An Independent Children's Lawyer (ICL) may be appointed in parenting matters to represent a child's best interests and provide an independent perspective in relation to the parenting arrangements that may be in their best interests.
New provisions under the amendments to the Family Law Act 1975 now require an ICL to meet with the child or children whose interests they are appointed to represent and give the child an opportunity to express any views in relation to matters which relate to the proceedings.
Previously, an ICL had discretion as to whether they met personally with the child or children who were the subject of proceedings in which the ICL was appointed. Unless the ICL did so, one of the few ways the views of the child could be put before the Court impartially was through a report prepared by a Court Child Expert or a private family report writer.
Exceptions to the new statutory requirement to meet with children apply where:
- a child is under the age of five years (unless deemed appropriate);
- a child does not wish to meet with the ICL or express their views; and
- if there are exceptional circumstances that justify not meeting with the child, such as where performing the duty would expose the child to a risk of physical or psychological harm that cannot be safely managed or would have a significant adverse effect on the wellbeing of the child. The Court must determine that such exceptional circumstances do exist before making a final order.
The ICL has discretion on the timing, frequency and method of engagement with the child, subject to any order made by the Court. If the child expresses a view in relation to matters which relate to the proceedings, the ICL is now required to ensure these views are put before the Court. Previously, case law provided for the ICL to have discretion in advising the Court of any views of the child.
There is no provision for a Court Child Expert or private family report writer to be present at the time the ICL meets with the child or the child's views to be expressed through a Court Child Expert or a private family report writer.
Whilst these amendments generally appear to be favourable and directed to ensuring children's best interests are represented in parenting proceedings, there may still be practical issues in implementing these requirements. This is particularly in circumstances where the availability of ICLs and funding for ICL representation still varies across states and territories.
It is also possible that a child may choose not to express strongly held views to the ICL, if the child has concerns about the consequences of those views being squarely put before the Court and the children's parents.
However, this is not a new problem, where Court Child Experts and family report writers (as the alternative conveyors of children's views) have generally advised children that they are not required to express a view.
It will be of interest to see how these new requirements ultimately unfold in parenting proceedings involving ICLs.
If you would like assistance with your parenting matter or further guidance on the obligations of ICLs, please contact a member of our experienced family & relationship law team.
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