For legal aid to be granted for the direct representation of a child in the Family Law Courts the following tests must be satisfied:
- There are current court proceedings in the Family Law Courts relating to who the child lives with, and
- The best interests of the child are not adequately represented by any other party to the proceedings, and
- The applicant child is competent to provide instructions, and
- The matter meets the merits test.
Requests for aid from children for direct representation will be referred to a grants manager for determination.
Documentary requirements
Application received from client
Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:
- A completed and signed Legal Aid Queensland application form
- Details of the final order you are seeking
- Copies of any relevant court applications or court orders
Application received from preferred supplier or in-house practitioner
Practitioners seeking a grant of legal assistance must electronically submit an extension of aid request or application for aid via the Grants Online System with details of the final order your client is seeking and copies of any relevant court applications or court orders. The following documents are to be retained on file but may be requested by Legal Aid Queensland:
Interpretation
Legal advice
If an application for aid is received from a child in relation to a family law matter the child will be referred to an in-house practitioner to obtain independent legal advice and assistance (where a conflict of interest does not exist). After the practitioner provides legal advice and assistance to the child, the practitioner is to advise the assessing officer whether the child wishes to proceed with their application for aid.
The best interests of the child
Requests for direct representation of children in family law matters will be considered if it is considered to be in the child’s best interests.
Under the provisions of the Family Law Act 1975, children can apply in their own right to the court for orders in relation to their living arrangements and other matters related to their welfare. There is no minimum age restriction imposed by the Family Law Act 1975.
When assessing an application for legal assistance by a child the age of the child is not a determining factor as to whether aid will be granted or refused. The assessing officer will however consider whether the child has sufficient intellectual capacity and emotional maturity to understand the basis of their application.
Legal Aid Queensland may consider making a grant of legal assistance for the direct representation of a child in circumstances where:
- the child does not wish to live with either parent and requires direct representation to express these wishes, or
- the child is living independently or with third parties and is seeking an order to allow them to spend time with or communicate with their siblings, or
- the Independent Children's Lawyer's view as to what is in the best interests of a child is in contradiction to what the child themselves considers to be in their best interests.
Merits test
Legal Aid Queensland will not make a grant of legal assistance for the direct representation of a child in family law proceedings if it is considered that the interests of the child are such that they are likely to be adequately represented by other parties.
Where proceedings are current and the child’s interests are the same or sufficiently similar to that of another party it would be considered that a request for the direct representation of child would not meet the appropriateness of spending limited public funds test as the child’s interests and views would be adequately put to the court through the evidence given on behalf of another party to the proceedings.
Allocation of a solicitor
Representation for children in family law proceedings will be provided on an in-house basis unless there is a conflict of interest.
The in-house practice will make a determination as to the competence of a child to provide instructions to a solicitor under the legal advice scheme, unless there is a conflict of interest.
If a conflict of interest exists, Legal Aid Queensland will provide funding to a preferred supplier to meet with the child, assess their ability to provide instructions and provide them with initial advice and representation.
Grant(s) of aid
Grants of aid for the direct representation of children in family law matters will be funded in accordance with the family law stage model for parenting disputes.
Extension(s) of aid
Solicitors may also request additional funding outside the stage model; the criteria applied to these requests are contained within nature and extent of funding.
Review of decisions
A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).