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Ascertaining what is the in the best interests of the child may involve the Court making Orders for a Family Report to be prepared or for the appointment of an Independent Children’s Lawyer (ICL) to the case.

The Judge has a broad power under Section 68L of the Family Law Act to make Orders for a child to be separately represented by an ICL where the Court feels that such an Order should be made to ascertain what is in the child’s best interests. The Full Court of the Family Court has indicated that the Court will appoint an ICL when it considers that independent representation of the child’s interests is required. ICL’s have been appointed in cases where there are allegations of child abuse, there are high levels of conflict between parents, where a child is alienated from one or both of their parents and where the child is of a mature age and is expressing strong views in relation to their future care. If the Court does appoint an ICL, the Judge is empowered by Section 117 of the Family Law Act to make costs orders for parties to pay for the costs of the ICL.

The appointment of an ICL and the Court’s focus on a result that is in the child’s best interests gives effect to Articles 3 and 12 of the United Nations Convention on the Rights of the Child. Australia is a signatory of the United Nations Convention on the Rights of the Child. Article 3 of the Convention provides that in all actions concerning children, the best interests of the child shall be the primary consideration. Article 12 of the Convention requires signatory nations to ensure that children who are capable of forming their own views have the right to express those views freely in all matters affecting the child and that such views be given due weight in accordance with the child’s age and maturity. Article 12 also provides that the child shall be given the opportunity to be heard in any judicial or administrative proceedings affecting the child.

The role of the ICL is to advocate for the child’s best interests and to give the child a voice in the proceedings. The ICL is not required to act on the child’s instructions but they are required to ensure that the child’s views are taken into account where it is appropriate for the Court to do so. The ICL is required to act impartially. The ICL’s role is to present evidence and make arguments in relation to the course of action that should be taken, as opposed to making a judgment. The ICL will prepare a Case Plan with recommendations. The Case Plan is lodged with the Court and the parties are each provided with a copy. The ICL must confer with the children whom they represent. They are not obligated to disclose information to the Court provided by the child however, they may do so even if such disclosure is against the child’s wishes if the ICL believes disclosure of the information is in the best interests of the child.

The ICL’s duties are set out in Section 68LA(5) of the Family Law Act. These duties are:

  • to act impartially in dealing with the parties;
  • to ensure any relevant expressed views of the child are put before the Court;
  • if any report or document relating to the child is being used, to analyse and identify those matters most significant to the child’s best interest and bring them to the Court’s attention;
  • to try to minimise the trauma to the child associated with the proceedings; and
  • to the extent that it is in the child’s best interests, to facilitate an agreed solution to the dispute.

The Court can make Orders for an ICL to be discharged if the Court believes such a decision is warranted. ICL’s should not be discharged because one party considers that they are not on their side however, the Court can Order removal of an ICL if they are taking inappropriate and unjustifiable steps, if they are acting contrary to the child’s best interests, acting unprofessionally, lacking objectivity or if there is a conflict of interest . The ICL could also be dismissed if their relationship with the child has broken down irretrievably or if it is impractical for them to continue to represent the best interests of the child.

Family Law parenting matters can become complicated when the parties are unable to decide on future care and decisions in relation to the children. An application to the Court may need to be made for the matter to be heard by a Judge. While a child’s wishes are not decisive for a Court, the child’s best interests is the paramount consideration for a Court in parenting maters. The Court may appoint an ICL to obtain the child’s wishes and to represent the best interests of the child. If you find yourself in a parenting dispute with the other parent of your children about future care and parenting of the children, it is essential that you seek legal advice in relation to the next step forward whether that be applying to the Court for a determination by a Judge or other means of alternative dispute resolution such as negotiation or mediation.

Our lawyers in our Family Law Department have the expertise and experience to guide you through this difficult time and to ensure that you understand the processes involved in Family Law parenting matters.