Section 4 of the Care of Children Act 2004 establishes a paramountcy principle in respect of “any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child”, whereby the “welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration” when decisions are made by the Family Court in respect of a child. Often enough, adults who are fully psychologically and emotionally developed find the experience of Court stressful and confusing, making it unnavigable and certainly damaging for a child to be directly exposed to.

In New Zealand, a child at the centre of a parenting dispute will very rarely directly participate in the Family Court proceedings that concern them. Sometimes, a Judge will meet directly with a child in chambers or in an alternative location for a judicial interview, which allows the Judge to better ascertain how the child is feeling by their words and their body language. However, the existing standard practice is that a child will have his, her or their voices heard through the appointment of a Lawyer for Child.  

Jurisdiction to Appoint a Lawyer for Child

The Court’s jurisdiction to appoint a Lawyer for Child is derived from section 7 of the Care of Children Act 2004 (‘COCA’). This section allows a Court to appoint, or direct the Registrar of the Court to appoint, a lawyer to represent a child who is the subject of, or who is party to, proceedings (other than criminal proceedings) under COCA if the Court has concerns for the safety or well-being of the child and considers that appointment necessary.

In my experience practicing in Family Law, this jurisdiction is widely used, and more often than not the Family Court will appoint a lawyer for the child if proceedings are filed.

Role of Lawyer for Child

A Lawyer for Child’s role is, unsurprisingly, exactly as the title describes – they are the lawyer for the child. Their role is multi-faceted and child-focused and is entirely separate to and differs from the role of the lawyers representing the parents and/or guardians in the dispute. They are appointed to represent the child in the Court process and in any negotiations between the parents and/or guardians, to explain (depending on the age of the child) the Court process in a way that the child can understand, to ensure that the judge is told what the child’s views are and what is in that child’s welfare and best interests, and to explain the judge’s decision to the child and talk to them about how they will be affected by the outcome [1]. A Lawyer for Child will meet with the child alone usually on more than one occasion, and will often take the lead on discussing interim, child-focused contact arrangements with the parents and their lawyers. This can often be in the form of setting up round table meetings to arrange supervised or unsupervised contact with a parent or parents whilst the matters are making their way through the Family Court process

Aforementioned, the Lawyer for Child’s role is coloured by ss 4, 5 and 6 of COCA, which require the paramountcy of the welfare and best interests of the child (alongside related principles) and highlights the importance of the child’s views. Usually, only one Lawyer for Child will be appointed for each set of proceedings, meaning that that lawyer may need to juggle meeting with and expressing the views of one or more children. 

LFC’s are accredited practitioners who undergo specialist training with NZLS CLE [2] and are required to have a minimum of four years’ experience in the Family Court, although most LFC’s have far more than the required experience. From my experience, the lawyers appointed that I have met personally have been kind-hearted, open-minded, down-to-earth and outwardly driven towards upholding the relevant child’s welfare and best interests whilst taking a practical and fair approach to the parents involved in the proceedings. 

Cost of Lawyer for Child 

There are currently no regulations fixing the levels of remuneration for the costs of appointing a Lawyer for Child. However, the Ministry of Justice and the New Zealand Law Society have established the following three-tiered scale of payment, with discretion afforded to Registrars to exceed these standard rates in exceptional circumstances. The scale is as follows: [3]

Level One: At a rate of $166.46–182.52 per hour (GST inclusive), which covers cases where the lawyer has only recently been approved or where no approved counsel is available and the assigned lawyer has not been approved.

Level Two: At a rate of $166.46 per hour (GST inclusive), which is the level applicable to most cases.

Level Three: At a rate of $166.46–182.52 per hour (GST inclusive), where the case required superior skills, extreme urgency, there were grave concerns as to the immediate safety of the children, sexual abuse cases or Hauge Convention cases.

A Lawyer for Child, in my opinion and in many others, is a Court appointed necessity required to uphold the welfare and best interests of a child in a situation that is above their capacity yet affects them directly. Curiously, and although a Lawyer for Child is appointed by the Court, the implementation of ss 135A and 135B into COCA in 2014 requires Family Court to order that the parties to the proceedings repay a proportion of the costs and expenses of the Lawyer for Child. The starting point is that each party pays one third of the total costs and expenses, which will vary depending on the length of appointment of the Lawyer for Child and the tasks undertaken. This, however, is not a hard-and-fast rule, and the Court can either:[4]

1. decline to make a refund order against a party if satisfied the order would cause serious hardship[5]  to the party or to a dependent child of a party: s 135A(2); or
2. vary the amount payable by a party and substitute a lesser amount if it is satisfied that, in the circumstances of the case (including the conduct of any party), it would be inappropriate for the party to pay one-third of the costs: s 135A(4).

Personally, I have seen a number of Family Court cases where the Court has not required parties to contribute to the Lawyer for Child’s costs or to make a costs order generally.[6] It can, however, and does happen on occasion. I have provided three examples below:

Granger v Granger [2014] NZFC 8612, [2014] NZFLR 801

In this case, Judge Flatley determined that a refund order was inappropriate in proceedings initiated by the mother after the father failed to return the child after a contact visit. No submissions on the appropriateness of the refund were made.

Vargus v Vargus [2015] NZFC 708 

Here, the Applicant father was ordered to pay his full assessed share of the costs at $822, whilst the Respondent mother was to only pay $100. Judge Geoghegan determined that, by bringing a without notice application for a parenting order, the father had avoided engaging with the family dispute resolution process which would have likely resolved the dispute without the need for Court involvement.

Anderson v Usaka [2015] NZFC 1757

The Applicants argued that they should not be required to contribute to the costs of the LFC on a name change application because they were assuming the care of a child (under MSD’s Home for Life Policy) who was unable to be cared for by his natural parents or family. They contended that the impositions of a costs order may discourage caregivers from applying for orders under COCA. The Court determined that it was not for the Court’s to comment on the policy reasons behind the legislation, that Parliament had not drawn any distinction based on the worthiness of the parties or their application (in respect of the assumption of care, rather than meeting the s 135A requirements) and that it was likely MSD would reimburse the Applicant’s for their contribution in any respect.

So, to answer the question posed in the title of this post “who pays?”, like often is the answer to questions resulting from complicated questions, is “it depends”. Sometimes the parties involved in the proceedings (usually the parents) as the Applicant and Respondent will be responsible for a share of the costs, and other times costs orders will not be made, and the costs are paid entirely by MSD. The important point, however, is that there is someone appointed to ensure that the child's welfare and best interests are paramount throughout the process, which to many is priceless. 

Jessica Cooper

(employed) Barrister LLB BA AAMINZ

Footnotes:

[1]  https://www.justice.govt.nz/fa..

[2] Such as https://www.lawyerseducation.c...

[3] Westlaw, Care of Children Act 2004 Section 7 (CC7.52 Commentary).

[4] Westlaw, Care of Children Act 2004 Section 135A Commentary

[5] “Serious hardship” is defined to include serious financial difficulties resulting from a party’s inability to meet minimum living expenses according to normal community standards, the cost of medical treatment for a party or dependent child, a serious illness suffered by the party or child, or the cost of education for a dependent child. “Serious hardship” cannot be found where the significant financial difficulties have arisen because of the social activities or entertainment engaged in by the party or dependent child or because the party is unable to afford goods and services that are expensive or of high quality according to normal community standards.

[6] Noting that it is in the Court’s discretion in Family Court matters to make an order for costs as the Court see’s fit. The Family Court, particularly in respect of COCA or parenting matters, does not follow the “winner and loser” usually seen in civil proceedings.