In September 2017, Malcolm Gittoes-Caesar published a blog entitled: 'When do children have a choice in family law matters?', which made reference to the case of Bondelmonte v Bondelmonte  HCA 8 and briefly touched on the role of the Independent Children's Lawyer ("ICL") within Family Law proceedings.
In family law proceedings, an ICL acts on behalf of the children. The ICL's role is to advocate for the best interests of the child (or children), although it is important to note that this does not necessarily mean that they will advocate in line with the specific viewpoints expressed by the child or children, or similarly, that they will act on specific 'instructions' provided by the child or children.
When is an Independent Children's Lawyer appointed?
An ICL may be appointed by the Family Court of its own volition, or the appointment may be made following an application being brought before the Court by one of the parties. Following the case of Re K (1994) FLC 92-461, the following circumstances have been officially recognised as indications that the intervention of an ICL may be necessary within a Family Court matter:
- Where it has been alleged that the child or children have either been abused or neglected, or where allegations of family violence have been made;
- Where there is severe conflict between the parties;
- Where there is disagreement between the parties with regard to the views expressed by the child or children (and where the child or children are old enough to express their views about who they wish to live with and spend time with);
- Where there are serious concerns surrounding the mental health of either a child, or one of the parties to the proceedings;
- Where there is a risk that the child or children will be removed from the jurisdiction;
- Where both parties are self-represented;
- Where an Application has been brought for siblings to be separated;
- Where, on the material put before the Family Court, neither party seems to be an appropriate carer for the child; and
- Where there are especially complex issues to be determined.
The Court has discretion as to whether or not it appoints an ICL, so the circumstances set out above are not exhaustive.
What does an Independent Children's Lawyer consider when determining the children's best interests?
According to the Family Court of Australia, the ICL may:
- Meet with the children (where it has been determined that the child or children are of an appropriate age and have the requisite maturity);
- Speak to the children's counsellors, school teachers and principals;
- Examine documents from organisations such as schools, the Department of Family and Community Services and the Police;
- Examine medical, psychiatric and psychological records of the children and their parents;
- Question witnesses, including parents and experts, at the final hearing; and/or
- Arrange for a family report from a family consultant.
In fulfilling this specific role, the ICL will obtain and put relevant evidence that goes to the various issues in dispute within a matter before the Family Court. The ICL reads the material filed by each of the parties to the proceedings, and may also issue Subpoenas to aforementioned parties, such as the children's pre-school/schools, medical and treating practitioners.
ICL's play a significant role in the conduct of parenting proceedings, and securing the best interests of the child.
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.