ICL – In 2013 the Chief Justices of the Family Court of Australia, the Family Court of Western Australia and the Chief Judge of the Federal Circuit Court of Australia issued guidelines for Independent Children’s Lawyers, including:
“(4) The role of the ICL
The Independent Children’s Lawyer is to act impartially and in a manner which is unfettered by considerations other than the best interests of the child.
The Independent Children’s Lawyer should seek to work together with any Family Consultant or other relevant expert involved in the case to promote the best interests of the child.
The Independent Children’s Lawyer 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.
(5.1) Information which should be explained to the child
When the Independent Children’s Lawyer meets the child, s/he should explain to the extent that is appropriate for the child:
the role of the Independent Children’s Lawyer 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 Independent Children’s Lawyer 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.
(5.3) Children’s Views
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 Conusltant 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.
(6.3) Consultation between the ICLs and Family Consultant
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
Where parties are legally represented, communication between the ICL and the parties should normally be through the 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.
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 his/her views and details of proposed orders to the parties where possible.
(6.9) Final hearing (the trial)
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 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.
(7) 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 Family Court of Australia, the Federal Circuit 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.”
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