McKenzie Friends

An aspect of the Family Court system is a position called a McKenzie Friend (sometimes referred to as a Lay Assistant). This person supports someone through the Court process. The presence of a McKenzie Friend must be applied for and accepted by the Family Court.

The process involves the client (applicant) filling in an application form with the support worker or advocate at the Court, which is signed by a registrar. At the same time the support worker will sign a form outlining the undertakings of a McKenzie Friend. That form has to be completed and signed in front of the Deputy Registrar. All parties to the proceeding must consent to the application by signing it in the presence of a Court Registrar. The registrar must then sign the application as well.

It is not a given that the support worker will be able to support the client in the court hearing. Once those two forms are signed and lodged the presiding judge has the right to decline the application. Lawyers and the other party also have the right to object to the McKenzie Friend attending. This might occur if it is felt the person would obstruct the efficient administration of justice.

Two common reasons for an advocate/support worker to be a McKenzie Friend are prior work alongside the client, and lack of legal representation:

• A support worker might have worked closely with a client and established a trusting relationship with them. They may know of difficulties the client may have with either anxiety, concentration or understanding of the legal system. In this case the McKenzie Friend provides support in the form of having a friendly person standing alongside during what can be an unsettling process.
• In a situation where a client does not have legal representation, a McKenzie Friend can support the client to move that the hearing be adjourned until representation has been sought.

A McKenzie Friend can support a client in the Family Court but will have minimal ability to be speak or actively participate in the hearing. They are less of an advocate and more like an extra set of eyes and ears to support clients at a stressful and crucial moment of time.

Litigation Guardian

A McKenzie Friend should not be confused with a litigation guardian. A person who is under 18 or has an intellectual disability may request a trusted person to be their litigation guardian (LG). The LG then conducts the court matter and makes decisions. This is substituted decision-making but the disadvantaged person still attends Court and is consulted.

Counsel to Assist the Court

On rare occasions a lawyer is appointed by the Court to assist the Court with a person who might (for a number of reasons) struggle with the Court process.  This lawyer is paid for by the Court.

The Counsel (or Lawyer) to Assist may perform a variety of tasks. For example, in the case of a domestic violence hearing where the respondent (alleged perpetrator of the violence) is self-representing, the Judge may appoint a lawyer to undertake cross examination to protect the applicant. Counsel to Assist might be appointed to help a self-representing litigant to understand a complex report (such as a psychology report), to present an argument to the Court that requires the knowledge and skills of a lawyer, or to help identify a suitable litigation guardian for a minor.

Lawyer for the Child

Lawyer for the Child is appointed by the Court to represent the interests of a child or children involved in a parenting dispute. These lawyers are paid for by the Court, however it is possible for a Judge to seek costs from the parties to go toward paying their fee.

Lawyer for the Child will often meet with the child(ren) to seek their views or - if they are very young - undertake home visits to assess the living conditions and parenting skills of the caregivers.