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Communtity Law Manual | Parents, guardians & caregivers | Using lawyers in the Family Court

About the Family Court

Using lawyers in the Family Court

Will I need a lawyer to go to the Family Court?

Family Court Rules 2002, rule 80; Care of Children Act 2004, s 7A

You don’t have to have a lawyer to take a case to the Family Court. In fact, for cases under the Care of Children Act you’re 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.

For those situations where a lawyer is allowed to act for you, it’s usually a good idea to have one.

When can I, and when can’t I, have a lawyer in the Family Court?

Care of Children Act 2004, s 7A; Legal Services Act 2011, s 7

For disputes between parents or guardians under the Care of Children Act, a lawyer can represent you in court only in certain types of cases (for example, urgent cases, or international child abduction) or for certain stages of a case (once a parenting order case has been directed by the judge to go to a final court hearing). See below, “Can I have a lawyer represent me in a Care of Children Act case?”.

However, even if you aren’t allowed to have a lawyer represent you in court, you can have a lawyer help you in the background – for example, by explaining how the Family Court system works and by preparing the application documents for you. You can hire and pay a lawyer to do this, or you can use the free Family Legal Advice Service if your income is below a certain amount (the income limits are the same as for the free Family Dispute Resolution service: see above, “Do I have to pay to use Family Dispute Resolution?”). You may be able to access initial free legal advice at your local Community Law Centre.

For all Family Court cases other than under the Care of Children Act (for example, relationship property), a lawyer can act for you at all stages of your case.

Can I have a lawyer represent me in a Care of Children Act case?

Care of Children Act 2004, s 7A

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 issues (like what school your child will go to), you can have a lawyer to represent you in court only in certain types of cases or at certain stages of your case – namely:

  • once the Family Court has decided that your case will go to a hearing in front of a judge to decide the case (called a “defended hearing”)
  • once the judge has ordered your case to be dealt with together with another application made under a different Act (like an application for a protection order under the Family Violence Act)
  • at a settlement conference (a meeting ordered by the judge to try to settle the dispute by agreement without a court hearing), but only if the judge allows you to have a lawyer there
  • if you made an urgent application (called a “without notice” application, because the other person is not told about it before a decision is made) – but if the judge decides that the other person should be given notice, you won’t be able to have a lawyer
  • if it’s an international child abduction case.

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 won’t be able to apply on your behalf and won’t be able to appear in court with you during the early stages of the court process. However, you can hire a lawyer to give you information and advice in the background (helping you with your application for example), or a lawyer from the free Family Legal Advice Service can provide you with this background help if your income is below a certain amount. The Family Court staff will be available to explain how the court’s processes work and what you will need to do.

If your case goes to a final court hearing in front of a judge, a lawyer will be able to act for you there (and legal aid will be available for this if you qualify for it).

Legal Services Act 2011, s 7

In Care of Children Act cases, legal aid is available for those situations where you are allowed to have a lawyer represent you and appear with you in court (see above, “Can I have a lawyer represent me in a Care of Children Act case?”). In other situations, you can get background legal help from a lawyer from the free Family Legal Advice Service, if your income is below a certain amount (the income limits are the same as for the free Family Dispute Resolution service: see above, “Do I have to pay to use Family Dispute Resolution?”).

Legal aid isn’t available for dissolution of marriage (divorce).

Legal aid is available for all other types of Family Court cases, if you qualify for it (see the chapter “Legal aid”).

If I can’t have a lawyer represent me, who can help me?

Care of Children Act 2004, s 7A9

Although the situations when a lawyer can represent you in Care of Children Act cases are limited (see above, “Can I have a lawyer represent me in a Care of Children Act case?”), this doesn’t stop you having a lawyer to work for you in the background by giving you legal advice, preparing documents for you, and negotiating for you against the other parent. You can hire a lawyer to provide this background help, or a lawyer from the Family Legal Advice Service can do this for free if your income is below a certain amount. You may also be able to access initial free legal advice from your local Community Law Centre.

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.

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