The current practice is for an order to be made appointing an independent children's lawyer and requesting the Legal Aid body of the relevant state to appoint that lawyer. In parenting proceedings, the court is able to appoint an independent children's lawyer, to represent the best interests of the child/children involved in those proceedings.
Each state Legal Aid body maintains a panel of qualified and approved family law practitioners who operate as independent children's lawyers and the legal aid body randomly assigns a practitioner to undertake the role on a particular matter, when contacted by the Federal Circuit Court or Family Court of Australia about the appointment.
The relevant legal aid body is not compelled to fill the appointment or fund the appointment. In practice (except perhaps in Victoria) the legal aid bodies do generally make the appointment.
The legal aid body will then request financial information from the parents and make an assessment as to whether the parents should make a contribution towards the costs of the independent children's lawyer.
Section 68L provides the court with a broad discretion to appoint an independent children's lawyer, “if it appears to the court that the child/children's interests ought to be independently represented.”
The discretion is fettered when you are seeking an independent children's lawyer in proceedings pursuant to the Convention on the Civil Aspects of International Child Abduction. In those cases it must be established that there are exceptional circumstances which justify the appointment.
The case of Re K (1994) FLC 92-461 provides some guidance as to matters for the court to consider in exercising its discretion.
1. Cases involving allegations of child abuse whether physical sexual or psychological;
2. Cases where there is an apparently intractable conflict between the parties;
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.
There are four basic functions that are to be performed by the ICL:-
1. Facilitation of children's participation in proceedings.
2. Evidence gathering
3. Litigation management
4. Exploring settlement options, narrowing issues.
Section 68LA of the Family Law Act mandates the ICL to do the following:-
1. Form a view based on available evidence as to what is in the child/children's best interests.
2. Act in the child/children's best interests
3. If the ICL forms a view that the adoption of a particular course of action is appropriate, make a submission to the court suggesting that course be adopted.
4. Act impartially in dealing with the parties in the proceedings.
5. Ensure any views expressed by the children are fully put before the court.
6. If any document or report is to be relied on, the ICL must analyse it and bring to the courts attention parts of it that will assist the court in determining what is in the best interests of the children.
7. Facilitate an agreed resolution of matters (if possible)
The ICL does not have to provide all information to the court that is provided to them by the children they represent. They also are able to provide information to the court they have received from the children even if the children do not wish for it to be provided.