ICL ongoing professional development

6.2.1 Legal aid framework for professional development

Unlike the national training program for ICLs to initially be accredited, there are no uniform ongoing professional development requirements in the states and territories for practitioners who undertake ICL work. Consistent with other aspects of managing ICLs, the approach taken by each of the legal aid commissions in relation to professional development differs significantly between jurisdictions. Each of these approaches is described below.

New South Wales

Legal Aid NSW outlined an ICL professional development program that is available for both inhouse and private panel practitioners. Examples of learning and development opportunities provided by the commission include conferences (including an annual family law conference with ICL-specific presentations), training workshops and seminars held around NSW, and a number of activities hosted through the NSW Pathways network.

ICLs who are employed within Legal Aid NSW are also required to nominate a learning and development focus every two years. There are eight streams available to staff at all levels, including a stream on child representation. There are eligibility criteria for entry into these streams, and staff are required to nominate milestones to meet over the two-year period. As well as milestones, a range of structured support options is made available to staff, such as coaching and mentoring by a senior ICL, or undertaking observations of child interviews and hearings.

Victoria

Victoria Legal Aid provides ongoing training for ICLs. It is a requirement of membership of the ICL panel that practitioners attend and complete the training provided.

Queensland

The Family Law Practitioners Association Queensland and Queensland Law Society provide family law training, often with children’s streams or children-specific training. ICLs, along with other private-practitioner-preferred suppliers are invited to continuing professional development opportunities offered by Legal Aid Queensland. The commission also facilitates statewide ICL/Separate Representative Panel meetings three or four times a year, which provide an opportunity for practitioners to discuss practical and other issues.

South Australia

Apart from the ICLs’ own mandatory continuing professional development responsibilities, which include specific requirements for family lawyers, the Legal Services Commission of South Australia holds regular forums during the year for all ICLs. A key element of these forums is the opportunity for ICLs to engage with judicial officers in an informal development setting. The commission also facilitates the distribution of relevant material to ICLs via email.

Western Australia

Legal Aid WA provides training for ICLs as the need is identified. Additionally, a range of experts (e.g., single expert witnesses) and professional bodies provide periodic training or seminars, and other professional development opportunities are offered by professionals and agencies through the WA Family Pathways Network. Often, these seminars have continuing professional development points attached and are provided free of charge to panel members, which is a

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means of providing some non-monetary compensation to practitioners and incentive to attend (the commission acknowledges private panel members do not receive much remuneration for taking on ICL work).

The commission has recently conducted a review of the panel arrangements and is in the process of considering changes in response to that review, including the introduction of a formal mentoring framework and more formalised links between ongoing membership of the panel and specialised training attendance.

Tasmania

The Legal Aid Commission of Tasmania provides continuous training to ICLs. An annual ICL conference is offered to all ICLs on the panel, at no cost, in addition to colleagues from other related disciplines.

At a commission level, weekly meetings occur, providing regular training and mentoring. This is in addition to daily informal meetings and mentoring. In addition, the Practice Manager and inhouse counsel are part of the National Legal Aid working group, which regularly discusses and reviews best practice in the provision of ICL services, including the ongoing training of ICLs and the sharing of resources to do so.

Australian Capital Territory

The ACT Law Society sets out the mandatory continuing professional development requirements for legal practitioners. Legal Aid ACT does not have any additional professional development requirements for practitioners undertaking ICL matters.

Northern Territory

All ICLs in the Northern Territory are required to meet the mandatory continuing professional development requirements that apply generally to legal practitioners. Training opportunities for ICLs are also provided to ICLs through seminars, training days and conferences arranged by a variety of service providers. These include the Northern Territory Legal Aid Commission, the Family Law Pathways Network, the Law Society of the NT, private for-profit agencies, and local and national organisations. The commission also facilitates distribution of relevant material to ICLs via email.

6.2.2 Professional perspectives on ICL training and

ongoing professional development

Survey and interview questions elicited some significant feedback from ICLs and other professionals about ICL training and professional development. As Table 6.1 indicates, more non-ICL survey participants did not agree than agreed that ICL training and qualifications were adequate. Almost one-half (46%) of non-legal professional respondents reported they were not sure about the adequacy of ICL training.

Table 6.1 Adequacy of ICL training and qualifications as assessed by non-ICL professionals Are the training and

qualifications of ICLs

adequate? Judicial officers (%) Non-ICL lawyers (%) professionals (%)Non-legal

Yes 27.8 26.6 19.5 No 40.7 40.6 31.0 Not sure 24.1 28.7 46.0 Missing 7.4 4.2 3.5 Total 100.0 100.0 100.0 No. of responses 54 192 113

Notes: Professionals were asked: “Do you think the training and qualifications of ICLs are adequate?” Percentages may not total exactly 100.0% due to rounding.

Effective practice: Training, selection, professional development and supervision

By comparison, in data not shown in the table, 77% of ICLs agreed or strongly agreed they had sufficient training to operate effectively. The question of ICL capacity in particular areas is considered in more detail in Chapter 7.

More specifically, 77% of ICLs reported they had undertaken training to be an ICL with legal aid, and 36% reported they had undertaken other training to be an ICL.36 _{Most ICLs interviewed}

indicated that the national ICL training was generally good and provided an adequate basis for conducting ICL matters. For example:

I thought the training was really good and from knowing that the people that have applied to get on the panel and … and haven’t made it, I think they’re fairly rigorous in that. [ICL, LAC, interview]

The ICL survey data also show that ICLs undertake additional training on a variety of other topics. Table 6.2 illustrates that almost a third to half of the ICLs have in the past undertaken formal training in mediation, family violence/child abuse, family dispute resolution or child development/psychology.

Table 6.2 Other formal training undertaken by ICLs

Type of formal training ICLs who had undertaken training (%)

Mediation 47.7

Family violence/child abuse 45.6 Family dispute resolution 35.6 Child development/psychology 30.9

No. of responses 149

Notes: ICLs were asked: “Have you received any formal training in …?” Percentages do not sum to 100% as multiple responses could be chosen and not all responses are shown.

In other data not shown, 71% of ICLs had received formal training in either mediation, family violence/child abuse, family dispute resolution or child development/psychology. Of this 71% of ICLs, 79% had received between one and three types of training and 21% had received four or five types; however, data did not indicate when this training had occurred.

Likewise, ICLs reported that they had participated in continuing legal education on a range of topics. Table 6.3 illustrates that a large proportion of ICLs had undertaken some form of training on identifying and assessing family violence (85%) and children’s developmental needs (67%). More than half of the ICLs (56%) completed training on communicating with children and more than a third had completed training on child-focused practice (35%) and child-inclusive practice (34%). While it is important to note that the data do not enable a distinction to be made between topics covered as short seminars and as more comprehensive formal training, other survey and interview data suggest the training on offer may not be adequate. Chapter 7 includes a more detailed discussion about concerns arising from the data in relation to the capacity and efficacy of ICLs, and notes the disjuncture between the training ICLs indicate they have completed (in Table 6.3) and the self-assessments of their capability in respect of those same topics (see Table 7.2).

Notwithstanding the existing training ICLs reported having undertaken, most ICLs nevertheless expressed a need for more ongoing training on a regular basis, including making suggestions for mandatory periodic training:

I think that ICLs should have ongoing training in relevant issues about children: trauma, abuse issues, effects of violence, stages of development. Even experienced people need constant reminders and refreshers. [ICL, LAC, survey]

I think ongoing training is really important, and I think some kind of ongoing monitoring or—what’s the word I’m looking for—auditing or something. I’m talking from my observations of ICLs in private practice who don’t work here at legal aid. [ICL, LAC, interview]

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Table 6.3 Continuing legal education or training undertaken by ICLs in the past two years

Type of legal education or training ICLs who had undertaken training (%)

Identifying and assessing family violence and abuse 84.6 Understanding the best outcomes for children of separation and divorce 78.5 Impact of shared parenting arrangements and outcomes for children 77.9 Children’s developmental needs 67.1 Communicating with children 55.7

Child-focused practice 34.9

Child-inclusive practice 33.6

Mediation skills in children’s cases 27.5 Negotiation skills in children’s cases 24.8 The 2006 family law reforms 59.7 The 2011 family law reforms 75.2

No. of responses 149

Notes: ICLs were asked: “In the past two years, have you undertaken any continuing legal education or training in relation to the following?” Percentages do not sum to 100% as multiple responses could be chosen.

A number of non-ICL lawyers also suggested that ICLs could benefit from ongoing training, particularly training dealing with a broad range of non-legal topics. The diversity of additional training topics recommended by non-ICL lawyers is demonstrated in the following comments:

Additional and ongoing training is required in relation to a range of topics, including family violence, particularly how violence impacts on a victim’s capacity as a caregiver; child abuse; children’s developmental needs; communicating with children; working with Aboriginal, CALD and LGBTIQ communities; and referral to appropriate community- based services. [Non-ICL lawyer, CLC, survey]

A lot more training and focus needs to be on giving feedback to children, interviewing children. [non-ICL lawyer, private practice, survey]

Increased training in [domestic violence] and sexual abuse cases, and how a history of violence can cause power imbalance and make equal shared [parental responsibility] impossible. Increased training on maintaining neutrality—often mothers who raise issues of safety are not believed and are criticised by the ICL for not facilitating time with the father. [Non-ICL lawyer, CLC, survey]

Similarly, judicial officers providing feedback on ICL training generally described the importance of providing more training for ICLs (and investing more heavily in this training), and for this training to be of an ongoing nature. More specifically, although most of the ICLs providing open-ended survey responses on this issue considered that they had sufficient training and experience to consult directly with children/young people, more advanced training of a practical nature, including training to provide assistance with interviewing children/young people was suggested by several ICLs:37

It is always good to have training available that is practical and deals with difficult issues, such as when to interview in cases with systems abuse or risk-of-harm allegations. Too often the training is aimed at issues like where to interview, developing rapport, etc. This is good and develops as part of your practice anyway. However, there should be “advanced” practical training. [ICL, private practice, survey]

By and large the training we get seems to be—if you don’t have kids—borrow some from friends or family to practise on. I would appreciate a family consultant or experienced ICL offering training (more frequently) on how to chat to kids and language that can be appropriate for various age groups. I don’t have kids, nor do many of my friends, so I get stuck with finding some to practise on. [ICL, private practice, survey]

37 See also Ross (2012b), where all ICLs with a “relational lawyer” approach in Ross’ sample, together with some ICLs with a “responsible lawyer” approach identified a need for more training, “particularly in interviewing” children/young people and with regard to “developing rapport and professional relationships with children” (p. 237).

Effective practice: Training, selection, professional development and supervision

Child development was also an area where some ICLs identified the need for further training. (Parents, children and young people also identified similar training needs for ICLs, and their views will be considered in Chapter 8.). For example:

More training would be good. We have received some about child development, ways to interview children … but more is always good. It’s an area that is quite outside our official expertise! [ICL, LAC, survey]

I feel most lawyers need far more formal training in child and adolescent development and in the acquisition of communication skills, such as active listening. [ICL, private practice, survey]

Perhaps not surprisingly, non-legal professionals who work with ICLs also commonly suggested that training for ICLs in how to engage with children and young people would be of benefit. For example:

Training in areas of speaking with children based on child’s development; more awareness of children’s reactions to family separation, conflict, violence; still more emphasis on the best interest of the child, not equity between the parents. [Non-legal professional, survey]

Judicial officers also identified more training that would be of benefit to ICLs, with some judicial officers making specific reference to training in child development and in issues affecting Aboriginal and culturally diverse families:

More training in social sciences interaction with children brain development, of children basic psychology. There needs to be a re-accreditation process on regular occasions. [Judicial officer, survey]

Those wishing to do Indigenous work should have to undergo training and read the

Bringing Them Home report. Otherwise, they should not be doing it. I think they need

training in how to read and analyse the subpoenaed material—often there is so much important information in there. The training should include how to manage multiple ICL matters, and how to audit the files to ensure that they are not left for months. [Judicial officer, survey]

More ongoing training would be good, not just a one-off course. Greater training in issues affecting Aboriginal and culturally diverse clients would be useful—for us all. [Judicial officer, survey]

While all of the legal aid commissions supported the national ICL training program as a prerequisite for conducting ICL matters, some commissions also suggested that more specific training for ICLs could be beneficial. However, the challenge of providing this training, especially in smaller jurisdictions, is highlighted by the following comment from the Northern Territory Legal Aid Commission:

I suppose, from my perspective and working in more regional areas, there really isn’t enough specific training being offered, I think, by the Commonwealth for ICLs. A lot of it’s been left to the individual commissions to do it themselves. Some of the bigger commissions, of course—and better funded commissions—are better able to deliver ICL- specific type training. But the smaller commissions just don’t have the resources or the capacity to do that, even though the need is really there. [Northern Territory Legal Aid Commission, interview]

However, as this comment demonstrates, some non-ICL lawyers were mindful of the potential consequences if additional training provided to ICLs was poor or ill considered:

Not sure legally trained people can do a crash course, so to speak, to equip them with the responsibility that the position of ICL carries and the ramifications of their recommendations. [Non-ICL lawyer, private practice, survey]

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