An Independent Children's Lawyer is appointed by the Family Court to provide separate representation of children
The Independent Children's Lawyer is always an experienced Family Law Practitioner who has practiced in the area of Family Law for many years and has had extensive experience with disputes concerning children before the Family Court.
The lawyer may seek the views of the child, unless it would be inappropriate because of the child's age or maturity or some other special circumstance (s 68L(5) and (6)), but the child cannot be required to express his or her views in relation to any matter: s 60CE.
Pursuant to section 68L FLA the Court may make an order that the child be independently represented by a lawyer. The Court may make this order in response to an application, or on its own motion. Parties seeking to have an Independent Children’s Lawyer appointed must be prepared to make submissions in relation to these points:
- There are allegations of abuse or neglect in relation to the children;
- There is a high level of conflict and dispute between the parents;
- There are allegations made as to the wishes of the children and the children are of a mature age to express their wishes;
- There are allegations of family violence;
- Serious mental health issues exist in relation to one or both of the parents or children; There are difficult and complex issues involved in the matter.
A set of guidelines are provided in the Family Law Act 1975 for lawyers acting in the role of independent children's lawyers: s 68LA(5). These guidelines were originally enunciated by the Full Family Court in the case of P and P (1995) FLC 92-615. The person must:
- act in an independent and unfettered way in the interests of the child;
- act impartially, but, if thought appropriate, make submissions suggesting the adoption by the court of a particular course of action if he or she considers that the adoption of such a course is in the best interests of the child;
- inform the court by proper means of the children's wishes in relation to any matter in the proceedings. In this regard, the separate representative is not bound to make submissions on the instructions of the child or otherwise but is bound to bring the child's expressed views to the attention of the court;
- arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the court;test by cross-examination where appropriate the evidence of the parties and their witnesses;
- ensure that the views and attitudes brought to bear on the issues before the court are drawn from the evidence and not from a personal view or opinion of the case;minimise the trauma to the child associated with the proceedings;
- facilitate an agreed resolution to the proceedings.
The Independent Children's Lawyer is usually employed by the Legal Aid Office and is usually paid by the Legal Aid Office. However, if you and your partner are of a sound-financial position then you may be ordered to meet the costs for the Independent Children's Lawyer.