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The best interests of the child

The best interests of the child

By Georgia Miller

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What young lawyers should know about the role of an Independent Children’s Lawyer in family law parenting proceedings.

Parenting proceedings may be a distressing experience for parties and children alike. Children have a right to have their views known and participate in processes relevant to their care. In many cases, children’s voices are appropriately considered in parenting proceedings by the appointment of an Independent Children’s Lawyer (ICL). An ICL may be appointed in high conflict proceedings, where there are allegations of family violence or drug abuse or serious mental health issues, cases where the views of the child are most vulnerable.
 

The role of a lawyer in hearing children’s views

The paramount duty of the ICL is to represent and promote the child’s best interests. The role of the ICL is to represent the child’s views but to balance this with an understanding that the child is not the decision maker or instructor. An ICL is independent of the court and the parties to the proceeding; they work with the family consultant and other relevant experts to ascertain and promote the best interests of the child. A good starting point is for the ICL to meet the child and ascertain their views. They are required to explain their role, the nature of the court proceedings and the reason for involvement by any other agencies, such as family consultants.
 

The current ICL approach

ICLs are appointed by the court upon application or by a judge’s own motion. When the ICL is appointed, they formally become a party to the proceeding and may request and file documents. Once appointed, the state-based legal aid department will appoint a suitable ICL based on geographic location and complexity of the matter.

The Commonwealth Review of the Family Law System, Issue Paper 48, released in March 2018 (the Review) recognised that the role of the ICL is valued by judicial officers in gathering evidence and litigation management “through which they were seen to bring a child focus to proceedings that may otherwise be lacking”.1 The Review has called for consultation to reform the current child experience. Already, proposals have been put forward such as “the appointment of a children’s advocate,2 or the development of a model of representation for children that combines legal representation with a therapeutic/clinical approach”.3 This will no doubt be a hotly contested topic when the Review hands down its final paper.
 

Some key considerations for young lawyers

Young lawyers looking to apply for ICL accreditation should register their interest on the National ICL website (www.icl.gov.au) and keep an eye out for the new ICL training program (yet to be released at the time of publication).

Young lawyers who are considering becoming an ICL must be prepared to sometimes make submissions contrary to the child’s views (albeit in the child’s best interests) and be able to explain this to the child.

Sole practitioner Sarah Lia has been an ICL for 21 years. Ms Lia enjoys the forensic aspect of the work including issuing subpoenas to obtain information, some of which can be critical to the running of the case. Ms Lia’s advice for young lawyers seeking to become an ICL is “work on as many parenting matters as possible. Spend some time in the Children’s Court, visit your local contact centre, join the Family Law Pathways Network in your area and read widely about modern parenting, child development and any other issue that can impact upon the child”.

Young lawyers should bear in mind that acting as an ICL can be a professionally challenging and rewarding experience for lawyers seeking to add another dimension to their career in family law. Experience as an ICL may also be useful for young lawyers seeking to become an ICL barrister or mediator in the future.



GEORGIA MILLER is Deputy Associate to Judge Riethmuller of the Federal Circuit Court of Australia.

1. Review of the Family Law System, Issue Paper 48, (March2018) at 82, [259]; citing Rae Kaspiew et al, ‘Independent Children’s Lawyers Study’ (Final Report, Australian Institute of Family Studies, 2013); Felicity Bell, ‘Meetings Between Children’s Lawyers and Children Involved in Private Family Law Disputes’ (2016) 28(1) Child and Family Law Quarterly 5.

2. Note 1 above, citing House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, A Better Family Law System to Support and Protect Those Affected by Family Violence (2017) [6.119].

3. Note 2 above, [6.120]–[6.122].


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