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The Court can appoint an independent children’s lawyer (ICL) under Section 68L of the Family Law Act 1975 (Cth) and Section 164 of the Family Law Act 1975 (WA), or on the application of a child, an organisation concerned with the welfare of children or any other person, to represent and promote the best interests of a child in family law proceedings.
An ICL is usually appointed by the Court on its own initiative or upon application by a party to the proceedings where one or more of the following circumstances exist:
•
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 views of the children and the children are of a mature age to express their views
•
there are allegations of family violence
•
serious mental health issues exist in relation to one or both of the parents or children, and/or
•
there are difficult and complex issues involved in the matter.
Pursuant to amendments introduced by the Family Law Amendment Act 2023, it is clear that ICLs can be appointed in Hague Convention matters (see section 68L(1)). There no longer need to be ‘exceptional circumstances’ to justify the appointment of an ICL in Hague Convention matters.
ICLs are obliged to consider the views of the child if they are expressed, but ultimately provide their own, independent perspective about what arrangements or decisions are in the child’s best interests.
Their main roles include:
•
arranging for necessary evidence, including expert evidence, to be obtained and put before the court
•
facilitating 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
•
acting as an honest broker between the child and the parents and facilitating settlement negotiations where appropriate.
Amendments introduced by the Family Law Amendment Act 2023 obliges ICLs to meet with the child (Section 68LA(5A)(a) FLA) and give the child the opportunity to express their views (Section 68LA(5A)(b) FLA). This obligation is subject to some exceptions, including where the child is under five years of age, the child does not want to meet with the ICL or express their views, or there are exceptional circumstances that justify not performing the duty (Section 68LA(5B) FLA). Without limiting exceptional circumstances under Section 68L(5B)(c) exceptional circumstances include that 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 (see Section 68LA(5C)(a) and (b).
Guidelines have been issued to assist practitioners, parties, children and other people in contact with the family law courts with information about the Courts’ general expectations of ICLs. These Guidelines have been endorsed by the Chief Justice of the Federal Circuit and Family Court of Australia.
Judicial consideration has also been given to the role of ICLs.
The Court can appoint an independent children’s lawyer (ICL) under Section 68L of the Family Law Act 1975 (Cth) and Section 164 of the Family Law Act 1975 (WA), or on the application of a child, an organisation concerned with the welfare of children or any other person, to represent and promote the best interests of a child in family law proceedings.
An ICL is usually appointed by the Court on its own initiative or upon application by a party to the proceedings where one or more of the following circumstances exist:
•
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 views of the children and the children are of a mature age to express their views
•
there are allegations of family violence
•
serious mental health issues exist in relation to one or both of the parents or children, and/or
•
there are difficult and complex issues involved in the matter.
Pursuant to amendments introduced by the Family Law Amendment Act 2023, it is clear that ICLs can be appointed in Hague Convention matters (see section 68L(1)). There no longer need to be ‘exceptional circumstances’ to justify the appointment of an ICL in Hague Convention matters.
ICLs are obliged to consider the views of the child if they are expressed, but ultimately provide their own, independent perspective about what arrangements or decisions are in the child’s best interests.
Their main roles include:
•
arranging for necessary evidence, including expert evidence, to be obtained and put before the court
•
facilitating 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
•
acting as an honest broker between the child and the parents and facilitating settlement negotiations where appropriate.
Amendments introduced by the Family Law Amendment Act 2023 obliges ICLs to meet with the child (Section 68LA(5A)(a) FLA) and give the child the opportunity to express their views (Section 68LA(5A)(b) FLA). This obligation is subject to some exceptions, including where the child is under five years of age, the child does not want to meet with the ICL or express their views, or there are exceptional circumstances that justify not performing the duty (Section 68LA(5B) FLA). Without limiting exceptional circumstances under Section 68L(5B)(c) exceptional circumstances include that 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 (see Section 68LA(5C)(a) and (b).
Guidelines have been issued to assist practitioners, parties, children and other people in contact with the family law courts with information about the Courts’ general expectations of ICLs. These Guidelines have been endorsed by the Chief Justice of the Federal Circuit and Family Court of Australia.
Judicial consideration has also been given to the role of ICLs.