The New Parenting Legislation & Independent Children's Lawyers

The new parenting legislation and the impact on Independent Children's Lawyers.

An Independent Children’s Lawyer (ICL) represents the children in parenting proceedings.  The role of the ICL is to consider the views of the children and provide an objective perspective as to the proposed care arrangements.  The ICL helps the Court reach a decision that is in the best interests of the children. 

The Family Law Act is undergoing significant changes, and the proposed amendments will impact the way ICLs function in parenting matters. 

ICL must meet with the children

The legislation requires the Court to consider the views of the children when determining what is in the children’s best interests.  The amendments will require the ICL to meet with the children they are representing.  The ICL must provide the children with an opportunity to express their views regarding the proceedings, and put the children’s views before the Court. 

The amendment is designed to give children an opportunity to express their views, to ensure those views are properly considered by the Court when making a decision about the children.

It is for the ICL to decide when, how often and where the ICL is to meet with the children.  It may be appropriate for there to be just one meeting (for example, if the children are very young) or for the ICL to hold multiple meetings with the children.  There are some exemptions to the requirement for the ICL to meet with children.  The ICL does not have to meet with the children if the children are very young (under five years of age), or if the children do not wish to meet with the ICL or express their view.   

ICL can be appointed in Hague Convention matters

The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) is an international treaty.  More than 80 countries are signatories to the Hague Convention.  The Hague Convention provides a mechanism for a child to be returned to their home country if relocated without consent.  The Hague Convention also provides a framework for matters where a child is to spend time with parents located in two separate countries.

The amendments to the Family Law Act allow an ICL to be appointed in Hague Convention matters.  It was previously difficult to have an ICL appointed in these matters, with ICLs only appointed in “exceptional circumstances”.  The amendment recognises the complexity of Hague Convention matters, and will ensure the children’s views are properly understood.

How is an ICL appointed?

An ICL can be appointed by the Court in a variety of circumstances including where:-

• There is a high level of conflict in the matter;
• There are allegations of family or domestic violence;
• The matter is complicated;
• There are allegations of neglect, violence or abuse;
• The child, or parent/s, suffer ill mental health; or
• There is evidence the child has expressed a view as to the care arrangements.

The Court can appoint an ICL on their own initiative, or on application of a party in the proceedings.

Further information

Should you wish to discuss your parenting matter, including whether an ICL is able to be appointed, please contact our office on (07) 4963 2000.