Who pays for the independent children’s lawyer?: Courts can appoint an Independent Children’s Lawyers (ICL) to represent the children’s best interests in parenting proceedings—these are specially-trained legal professionals who act in their best interests. While an ICL does act as a voice for the child, they bring an impartial view to the court, and are not acting on the child’s instructions. Either party can request that the Court appoint an ICL or the Court can appoint an ICL on its own accord. An ICL may be appointed in cases where there may be abuse, neglect or violence issues, or perhaps there is intractable conflict between parents, or a child is being allegedly alienated from a parent. An ICL may also be necessary in situations where a child of mature years is expressing strong views, or when a parent wants to move a child out of a jurisdiction or wants to separate siblings, or sometimes when both parents are self-represented. Sometimes there may be significant health issues that affect the child or a parent, or cultural and religious issues, and an ICL needs to be appointed to assist the court. The list is non-exhaustive and the courts have a wide discretion as to whether to appoint an ICL. Read more about ICL’s here.
Who pays for the Independent Children’s Lawyer?
Appointing and managing an ICL and determining the question of costs is normally the responsibility of the Legal Aid organisation in a particular state or territory. But it’s important to note that Legal Aid commissions typically can’t cover all the ICL’s costs and in most cases, parties will have to contribute as well. Legal Aid can request each party to contribute towards the costs of the ICL, depending on their financial circumstances.
On other occasions, the Court can order one or both parties to contribute towards the costs of the ICL at the conclusion of a matter.
What if you feel you can’t pay?
The courts have discretion not to order an ICL’s costs to be paid if you can satisfy the court that you would suffer financial hardship if you had to pay costs of the ICL or a share of them. Unfortunately, this is not as simple as saying you’re broke—a much-quoted authority in the courts is that “impecuniosity is not a bar to making an order for costs”. The courts will assess any claim of financial hardship carefully, scrutinising not only your current bank balance but also your capacity to pay, including any access to capital and the prospects of being able to raise funds.
For example in a recent matter before the courts (pseudonymised as Arnet & Arnet), the costs of an Independent Children’s Lawyer were at issue. The matter involved an application by an Independent Children’s Lawyer to recoup their costs of around $7,000 from the parents in a parenting matter. The ICL asked that the mother and father pay equal shares of the costs. In this case, neither party received Legal Aid, but the parents both argued they would experience financial hardship if made to pay.
Financial circumstances are one of several (non-exhaustive) considerations that the courts will give when deciding on an order for an ICL’s costs. Other factors include the conduct of the parties, whether the matter was in court because someone had failed to comply with previous orders, whether any party was wholly unsuccessful in their proceedings, whether there had been a prior settlement offer, and anything else the court might find relevant. Any factor can on its own be the sole foundation for whether a costs order should be made. In the Arnet & Arnet matter, both the mother and father relied heavily on the financial circumstances argument.
However, the court found both had the capacity to pay the sum without hardship. They each had paid employment and either capital or the prospects of raising the amount sought. Against this, the mother had claimed she had a shortfall between her income and expenses, and the father referenced how COVID had negatively impacted his work industry (being self-employed in the allied health field). But the court noted each of them had had private legal representation throughout their proceedings and had each briefed counsel. As such, the court didn’t find the ICL’s costs would represent a real hardship. However, to mitigate any hardship, the court allowed the mother and father to have six months to pay the ordered sum.
The key takeaway
It’s important to realise that although in many situations the ICL is funded under a Legal Aid scheme established under Commonwealth, State or Territory laws, it’s not a “free” service. From a court’s perspective, an ICL is presumed to be unfunded (unless privately funded) and the courts are generally inclined to order parties to contribute to the ICL’s costs.
You can check with the Legal Aid commission in your state or territory about how the costs of an Independent Children’s Lawyer will be paid. And if interested, the laws regarding an Independent Children’s Lawyer can be found in the Family Law Act 1975 and the Family Law Rules 2004. There is also a set of guidelines outlining the Independent Children’s Lawyer’s role and responsibilities which have been approved by the family courts.
If you have an ICL appointed to your matter, or are interested in having one appointed, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.