Last updated 8 August 2016
An independent children’s lawyer represents the child’s interests in proceedings and is appointed under a court order (s 68L Family Law Act 1975 (Cth) (Family Law Act)). The order can be made on application of a party or on the court’s own initiative. The independent children’s lawyer is not the child’s legal representative and is not obliged to act on the child’s instructions in relation to the proceedings (s 68LA(4) Family Law Act).
Sections 68LA(2), (3) and (5) of the Family Law Act set out the role and duties of the independent children’s lawyer, who must:
- form an independent view of what is in the best interests of the child, based on the evidence available
- act in relation to the proceedings in what they believe to be in the best interests of the child
- make a submission to the court suggesting the adoption of a particular course of action, if satisfied that the adoption of that course of action is in the best interests of the child
- act impartially in dealings with the parties to the proceedings
- ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court (s 68L Family Law Act)
- analyse any report or other document that relates to the child and is to be used in the proceedings to identify those matters most significant for determining what is in the best interests of the child, and must ensure that those matters are properly drawn to the court’s attention
- endeavour to minimise the trauma to the child associated with the proceedings
- facilitate an agreed resolution of matters, to the extent to which doing so is in the best interests of the child.
The independent children’s lawyer cannot be required to disclose to the court any information that the child communicates to them. However, the independent children’s lawyer may disclose information that the child communicates if they consider the disclosure to be in the best interests of the child, even if the disclosure is against the wishes of the child (ss 68LA(6)–(8) Family Law Act).
An independent children’s lawyer is commonly appointed in more complex cases of allegations of sexual abuse, extreme conflict between the parents, issues concerning the capacity of one or both parents to care for the children, issues where siblings are being separated or in cases where a party has no legal representation.
The role of an independent children’s lawyer is to help the court make orders in the best interests of the child. Steps taken to perform the role include:
- presenting evidence of matters relevant to the issues in dispute and to the care of the child, which the parties do not bring to the attention of the court
- requesting the parties, the child and other significant persons to attend upon experts for assessments (e.g. a family report or psychological or psychiatric assessment)
- obtaining reports or information from a variety of people or institutions (e.g. medical practitioners, hospitals, schools, kindergartens or day care centres) concerning the children, the parents or other significant persons. This information may be obtained with the consent of the relevant party or by subpoena and can be used for any hearings in the matter.
The independent children’s lawyer should obtain evidence about any particular view of the children and place these before the court. This may depend upon the age, maturity and any other factors relevant to whether the child is able and willing to express any views. Children are not compelled to express a view (s 60CE Family Law Act).
The independent children’s lawyer is not bound by the views of the child when making submissions about what is considered to be in the best interests of the child.
The costs of the independent children’s lawyer may be paid initially through legal aid funding, but a contribution may be required from parties with adequate means.
Views of children
Whilst a child cannot be required to express their views (s 60CE Family Law Act), there are sections of the Family Law Act that require the consideration of their views if they are expressed. For example, in determining whether to make a particular parenting order, the court must consider any views that are expressed by the child (ss 60CC(3)(a), 60CD(1) Family Law Act).
The way that the court informs itself of the views of a child is by:
- having regard to the contents of a report (s 62G Family Law Act)
- making an order for the child to be independently represented
- such other way the court thinks appropriate (s 60CD(2) Family Law Act).
Where a report is prepared by a family consultant pursuant to s 62G of the Family Law Act, that consultant must ascertain and include in the report the views of the child (s 62G(3A)), unless this would be inappropriate in light of the child’s age, maturity or any other special circumstance (s 62G(3B)).