Reflections on Being an Independent Children’s Lawyer for Over 15 Years

Reflections on Being an Independent Children’s Lawyer for Over 15 Years

In this video, Accredited Family Law Specialist and Page Provan Director, Stephen Page reflects on his experience of being an Independent Children’s Lawyer for over 15 years.

Transcript

G’day, Stephen Page from Page Provan Family and Fertility Lawyers, and in this video, I’m reflecting about how I was an independent children’s lawyer for 16 years and what I learned from that.

It’s funny that on the day that I’m recording this, I happen to go to an event, and it’s just one of the… Nothing related to this video, but it was an event that lawyers went to celebrating how to do things better and with a speaker and a breakfast, all that stuff.

But afterwards, I spoke with a couple of colleagues who were family lawyers and somehow, the topic came to that of independent children’s lawyers. One of my colleagues noted that the pay rates for independent children’s lawyers hasn’t changed, that’s very true.

The pay rate is somewhere at 1988 levels with some modest improvement for inflation. The difference between what an independent children’s lawyer is paid and what is paid in private practice is just astounding.

One rate has gone up gradually and one rate has remained stagnant. Not only stagnant, but things that were previously paid for by legal aid, number of hours you might do, no matter how many it was, you’ll get paid. They said, no, we’ll only pay you a certain number of hours.

So if you do, for example, 12 hours work, but there’s only five hours allocated. That’s it. You get paid five hours at that lower rate. But that’s not all. When we have clients and ask clients for money to do certain things, for example, to issue a subpoena, it’s pretty straightforward.

Go and issue a subpoena. Okay, and then we’ve got to draft up the subpoena, send it to the court, get it back, and then serve it and when we serve it or give it to the respondent, then in that process, we’ve got to give them a conduct money. And that’s basically it and then afterwards, we get to look at the material.

Well, what was raised with me this morning was the real cost for lawyers and being independent children’s lawyers, wasn’t only the great chasm between what we can earn in private practice compared to what we earn as independent children’s lawyers.

But it’s the administrative burden of, for example, getting a subpoena issued. I thought it was a fair point. When I heard it, I thought, Oh, of course. It seems to be unnecessarily difficult, filled with red tape.

Certain protocols have to be followed to the letter. If they’re not, it can’t be done and depending on the workload of those in legal aid to get approval to get a subpoena issued might happen the same day, or it might take a week or more.

The thing that then occurred in our conversation was, well, but didn’t we like doing it? Yes, I love doing it, but it seemed to do it properly would take over my life. One of my colleagues within the firm had 60 files.

The other had a very good number of files. I think the highest I ever went up to was about 12. I found that I just could not do it properly, and yet, we’re seeing lawyers continue to come on as independent children’s lawyers. I don’t know how they can do the job properly.

I really struggled to do the job properly when the amount of time that was involved with these matters was just so intense. In turn, the pay was so poor and so what’s happened? Those who are experienced in this area have just walked away from it, and those who don’t have the experience are the ones coming into it.

It’s sure they’ve done training and I don’t want to criticise anyone whose become an independent children’s lawyer, what you’re doing is amazing. But certainly I’ve had consistent feedback about variable quality of independent children’s lawyers. It’s certainly a struggle.

The other thing I learn’t was it’s pretty special representing kids, and when we have family law cases, when you’re a lawyer, you act for a party, and you read paper, either prepared by that client that you’ve prepared or some previous lawyer has prepared, and paper by the other side saying, this way is up, and these are the adults setting out their story, and of course, except for meeting your client, you don’t know these people at all in their private lives.

You can just get a sense of their relationship. Obviously, much of the material, at least when it comes to children’s cases, focuses on the bad stuff, not the good stuff. Because parties are in a mindset of going to court, proving the case. It’s like these are the things that have gone wrong.

But it’s funny, as an independent children’s lawyer, you look at it in a different way and of course, you’ve got a different perspective because you’re not one of the parents, and so how do we look at it differently? Well, there’s a difference in practice between Queensland and New South Wales.

Queensland traditionally, we didn’t meet the children. I’m glad that’s changed. I’ve been reluctant to meet children early in the piece. Sometimes I’ll meet them in the company of the Family Report Writers, sometimes I’ll have them come to my office.

But I was always very concerned about not having systems abuse, and if I had any doubt about it, I remember about 20 odd years ago, I was in the family court in Sydney. I was representing a mom in a case against the dad.

I was waiting my turn and in the corridor was this animated conversation that there was a lawyer standing in the centre, a bloke, and there was a lawyer for Mum.

The lawyer for Mum was also a bloke, and then there was Mum, and so the three of them were having this conversation, or I should say the two lawyers were having this conversation and the independent children’s lawyer said, Well, I’ve spoken to Little Johnny, and Johnny was eight, as I overheard.

I asked him whether he preferred living with mum or dad because as I overheard that little Johnny had been living with mum and then dad had held little Johnny over during the holiday, and the child said, I don’t know, and then the independent children’s lawyer said, Well, are you happy living with dad, Little Johnny? To which Little Johnny said yes.

At which point the independent children’s lawyer said to Mum’s lawyer and Mum, Well, as a result, I’ve made the decision that I’m going to be recommending that Little Johnny remain living with Dad. I just shook my head because I thought, here, he shouldn’t have been doing that.

He shouldn’t have been interviewing the child, doesn’t have expertise in it, presumably. They’re not preparing an independent report for the court as a family report writer would do, so I’ve tried to avoid that.

But nevertheless, I found that meeting kids, you get a different sense of the world, and it’s really valuable and I’ve been very careful about it because some kids are so traumatised by the whole process that me imposing on them that I exist, let alone that I have a view or want to hear from them, can be really hard on them, or they may be so young they don’t know it.

But it’s funny how one occasion really stood out to me. Mum had said in her sworn statement, her affidavit, about how dad had been violent over and over and over again, and on one occasion, her son, then age six, when dad dragged Mum down the stairs by her hair, bang, bang, bang, bang, bang on her back, phoned Triple 0.

The police came out, and then Mum and the son I can’t remember whether there was a daughter as well, were safe. The police ensured that they were safe. It’s funny, having read that affidavit, even knowing that the child was six at the time, I somehow in my mind, attributed that to someone who was older, and then when I met the now eight-year-old boy up at court, I only met him briefly.

But what immediately struck me was how small he was. He was tiny, and I thought, here you were, your parents are arguing, and on your little shoulders, when you were two years younger, you did this.

It must have been an extraordinarily brave act on your part and it just gave me a real sense of perspective of what that family was like, what that child was like. So there are challenges in being an independent children’s lawyer.

Things are getting worse for independent children’s lawyers, and therefore for those families, because the resources that should be devoted to such a valuable role simply aren’t, and I blame the Commonwealth government for that.

It’s both sides have not funded enough. There are no votes, apparently, in properly funding independent children’s lawyers. Apparently, we all have lawyers picnics, whatever they are.

But for children, it’s important to focus that if you’re separating from your partner, always, always focus on the children, and in the conversation this morning, I was reminded of my last case, and it was one where a significant feature for me was something that I saw.

It’s just a snapshot about kids, but I thought, invaluable. Now, obviously, if kids aren’t going to school, that doesn’t give you an answer. But have a look at the school reports, enlightening. Is the child going to school? Now, it might sound obvious thing, kids go to school.

But too often, far too often, have I seen school reports where the child has not gone to school regularly and there’s a litany of excuses about why, and secondly, how are these children, the son and daughter of this couple, separated couple, how are they going at school? Great.

They were just thriving, and what did they say to me? Well, what the father had said about the mother’s quality of care might be right. She might have been a really bad mom. But that’s not what the independent evidence was telling me from the school reports.

The school reports were telling me these kids were doing fine in her care. So have a look at the school reports. See what they tell you, they really shine a spotlight. Thank you.

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Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board