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The Independent Children`s Lawyer

The Independent Children`s Lawyer


by Maria Kourtis, Forte Family Lawyers

Released November 2009

ABOUT THIS PROGRAM

An Independent Children's Lawyer (ICL) has an important part to play in family proceedings involving children.

This program examines key aspects of the ICL’s role, including:

  • When an ICL is appointed

  • The general duties of the ICL

  • Specific duties of the ICL

  • The provisions of the Guidelines for Independent Children's Lawyers, issued by National Legal Aid

  • What is not within the role of the ICL

  • What the Court expects of the ICL

  • How and to what extent the ICL should take account of – and deal with – the child’s views

The Independent Children's Lawyer is defines at s4(1) of the Family Law Act 1975 ("the Act") as “a lawyer who represents the child’s interests in proceedings under an appointment made under a court order under s68L(2)”.

Section 68L(2) provides that if it appears to the court that the child's interests in the proceedings ought to be independently represented by a lawyer the court may order the appointment of an Independent Children's Lawyer and may make such orders it considers necessary to secure the independent representation of the child's interests.

Section 68L(3) provides that an Independent Children's Lawyer is only appointed in exceptional circumstances in Hague Convention cases and when the order is made for the appointment of the Independent Children's Lawyer, the court must specify the exceptional circumstances.

The appointment of the Independent Children's Lawyer can be made on the application of the child, an organisation concerned with the welfare of children, any other person, or on its own initiative (s68L).

 When is an Independent Children's Lawyer appointed?

The guidelines for the appointment of an Independent Children's Lawyer are set out in the Full Court case of Re: K (1994) FLC 92-46.  In that case Nicholson CJ, Fogarty and Baker JJ thought it prudent to provide guidance to judicial officers about when an Independent Children's Lawyer should be appointed.  The Full Court took pains to state that this is not a definitive list and that there will be occasions where an Independent Children's Lawyer will be appointed in “circumstances where the guidelines are silent”.  The circumstances set out in Re K are as follows:

  1. Cases involving allegations of child abuse whether physical sexual or psychological;

  2. Cases where there is an apparently intractable conflict between the paries;

  3. Cases where the child is apparently alienated from one or both parents;

  4. Where there are real issues of cultural or religious difference affecting the child;

  5. Where the sexual preferences of either or both parents or some other person having significant contact with the child is likely to impinge on the child’s welfare;

  6. Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that is seriously impinges on the child’s welfare;

  7. Where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other person having significant contact with the child;

  8. Any case in which, on the material filed by the parents, neither parent seems a suitable carer for the child;

  9. Any case in which a child of mature years is expressing strong view which would involve changing a long standing arrangement or a complete denial of contact to one parent;

  10. Where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or exclude the other party from the possibility of contact with the child;

  11. Cases where it is proposed to separate siblings;

  12. Cases where neither party is legally represented;

  13. Applications in the court’s welfare jurisdiction relating in particular to the medical treatment of children where the child’s interests are not adequately represented by one of the parties.

What happens when Legal Aid refuses to appoint an Independent Children's Lawyer?

Once the order for the appointment for an Independent Children's Lawyer is made, the order is sent to the relevant state Legal Aid Commission, who will arrange the appointment of a practitioner from the Independent Children's Lawyer Panel.  The Independent Children's Lawyer is notified and must then file a Notice of Address for Service and advise the other parties to the proceedings of the appointment. 

If the relevant Legal Aid Commission does not intend to appoint an Independent Children's Lawyer, a letter will usually be sent to the other parties advising that an Independent Children's Lawyer will not be appointed. 

Rule 8.02(2) of the Family Law Rules 2004 provides that the Court can request the relevant Legal Aid Commission to fund the costs of the Independent Children's Lawyer or may order the costs of the Independent Children's Lawyer be paid by a party to the proceedings.  Section 68L provides that the court may make orders it considers necessary to secure the independent representation of the child's interests.  Arguably an Independent Children's Lawyer can be appointed privately and funded privately by the parties.  If the other parties have the resources to fund an Independent Children's Lawyer this option can be pursued.  If the other parties do not have the resources, then the part of the function of the Independent Children's Lawyer can be subsumed by the lawyers for each of the parties.  This includes arranging for the preparation of reports by single experts, issuing subpoenas, or pursuing negotiations.

What is the role of the Independent Children's Lawyer?

The legislative framework for the role of the Independent Children's Lawyer is found at s68LA of the Act.  The “general nature of the role of the Independent Children's Lawyer” is set out in sections 68LA(2) and (3) which provide that

  1. the Independent Children's Lawyer must:

  1. form an independent view, based on the evidence available to the Independent Children's Lawyer, of what is in the best interests of the child; and

  2. act in relation to the proceedings in what the Independent Children's Lawyer believes to be in the best interests of the child.

  1. If the Independent Children's Lawyer is satisfied that a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

Section 68LA(5) is more specific about the duties of the Independent Children's Lawyer and provides that the Independent Children's Lawyer must:

  1. act impartially in dealings with the parties to the proceedings;

  2. ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court;

  3. if there a report or other document in relation to the child to be used during the proceedings, to analyse and identify the matters the Independent Children's Lawyer considers to be the most significant for the determination of the child’s best interests and bring those matters to the court’s attention;

  4. endeavour to minimise the trauma to the child associated with the proceedings; and

  5. facilitate an agreed resolution to the extent to which doing so is in the best interests of the child.

Those duties have been expanded upon in the ‘National Legal Aid Guidelines for Independent Children's Lawyers’ (“the Guidelines”).  The Guidelines have been endorsed by the Chief Justice of the Family Court of Australia and by the Federal Magistrates Court of Australia.  The role of the Independent Children's Lawyer in the Guidelines are summarised as follows:

  1. Evaluate the degree of involvement of the child in decision-making about the proceedings with reference to the extent to which the child wishes to be involved and the extent to which it is appropriate for the child to be involved.  This evaluation will take into account the age of the child, their stage of development, their cognitive abilities, emotional state and views.

  2. To act impartially and in consideration of the best interests of the child.

  3. To be truly independent of the court and the parties.

  4. The professional relationship with the child will be one of a skilful, competent and impartial best interests advocate.  The child has the right to establish a professional relationship with the Independent Children's Lawyer.

  5. To work with the family consultant or external expert to promote the child’s best interests.

  6. To assist the paries to reach a resolution that is in the child’s best interests, whether by negotiation or judicial determination.

  7. To bring to the Court’s attention any facts which seriously call into question the advisability of any settlement reached between the parties.

  8. Promote the timely resolution of the proceedings that is consistent with the best interests of the child.

  9. To fully inform the court of the child’s views where possible, in an admissible form.

  10. To ensure that the Independent Children's Lawyer’s view is drawn from and supported by the admissible evidence before the court.

  11. To seek peer and professional support as needed.

  12. If satisfied that a course of conduct is in the best interests of the child, make submissions to the court to adopt that course of action.

There is some overlap between the legislative provisions about the role of the Independent Children's Lawyer and the matters set out in the Guidelines, both reflect the developing case law about the role of the Independent Children's Lawyer. 

For example the case of Lyons and Boseley (1978) FLC 90-423 describes the role of the Independent Children's Lawyer as including the examination of parties and their witnesses; obtaining and presenting evidence about the child and the child's welfare and in appropriate cases, presenting evidence about the child's wishes.  In Bennett and Bennett (1991) FLC 92-191 the Full Court considered that the Independent Children's Lawyer must act impartially and if appropriate make submissions suggesting the adoption of a course of action thought to be in the child's best interests.

The case of P and P (1995) FLC 92-615 stated that an Independent Children's Lawyer should:

  • Act in an unfettered way in the best interests of the child.

  • Act impartially and make submissions in the best interests of the child.

  • Inform a court of the child's wishes.

  • Arrange for the collation of expert evidence relevant to the welfare of the child.

  • Test by cross examination, where appropriate, the other evidence.

  • Minimise the trauma to the child.

  • Facilitate an agreed resolution to the proceedings.

  • Act upon the evidence rather than from a personal view or opinion of the case.

What does the Court expect of an Independent Children's Lawyer?

The Independent Children's Lawyer has a wide scope of potential involvement in a case as can be seen from the Guidelines above.  Often some issues will be more present than others, so the Independent Children's Lawyer will play a different role in each case.  The kind of role payed will also depend on the stage of the proceedings.

At the interim stage, the court will often be presented with two divergent views of the case.  At the interim stage an Independent Children's Lawyer should issue subpoenas to assist the court with any interim determinations.  For example where there are allegations of family violence, subpoenas to the state police department may provide information about instances of family violence.  A subpoena to the state welfare authority may provide information about whether there has been any investigation into family violence and if so, the outcome of the investigation.  Subpoenas should also be issued to agencies or people who will have information about the child, such as the child’s school, or regular general practitioner.  Perusal of subpoenaed material enables the Independent Children's Lawyer to:

  1. direct the court to any relevant evidence in relation to the issues in dispute; and

  2. evaluate each party’s position and therefore make submissions as to what course should be adopted by the court.

Where there is little information available about the child’s situation, the Guidelines caution an Independent Children's Lawyer to “be circumspect and not feel compelled to make a submission about the best interests of the child” but instead analyse the options that are available to the court.

In preparation for the final hearing the Independent Children's Lawyer should identify the issues about which the parties are agreed and which issues are in dispute.  This will assist the Independent Children's Lawyer to identify what evidence will need to be obtained for the final hearing (such as a family report or psychiatric assessments).  It may be necessary for the Independent Children's Lawyer to arrange for evidence from other sources such as the child’s teacher, or other person involved with the welfare of the child. 

During the final hearing, the Independent Children's Lawyer should test the evidence by cross examination, evaluate the evidence and the proposals of each party and propose orders to promote the best interests of the child.  Once the Independent Children's Lawyer has formed a view, it should be communicated to the parties.

In certain circumstances, at the conclusion of the proceedings, the Independent Children's Lawyer will be required to explain the orders to the child.  Otherwise, the Independent Children's Lawyer’s appointment ends with the making of final orders (rule 8.02(5) Family Law Rules 2004).  The Independent Children's Lawyer is not required to monitor the final orders after they are made.

The court will also expect that the Independent Children's Lawyer will meet the child.  The Guidelines provide that the Independent Children's Lawyer will do so in every case, unless:

  1. the child is under school age;

  2. there are exceptional circumstances, for example there is a risk of systems abuse;

  3. there are significant practical limitations such as geographic remoteness.

The Guidelines provide that whether, where and how the Independent Children's Lawyer will meet with the child is at the discretion of the Independent Children's Lawyer. 

Although the Court will expect the Independent Children's Lawyer to meet with the child, it is not the role of the Independent Children's Lawyer to conduct disclosure interviews (Guideline 5.2).  The Independent Children's Lawyer is not obliged to disclose to the court and cannot be required to disclose to the court information provided by the child communicates to them (s68LA(6)).  The Independent Children's Lawyer may disclose to the court any information communicated by the child if the Independent Children's Lawyer considers the disclosure to be in the best interests of the child (s68LA(7)).  Similarly the Guidelines provide that the Independent Children's Lawyer is not required to communicate the substance of their conversations with the child to the other parties (6.4).

The “honest broker” role has long been an important aspect of the Independent Children's Lawyer’s role and the Court will expect that the Independent Children's Lawyer will give the parties opportunities to settle the issues between them.  This can encompass arranging mediations, proposing orders and making suggestions to resolve points of disagreement. 

The court will expect the Independent Children's Lawyer to be aware of possible systems abuse of the child and to avoid this.  The court will expect that the Independent Children's Lawyer should provide support for the child as may be needed during the proceedings.  This will often be by referral or seeking the parents' co-operation in arranging counselling or family therapy. 

The role of the Independent Children's Lawyer will also vary depending on the type of issues before the court. 

Family violence, where it is alleged is one of the considerations the court must take into account pursuant to s60CC.  The Independent Children's Lawyer must be familiar with the relevant parts of the Act such as Division 11 (which is designed to resolve inconsistencies between time with orders and state family violence orders), procedures for dealing with family violence family violence and the Family Court's Best Practice principles which were launched on 6 March 2009.  The Best Practice Principles are very detailed and address a variety of matters including what the court may take into account when dealing with cases where there are allegations of family violence at particular stages of the proceedings.  Part B of the Best Practice Principles deals with matters that may be considered when making orders for a family report.  Some of the matters include:

  1. Directing the report writer to make an assessment of harm the children may have suffered are at risk of suffering;

  2. Assess whether the safety of the child and the parent alleging family violence can be secured before during or after any time the child spends with the parents against whom the allegations are made;

  3. Assess whether the safety of the child alleging family violence can be secured before during or after any time the child spends or has contact with a person against whom allegations are made who is not the parent of the child;

  4. Where family violence is acknowledged or established, report on:

  1. the impact of the family violence or abuse;

  2. whether or not the parent acknowledges the family violence or abuse has occurred;

  3. whether or not the parents accepts some or all of the responsibility for the family violence;

  4. whether and the extent to which the parent accepts that the family violence or abuse was inappropriate;

  5. whether or not there is a need for the child and or other parent to receive counselling as a result of the family violence or abuse;

  6. whether the parent has expressed regret and shown some understanding of the impact of their behaviour on the other parent in the past and currently.

Other matters covered by the Best Practice Principles include:

  1. Matters to be considered where findings of family violence or an unacceptable risk of family violence has been made; and

  2. Matters that may be considered where the court has been asked to make a consent order.

This is by no means an exhaustive list but is an indication of the matters the Independent Children's Lawyer will need to be aware of and should be prepared to address before the court. 

What about the wishes of the child?

Placing the views of the child before the court is one of the most important duties of the Independent Children's Lawyer.  This duty is set out in s68LA(5)(b).  The views of the child are also relevant as a consideration under s60CC.

Even if the Independent Children's Lawyer does not intend to adopt the child’s wishes as their own position, the duty to place the child’s wishes before the court along with any evidence which promotes the child’s wishes remains.

The Guidelines (at 5.3) expand on this duty.  The Guidelines provide that the Independent Children's Lawyer is to provide the child with the opportunity to express his or her views free from the influence of others.  The Guidelines provide that the child should be informed of significant developments if they so wish and the Independent Children's Lawyer should give the child the opportunity to express further views. 

The child’s views can be communicated to the Independent Children's Lawyer directly.  As stated earlier in this paper, the Independent Children's Lawyer may disclose the contents of any communications between the Independent Children's Lawyer and the child to the court and the parties if the Independent Children's Lawyer considers it is in the child’s best interests.  However, every attempt should be made for the child’s views to be in admissible form.

This will usually take the form of a family report pursuant to s62G.  The child will most often be interviewed alone, by a family consultant or external expert with appropriate qualifications to interview a child.  The report will record the child’s wishes and usually include an evaluation of the maturity of the wishes held, how strongly the wishes are held, the report may sometimes comment on the genuineness of the view. 

There are instances where the children may have reported their views to another person, such as a school teacher.  It is important that where children have communicated their views to other people that this evidence also be brought before the court, whether it is consistent or inconsistent with the views the child communicated elsewhere.

The Independent Children's Lawyer is not bound to act in accordance with the child’s wishes (s68LA).  The Independent Children's Lawyer is expected to treat the issue of what weight to give to the child’s views in accordance with the relevant law.  The kinds of matters to be taken into account when considering what weight should be placed on the child's wishes includes:

  • the child's age and maturity;

  • the strength of the child's view;

  • the basis for the child's view.

To assist in this exercise, the Guidelines recommend that in formulating their submissions about the views of the child, the Independent Children's Lawyer should consult with the family consultant or other expert particularly about:

  1. the contents of the child’s views;

  2. the context in which the views were expressed;

  3. the willingness with which the views were expressed; and

  4. any relevant factors associated with the child’s capacity to communicate

If the Independent Children's Lawyer does not intend to submit that the court should act in accordance with the wishes of the child, then the Independent Children's Lawyer should explain to the child that they will not do so, and the reason why.  The Guidelines still require the Independent Children's Lawyer  to place the child’s wishes before the court along with any evidence which promotes their wishes and evidence about how the child will feel if their wishes are not respected.

What is the role of the Independent Children's Lawyer where there are litigants in person?

Where both parties are litigants in person is a ground for the appointment of an Independent Children's Lawyer.  Litigants in person can be difficult for the court as the litigant often does not know how to navigate the court proceeding. 

The Independent Children's Lawyer is always required to consider what procedural orders will be in the best interests of the child, this is more important where the parties are litigants in person.  The Independent Children's Lawyer needs to be a lot more pro-active in ensuring that the matter progresses through the court process, that the parties are aware of their obligations to file material and the deadlines to do so. 

The Independent Children's Lawyer cannot provide legal advice to litigants in person but should direct litigants in person to resources that can assist them in running their case.

While it is not the Independent Children's Lawyer’s role to investigate or present each party’s case for them or to adduce evidence on their behalf, the Independent Children's Lawyer still has a duty to place relevant evidence before the court.  The Independent Children's Lawyer should place the evidence that he or she considers the court will require to determine the best interests of the child. 

What is not within the role of the Independent Children's Lawyer?

Some instances of what is not within the role of the Independent Children's Lawyer have already been canvassed elsewhere in this paper.  In addition to those already mentioned, the Independent Children's Lawyer's role does not include:

  1. Conducting disclosure interviews with the children;

  2. Becoming a witness in the proceedings; or

  3. conducting therapy or counselling for the child.

This list emphasises the legal function the Independent Children's Lawyer plays in a proceeding albeit one which traverses the nature of relationships and child development. 

STUDY POINTS

  1. Summarise section 68L of the Family Law Act.

  2. In Re K, the Full Family Court set out 13 specific situations where it would be appropriate to appoint an ICL.

Explain at least 8 of them.

  1. Explain the role of the relevant state Legal Aid Commission in relation an ICL.

  2. What must an ICL do under sub-sections 68AL(2) and (3)?

  3. What are the ICL’s specific duties under sub-section 68LA(5)?

  4. Explain how and to what extent the ICL’s role is expanded under the “National Legal Aid Guidelines for Independent Children's Lawyers”.

  5. Explain why an ICL can be especially relevant where there are self-represented parties – and how the ICL should behave in such a situation.

  6. Summarise sub-sections 68LA(6), (7) and (8).