About the Family Court
Using lawyers in the Family Court
Can I have a lawyer represent me in the Family Court?
Family Court Rules 2002, rule 80; Care of Children Act 2004, s 7, Family Court (Supporting Families in Court) Legislation Act 2020, s 4
New rules came into effect on 1 July 2020 that allows lawyers to represent you at the start of a care of children dispute in the Family Court. You are also able to access Legal Aid if you qualify for it. For more information about accessing Legal Aid, see the chapter “Legal Aid and other legal help“.
Previously, for cases under the Care of Children Act, you were only allowed to have a lawyer represent you and appear with you in court for certain types of cases or for particular stages of your case.
You do not have to have a lawyer to take a case to the Family Court and you can represent yourself if you want to.
Can I have a lawyer represent me in a Care of Children Act case?
Family Court (Supporting Families in Court) Legislation Act 2020, s 4
Since the new rules have come in, if you apply under the Care of Children Act for the Family Court to resolve a dispute about care arrangements (a Parenting Order) or guardianship issue (like what school your child will go to), you can have a lawyer represent you in court.
This means, for example, that for a typical application for a Parenting Order to deal with day-to-day care and contact issues, a lawyer will be able to apply on your behalf and appear in court with you during the early stages of the court process. Previously, a lawyer could not appear in court on your behalf in the early stages of the process in the Family Court.
Is Legal Aid available for going to the Family Court?
In Care of Children Act cases, Legal Aid is now available for you if you qualify for it (see the chapter “Legal Aid and other legal help”).
You can also get background legal help from the free Family Legal Advice Service, if your income is below a certain amount (To help you with your application, for example). The income limits for the free Family Legal Advice Service is the same as for the free Family Dispute Resolution service: see, “Do I have to pay to use Family Dispute Resolution?” earlier in this chapter.
Family Legal Advice Service is different from Legal Aid, and even if you don’t qualify for Legal Aid you might qualify for the free Family Legal Advice Service. Legal Aid isn’t available for dissolution of marriage (divorce).
Will a lawyer be appointed for my child?
Care of Children Act 2004, s 7; Family Court Act 1980, s 9B
In Family Court cases, the judge can appoint a lawyer to act for a child involved in the case, including where a case isn’t directly about the care of the children – for example in relationship property disputes between the parents. This lawyer is called a “lawyer for the child”.
In Care of Children Act cases, however, this isn’t standard practice. In these cases the Family Court can only appoint a lawyer for the child if the judge thinks this is necessary because the judge has concerns about the child’s safety or well-being.
The role of a lawyer for the child is to act for the child in a way that the lawyer thinks will promote the child’s welfare and best interests. The lawyer will meet with the child to find out his or her views, and will present those views to the court. The lawyer will also give advice to the child about appealing the Family Court’s decision to a higher court, and must give this advice in a way that’s appropriate to the child’s level of understanding.
Who pays the fees of the lawyer for the child?
Care of Children Act 2004, s 135A; Family Courts (Prescribed Proportion of Professionals’ Costs) Regulations 2014, reg 4
If a lawyer is appointed for your child, you and the other parent will usually have to pay two thirds of the lawyer’s fees, in equal shares. You may not have to pay your share if this would cause serious hardship to you or your children.
