Independent Children’s Lawyer (ICL)
RELEVANT LAW
Independent Children’s Lawyer
The Family Court has inherent jurisdiction and hence power to control its own proceedings including the power to appoint and discharge an ICL. Such power is by its nature discretionary. Specifically, the power to appoint an Independent Children’s Lawyer (ICL) is provided at s 68L of the Family Law Act 1975 (Cth) (“The Act”).
Section 68LA sets out the role of the ICL as follows:
68LA Role of independent children’s lawyer
When section applies
(1) This section applies if an independent children’s lawyer is appointed for a child in relation to proceedings under this Act.
General nature of the 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.
(3) 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.
(4) 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.
Specific duties of independent children’s lawyer
(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:
(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.
Disclosure of information
(6) Subject to subsection (7), the independent children’s lawyer:
(a) is not under an obligation to disclose to the court; and
(b) cannot be required to disclose to the court any information that the child communicates to the independent children’s lawyer.
(7) The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child.
(8) Subsection (7) applies even if the disclosure is made against the wishes of the child.
Further, the Court has publicly provided guidelines for the role and conduct of the ICL relevantly. Such guidelines are detailed below.
The Court has the power to discharge the ICL.
The Court has the power to discharge the Independent Children’s Lawyer
Numerous authorities, including the recent decision of Lim & Zong
[1] have considered applications for the discharge of an ICL and suggest a broad range of rationale for such an order including but not limited to:
(i) acting contrary to the child’s interests;
(ii) incompetence;
(iii) lack of professional objectivity; and
(iv) conflict of interest.
(1) It is consistent with the role of the ICL and professional discharge of obligations for the ICL to advocate a particular course of action adverse to, or inconsistent with the position of a party.
[2] The role of the ICL is not a passive one and by its nature should be proactive and at times robust in advocating for the child’s best interests.
[3] The role of the ICL is independent and it is inappropriate for a litigant to micro–manage or critique every step taken by the ICL.
[4] It is generally agreed that a court should be slow to discharge an ICL on the basis of largely unsubstantiated complaints of one or other of the parties by the very reason that it is equally likely that one or other of the parties will be in disagreement with or aggrieved by the decisions or process taken by the ICL.
[5] A party may argue, on one limb, that the ICL is biased against that party and/or has predetermined the issue in favour of the other party and in that sense has not acted impartiality. It is well-established that such bias may be of either actual or apprehended/perceived basis.
[6] Forest J considered in great detail the concept of apprehended bias in Vale & Vale
[7] as follows:
It is accepted principle that the Court should be slow to discharge an ICL simply where one party complains, in an unsubstantiated way, about the ICL because they do not like or accept the position being taken by the ICL overall or in respect of any particular aspect of the conduct of the case by the ICL.
Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 apposite said:
A court should treat allegations of lack of impartiality with caution. To do otherwise would leave every [ICL] in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties.
There is a need on the part of a [ICL] to retain his or her impartiality, that is, to be fair to all concerned. However, that does not mean he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step.
It would be an intolerable situation if a party could successfully apply to have a [ICL] removed simply because that party perceived that the [ICL] was not “on side” or that the tide was not running in his or her favour.
As Murphy J pointed out in Knibbs at [43]-[45], there will be times when the ICL, acting completely within the bounds of his or her duty and in accordance with their independent, professional opinion, as to what is in the best interests of the children in the case, will say and do things that might very well have the appearance of partiality even, perhaps, to the objective bystander.
The ICL’s duty and obligations do not require, again as Murphy J said in Knibbs at [49], the ICL to act as merely “a benign or ambivalent mouthpiece for competing evidence.”
It is not uncommon for the ICL to make or cause submissions to be made on his or her behalf by counsel that are completely at odds with the position adopted by one parent and completely consistent with the position adopted by the other parent.
The objective bystander might look to that and reasonably consider that the ICL appears to be partial towards one party’s position rather than the other. That does not mean though that the ICL should, on the application of an unhappy parent with whom the ICL is at odds, be discharged from the case.
It will be a matter of considering the evidence presented on each application for the discharge of an ICL to determine if the evidence demonstrates sufficient lack of objectivity and professionalism on the part of the ICL such as to justify his or her discharge.
The mere appearance of partiality to a particular party’s position will not necessarily suffice to warrant the ICL’s removal.
The ICL may legitimately and responsibly say things that are challenging and confronting to the parent in respect of his or her views about parenting and the best interests of his or her children in the particular circumstances of the case, but that does not necessarily mean that the ICL is not acting in accordance with his or her duty in the case.
The ICL might seek from the Court orders completely contrary to orders sought by one or both of the parents. That does not mean the ICL is not acting independently and impartially in the best interests of the children.
GUIDELINES FOR INDEPENDENT CHILDREN’S LAWYERS
Endorsed by the Chief Justice (Division 1) and Chief Judge (Division 2)
of the Federal Circuit and Family Court of Australia and the Chief Judge of the Family Court of
Western Australia.
The Purpose of these Guidelines
This document is intended to provide guidance to the Independent Children’s Lawyer (ICL) in fulfilling their role.
The Guidelines have also been issued for the purposes of providing practitioners, parties, children and other people in contact with the family law courts, with information about the courts’ general expectations of ICLs.
The Guidelines set out these expectations as they relate to children in circumstances where allegations of child abuse and/or family violence are made, children from culturally and linguistically diverse families and communities, children with disabilities, Aboriginal and Torres Strait Islander children, and where applications arise for the authorisation of special medical procedures and other orders relating to the welfare of children.
This is a public document which is endorsed by the Chief Justice (Division 1) and Chief Judge
The Guidelines will be used in the training of ICLs.
Introduction
The role of the ICL is unique. The lawyer appointed to represent and promote the best interests of a child in family law proceedings has special responsibilities.
Decisions in particular cases as to how the ICL progresses the case and how s/he involves the child in the case are ultimately, subject to the statutory requirements in Division 10
Part VII, in the ICL’s discretion.
The ICL is expected to use their professional judgment and skill, subject to any directions or orders of the court. The availability of funding is a practical constraint.
The way in which the ICL acts may not always meet with the approval of the parties or the
child, but this does not mean that the ICL has failed in their professional responsibilities.
Statement of Principles
The appointment of an ICL is one means of giving effect in family law proceedings to the
United Nations Convention on the Rights of the Child, now referenced in the Objects of Part
7 of the Family Law Act 1975, which states that:
“In all actions concerning children, whether undertaken by public or private
social welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration.” (Article3.1)
“States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the
views of the child being given due weight in accordance with the age and
maturity of the child.” (Article 12.1)
“For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body consistent with the
procedural rules of national law.” (Article 12.2)
The role of the ICL
The best interests of the child will ordinarily be served by the ICL enabling the child to be involved in decision-making about the proceedings.
However, this does not mean that the child is the decision maker. Among the factors that indicate the appropriate degree of involvement in an individual case are: the extent to which the child wishes to be involved; and the extent that is appropriate for the child having regard to the child’s age, developmental level, cognitive abilities, emotional state, and views.
These factors may change over the course of the ICL’s appointment.
The ICL is to act impartially and in a manner which is unfettered by considerations other than the best interests of the child.
The ICL must be truly independent of the court and the parties to the proceedings.
The professional relationship provided by the ICL will be one of a skilful, competent and impartial best interests advocate. It is the right of the child to establish a professional relationship with the ICL.
The ICL should seek to work together with any Family Consultant (including a Court Child Expert performing the role of Family Consultant) or other relevant expert involved in the case to promote the best interests of the child.
The ICL should assist the parties to reach a resolution, whether by negotiation or judicial determination, that is in the child’s best interests.
The ICL should bring to the attention of the court any facts which, when considered in context, seriously call into question the advisability of any agreed settlement.
The ICL is to promote the timely resolution of the proceedings that is consistent with the best interests of the child.
The ICL does not take instructions from the child but is required to ensure the court is fully informed of the child’s views, in an admissible form where possible.
The ICL is to ensure that the views and attitudes brought to bear on the issues before the court are drawn from and supported by the admissible evidence and not from a personal view or opinion of the case.
The ICL is expected and encouraged to seek peer and professional support and advice where the case raises issues that are beyond his or her expertise. This may involve making applications to the court for directions in relation to the future conduct of the matter.
The ICL 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.
Relationship with the child
The child has a right to establish a professional relationship with the ICL.
In considering any views expressed by the child and the steps to be taken in a matter the ICL is to be aware: that each child will have different emotional, cognitive and intellectual developmental levels, family structures, family dynamics, sibling relationships, religious and cultural backgrounds; and that children are vulnerable to external pressures when caught in disputes involving their parents.
5.1 Information which should be explained to the child.
When the ICL meets the child, s/he should explain to the extent that is appropria0te for the
child:
the role of the ICL including the limitations of the role.
the court process (including any anticipated interlocutory stages); and
the other agencies that may be involved and the reasons for their involvement.
The ICL is to ensure that the child is aware that information provided by the child to the ICL in some circumstances may have to be communicated to the court, the child’s parents or
other persons or agencies. A strategy should be developed in consultation with any Family Consultant involved in the case and with the child as to the manner in which this is done.
The aim is to minimise the potential for any adverse reaction towards the child.
Despite the inability to guarantee the child a confidential relationship, the ICL should,
however, strive to establish a relationship of trust and respect. This is assisted by explaining the role of the ICL, including:
how the child can have a say and make their views known during the process; that where a child of sufficient maturity wishes to have a direct representative who will act on the child’s instructions, the ICL should inform the child of the possibility of applying to become a part to the proceedings:
the involvement of any report writer, the nature and purpose of the report, the use to which the report will be put, and that all parties will see the report; and
how the ICL can be contacted by the child.
5.2 Limitations of the role of the ICL
The ICL should guard against stepping beyond his or her professional role and should seek guidance from a Family Consultant or other professional when necessary.
While the Family Law Act 1975 and the Family Court Act 1997 in Western Australia provide some basis for a confidential relationship between the ICL and the child, there are ircumstances where the ICL cannot guarantee the child a confidential relationship.
In addition to explaining this limitation at the commencement of the relationship, it may be necessary to periodically remind the child.
It is not the role of the ICL to:
conduct disclosure interviews;
become a witness in the proceedings; or conduct therapy or counselling with the child.
The ICL should be alert and sensitive to the risk of a child becoming over dependent upon him or her and should consider seeking peer or professional advice in responding to such a situation.
The ICL should prepare the child for the end of the professional relationship before the end of the proceedings. They should discuss the fact that the ICL’s role will soon be over, and determine what contact, if any, they will continue to have.
5.3 Children’s views
The ICL should seek to provide the child with the opportunity to express his or her views in circumstances that are free from the influence of others.
A child who is unwilling to express a view must not be pressured to do so and must be reassured that it is his or her right not to express a view even where another member of the sibling group does want to express a view.
The ICL should ensure that there are opportunities for the child to be advised about significant developments in his or her matter if the child so wishes, and should ensure that the child has the opportunity to express any further view or any refinement or change to
previously expressed views.
The ICL must take into account that the weight to be given to the child’s views will depend on a number of factors and is expected to be familiar with case law on the subject.
In preparing to make submissions on the evidence as to the weight to be placed on the views of the child, the ICL may consult with the single expert, Family Consultant or other relevant expert in relation to:
the content of the child’s views;
the contexts in which those views both arise and are expressed; the willingness of the child to express views; and
any relevant factors associated with the child’s capacity to communicate.
The ICL is to ensure that any views expressed by the child are fully put before the court and
so far as possible, are in admissible form. This includes views that the ICL may consider trivial but the child considers important.
The ICL is to also arrange for evidence to be before the court as to how the child would feel if the court did not reach a conclusion which accorded with the child’s wishes.
5.4 Making submissions contrary to the child’s views
If the ICL considers that the evidence indicates that the best interests of the child will be
promoted by orders which are contrary to the child’s views, the ICL is to:
advise the child that s/he intends to make submissions contrary to the child’s views;
ensure that the child’s views are before the court, together with the arguments which promote the adoption by the court of the child’s views;
make submissions which promote the adoption by the court of orders which are in accordance with the child’s best interests;
provide clear and cogent submissions as to why the child’s views do not promote the child’s best interests; and
explain to the child at the conclusion of the proceedings why s/he made a submission that was contrary to the child’s views (if there has not been an opportunity to do so prior to the conclusion of the proceedings)
6. General procedures to be followed when an ICL has been appointed
6.1 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.
6.2 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.
6.3 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.
6.4 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.
6.5 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 the
child 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.
6.6 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.
6.7 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.
6.8 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.
6.9 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.
6.10 At the conclusion of 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.
6.11 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.
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.
.9. Aboriginal and Torres Strait Islander children
In representing Aboriginal and Torres Strait Islander children, there are clear and specific issues that the ICL must consider. Foremost of these is section 60CC of the Family Law Act
1975 that specifies that in considering the best interests of a child, the court must consider the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the
right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order will have on that right.
The ICL should be aware of Article 30 of the United Nations Convention on the Rights of
the Child which states that an indigenous child:
“In those States in which ethnic, religious or linguistic minorities or persons of
indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group,
to enjoy his or her own culture, to profess and practice his or her own religion, or
to use his or her own language.”
In cases involving an Aboriginal or Torres Strait Islander child, the ICL should liaise with an
agency to which they are referred by the Family Consultant, and as appropriate, facilitate liaison between the Consultant or agency with any single expert, family report writer or
other relevant expert retained in the case. This liaison is for the purpose of assisting the ICL to consider the need of the child to maintain “a connection to culture” and how this can
most effectively be achieved in considering the case before the court.
It is important that the ICL be familiar with relevant judgments, articles and reports in
relation to indigenous issues, in particular the April 1997 report of the Human Rights and
Equal Opportunity Commission “Bringing Them Home”, which is the report of the National
Inquiry into the separation of Aboriginal and Torres Strait Islander children and their families.
To effectively represent the interests of any indigenous child the ICL must have a clear
understanding of the importance of the indigenous child’s “connection to culture” and to
understand the means by which this connection can be maintained and enhanced in the
context of the case before the court.
The ICL also needs to consider the broader community and extended family support available to the child in recognition of the important role played by extended family members in the raising of indigenous children. 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 child’s broader family and cultural group.
In obtaining an expert’s report, the ICL should inquire as to the report writer’s training and
experience in working with indigenous families and their capacity to relate to indigenous families in a sensitive and appropriate manner prior to allocating the report to that individual. The ICL must be satisfied that the report writer has the necessary training,
knowledge and experience to produce a report that comprehensively covers (amongst
other matters) the cultural issues pertaining to the case. The single expert, Family
Consultant or other relevant expert retained in the case may assist with adducing this evidence before the court.
Children with disabilities
Particular sensitivity is needed to ensure that children with physical, intellectual, mental and/or emotional disabilities can participate in the decision-making process involved in the
proceedings to the extent of the child’s abilities and wish to participate.
The ICL should be aware of Article 23 of the United Nations Convention on the Rights of
the Child which states that:
“States parties recognise that a mentally or physically disabled child should enjoy a
full and decent life, in conditions which ensure dignity, promote self-reliance and
facilitate the child’s active participation in the community.”
(Article 23.1)
The ICL will be assisted by liaison with the existing specialist supports to the child in
ascertaining the child’s capacity to communicate his or her views, how the expression of
such views can be facilitated, and any other relevant needs the child may have.
In obtaining an expert’s report, the ICL should inquire as to the report writer’s training and
experience in working with children with disabilities prior to allocating the report to that individual. The ICL must be satisfied that the report writer has the necessary training,
knowledge and experience to produce a report that comprehensively covers (amongst
other matters) the disability issues pertaining to the case. The single expert, Family
Consultant or other relevant expert retained in the case may assist with adducing this evidence before the court.
Special medical procedures and other parens patriae/welfare jurisdiction cases (section 67ZC)
The principles stated above apply so far as sterilisation and other parens patriae/welfare
jurisdiction cases are concerned.
In special medical procedure cases, a primary duty of the ICL is to present to the court expert evidence to assist in a determination of whether or not the child in question is Gillick.
competent.
The ICL should be familiar with cases in which the Full Court has dealt with the issue and
also of applicable court guidelines and protocols relating to special medical procedures.
Where the evidence indicates that a child is Gillick competent, the ICL should list the matter for the court to determine whether the child is to be given an opportunity to present his or
her own case to the court.
Where the evidence indicates that a child is not Gillick competent the ICL cannot consent
to the proposed procedure. The ICL should ensure the matter comes before the court as
quickly as possible.
The parens patriae/welfare jurisdiction is not an adversarial jurisdiction. The ICL is to gather and file material indicating what options are available to the court and make submissions about the benefits and detriments for the child of each available option.
Family Consultant
Family Consultants have qualifications in psychology or social work and work within the court to assist and advise people involved in the proceedings, to assist and advise courts, to give evidence about the proceedings, to help people involved in the proceedings to resolve their disputes, to provide reports to the court and to advise the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which people involved in proceedings can be referred.
Family Violence Best Practice Principles
The family law courts have acknowledged that there are many circumstances where families are attending court where violence is a factor. To assist parties in the resolution of
disputes, and to promote the safety of litigants, the Federal Circuit and Family Court of
Australia and the Family Court of Western Australia have articulated policies to guide litigants, practitioners and others of the approach taken by these courts in circumstances of family violence.
Gillick Competent
Before a child reaches the age at which he or she could consent to medical treatment under
the relevant legislation, the child may be lawfully competent to consent to at least some procedures. This depends on whether the child is a ‘mature minor’ under the Gillick test, a
test which was approved by the High Court of Australia in 1992. This means that the person has ‘achieved a sufficient understanding and intelligence to enable him or her to
understand fully what is proposed’.
Treatment may be provided to a child if the parent or guardian consents or, if the child
consents and (a) the medical practitioner is of the opinion that the child is capable of
understanding the nature, consequences and risks of the treatment and that the treatment
is in the best interests of the child’s health and wellbeing, and (b) that opinion is supported by the written opinion of another medical practitioner who has examined the child.
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