When partners separate, the future care of, and responsibility for their children is a major consideration.
Parties to parenting proceedings must make reasonable attempts to resolve disputes about children and, unless extenuating circumstances apply, are required to attend dispute resolution. This involves meeting with a family practitioner who should assist the parents to negotiate workable arrangements for the children. If an agreement is reached, it can be documented in a parenting plan or consent orders without the need to go to Court.
Unfortunately, disputes about children do not always resolve through conciliation and a party may need to proceed further to seek appropriate orders through the Family Court.
There may be circumstances when an Independent Children’s Lawyer (ICL) will be appointed to assist in the proceedings – this may occur for a number of reasons but an ICL is generally involved in complex matters to assist the Family Court to determine the best interests of a child.
Best interests of the child
In all family law proceedings concerning children, the overriding principle is that the best interests of the child are paramount. Essentially, this means that children:
- should have the benefit of a meaningful relationship with both parents;
- be protected from physical and psychological harm;
- receive parenting that allows them to reach their full potential;
- unless there are issues of risk, have the right to spend time on a regular basis with both parents.
When is an ICL appointed?
Section 68 of the Family Law Act 1975 (Cth) enables a Court to appoint an ICL if it considers that the child’s best interests should be independently represented.
The appointment of an ICL may be ordered at the initiative of the Court or upon application by the child, a party to the proceedings, or a third party or organisation concerned with the welfare of the child.
Generally, an ICL is appointed if there are complex issues or where there is significant conflict between the parties. An ICL is likely to be retained if the case involves:
- allegations of abuse, neglect or family violence;
- serious mental or other health issues pertaining to either parent or the child;
- cultural or religious differences between the parents;
- proposals to separate siblings or for children to live a considerable distance from one parent;
- circumstances where neither party is considered suitable to care for the child;
- circumstances where a child is alienated from one or both parents;
- intractable differences between the parents / carers;
- a child of a mature age, expressing strong views as to preferred care arrangements that are significantly different to those in place or that would deny one parent access;
- allegations of anti-social behaviour of one or both parents considered to adversely impact upon the child’s welfare.
What is the role of the ICL?
An ICL is an independent and impartial lawyer and must consider the best interests of the child as the overreaching principle in carrying out his or her duties.
The ICL will analyse the evidence presented in the case such as statements, affidavits, medical and other reports and, based on this evidence, form an independent view of what is in the child’s best interests.
The ICL must present that view to the Court and make appropriate submissions recommending a course of action. He or she will take part in the proceedings in a similar context to the lawyers for the other parties and may examine and cross-examine witnesses and give opening and closing submissions. The ICL will receive all documents served on the parties to the case.
Whilst any views of the child must be put to the Court, the ICL does not necessarily ‘act’ on the child’s instructions.
The ICL may participate in negotiations with all parties, facilitate a settlement if considered appropriate, and will arrange for the child to participate in the proceedings in a manner conducive to his or her age and maturity. The ICL must endeavour to minimise any trauma to the child during the proceedings.
What evidence is used to determine the best interests of the child?
The ICL will meet with the child (usually school aged or older). Third parties who are familiar with or treating the child, such as school teachers or counsellors, doctors, family consultants, social workers or psychologists, will also be interviewed.
Documents from Government departments such as Police, Department of Community Services and schools may also form part of the evidence.
The ICL may order additional reports if these are considered necessary to assist in representing the child’s case.
In more complex matters a family report may be ordered which will document pertinent matters about the child, the parents and others involved in the child’s life. The report is prepared by a family consultant, psychologist or social worker and will be based on interviews with those involved with the child. The family report is released to the lawyers for each party.
Children’s proceedings are highly emotive and can cause significant stress and anxiety. If an ICL has been appointed in your family law matter, the following points may be of assistance:
- The role of the ICL is to represent the best interests of the child, not necessarily to act upon the child’s instructions.
- It is important that your child attend any appointments made by the ICL.
- Due to the nature of their role, an ICL will be limited in his or her discussion with you. If you have any concerns you should raise these with your lawyer.
If you or someone you know wants more information or needs help or advice, please contact us on (02) 9502 2922 or email email@example.com.