Guideline 1.4 – appointment of an ICL in litigation relating to parenting disputes

Guideline 1.4 – appointment of an ICL in litigation relating to parenting disputes

Note: The lawyer is not required to assess eligibility under this guideline. Grants under this guideline are assessed by Victoria Legal Aid (VLA) and allocated to practitioners on the independent children's lawyer (ICL) panel.

VLA may make a grant of assistance for a child to be represented by an ICL in litigation in parenting disputes, including in appeals (see Guideline 8 – Appeals) where:

  1. a court orders separate representation of the child and asks us to appoint an ICL
    and
  2. we decide that it is reasonable in the circumstances to make a grant of assistance for separate representation of the child.

ICLs may also get assistance for time limited ongoing work necessary for the implementation of orders.

Documentary requirements

Following allocation of the matter to an ICL, we will put a grant of assistance in place through our online lodgement service, ATLAS. Lawyers will then be able to submit extension applications via ATLAS in the usual way, ensuring that evidence that supports the extension is kept on the file.

Appearing and instructing as an ICL

We encourage the ICL to appear as solicitor advocate at final hearings, but the ICL is not required to do so.

Where the ICL has briefed counsel to appear at the final hearing, we may provide a limited instructing fee for the ICL to instruct at key points of the final hearing where it is:

  • a Magellan matter or a complex matter
    and
  • essential for the ICL to act as instructor in the proceedings in order to form an opinion as to what is in the child’s best interests based on the evidence.

Fees available

For information about fees available for a grant under this guideline, see Fee table 4.2.

Contribution to the cost of representation by an ICL

When making a grant of assistance for an ICL we will consider the ability of the parties to the dispute 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 ICL.

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

  • capacity to pay
  • legally assisted status
    and
  • contributions assessed to pay in other legally assisted matters.

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

If a party does not pa​y their share

If a party refuses or fails to pay the amount determined, then we must continue to provide a grant of legal assistance for the ICL.

However, we will do so only on condition that:

  • the ICL seeks an order for costs against that party at an appropriate time in the court proceedings
    and
  • it is appropriate to seek an order for costs under section 117 of the Family Law Act 1975 (Cth).

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

If we make a grant of legal assistance for the separate representation of a child by an ICL 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, we must do the following:

  • 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 ICL
  • 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 each party must pay
  • tell each party not receiving a grant of legal assistance of the amount which we require them to pay
  • require each party not receiving a grant of legal assistance to pay the necessary amount in the way we have determined.

Notes on this guideline

For commentary and examples on the eligibility criteria, grants assessment process, documentary requirements and fees and billing relevant to this guideline, see the Notes on guideline 1.4.