When parents can’t agree on what arrangements should be put in place for their children upon separation, those issues are usually brought before the Family Court or Federal Magistrates Court (“the court”). A court order can be issued on a number of matters such as mandating where a child lives, and arrangements for the child to spend time with each parent ,where they must always consider the best interests of the child.
Sometimes, the court may feel that the best interests of the child actually the child to have formal and independent legal representation. In these situations, the court will appoint an Independent Children’s Lawyer for the matter. The costs of this representation are often borne by the parties (depending upon their financial situation and whether they are in receipt of legal aid)..
In this final instalment of our Children and Divorce Series, we examine the role of an Independent Children’s Lawyer and what you should know.
Does my child need a lawyer?
Not all matters that involve a child will require an Independent Children’s Lawyer. Typically, the court will examine the situation and may, as determined by the Judicial Officer dealing with the matter, or otherwise as requested by one or both of the parties, order that an Independent Children’s Lawyer be appointed in cases where:
- There are allegations of child abuse whether it be psychological, physical or sexual or in cases where there are allegations of family violence
- There is a high level of conflict or dispute between the parents
- There are severe mental health issues affecting one or both parents or the child that could affect the parents’ ability to act as a carer
- A child of mature age has expressed his or her wishes to have legal representation in the matter
- An Application has been made by at least one parent to have his or her child’s best interests represented. The parent making the request will have to provide a compelling reason as to why independent counsel for the child is required.
The Independent Children’s Lawyer will be appointed by LegalAid and the costs will be met usually by the parties, depending upon their financial situation.
What is the role of the Independent Children’s Lawyer?
When appointed, the Independent Children’s Lawyer will be responsible for representing the best interests of the child. He or she will collect information about the situation, often by asking for an independent family report as well as by speaking with teachers, counsellors or other professionals that are involved in your child’s life. The lawyer may meet with and consult with your child, but this is not always necessary and a child’s expressed preference is not always a factor.
Sometimes the Independent Children’s Lawyer may arrange a conference with the parents and their legal representatives to address the issues affecting the child. These meetings can sometimes resolve the family law dispute and a mutual agreement can be reached.
Having a child’s interest represented in proceedings can often give parents useful insight and guidance to handle tough decisions. It can help give parents the perspective they need to help see them through a difficult time and move forward.
What do you think about the role of the Independent Children’s Lawyer? What questions do you have?