The Family Law Act 1975 (Cth) (‘the Act’) makes clear that the paramount consideration when making parenting orders is the ‘best interests of the child’. This can be found in section 60CA of the Act. The principle of ‘best interests of the child’ aligns with International Treaties on Children’s Rights, more specifically the United Nations Convention on the Rights of the Child. The principle is firmly situated within the jurisprudence of many domestic jurisdictions, and in Australia there is a strong focus on what is best for the child instead of what is wanted necessarily by the parents.

The Act builds on international convention even further to allow the Court to order an Independent Children’s Lawyer be appointed. These are lawyers who act separately from the lawyers representing the parents or other parties in the dispute.

What does the Act say about Independent Children’s Lawyers?

The Act has comprehensive and detailed provisions on when an Independent Children’s Lawyer can be appointed and what their role is in proceedings in the Federal Circuit and Family Court of Australia. Under section 68L(2) of the Act:

“…If it appears to the court that the child‘s interests in the proceedings ought to be independently represented by a lawyer, the court:

(a)  may order that the child‘s interests in the proceedings are to be independently represented by a lawyer; and

(b)  may make such other orders as it considers necessary to secure that independent representation of the child‘s interests…”

Section 68L also makes specifications that in cases of child abduction, an Independent Children’s Lawyer may be appointed. It also provides that the Court may make an order for an Independent Children’s Lawyer to be appointed to determine a child’s views on the proceedings and matters related to the dispute. While this section qualifies that where a child’s age, maturity or other special circumstances would make it inappropriate to appoint a lawyer, the Court still has wide discretion to appoint an individual lawyer to represent the child’s interests in a number of circumstances. These include:

  1. The Court decides to appoint an Independent Children’s Lawyer on its own initiative; and
  2. A party or relevant person in the proceedings makes an application including:
    1. The child;
    2. An organisation concerned with the welfare of children; or
    3. Any other person.

Section 68LA mentions what an Independent Children’s Lawyers role is in the Court:

“…General nature of role of independent children’s lawyer

             (2)  The independent children’s lawyer must:

(a)  form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and 

(b)  act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.

(5)  The independent children’s lawyer must:

                     (a)  act impartially in dealings with the parties to the proceedings; and

(b)  ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and 

(c)  if a report or other document that relates to the child is to be used in the proceedings …

(d)  endeavour to minimise the trauma to the child associated with the     proceedings; and

(e)  facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child…”

While an Independent Children’s Lawyer is there to represent a child or children’s individual interests, this is not synonymous with the Act requiring the lawyer to be a child’s ‘legal representative’. What this means is that an Independent Children’s Lawyer need not act on a child’s wishes or instructions, but merely acts as their representative and ensure the views of that child relating to matters in the proceedings are fully put before the Court.

In what situation does the Court appoint an Independent Children’s Lawyer? 

There are many situations where the Court will decide to appoint an Independent Children’s Lawyer. Some of the main situations where the Court decides it is necessary to have a lawyer independently act for a child or children include:

  • Allegations of domestic or family violence, abuse or neglect. This can include physical, psychological or sexual abuse.
  • Significant health issues impacting the child, a parent or someone with a lot of contact with the child. This can be either physical and psychological or both.
  • High conflict between the parents.
  • Proposals to move the child to a location denying one parent access of the child or to separate siblings.
  • Substantial religious or cultural differences having an impact on the child.

How Independent Children’s Lawyers work in practice: Lucian & Naraz [2022] FedCFamC2F 628

The recent case Lucian & Naraz involved a mother and father with a high conflict relationship. The parties were disputing the parenting arrangement of their child. Allegations of family violence and mental health issues were raised by both parties. The child of the relationship had been diagnosed with a range of mental health issues including Autism Spectrum disorder, ADHD, Anxiety Disorder, Insomnia, Psychosocial stressors and Academic Difficulties.

An Independent Children’s Lawyer was appointed and made submissions to the Court based on interactions or interviews with the child where the child expressed that they wanted to spend equal time with their parents but that they could not explain why. The communication of the child’s wishes was ultimately facilitated by the Independent Children’s Lawyer.

Despite the child’s wishes being for equal time with both parents, the Court made orders for the Mother to have sole parental responsibility for the child and for the Father to only spend time with the child. The Court recognised that ‘limited weight’ was given to the child’s views, because their diagnoses meant they could not “rationally consider the ramifications of parenting concepts like ‘50/50’ and what that would mean when his entire life has been spent in the primary care of his mother…”. This demonstrates the limitations of an Independent Children’s Lawyer in getting the child’s wishes actualised. It is in the Court’s discretion to decide what is in a child’s best interests and is the Independent Children’s Lawyers role to aid the court in doing so.

 

Contact us

If you would like more information on how the Family Law Team at Genesis Edge Law Group can assist you, please do not hesitate to contact us on 1300 559 888, or fill out the enquiry form here.