Family Violence and Abuse
Like all practitioners, the ICL is expected to be familiar with the relevant provisions of the Family Law Act 1975, the Family Law Rules, the Family Violence Best Practice Principles of the Federal Circuit and Family Court of Australia and the Family Court of Western Australia.
The ICL must also be familiar with other relevant best practice guidelines and where relevant, the protocols between the court and state and territory departments responsible for the investigation of child abuse.
Family violence and abuse are serious issues whenever they have occurred and should always be presented as being so. They are considerations pursuant to section 60CC of the Act of which a court must take account. Their degree of relevance in a particular case should be considered with the assistance of a counsellor or other mental health professional who has knowledge of family violence and abuse issues.
In appropriate cases a full assessment should be conducted by such a counsellor or other mental health professional prior to the matter being settled or heard by a court.
Particular difficulties can arise for the ICL where one or more of the parties is unrepresented. While it is not expected that the ICL will present the case for an unrepresented party, the ICL should ensure that as far as practicable, evidence concerning family violence and abuse that is relevant to the best interests of the child is put before the court.
The ICL is expected to be alert to any risk of harm to a child that may arise from the other parties, or the physical environment in which the child may be. It will usually be inappropriate for the ICL to bring the child into proximity with an alleged perpetrator of harm. Where this does occur, visual or verbal contact with a party may be harmful and it will be necessary to carefully consider whether interview arrangements and the physical setting need to be structured in particular ways in order to protect the child and/or accompanying family members.
Cross-cultural and/or religious matters
The ICL needs to take particular care in matters involving cross-cultural and religious issues.
The ICL should be aware of Article 14 of the United Nations Convention on the Rights of the Child which states:
“Parties shall respect the right of the child to freedom of thought, conscience and religion.” (Article 14.1)
“Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.” (Article 14.2)
Strategies that are sensitive to culture and religion need to be developed as part of a case management plan for the child within the context of the proceedings. Any Family Consultant in the case should provide valuable assistance in this area, in particular in advising on appropriate referrals to relevant experts.
During the course of a matter the ICL needs to:
be aware that the child’s English language skills may be in early stages of development;
be aware that the child may be unfamiliar with the social and legal concepts involved in the proceedings;
seek to identify service options that are appropriate to the culture and or religion of the child, make these known to the child, and assist the child to access them if requested;
utilise the expertise of any Family Consultant involved in the case as may appropriate;
be mindful of the need to use interpreter services during meetings and throughout the proceedings where either the child or a party is not proficient in the English language;
understand that the child may be fearful of isolation by his or her community or fearful of his or her community becoming aware of the proceedings;
be mindful that the child may be fearful of courts, government departments and authorities; and
be mindful that the child may be fearful of expressing wishes that are based upon or contrary to religious or cultural beliefs and background.
The ICL is to consider the broader community and extended family support available to the child in recognition of the important role that may be played by extended family members in the raising of the child. That is, the ICL needs to be aware of the capacity of the extended family and community network to promote the best interests of the child.
This is likely to entail consultation with extended family members and significant others from within the
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.
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