Thursday, 24 July 2008

Federal Magistrate Court case - what to do when an Independent Children's Lawyer is not chosen

The recent Federal Magistrate Court case of Lancet and Lancet is a good illustration of what can go wrong in the process of appointment of an independent children's lawyer, and the limited means of how to fix it.

The father had been arrested by police for chasing the mother whilst armed with an axe. Despite the best efforts of neighbours to restrain him, he managed to break free a number of times. All of this occurred in her home, and apparently in the presence of the children, allegedly causing them major trauma.

Clearly the type of case where the appointment of an independent children's lawyer was warranted. Living in a regional area, out of necessity the mother's application was brought before a State Magistrate, who ordered that an independent children's lawyer be appointed and be chosen by Legal Aid Victoria.

Unfortunately, when the matter came before Federal Magistrate Riethmuller, an independent children's lawyer had still not been appointed.

His Honour stated:

It must be noted that it is no part of the court’s role to determine to whom or to what extent Victoria Legal Aid funds litigation. That is entirely a matter for the Victoria Legal Aid, which is responsible to the relevant Minister and parliament for the use of the funds disbursed for that purpose: it is an administrative function, not a judicial function: see Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44; (1998) 195 CLR 184.
It was submitted to me that Victoria Legal Aid undertakes what is in effect an indiscriminate allocation of 40 Independent Children’s Lawyer appointments at the beginning of each month in response to the first 40 orders received, and thereafter simply declines every other request. I do not have evidence of how Victoria Legal Aid chooses to disburse the funding it receives from the Commonwealth for family law matters. It appears to me to be remarkable if it were disbursed on an indiscriminate basis, as alleged. However, that is not a matter for the court. It is clearly a matter within the purview of the Commonwealth Attorney-General as it is the Commonwealth that provides family law funding.
It was further requested by the parties that the court ‘re-make’ the Independent Children’s Lawyer appointment order at the commencement of the following month, so that it would be received by Victoria Legal Aid within the first 40 requests for the next month. This appears to me to be entirely inappropriate. The making of another order in the same terms appears to me to be contrary to law. Once an order has been made by the court, it is not appropriate for the court to then make the same order over and over in some hope that it will make any difference. Indeed, as a matter of law once the court has dealt with an issue, that is the end of it, subject to appeals. Whilst there is the ability to alter procedural orders, there nonetheless ought to be some change in circumstances that makes the previous order inappropriate.
I have been asked by the parties to consider requiring the staff of the court, or at least my chambers staff, to post another copy of the order to Victoria Legal Aid at the start of each month until such time as the order may be actioned by them. It appears to me that this submission must also be rejected as:
If the process is designed to manipulate the system Victoria Legal Aid has adopted to determine the funding of cases (even if it is an indiscriminate grants system), it is inappropriate for the court to participate in such a scheme;
It is a very real waste of public resources to have an officer of the court simply photocopy an order and post it to Victoria Legal Aid (potentially month after month), when Victoria Legal Aid have already received a copy of the request.
If the court engaged in the practice suggested, then it would effectively be reviewing orders for the appointment of Independent Children’s Lawyers to determine whether to resubmit them to Victoria Legal Aid. The parties would be entitled to be heard if the court were not considering re-submitting the order and notice of the decision which may then be subject to judicial review if it is an administrative decision.
For the court to engage in such a process would undermine the authority of the court as it would be a tacit acceptance by the court that at least in one area that the court did not expect its orders to be respected after the expiration of one month or unless submitted a number of times.
If an Independent Children’s Lawyer is not funded by Victoria Legal Aid the appropriate review mechanism is provided for in s.34 of the Legal Aid Act 1978 (Vic). This review mechanism allows for a person affected by the decision to seek a review through Victoria Legal Aid’s review process. Adopting the system requested appears to thwart the parties’ rights of review through Victoria Legal Aid.
It remains, it seems to me, a political and administrative question as to the method by which the funding is administered (and also how much funding is provided) for what is effectively children of those families without financial resources that become embroiled in family law proceedings.
In these circumstances, at most, I would order that the parties pursue the appointment of an Independent Children's Lawyer in accordance with the orders, either by funding directly from their clients, if their clients happen to come into funds (which seems particularly unlikely) or by themselves making application to Victoria Legal Aid on behalf of their children for funding or review of funding decisions by whatever process the Victoria Legal Aid office has established in this regard, and pursuing such processes until such time as the process is reasonably exhausted, there is an appointment of an Independent Children’s Lawyer, or further orders are made in the proceedings.


His Honour also declined to order a stay of proceedings until after the appointment was made.

A contrasting case

In another recent Federal Magistrates Court decision in Coppel and Herz, Phipps FM, in a case involving a 5 month old baby, a mother who had had severe post-natal depression, and it would appear allegations of domestic violence, noted that Victorian Legal Aid had not funded a previously ordered independent children's lawyer, because of the 40 a month quota, so made another order for appointment.

How to overcome a problem when Legal Aid has not funded an independent children's lawyer

The possible answers are:
- for the parties to fund. His Honour in Lancet and Lancet indicated that he had in another recent case made such an order. These parties however did not have the money to do so.
- for the lawyers to chase up Legal Aid as soon as the initial order was made. In Queensland there was a(at least an informal) policy to decline to fund an independent children's lawyer when an order had been made for an appointment by a State Magistrate. In those circumstances, it is necessary for the lawyers to write to Legal Aid (or better to speak to the relevant officer) to attempt to get funding.
- to keep following up Legal Aid.
- if necessary, to get MP's involved. While an MP cannot interfere in an individual case, it is a legitimate question as to why there is a problem within the organisation to fund what it has been told to fund by the taxpayer. When a Ministerial is asked, it seems the first duty of a public servant is to answer that Ministerial. Sometimes this achieves results.

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