When is an Independent Children’s Lawyer appointed?
An Independent Children’s Lawyer can be appointed by the Court, upon application by either party, a child or an organisation concerned with the wellbeing of children.
In the case of Re K (1994) FLC 92-461 the Full Court of the Family Court set out a list of guidelines for matters where an Independent Children’s Lawyer should be appointed. The Court determined that an Independent Children’s Lawyer should be appointed in the following circumstances:
- there are allegations of abuse of the child
- there is intractable conflict between the parties
- the child is alienated from one or both parties
- there are cultural and religious differences between the parents
- there are concerns about the mental or physical illness or personality disorder of either parent
- neither party seems to be a suitable residential parent for the child
- a child of mature years indicates that they do not wish to have contact with one parent
- there is a threat of removal of the child from the jurisdiction
- the determination of the case may involve separation of siblings, or
- neither party is represented
What is the role of the Independent Children’s Lawyer?
The role of the Independent Children’s Lawyer is to represent the best interests of the children.
The main role of the Independent Children’s Lawyer is to gather evidence, facilitate the participation of the child or children in the proceedings (depending on the age and maturity of the child/children) and to act as an honest broker between the child and the parents and facilitating settlement negotiations where appropriate.
The Independent Children’s Lawyer gathers evidence to present to the Court and may seek orders he or she considers to be in a child’s best interest. The Independent Children’s Lawyer can support or oppose orders ought by one party if the Independent Children’s Lawyer is of the opinion those orders would not be in the best interests of the children.
Does the Independent Children’s Lawyer meet with the child/ren?
In some circumstances yes, but not always. The Independent Children’s Lawyer will generally meet with the child or children if they are above school age. The Independent Children’s Lawyer will not meet with the children if they are too young or if there are exceptional circumstances.
The Independent Children’s Lawyer is not actually the child’s lawyer and does not act on the instructions of the child.
What information does the Independent Children’s Lawyer consider when determining what is in the best interests of the children?
The Independent Children’s Lawyer takes into account the children’s views if appropriate. The Independent Children’s Lawyer considers information obtained from external sources including the children’s counsellors, SAPOL, the Department for Child Protection, any mental health practitioners of the children and or parents. If there are allegations of substance abuse, the Court will generally give the Independent Children’s Lawyer liberty to request medical evidence including random drug screenings from either parent.