Thursday, 19 February 2009

Independent children's lawyers

What is an independent children's lawyer?

An independent children's lawyer is a lawyer, who is independent of the parties who has a duty to act in the best interests of the child or children the subject of proceedings under the Family Law Act, typically in the Federal Magistrates Court or the Family Court.

Who pays for an independent children's lawyer?

Most of the cost of an independent children's lawyer is met by the taxpayer, through the Commonwealth Government. The management of that cost is administered by the various Legal Aid Commissions, for example, the Legal Aid Commission of NSW.

The Commonwealth sets out guidelines requiring the Legal Aid Commissions to obtain payment form each of the parents (or other parties) of a contribution to their costs. This can be by way of a costs order, but typically it is a one-off initial payment, often of $3300 each.

Many people do not have to pay because they meet exemptions, eg they receive Centrelink benefits or they receive legal aid.

What does an independent children's lawyer do?

Typically they have to form an independent opinion of the matter and tell the judge. To form that opinion often requires that they will obtain reports, and cause subpoenas to issue, as well as cross-examining witnesses.

How is an independent children's lawyer appointed?

A court exercising power under the Family Law Act, typically the Federal Magistrates Court or the Family Court, will make an order for appointment. The order will then be sent to the local Legal Aid Commission, which will then choose an independent children's lawyer from its panel.

Independent children's lawyers typically are experienced family lawyers who have undergone training for this role and been chosen to be on the panel. Undertaking training is no guarantee of being chosen.

When will the court order the appointment of an independent children's lawyer?

The Family Court set out the guidelines for appointment as long ago as 1994. Just because any of the guidelines is met does not mean that there will be an order- it is a matter of discretion (and funding availability), but only one ground is needed.


(i) Cases involve allegations of child abuse, whether physical, sexual or psychological.
(ii) Cases where there is an apparently intractable conflict between the parents.
(iii) Cases where the child is apparently alienated from one or both parents.
(iv) Where there are real issues of cultural or religious difference affecting the child.
(v) Where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge upon the child's welfare.
(vi) Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child's welfare, for example serious domestic violence.
(vii) Where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children.
(viii) Any case in which, on the material filed by the parents, neither seems a suitable carer.
(ix) Any case in which a child of mature years is expressing strong views, the giving of effect to which would involve changing a long standing custodial arrangement or a complete denial of access to one parent.
(x) Where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for all practicable purposes exclude the other party from the possibility of access to the child.
(xi) Cases where it is proposed to separate siblings.
(xii) Custody cases where none of the parties are legally represented.
(xiii) Applications in the Court's welfare jurisdiction relating in particular to the medical treatment of children where the child's interests are not adequately represented by one of the parties.

What duties does an independent children's lawyer have?

These are set out in the Family Law Act:
(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:
(i) analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii) ensure that those matters are properly drawn to the court’s attention; and
(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.

The general role of an independent children's lawyer is set out in the Family Law Act:

  • 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.
  • The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
  • The independent children’s lawyer:
    (a) is not the child’s legal representative; and
    (b) is not obliged to act on the child’s instructions in relation to the proceedings.

No comments: