Guideline 5 – independent representation of children

5.1 – assistance for independent representation of a child

Victoria Legal Aid (VLA) may make a grant of legal assistance for a child or children to be represented by an independent children’s lawyer in family law court proceedings if:

• a court orders separate representation and asks VLA to arrange an independent children’s lawyer to provide this representation; and
• VLA decides it is reasonable in the circumstances to make a grant of legal assistance for separate representation.

If the court requests that an independent children’s lawyer be appointed to represent a child or children, the child or children do not have to apply for a grant of legal assistance. VLA will appoint the lawyer once a request is received from the court and it is reasonable in the circumstances.

The independent children's lawyer must act as solicitor advocate at the trial unless one of the following exceptions are met:

• the independent children's lawyer has more than one trial listed on the same day;
• the trial is listed for four or more days;
• the office of the independent children's lawyer is more than 100 kilometres from the court;
• the independent children's lawyer has not had the opportunity to complete the requisite advocacy training; or
• there are other exceptional circumstances.

Exceptional circumstances are those circumstances that result in the independent children's lawyer being incapable of appearing at the trial, for example due to serious illness or injury.

Special medical procedures involving children

VLA must make a grant of legal assistance for an independent children’s lawyer to separately represent a child if requested to do so in any court proceedings relating to special medical procedures, including sterilisation.

See Guideline 10 – Special medical procedures involving children for information about assistance for parents of a child involved in court proceedings relating to special medical procedures.

No means test for children seeking separate representation

VLA does not apply the means test to any child for whom separate representation is sought under this guideline.

This also means that children are not required to make any financial contribution to the legal costs of their matter, except to the extent that the independent children’s lawyer is able to recover any costs from other parties in the proceedings.

5.2 – payment for the costs of independent representation by a party not receiving legal assistance

When making a grant of legal assistance for an independent children’s lawyer VLA must consider the ability of the parties to contribute to the associated costs. This includes costs associated with preparation of a family report and the professional costs and disbursements associated with the grant of legal assistance for the independent children’s lawyer.

VLA may determine an amount to be paid by each party, taking into account:

• the party’s capacity to pay
• the party’s legally aided status
• contributions assessed on existing files.

The requirement for parties to contribute to the costs of an independent children’s lawyer does not apply to proceedings relating to special medical procedures involving a child, regardless of whether any of the parties to the proceedings is in receipt of a grant of legal assistance.

If a party does not pay their share

If a party refuses or fails to pay the amount determined, then VLA must continue to provide a grant of legal assistance for the independent children’s lawyer. However, VLA will do so only on condition that the independent children’s lawyer seeks an order for costs against that party at an appropriate time in the court proceedings and only if appropriate under section 117 of the Family Law Act 1975.

If at least one of the parties to the court proceedings is not receiving a grant of legal assistance

If VLA makes a grant of legal assistance for the separate representation of a child in court proceedings and at least one of the parties to the proceedings has not been provided with a grant of legal assistance, then, usually, VLA must:

• tell each party not receiving a grant of legal assistance that each may have to pay an equal portion of the total costs and disbursements of the independent children’s lawyer
• take into account the capacity to pay of each party not receiving a grant of legal assistance, and determine whether to waive or to reduce the amount that party must pay
• tell each party not receiving a grant of legal assistance of the amount which VLA requires them to pay
• require each party not receiving a grant of legal assistance to pay the necessary amount in the way VLA has determined.