The Family Law Amendment Act of 2023 introduces new obligations for Independent Children’s Lawyers (ICLs) in parenting matters, aiming to represent the child’s best interests and provide an independent viewpoint regarding their optimal parenting arrangements.
Key provisions under the amendments now mandate that an ICL must personally meet with the child or children they represent, providing the children with an opportunity to express their views related to the proceedings.
Previously, an ICL had discretion on whether to meet the children personally, leading to reliance on reports prepared by Court Child Experts or private family report writers to convey the child’s perspectives impartially.
- Exceptions to this new requirement include situations where:
- A child is below five years old (unless deemed appropriate).
- A child declines to meet the ICL or express their views.
- Exceptional circumstances exist, such as risks of physical or psychological harm to the child, which would prevent the meeting or adversely affect the child’s wellbeing. The Court must confirm these exceptional circumstances before making a final order.
The ICL retains discretion regarding the timing, frequency, and method of engaging with the child, subject to Court orders.
Importantly, if the child expresses views pertinent to the proceedings, the ICL is obligated to present these views to the Court, unlike previous discretionary practices.
Notably, the amendments do not provide for a Court Child Expert or private family report writer to be present during the ICL’s meeting with the child or for the child’s views to be conveyed through these professionals.
While these amendments are geared towards prioritising children’s interests in parenting proceedings, practical challenges may arise in their implementation. Disparities in ICL availability and funding across different states and territories could impact execution. Additionally, children might choose not to express their opinions strongly to the ICL due to concerns about the consequences of their views being presented to the Court and their parents.
However, this issue isn’t new, as Court Child Experts and family report writers have typically advised children that expressing a view is not mandatory.
Observing how these new requirements unfold in parenting proceedings involving ICLs will be crucial.
For guidance on parenting matters or further clarification on ICL obligations, consulting our experienced family & relationship law team is advisable.
Remember, the information provided here is general and should not substitute specific legal advice. No liability is accepted for any losses incurred due to actions taken or refrained from based on the material published.