Family law proceedings involving children can be challenging and daunting. The main concern of the court during these proceedings is to ensure that the child’s best interests are met. However, this may be challenging in certain situations, especially when there are issues of violence or conflict between parents. In these situations, it is common for an Independent Children’s Lawyer (ICL) to be appointed in a family law court case.
What is an Independent Children’s Lawyer (ICL)?
In the Federal Circuit and Family Law Court of Australia an ICL can be appointed to represent the child and their best interests during proceedings. An ICL can be appointed by application by one of the parties or they can be appointed by the court in one of the following circumstances:
- There are allegations of abuse or neglect of the children.
- A high level of conflict exists between the parties.
- Allegations have been made as to the children’s views and the children are of a mature enough age to express their views.
- Allegations of family violence have been made.
- One or both of the parties or the children have serious mental health issues.
- The matter has difficult and complex issues which warrant the appointment of an ICL.
What is the Role of an ICL?
An ICL has numerous roles and duties which include:
- To represent and promote the child’s best interests during family law proceedings
- To be impartial and provide an independent opinion about which decisions or arrangements will be in the child’s best interests
- To ensure that the child’s views on any matters relating to the proceedings are fully put before the court, while also minimising any trauma the child may experience during the proceedings.
- To arrange for any evidence, such as from relevant experts, to be put before the court
- To facilitate the participation and involvement of the children in the proceedings. This depends on the age and maturity of the children and the nature of the proceedings.
- To facilitate in settlement negotiations where appropriate.
Determining the Best Interests of the Child
To determine what is in the best interests of the children, an ICL may:
- Meet with the children, unless they are under school age or there are exceptional circumstances
- Speak to the children’s counsellors, school teachers and principals.
- Examine documents from organisations such as schools, Department of Family and Community Services and the police and obtain the medical, psychiatric and psychological records of the children and their parents. These documents are obtained by way of subpoenas issued by the ICL during the proceedings.
- Question witnesses including parents and experts at any hearings.
- Arrange for a family report to be prepared by a court-appointed family consultant. A family report provides an independent assessment of the issues in the case. Therefore it can assist the Judge to make decisions about arrangements for the children. It may also help the parties reach an agreement.
If you would like to discuss your family law matter with one of our family lawyers, please contact us on 9963 9800 or message us here.