What is an Independent Children’s Lawyer?
In general, an Independent Children’s Lawyer is a lawyer who will represent the best interests of a child in family law proceedings.
According to section 60CA of the Family Law Act 1975, when deciding upon a parenting order, regard for the child’s best interests must be the paramount consideration of the court.
In circumstances where this principle appears misplaced, section 68L of the Act allows the Court to order the appointment of an Independent Children’s Lawyer (‘ICL’) to represent the best interests of the child.
According to the Act, the Court may order the appointment of an ICL either on its own initiative, or on the application of either the child, an organisation concerned with child welfare or any other person.
However, where proceedings are in relation to international child abduction as outlined under section 111B, the Court may only order an ICL if the Court considers there are exceptional circumstances that justify doing so.
As was demonstrated in the case of Re K in 1994, typically, an ICL is appointed where one or more of the following circumstances exist:
- There are allegations of abuse or neglect in relation to the child.
- There is a high level of conflict and dispute between the parents.
- There are allegations of family violence.
- Serious mental health issues exist in relation to one or both of the parents or children.
- There are difficult and complex issues involved in the matter.
What is the role of an Independent Children’s Lawyer?
Outlined under section 68LA, the primary role of an ICL is to form an independent view, based on available evidence, as to what is in the best interest of the child, and to act upon these interests.
Though an ICL is obliged to consider the views of the child, they do not act under their instructions and so must form an independent view on what the child’s best interests are.
According to section 68 LA of the act, the main roles of an ICL include, but are not limited to:
- Arranging for necessary evidence, including expert evidence, to be obtained and put before the court.
- Analysing any evidence that may be made available and ensuring that those matters are properly drawn to the courts attention.
- Facilitating the participation of the child in the proceedings in a manner which reflects the age and maturity of the child and the nature of the case.
- Acting as an honest and impartial broker between the child and the parents, and facilitating settlement negotiations where appropriate.
- Minimising any trauma that the child may experience in relation to the proceedings.
Determining a Child’s Best Interests
In determining the best interests of the child, section 60CC requires the court to have regard to two primary considerations. These are:
- The benefit to the child of having a meaningful relationship with both of the child’s parents; and
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.
Though these may be the primary considerations of the court, section 60CC also allows the court to consider the following when determining what is in the child’s best interests:
- any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
- the nature of the relationship of the child with:
- each of the child’s parents; and
- other persons (including any grandparent or other relative of the child);
- the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
- to participate in making decisions about major long-term issues in relation to the child; and
- to spend time with the child; and
- to communicate with the child;
- the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
- either of his or her parents; or
- any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
- the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
- the capacity of:
- each of the child’s parents; and
- any other person (including any grandparent or other relative of the child);
- to provide for the needs of the child, including emotional and intellectual needs;
- the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
- if the child is an Aboriginal child or a Torres Strait Islander child:
- the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
- the likely impact any proposed parenting order under this Part will have on that right;
- the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
- any family violence involving the child or a member of the child’s family;
- if a family violence order applies, or has applied, to the child or a member of the child’s family–any relevant inferences that can be drawn from the order, taking into account the following:
- the nature of the order;
- the circumstances in which the order was made;
- any evidence admitted in proceedings for the order;
- any findings made by the court in, or in proceedings for, the order;
- any other relevant matter;
- whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
- any other fact or circumstance that the court thinks is relevant.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
In accordance with section 60B of the Act, the court can make certain the best interests of children are met by:
- Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
- Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
- Ensuring that the child receives adequate and proper parenting to help them achieve their full potential; and
- Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
At the core of these objects is the belief that children have the right to know and be cared for by both parents, regardless of whether their parents are married, separated, have never married or have never lived together. In this way, children should be entitled to develop a meaningful relationship with both of their parents to the extent that it is safe to do so.