ACCREDITED SPECIALISATION PERFORMANCE STANDARDS 2015

Transcription

1 Specialist Accreditatin Perfrmance Standards 2015 ACCREDITED SPECIALISATION PERFORMANCE STANDARDS Page 1 f 8

2 Specialist Accreditatin Perfrmance Standards 2015 Perfrmance Standards Practitiners wishing t be accredited shuld be able t perfrm the fllwing tasks: 1.1 Develp a Relatinship with the Client by: Listening Effectively t the Client By listening effectively, the practitiner is able t perceive the client s immediate needs regarding safety, children and the financial situatin. The practitiner becmes aware f the client s nn-legal needs, and any gender, language, crss-cultural, persnal and religius issues, and their implicatins Cmmunicating Clearly and Apprpriately The practitiner: asks effective questins and interacts with the client in a supprtive way and, at the same time, adpts methds t test the reality f the client s statements; adpts a nn-discriminatry attitude and uses plain language t cmmunicate with the client t dispel myths and t educate regarding family law, its limits and realities; and respnds prmptly t the client s inquiries and cncerns, demnstrates a cmmitment t fllw the client s instructins (within ethical limits) and an understanding f the client s welfare needs. 1.2 Gather and Assess Facts and Instructins by: Taking Instructins frm the Client FYI: Instructins include bth the client s accunt f the relevant facts and the client s statements n what he r she wishes t btain r achieve. When taking instructins, the practitiner: displays thrughness, persistence and awareness f relevance; and structures the prcess f assisting the client t develp a histry, and btains an initial statement frm the client. Client statements include: the nature f the prblem; what the client wants t achieve; the client s accunt f the relevant facts; the psitins f children and any relevant third parties; and a view f the ppnent s psitin. draws the client s attentin t any gaps r incnsistencies and checks the instructins with the client; and Page 2 f 8

3 Specialist Accreditatin Perfrmance Standards 2015 identifies with the client the basis upn which csts are being charged (scale r csts agreement). When apprpriate, the practitiner: btains written instructins, fr example, when instructins are cntrary t the practitiner s advice; advises the client n the feasibility f btaining what the client wants; distinguishes realistic and unrealistic expectatins and canvasses the questin f csts; deals with any ethical issues arising frm the instructins; and keeps a clear recrd f the instructins Obtaining Relevant Infrmatin frm Surces ther than the Client The practitiner: cnducts apprpriate searches and makes apprpriate requests fr dcuments and infrmatin; is skilled in btaining evidence frm a variety f witnesses and experts; uses curt prcedures t gather further evidence; makes financial inquiries; and when apprpriate, takes evidence n cmmissin r engages in extraterritrial prcedures. 1.3 Plan a Timetable and Curse f Actin by: Assessing Facts and Marshalling Evidence The practitiner: assesses the facts by crss-referencing dcuments and statements, and preparing a chrnlgy and statement f issues; briefs experts t cmment n evidence; ensures that experts fcus n the questins f evidence required; researches and btains bdies f expert pinin; assesses the reliability f witnesses, the cmpetency f experts; and determines what is relevant and admissible Cnducting Legal Analysis Page 3 f 8

4 Specialist Accreditatin Perfrmance Standards 2015 The practitiner: identifies legal principles arising frm the facts, the client s instructins, actins by ppnents and third parties, if any; identifies the extent t which relevant legal principles are clear n cntestable issues; engages in apprpriate research t ascertain legal principles r t develp arguments where legal principles are cntestable; determines whether t seek cunsel s pinin at each stage f the case; and seeks apprpriate instructins Presenting t Clients Optins fr Reaching Reslutin The practitiner: presents the client with ptins in relatin t the client s prblems and an estimate f the csts invlved; identifies the apprpriate legal and ther remedies, if any, and the frum; and identifies and investigates ther legal ramificatins f varius ptins (fr example, taxatin and stamp duty implicatins, capital gains tax implicatins and crprate law implicatins). The ptins will include: N actin The client is t be prperly infrmed f all ramificatins f this and reassured if adverse reactin starts. nn-actin Nn-legal persn r service The practitiner: recgnises the existence f nn-legal issues and their imprtance t the client at the time; will refer the client t the apprpriate service r services; is able t assess nn-legal assistance fr the client; and is up t date n the range f services available, fr example, valuers, accuntants, interpreters, refuges, supprt grups, religius grups, psychlgists, psychiatrists, educatinalists, emplyment, scial security and husing. Supprt measures The practitiner: is aware f the physical, financial and psychlgical needs f the client, and advises the client t take actin if apprpriate; knws the tactics needed t achieve results; Page 4 f 8

5 Specialist Accreditatin Perfrmance Standards 2015 brings pressure t bear n the ther side but refrains frm taking actin which might imperil the safety f the client r prejudice the client s actin; is sensitive t the client s mental state, particularly when dmestic vilence is invlved; supprts the client while maintaining bjectivity; clearly cmmunicates the limitatins f dmestic vilence rders and advises the client n hw t deal with the limitatins; and is able t act quickly when required. is able t advise client regarding availability f legal aid where apprpriate. Alternative Dispute Reslutin The practitiner: knws the varius types f dispute reslutin prcesses which may be available and apprpriate at varius stages f a matter; fulfils the requirements f the apprpriate rule; adpts an attitude f penness t paths ther than litigatin (fr example, cunselling, negtiatins, mediatin, cnciliatin and arbitratin); and prepares the client fr his r her part in the settlement prcess. Curt actin The practitiner: recmmends curt actin when apprpriate but recgnises when the prcess may be t damaging, either financially r psychlgically, fr the client; recgnises when t brief cunsel; and manages the pace f prceedings in accrdance with client s needs and instructins in the cntext f case management guidelines and relevant practice directins Develping the Initial Plan The practitiner: makes strategic decisins in light f the law, the facts and the client s instructins; assesses what is t be achieved, and hw it can be achieved; determines which aspects f the case shuld be emphasised, which issues are capable f immediate reslutin; reviews the cst-effectiveness f the prpsed ptins; and develps an initial plan in cllabratin with the client. Page 5 f 8

6 Specialist Accreditatin Perfrmance Standards Reviewing the Plan and Mdifying it in Light f Changes Thrughut the matter, the practitiner; Reviews bjectives n the basis f changed circumstances resulting frm further instructins, ther parties materials, expert pinin and infrmatin gained thrugh dcuments discvered r subpenaed; Presents ptins respnding t the changed circumstances; Implements strategies, including interim r interlcutry applicatins r appeals, security measures and expeditin; and Undertakes settlement negtiatins, where apprpriate. 1.4 Implement a Plan by: Preparing Curt Dcuments The practitiner: prepares curt dcuments which prperly present the case and cmply with curt rules and practices; presents material in admissible frm; structures dcuments in a way that makes them easily understd; and amends dcuments when required Dealing with Officials and Third Parties n the Client s Behalf T deal effectively with fficials and third parties n the client s behalf, the practitiner: is aware f the authrity, duties and respnsibilities f the varius fficers and fficials f the curt; and represents the client effectively befre curt fficials and ther parties wh may assist the client including members f the extended family, church leaders, dctrs, accuntants r ther experts, Child Supprt Agency staff, Centrelink staff Managing the Negtiatin Prcess The practitiner manages the negtiating prcess by cnsidering alternatives and adjusting prpsals t meet changing circumstances and stages f litigatin. At all times, the practitiner maintains flexibility, and acts prfessinally and in accrdance with the client s instructins. Page 6 f 8

7 Specialist Accreditatin Perfrmance Standards Briefing Cunsel and Acting as the Instructing Slicitr The practitiner cnsiders when t brief cunsel, having regard t: the length f the trial; the cmplexity f law r facts; the emtinal state f the client; the likelihd f success; and the client s instructins t prceed against the practitiner s advice. The practitiner chses the apprpriate barrister fr the matter. slicitr, he r she: As instructing understands the relatinship between barrister and client; plays an active rle in the management f the case; and acts as liaisn between the barrister and the client. 1.5 Act as an Advcate by: Undertaking Cnciliatin Cnferences The practitiner: understands the requirements f the rules and the case management guidelines fr cnciliatin cnferences; advises the client abut prcedural aspects and prepares the client fr the dynamics f the cnference; cmmunicates the negtiating plan t the client and ensures the client accepts the pening and bttm line negtiating psitins; delivers an pening statement which summarises the facts and seeks t persuade that the rders sught are just and equitable; prepares terms f agreement and/r rders if the cnference is successful; and debriefs the client, recrds the imprtant issues, raises and plans the future directin f the case, if the cnference is unsuccessful Cnducting the Hearing When appearing, the practitiner: is articulate, prepared and well-rganised; Page 7 f 8

8 Specialist Accreditatin Perfrmance Standards 2015 has the ability t think quickly n his r her feet; re-frames client s subjective cncerns int reasnable, btainable legal utcmes; explains the prcess f crss-examinatin t the client and relevant witnesses; presents a clear pening statement; cnducts effective crss-examinatin which is well structured, fcuses n achievable bjectives and bears directly n the issues; cntrls the subject matter f the questining and avids arguments with the witness; and makes submissins which: are lgical in sequence; are n pint; summarise the evidence; re-emphasise the key issues in a persuasive manner; and prvide a structure fr rganising and assessing the evidence. 1.6 Cmplete a Matter The practitiner: adpts apprpriate methds fr recrding results including agreements between the parties; explains any judgments; checks, and if necessary, crrects final rders (knwing the apprpriate applicatin f the slip rule); advises the client n the cnsequential prcedures including meetings f directrs, transfer f prperty and variatin f trust deeds; when apprpriate, advises n appeal prcedures, identifying grunds fr appeal; prepares and presents t the client final accunts; and attends taxatin f csts prcedures if required. Page 8 f 8