Who should be advised?
The ICL must file and serve an Address for Service to advise the court and the parties of their appointment.
The ICL is to advise all necessary agencies, for example, the Federal Circuit and Family.
Court’s Court Children’s Service and the State Welfare Authority, of their appointment.
To the extent that such information has not been made available as a result of responses to Notices of Child Abuse, Family Violence or Risk, the ICL is to utilise the section 69ZW process (section 202K Family Court Act 1997 (WA)) to seek information about:
the extent of any child protection involvement with the child or family, in particular,
any abuse or neglect notifications and investigations; and
if there has been any such involvement, whether the Authority intends to become involved in the family law proceedings or is considering the initiation of other legal proceedings.
Where the ICL considers it is necessary to advise other individuals and organisations of the appointment, such as the child’s school or therapists, the ICL shall seek (if appropriate to the age and degree of understanding of the child) and take into account any views of the child.
The ICL is to advise the parties of their role in the presence of the parties’ legal representatives.
The ICL and any Family Consultant involved in the case have a mutual responsibility to initiate liaison to clarify roles and to identify any particular needs of the child.
Meeting the child
It is expected that the ICL will meet the child unless:
the child is under school age;
there are exceptional circumstances, for example where there is an ongoing
investigation of sexual abuse allegations and in the particular circumstances there is a risk of systems abuse for the child;
there are significant practical limitations, for example geographic remoteness.
The assessment about whether to meet with the child and the nature of that meeting is a matter for the ICL. An assessment may be made in consultation with any Family Consultant or other expert involved in the case.
Consultation between the ICL and Family Consultant
A Family Consultant may be in a position to provide information to the ICL of the following if they have been involved in a court event:
a preliminary overview of the dynamics of the separated family and the way this is impacting on the child;
other agencies involved with the family;
recommendations for case management;
whether the child should be involved in further counselling and/or whether therapy is indicated;
whether there are any urgent issues; and
details of any child abuse notifications made.
The ICL should liaise with any Family Consultant or other expert appointed to provide a report in the case.
Relationship with the parties and their legal representatives
The ICL is to remain independent, objective and focused upon promoting the child’s best interests in all dealings throughout the proceedings.
The parties and their legal representatives should be encouraged to be non-adversarial where possible and to maintain a focus on the child’s best interests. The ICL should promote this approach whenever appropriate.
The ICL should as soon as practicable inform the parties of their role and use their best endeavours to ensure the parties understand the ICL’s role within the proceedings.
Where parties are legally represented, communication between the ICL and the parties should normally be through the legal representatives.
The ICL may need to have direct contact with the parties during the course of the proceedings. Such contact must have the consent of the party concerned and should normally be arranged through the parties’ legal representatives.
If one or more parties are unrepresented, the ICL is to communicate directly with the party and should advise the other parties of the fact of any meeting with an unrepresented party.
The ICL is not required to communicate to the other parties the substance of his or her conversations with the child.
The ICL must at all times be and be seen to be independent and at arm’s length from any other party to the proceedings.
The ICL is to act as an “honest broker” on behalf of the child in any negotiations with the other parties and their legal representatives.
Once the ICL has formed a preliminary view as to the outcomes which will best promote the child’s best interests, the ICL will consult with the child and take into consideration any expressed views of the child, as may be appropriate in all the circumstances. The ICL will then communicate their views and details of proposed orders to the parties where possible.
If during the period of appointment of the ICL there are proceedings between other parties in respect of contravention of an order, generally the role of the ICL ought not be an active one.
However, this is subject to the proviso that where the ICL considers (a) that such proceedings are detrimental to the best interests of the child or (b) that the presence of the ICL may further the best interests of the child, then it is appropriate for the ICL to be present and, if necessary, to seek to appear in the proceedings.
The ICL must, however, be served with the application and any supporting material, and be notified by the parties of any findings and sanctions imposed by the court.
Case planning
The ICL is to seek to develop a case plan at the earliest opportunity, where appropriate, in consultation with any Family Consultant or other expert involved in the case.
In the case plan, the ICL should:
canvass the nature of any reports or examinations of the parties and/or the child;
develop a strategy for the involvement of the child in any examination/assessment process;
liaise with any Family Consultant involved in the case, relevant government departments, contact centres, schools and agencies to bring together relevant information to assist the court in assessing and determining the best interests of the child;
consider the evidence available to the court in relation to any allegations of child abuse or family violence raised in a Notices of Child Abuse, Family Violence or Risk, and identify and gather as appropriate relevant evidence in admissible form;
develop opportunities for the matter to reach an agreed outcome which best promotes the child’s best interests;
provide information, support, and assistance as required for or requested by thechild during the process of litigation, whether directly or by way of appropriate referral;
be vigilant and make every endeavour to minimise systems abuse of the child; and consider whether it is appropriate to obtain an expert report. In some Division 12A cases a direction from the court in which the issues have been settled may be required before the expert is engaged to prepare the report.
The strategy outlining the involvement of the child in the examination/assessment process has the following primary aims:
to ascertain the level of involvement that the child wishes to have in the court proceedings;
to provide the child with opportunities to express his or her views in relation to with whom they live and who they see, to the extent that the child wants to express any view;
to provide evidence of matters relevant to the child’s best interests and in particular the relationship of the child and the parties;
to prevent the systems abuse of the child as a result of the child being overinterviewed; and
to be in accordance with the Family Violence Best Practice Principles issued by the Federal Circuit and Family Court of Australia and the Family Court of Western
Australia and other relevant best practice guidelines and applicable protocols for dealing with matters involving family violence. No process should be pursued which departs from these guidelines.
Changing, reviewing or terminating the appointment of the ICL
The appointment of an ICL for sibling groups can present special difficulties. Cases may arise where the ICL may need to give consideration to the court making a further assessment as to whether the proceedings require another ICL to be appointed.
The ICL should consider the usefulness of the order for representation of the child from time to time during the course of a case. The matter should be relisted and an order sought from the court discharging the appointment if the ICL is of the opinion that:
there is no useful purpose or no further purpose served by the order for the representation of the child;
the ICL’s relationship with the child has broken down irretrievably to the extent that it is not possible to represent his or her best interests;
continuation of the appointment would be adverse to the best interests of the child;
or
practical circumstances make it impracticable to represent the best interests of the child.
The ICL should ensure that arrangements are made to inform the child or children of any alterations to the arrangements affecting their representation in accordance with their age, developmental level, cognitive abilities and emotional state.
Reports
The ICL’s communications with a Family Consultant or expert are not privileged. Evidence of these communications may be included in a report or given in oral evidence.
If a Family Consultant or other expert is requested to prepare a report, the ICL should, to the extent that the issue is not the subject of an order by the court:
liaise as appropriate with the other parties concerning the nature of the report, the identity of the report writer, the terms of reference, the persons who should participate in the assessment, and the material to be provided to the report writer;
satisfy him/herself that the report writer has the appropriate qualifications and experience to conduct the assessment, prepare the report and give evidence for the particular case;
facilitate the participation of the child and other relevant persons in the assessment as appropriate;
ensure that the report writer is provided with the information and documentation necessary to complete the assessment, including any order concerning the parameters of the report;
liaise with the report writer and facilitate the timely release of the report; and
convene a conference of experts where appropriate and seek an agreed statement as to the outcomes of that conference.
Where the report is a family report or other report prepared by a Family Consultant or a report of a single expert the writer is the court’s witness. The ICL is not bound to make submissions which adopt the recommendations made by the report writer or any expert called in the proceedings. Evidence given by a single expert or Family Consultant or other expert is one part of the total evidence and must be evaluated within that context.
It is not the role of the ICL to direct the methodology to be used by the family report writer or single expert. The methodology must be based upon the author’s sound clinical experience.
Interim hearings
Time constraints and the circumscribed nature of interim hearings may result in the ICL not having the opportunity to fully investigate the child’s circumstances.
However where possible, the ICL should have issued subpoenas to relevant agencies and be in a position to tender relevant material. Such evidence is particularly helpful to the court where allegations of unacceptable risk are present in the case.
In circumstances where little is known about the child’s situation the ICL should be circumspect and should not feel compelled to make a submission as to the child’s best interests, presenting rather an analysis of the available options to the extent possible.
Where the court is to make interim or procedural orders, the ICL should consider whether they adequately promote the best interests of the child and make submissions as appropriate.
The ICL should ensure so far as is possible, that the child’s wishes are made known to the court in admissible form.
Final hearing (the trial)
If the matter proceeds to trial, the ICL should comply with all procedural and timetable requirements. The ICL should identify and obtain relevant documentation, organise the preparation of appropriate reports and arrange for relevant witnesses such as State Welfare Authority officers, police officers, school teachers or similar persons to give evidence.
The ICL should be proactive in matters heard under Division 12A and be familiar with community based organisations which can provide continuing assistance to the child and the child’s family.
The ICL is to promote the timely resolution of the proceedings that is consistent with the best interests of the child. The ICL should be proactive and bring to the court’s attention matters which might hinder the court’s capacity to determine the matter on a final basis (for example, a family report not being progressed).
Where the ICL has formed a preliminary view as to the outcomes which will best promote the child’s best interests, it may be appropriate to inform the court at the commencement of the first day of hearing of those views and where appropriate, provide details of draft orders.
The ICL is to arrange for the collation of all relevant and reasonably available evidence including expert evidence where appropriate, and otherwise ensure to the extent possible, that all evidence relevant to the best interests of the child and the considerations set out in section 60CC of the Family Law Act 1975 is before the court. The ICL is not responsible for adducing evidence to establish the case of a party.
The ICL is to test by cross-examination or other processes where appropriate, the evidence of the parties and other witnesses, including witnesses who are called by the ICL.
The ICL is to make submissions evaluating the evidence and the proposals of each party and in doing so it is expected that the ICL will consider any practical problems associated with, and possible solutions for, such proposals. In appropriate cases the ICL will also make submissions as to the proposed terms of orders.
Children rarely give evidence in proceedings. However, there may be cases where consideration is to be given to what direct role the child might have in giving evidence to the court.
If the ICL believes that it may be appropriate for the child to give evidence, the ICL should consult with the Family Consultant or single expert.
Where a child of sufficient maturity wishes to give evidence, the child should be appropriately advised and the opportunity to apply to give direct evidence canvassed. The purpose of section 100B should be explained to the child.
At the conclusion of the proceedings
The ICL should consider whether leave should be sought to provide copies of the orders, reasons for judgment of the court and any other material, including expert reports, to any relevant professional involved with the family.
In appropriate circumstances the ICL has a responsibility to explain to the child, or to facilitate an explanation by a Family Consultant or other appropriate expert who has provided a report in the case:
the orders made by the court;
the effect of those orders;
if submissions were made by the ICL that were contrary to the child’s views, the reasons for so doing; and
whether leave has been sought to provide copies of the orders, reasons for judgment of the court and for any other material, including expert reports, to any relevant professional involved with the family and to whom the ICL intends to forward such material.
In consultation with a Family Consultant or an appropriate expert in the case, the ICL should determine who is the most appropriate person to explain the orders, taking into account their current respective relationships with the child.
Where the ICL is appointed for a sibling group, consideration should be given to whether explanations are best provided on an individual or group basis.
The ICL does not monitor final orders unless there are exceptional circumstances and there is an order to this effect.
The ICL should ensure that the file contains a record of outcomes of proceedings so that it is informative to any subsequent ICL that may be appointed and easily understood by the child if he or she is able to access it in later life.
Appeals
The ICL has a right to appeal orders made by the court on behalf of the child.
The ICL should consider whether an appeal is appropriate. An appeal should only be lodged where the interests of the child would be promoted by such a procedure and after taking the views of the child into account.
If one of the other parties appeals, the ICL should inform the child and explain the process involved unless there are particular reasons not to do so. Where appropriate the ICL should participate in the hearing of the appeal.
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