Note: The lawyer is not required to submit the initial application in these matters. The allocation and first grant of assistance are processed by the Grants and Quality Assurance unit at Victoria Legal Aid (VLA). Matters approved pursuant to this guideline are allocated to lawyers on VLA's Independent Children's Lawyer (ICL) Panel only.
Guideline
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:
- a court orders separate representation of the child and asks us to appoint an ICL
and - 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 and first grant of assistance (extension 0), all extension requests must be submitted by the practitioner pursuant to the simplified grants process (SGP). Evidence that supports the extension must be kept on file.
Information to assist lawyers with the grants and applications process and the documentary evidence to support the application under each guideline is set out in the Notes on the Commonwealth family law and child support guidelines.
Appearing and instructing as an ICL
VLA 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 will provide a limited instructing fee for the ICL to instruct at key points of the final hearing.
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, VLA 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.
VLA may determine an amount to be paid by each party, taking into account their:
- capacity to pay
and
- 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 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 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 VLA makes 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, VLA 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
and
- consider 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
and
- tell each party not receiving a grant of legal assistance of the amount which we require them to pay
and
- 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.
Updated