Australia: Family Law Basics Series: Independent Childrens Lawyers in parenting proceedings

Last Updated: 31 May 2017
Article by Simon Creek

In this series we will discuss the fundamental basics of Family Law, providing information and guidance that may answer questions you have throughout the Family Law process. This week we discuss the role of an Independent Children's Lawyer in Parenting Proceedings.

What is an Independent Children's Lawyer?

An Independent Children's Lawyer ("ICL") is a lawyer who is appointed by the Family Court to represent the child or children's best interests in children's matters. The appointment of an ICL may occur through the Court's own initiative, may be requested by the child, may be requested an organisation concerned with the welfare of children, or any other person. It is important to understand the ICL is not your child's legal representative, nor are they bound by your child or children's instructions.

When will an Independent Children's Lawyer be appointed?

The appointment of an ICL in Family Court proceedings is at the discretion of the Court. In Re K (1994) FLC 92-461, the Full Court of the Family Court of Australia developed criteria for the appointment of an ICL. These criteria include:

  1. Alleged child abuse (physical, sexual or psychological);
  2. Unresolvable conflict between the parents;
  3. Alienation from either or both parents;
  4. Cultural or religious difference affecting the child;
  5. Where the sexual preferences of either or both of the parents are likely to affect the child's welfare;
  6. Anti-social conduct of a parent which seriously affects the child's welfare;
  7. Issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child;
  8. Apparent unsuitability of either parent as guardian;
  9. Where a child of mature years expresses strong views which would involve changing a long standing custodial arrangement or a complete denial of access to one parent;
  10. Where one of the parties proposes that the child will either be permanently removed from the jurisdiction or removed to such a place that excludes the other party from having access to the child;
  11. Cases where it is proposed to separate siblings;
  12. Parenting cases where none of the parties are legally represented;
  13. Cases involving special medical procedures for a child.

Role of the Independent Children's Lawyer

The Family Law Act 1975 (Cth) ('the Act') outlines the role of the ICL during proceedings which is that they must form an independent view on what is in the best interests of the child or children. To form their views the ICL must assess the evidence available to them which may include the following:

  1. reading affidavits;
  2. examining subpoenaed documents;
  3. talking with the child or children;
  4. speaking to the family consultant;
  5. speaking to any other people with opinions on what is in the child's best interests for example doctors or teachers.

During the Court hearing itself the ICL will represent the child's best interests through oral submissions, presenting evidence and cross-examining witnesses. The ICL is required to act in what they believe is the child's best interests. As the ICL represents the child's interests rather than the child themselves they are not obliged to follow the child's wishes if a discrepancy arises between what the child wants and what the ICL believes is in their best interests.

Specific Duties of the Independent Children's Lawyer

The ICL is required to act impartially in dealings with parties to the proceedings and they are required to ensure that any views expressed by the child are put before the court. If a report or document relating to the child is to be used in the proceedings the ICL must analyse the report to determine which matters raised in the report are significant in determining the best interests of the child, and ensure those matters are brought to the court's attention. The ICL will take steps to minimise the trauma caused to the child throughout the proceedings

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Simon Creek
 
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