Are You Involved in Proceedings Where an Independent Children’s Lawyer Has Been Appointed for Your Children?

Children's Lawyer

In this blog, we will look at how a child is represented in family law proceedings through an independent children’s lawyer.

The Independent Children’s Lawyer is appointed in parenting proceedings to represent and promote the best interests of a child. The Independent Children’s Lawyer is a separate party to proceedings and has all the rights and obligations of a party, including the right to bring an appeal.

The Independent Children’s Lawyer has special responsibilities. Whilst a parent may not agree with the way in which an Independent Children’s Lawyer acts, subject to certain statutory requirements set out in Division 10, Part VII of the Family Law Act, the Independent Children’s Lawyer has discretion in any case as to how he or she progresses a case. Subject to any orders or directions of the Court, the Independent Children’s Lawyer is required to use his or her professional judgement in the conduct of any matter.

The Court in P and P (1995) FLC 92-615 stated that the role of an Independent Children’s Lawyer is to:

  • act in an unfettered way in the best interests of the child;
  • act impartially and make submissions in the best interests of the child;
  • inform a court of a child’s wishes;
  • arrange for expert evidence which is relevant to the child’s welfare to be collated;
  • test other evidence by cross examination, if appropriate;
  • ensure that trauma for a child is minimised;
  • facilitate an agreed resolution to the proceedings to the extent to which doing so is in the best interests of the child;
  • act upon the evidence and not on the basis of any personal view or opinion of the case in which the Independent Children’s Lawyer is appointed.

Can a parent apply to have an Independent Children’s Lawyer removed?

It sometimes happens that a parent or other party to court proceedings has a fundamentally different view from the Independent Children’s Lawyer in terms of how the Independent Children’s Lawyer chooses to carry out his or her role.

However, that in itself does not give a parent the right to seek that an Independent Children’s Lawyer is removed.

There are conflicting judgements as to whether the Court has power to remove an Independent Children’s Lawyer.

Wilson J observed in the FCCA in Howell &Carter (No.2) [2017] FCCA 377, that there is no legislative basis or jurisprudential basis cited in the judgements for adopting the view that the Court does have that power. Wilson J was of the view that there was no legal principle that the power of appointment of a statutory person such as the Independent Children’s Lawyer axiomatically carried with it the power to discharge that appointment.

However certain other judgements have supported the view that the Court has power to remove an Independent Children’s Lawyer. (Refer Chisolm J in T and L[2000] FamCA 351;  Hannon J in In the Marriage of Pagliarella  and  Fogarty J in In the Marriage of F and R (No.2)).

Actual or apprehended bias

Whilst Wilson J in Howell & Carter (No.2) found that “concepts of bias- actual or apprehended- do not apply to the ICL” and Holden CJ in Lloyd & Lloyd and Child Representative (2000) FLC 93-045 found that” actual rather than perceived or alleged” impartiality must be found to justify removal of an ICL, Murphy J in Knibbs & Knibbs [2009] FamCA 840 found that perceived impartiality in an Independent Children’s Lawyer could form the basis for an order for his or her removal. The Court in Dickens & Dickens [2016] FamCA 115 determined that the test to be applied is that the father in that case needed to establish that the Independent Children’s Lawyer was actually lacking in impartiality or that alternatively, “a fair- minded lay observer might reasonably apprehend that” the Independent Children’s Lawyer lacked impartiality

Involvement of the child

In many cases, it will be in the child’s best interests that the child is able to be involved at an appropriate level in decision-making about proceedings. However, decision as to the level of involvement of a child will take into account factors including:

  • the extent to which the child wishes have involvement; and
  • the extent to which it is appropriate for the child to be involved taking into account factors such as age of the child and the child’s developmental level and views.

In appropriate cases, the court may order parties to pay the Independent Children’s Lawyers costs.

Want to learn more or have a family law question? | Family Lawyers Brisbane

If you require advice concerning the role of an independent children’s lawyer or need orders or an agreement to be made with your former partner for care of your children, contact our experienced family lawyers at LGM Family Law who will be happy to assist.

Our team of experienced Family Lawyers in Brisbane are here to help guide you through what can be a challenging time. Contact us today on (07) 3506 3651 for a complimentary 15 minute consultation.

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