole of the conference
  • prepare their clients in advance by making sure the client understands the process
  • clarify the issues in advance with the client
  • suggest participants for the conference, particularly if there is a relative who can help develop solutions or present a client's strengths
  • be open to new solutions that may present themselves in the synergy of discussion
  • encourage the client to directly participate and contribute to the process
  • be sensitive to any imbalance of power
  • be involved in the written agreement, making sure it is accurate and that the client understands it
  • meet again with the client after the CC and confirm the agreement and explain the consequences of not abiding by any agreement reached.

Role of CPLO

A CC is mediated by a convenor and all parties are legally represented. A CPLO lawyer is required to attend the latter part of the conference during the negotiation and writing of the agreement. The CPLO lawyer may attend for the duration of the CC in complex matters. You are required to discuss and seek legal advice from CPLO prior to the CC. The CC addendum report should be discussed with the CPLO 14 days prior to the conference for review.

If the CC addendum report is not provided as per the court order, the CC may be cancelled and court costs may be ordered against the department for failing to comply with an order of the Court.

Confidentiality of CCs

Any information exchanged or admissions made at a CC cannot be used in subsequent court hearings. Therefore, child protection practitioners cannot record detailed information discussed at the CC in CRIS or use it in court reports. Such evidence is only admissible in a proceeding before a court, if the court grants leave or all parties present at the CC consent. The court may only grant leave to allow the evidence if it is necessary to ensure the safety of the child.

This does not prevent the convenor from making a record of the proceedings, or from discussions taking place between the parties to the proceedings, including legal representatives and child protection practitioners. Therefore, practitioners can discuss details of the CC with the legal representative of the CPLO.

1