What Is An Independent Children’s Lawyer & Do The Amendments To The Family Law Act 1975 Affect Them?
By Tanya Mount
What is an independent children’s lawyer?
An Independent Children’s Lawyer (an “ICL” for short) is a lawyer appointed by the Court pursuant to section 68L of the Family Law Act 1975 to represent a child’s best interests and makes submissions to the Court regarding the best interests of the child.
An ICL can be appointed in parenting proceedings where one or more of the following circumstances exist:-
- There are allegations of abuse or neglect of a child;
- There is a high level of conflict and dispute between the parents;
- There are allegations made as to the views of a child, and the child is of a mature age to express their views;
- There are allegations of family violence;
- Serious mental health issues exist in one or both parents or the child;
- There are difficult and complex issues involved in the matter.
The main role of an ICL is to:-
- Arrange for all necessary evidence to be obtained and put before the Court;
- Facilitate the participation of the child in the proceedings in a manner which reflects the age and maturity of the child and the nature of the case;
- Ensure that any views expressed by the child are fully put before the Court; and
- Act as an honest broker between the child and the parents and facilitate settlement negotiations where appropriate.
An ICL is obliged to consider the views of the child, however, ultimately, they are required to provide their own independent view about what arrangements or decision are in the child’s best interests.
How does the ICL consider what is in the child’s best interest?
The ICL can obtain various information to assist them in considering what is in the best interests of a child. This can include:-
- Speaking with any counsellor for the child;
- Examining documents from the child’s school, child welfare authorities or police;
- Examining medical, psychiatric and psychological records of the parents and the child; and
- Questioning witnesses (parents and/or experts) at a final hearing.
Who bears the cost of an ICL?
An ICL is generally funded under a Legal Aid Scheme (either Commonwealth or State). It is not a free service. There are some circumstances where Legal Aid may ask the parties to contribute the costs of an ICL. This is normally in circumstances where a party’s financial position permits them to do so or by Order of the Court.
What effect does the Family Law Amendment Act 2023 have in relation to an ICL?
The amendments to the Family Law Act 1975 relating to ICLs are as follows:-
- The ICL is required to meet with the child and provide the child with an opportunity to express views, unless an exception applies (section 68LA(5A) – (5D)); and
- The removal of the requirement that the appointment of an ICL in Hague Convention Cases can only be made in “exceptional circumstances) (repeal of section 68L(3) and addition to 68L(1));
- The removal of the higher threshold requirement in the Family Law Act 1975 which provides the Family Law (Child Abduction Convention) Regulations 1986 must not allow an objection by a child to return under the Hague Convention to be taken into account unless the objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes (repeal of section 111B(1B)).
Duties of an ICL
The amendment to section 68LA of the Family Law Act 1975 provides that the ICL has a duty to meet with the child and provide the child with an opportunity to express a view (section 68LA(5A)), unless an exception applies (section 68LA(5B)), however, an ICL cannot require the child to express their view in relation to any matter (section 60CE).
Regarding the duty to meet with the child, the legislation specifically provides that an ICL has discretion as to when, how often and how meetings with the child will take place and when, how often and how the child is provided with an opportunity to express their view (section 68LA(5AA)).
Section 68LA(5B) of the Family Law Act 1975 provides that the ICL is not required to meet with the child if:-
- The child is under the age of 5; or
- The child does not want to meet with the ICL, or express their views; or
- There are exceptional circumstances that justify not performing that duty (ie performing the duty would expose the child to a risk of physical or psychological harm that cannot be safely managed or have a significant adverse effect on the wellbeing of the child – section 68LA(5C)).
If the ICL does not meet with the child due to any of the exceptions provided in section 68LA(5B), prior to the Court making final orders, the Court must determine whether it is satisfied that exceptional circumstances exist that justify the ICL not meeting with the child. If the Court determines that exceptional circumstances did not exist to justify the ICL not meeting with the child, the Court must make an order requiring the ICL to meet with the child or provide the child with an opportunity to express their views (section 58LA(5D)).
Expansion of use of ICLs in Hague Convention Cases
The Hague Convention of the Civil Aspects of International Child Abduction is the main international agreement that covers international parental child abduction. It provides a process through which a parent can seek to have their child returned to their home country. It also deals with issues of international child access (when a parent lives in a different country to the home country of their child). The Convention is a multilateral treaty in force between Australian and 90 other Countries.
The repeal of section 68L(3) of the Family Law Act 1975 removes the requirement that an appointment of an ICL in Hague Convention proceedings can only be made in “exceptional circumstances”.
Section 68L(1) of the Family Law Act 1975 has been amended to provide that the section 68L (court’s consideration of appointing an ICL) applies to proceedings where a child’s best interest are paramount or a relevant consideration and further specifies that it also applies to Hague Convention proceedings.
This means that an ICL in Hague Convention proceedings will now be appointed by the Court under the same circumstances as other parenting matters.