These days the main complaint mums and dads have about family court proceedings involving their children is the way the Independent Children’s Lawyer (ICL) is involved, and the perceived biased opinions they have about important issues like how co-parenting is to be managed.

And when it comes to your kids, ICLs carry a lot of sway in the courts, so it’s important to check and see whether yours is behaving appropriately and abiding by the guidelines that were set up back in 2013 and endorsed by the Chief Justice of the Family Court and Federal Circuit Court of Australia.

Before I begin, I’d like to share a little story about an ICL I use to know whose name shall remain sealed behind these lips.
Firstly, ICLs in many cases are often just normal lawyers often working in suburban firms with enough ‘kilometres on the clock’ to be considered “worthy” of being appointed by the court to act in that role.
Sometimes, ICLs work for legal aid and that work is just part of the mix of what they do.

But let’s go back to my ICL from the local law firm, and by god there are an awful lot of them with only this background.
Firstly, you have to remember that being an ICL isn’t their day in day out work and indeed may constitute just a small percentage of their already overburdened week with a dozen other clients and cases. And with that, they are often time poor and very hard to get a hold of when an anxious parent needs something clarified, or a decision explained.

The ICL I knew was regularly subject to formal complaints from both lawyers appearing for parents, and from self representing mums and dads. This person would often talk off the record about how they had a personal dislike for one of the parties lawyers or one of the parties. They would describe anxious and frustrated parents in very unkind terms like “neurotic”, “demanding”, “dangerous”, “deadbeat”, “promiscuous” and “useless”. And when you think about it, this is the person that is suppose to prepare non biased reports to the court so important decisions can be made about parenting.

Additionally, his reporting was often exaggerated, and as such, not accurate. Reading these reports made me wonder whether he understood that he was appointed to represent the best interests of a child in family law proceedings. To be honest, at times this average suburban lawyer seemed to be getting off on the power trip that came from making recommendations about a child’s future relationship with both their mum and dad. Time and time again the inaccuracies and bias in his reports reflected that.
But at least he got to be “king” for a day hey?

The Role of the ICL

So what are these court appointed lawyers meant to do?
Section 68LA of the Family Law Act regretfully provides the usual murky waters and vagueness to guide us.

Let’s take a look.

68LA (2)  The independent children’s lawyer must:

                     (a)  form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and

                     (b)  act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.

On first reading it almost sounds like the ICL gets to decide what is in the best interests of the child but that wouldn’t be right because the law is also pretty damn clear on what the best interests of the child are all about. And the primary consideration here is the benefit to the child of having a meaningful relationship with BOTH of their parents.

Naturally, the law also clarifies that where violence and abuse are prevalent, that can be overridden.

The law then goes on to state that:

68LA (3)  The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

Again it all seems so subjective. How can a ICL, who usually has no professional skills beyond the law decide on parenting outcomes? And the one I know would say, “well there’s a report from the family consultant and they met mum, dad and the kid for an hour so that’s what I’ll make all my recommendations for the child’s immediate future on”.
Good lord is it any wonder parents are up in arms about these flimsy processes about deciding their child’s future?

The law also reminds us of something very important about the ICL and their role and duties:

 68LA(4)  The independent children’s lawyer:

                     (a)  is not the child’s legal representative; and

                     (b)  is not obliged to act on the child’s instructions in relation to the proceedings.

Yep that’s right they are NOT the child’s lawyer, and although they are suppose to meet with kids who have reached school age, they don’t have to apply any regard to what a child might want.

Specific duties of ICLs to be impartial often are not done…

 68LA(5)  The independent children’s lawyer must:

                     (a)  act impartially in dealings with the parties to the proceedings; and

                     (b)  ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

                     (c)  if a report or other document that relates to the child is to be used in the proceedings:

                              (i)  analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

                             (ii)  ensure that those matters are properly drawn to the court’s attention; and

                     (d)  endeavour to minimise the trauma to the child associated with the proceedings; and

                     (e)  facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

Well we all know that much of the above in the way it is worded, leaves open the opportunity for overworked or power hungry ICLs to  steer towards subjectivity and personal bias.
One thing I would note is that it’s a rare day indeed when an ICL actually “facilitates an agreed resolution of matters at issue in proceedings”.

So how should an ICL behave?

How can a court appointed lawyer on a limited budget and a low hourly rate put the time into this sort of complex work of getting two warring parties at court to put together consent minutes. That is a substantial task and I don’t think I have ever seen an ICL achieve it. When in doubt, a good ICL should refer to what the court has set out as a guideline for appropriate behaviour.

♦ Be truly independent of the court and the parties
♦ Act impartially
♦ In professional relationships be skilful, competent and an impartial best interests advocate
♦ Work with family consultants to ensure the best interests of the child (no subjectivity)
♦ Promote a timely resolution of proceedings consistent with best interests of the child
♦ Assist both parties to reach a resolution by negotiation… or judicial determination

The sad thing is that the system is broken and many good ICL’s don’t have the resources or funding to get negotiations on foot, so that agreed outcomes can be worked out.
For the bad ICLs, the work they do ends up being nothing more than a regular cash cow where time is only spent as per dollar allocated and often with bias and subjectivity.
These ones should frankly be shown the door.
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Working out what is in the best interests of the kids

Much of family law in Australia is based on doing what is in the best interests of the children.

So what exactly does “the best interests of a child” mean? You might think it means one thing, while your former spouse might think it means something entirely different. As a lawyer, I see this this quite a bit!

To set your minds at ease and to guide you, the Family Law Act tells you exactly what this vague expression means.

Best interests of the child are primarily:

• The benefit to a child of having a meaningful relationship with both parents.

• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

But additionally they are also:

• Any views expressed by the child. (Particularly as the child gets older eg. teens)

• The nature of the child’s relationship with parents and others, including grandparents.

• The extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time with the child and to communicate with the child.

• The extent to which each parent has fulfilled his or her obligations to maintain the child.

• The effect on the child of any changes in the child’s circumstances.

• The practical difficulties and expense involved in spending time with and communicating with a parent, and the impact on a child of maintaining personal relationships and direct contact regularly with both parents.

• The capacity of each parent and others to provide for the child’s needs. (Poor mental health could be an issue here)

• The maturity, sex, lifestyle and background of the child and parents. (Immaturity, drug use etc. come in to play here)

• The child’s right to enjoy Aboriginal or Torres Strait Islander culture, where relevant.

                
• Each parent’s attitude to the child and to parenting.

• Any family violence involving the child or a member of the child’s family. (This is very important)

• Any family violence order. (Very important again)

• The desirability of making the order that is least likely to lead to further proceedings.
(Here the court tries to play fair with orders so it won’t see the two of you again. But that sometimes is a big misjudgement!)

• Any other fact or circumstance the court thinks relevant.

It’s a lot to take in. The most important or primary things to consider are ensuring your child has a meaningful relationship with both of you and is protected from any violent or potentially violent and/or abusive situation. You can probably guess that the law considers violence and abuse prevention is the most important thing to get right when it comes to your kids.

Separating parents usually understand most of these considerations and work out between themselves how their children will be looked after and where they will live without the courts becoming involved and imposing conditions. I can assure you if you can do this by putting aside your feelings about each other and not treating the kids as pawns you will be well on your way to a hassle free divorce.

Coming to an agreement

Now there are 3 different ways both of you can come to an agreement:

1  A Simple Informal Agreement

♦ Keep the agreement informal by simply coming to an understanding between the two of you as to what will work best for the kids. If you can do this there’s no need to put things in writing.

2  A Parenting Plan

♦ Make a formal parenting plan. This is an agreement in writing made, signed and dated by both parents. The plan deals with parental responsibility; who the child lives with; who they spend time and communicate with; what child support might be involved and other issues. Take a look at the parenting plan info to find out more.

The great thing about a parenting plan is that you don’t need to go to court to get this organised. But it’s important to remember that a parenting plan is not valid unless it was made voluntarily, without any threats, duress or coercion.

As parents you should normally only sign a parenting plan after seeking advice from a lawyer. I say this because a lawyer or experienced legal drafter (lawyer-drafters are much cheaper) has probably done a parenting plan many times prior to seeing you and they can often pinpoint things that may not occur to you to include in your plan.
For example, you might want special days like your birthday to always be a day when you can see your kids. This is good to have in the plan as it may not be your turn to have the kids when certain special days occur.

And always keep in mind those “best interests of the child” considerations when developing your plan.

3  Obtaining Consent Orders

♦ A more official way to sort out your parenting plans if you are both in agreement is to obtain consent orders approved by a court. A consent order is a written agreement that you both agree to that covers parenting arrangements for children. It can also include financial arrangements such as property division and any maintenance requirements that might be needed. Not following consent orders can have serious consequences and you may need to explain to a Judge why you breached the orders that you agreed to.

This is because consent orders have the same legal effect as if they had been made by a judicial officer after a court hearing. It is a document you would both prepare in consultation with your lawyers who will then come up with a single agreement you are both in favour of and send it to the court for approval. Normally you shouldn’t need to appear in court for these orders.

And once again, the court must be satisfied that the orders you ask for are in the best interest of the child.

Here’s a fact sheet on applying for consent (and other) orders from the court.

When you can’t seem to work things out

Sometimes despite giving it your best shot, it may be difficult to reach an agreement (or a fair one) about what will happen with the kids. You might also not want to negotiate with your ex if there could be the possibility of endless arguments or even worse, violence.

If you’re in this predicament you can apply for a parenting order.

But not so fast because there is a process you must go through before the court considers issuing orders about how the kids are to be parented.

The Family Law Act (aka ‘the law’), requires you to obtain a certificate from a registered family dispute resolution practitioner before you file an application for a parenting order. It’s called a 60I certificate.
Family dispute resolution can be done through any accredited family dispute resolution practitioner or Family Relationship Centre.

How family dispute resolution works

Firstly, before any family dispute resolution (FDR) takes place, you are assessed to see if the service is right for your case. Usually, the two of you are interviewed separately to see if FDR is going to work.

The process is conducted by an accredited family dispute resolution practitioner who can help you both discuss any issues you have and how from that you might be able to work out an agreement with a parenting plan.

Finally, it is comforting to know that any FDR discussions you have are confidential and can’t be used in court against you.

So in summary

♦ If you try FDR and it doesn’t work out, or

♦ If your ex did not attend FDR due to the refusal or failure, or

♦ If one of you doesn’t attend FDR because the practitioner did not consider it would be appropriate to conduct FDR…

You still get your 60I certificate, which must accompany your application for a parenting order.
This is what the certificate looks like

There are several important exceptions where you won’t need a 60I certificate including:

♦ If the matter is urgent.

♦ If the Court is satisfied that there are reasonable grounds to believe that there has been child abuse and/or family violence by a party.

♦ There is a risk of family violence by one of you, and/or there is a risk of child abuse if there was a delay in applying to the Court.

♦ Where one of you can’t participate effectively in family dispute resolution for reasons of incapacity, illness or simply living too far away from a dispute resolution practitioner.

♦ If your application relates to an alleged contravention of an existing order that was made within the last 12 months, and there are reasonable grounds to believe that the person who has allegedly breached the order has betrayed in a way that shows a serious disregard for their obligations under that order.

What does the court consider when issuing parental orders?

Let’s start by looking at some big misconceptions about how the court makes decisions.

◊ Firstly, women don’t always get the kids. In fact the latest court statistics show that judges made orders for children to spend a majority of their time with their mother in only 62% of cases.

◊ Secondly, the person who initially leaves the relationship and the children may still be able to care for the children in the future. There are all sorts of reasons why people might have to leave initially, and the court will assess the circumstances behind anyone leaving and not just make simple and biased decisions.

◊ Thirdly, blaming the relationship breakdown on one person and then saying that they shouldn’t get the kids means very little to the court. The court doesn’t want to know about the ‘ins and outs’ of your personal relationship. It’s whether a parent’s behaviour affects the children is much more relevant.

◊ Finally, neither of you are necessarily entitled to 50:50 equal time. The court will look at what is in the child’s best interests, and issues of practicality.

In essence, a parenting order is a court order that states who has what responsibilities for the children. These orders cover areas like who the kids live with and who (and when) they spend time with. In the parenting orders there may be reference to where and how the kids are schooled and other things of relevance to their care, like their special needs or medical treatment.

For more detailed information on parenting orders take a look at this great brochure from the Victorian Legal Aid HERE.

Am I entitled to child support?

Regardless of whether or not you’re married, you’re entitled to support from your former partner if you jointly care for a child. We have a great section on child support HERE. The Department of Human Services also has information about child support HERE.

Did you know?
The court may not grant you a divorce if you both haven’t made proper arrangements in all the circumstances for the care, welfare and development of your children who are under 18.

If the court doubts that these arrangements have been made the proceedings in your divorce application may be delayed (adjourned) until the court receives a report from a family consultant regarding those arrangements.

So get those details right for your under 18’s.

Oh… and for those 30 something ‘children’ you still might have at home, for heaven’s sake show them the door and set them free!

For free legal information – check out our resources section HERE.

NEED ASSISTANCE IN YOUR FAMILY LAW MATTER?

If you need help with your family law matter please let us know.
We know full service lawyers are very expensive and so The Legal Eagle team offers self representing mums and dads low cost legal services in a wide range of areas. Led by experienced family lawyer and legal drafter Mark Bradbury, we’ve shown our wonderful clients for over 7 years that you CAN manage your legal matter… without running up ridiculous lawyer fees.

For further information please contact our wonderful paralegal Abbey at abbey@TheLegalEagle.com.au
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Growing up in the 1970s, I was a pretty opinionated kid and indeed some of those older and taller folk around me would have said you just couldn’t shut me up. A tiny pioneer for kids in an age where children were mostly seen and not heard. I remember with sadness and much melancholy my parent’s divorce in 1975, a mysterious event that I had little say in, and where no counsel was sought from me about what my best interests might be.

Has much really changed?

When Australia ratified the United Nations Convention on the Rights of the Child (UNCRC) in 1990, it accepted that children would enjoy the rights set out in it. Included in these rights are that where a child is involved in and affected by any judicial proceeding, that child should be given the right to freely express their views and that age in itself is no barrier to a child having full participation in any judicial process.
However, in Australia the views of children still remain secondary. Children’s views are hampered by legislation that treats their input as not a primary but rather an additional consideration; a common law centred around predictability and precedent; and a judiciary reticent about hearing children’s views.
 Professor Lawrie Maloney notes that children are not passive recipients of our wisdom, but active constructors of their own worlds, and with this in mind a move is needed beyond the “best interests” rhetoric, to legislation and family court processes that better reflect the inclusiveness of children.  
Paradoxical  positions on children’s views
When it comes to protecting a child’s rights, the UNCRC makes it clear that governments have a responsibility to take all available measures to make sure children’s rights are respected, protected and fulfilled.
However in contrast to this, the UNCRC also recognises the interdependence of parents and other family members in mediating a child’s level of functioning. It states that governments need to respect the rights and responsibilities of families to direct and guide their children so that as they grow they learn to use their rights properly.
For legislators the paradox was set, children must have a right to be heard but the role of parents in directing and guiding their children must also be prominent.

In reviewing the current legislation concerning a child’s right to be heard, a familiar pattern emerges ensuing that children’s views are secondary ones. For example, a child’s view in family law proceedings is not a primary consideration but rather an additional one, that is overshadowed by a necessity for the child to have a meaningful relationship with both parents.A child who doesn’t wish to have this “meaningful” relationship would find its objection a secondary one in the eyes of the court. But this was not always the case under an earlier version of the Family Law Act (FLA), where a child’s wishes were first in the list of things the court had to take into account. (The long amended s 68F(2)(a)).
The court must consider:
any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes.
It is also interesting to note that Part VII of the FLA’s objectives and principles regarding children fails to mention any right of a child to express themselves in family court proceedings, which clearly goes against the child’s right under the UNCRC.  This section’s main emphasis is on promoting relationships between parents and protecting children from harm.

Family Consultant Reports Rarely Indicate A Child’s View

The primary way the views of a child are presented to court is via a family report. However, as Dr Robyn Fitzgerald and Professor Anne Graham have commented, the participation of a child in such a report must be looked at in terms of the legislative pathway the courts take to arrive at parenting orders.
As such, the primary considerations of achieving meaningful relationships with both parents and protecting the child from harm predominate. Additionally, children are given no opportunity to provide input on the amount of time they may or may not wish to spend with each parent. And if you find this hard to believe, have a look at sections 65D-DAA of the FLA.

At this circus, no room for the kids…

Although the FLA encourages parents in reaching agreements to have regard to the best interests of the child, there is no direct input offered to the child apart from a diluted version of their views written by a family consultant. The report should mention the child’s views but the recommendations must represent the child’s best interests.

The lawyer with no client – welcome to the fuzzy world of the ICL

In a small number of cases the court may also appoint an Independent Children’s Lawyer (ICL) to represent the best interests of the child. The ICL must ensure relevant views of the child are put before the court. However, the ICL is neither the child’s legal representative nor is obligated to act on the child’s instructions during proceedings. In fact it is better to think of the ICL’s client as the Family Court, because a child has no right to dismiss an ICL if they are unhappy with any representations made.
Parallel this with New Zealand’s Family Court where a child can be provided with a lawyer who will act as “lawyer for the child” and not, as in Australia, for the child’s best interests.

Reluctant Judges?

It seems that in light of the legislative restrictions placed on the input and involvement of children, the “less adversarial trial” (“LAT”) model introduced to make child proceedings in the Family Court more child focused and flexible, is akin to a cart without a horse.  The paradox of common law authority in Harrison v Woollard, where the Full Court stated that “a child’s wishes must not only be considered, but must be shown to be considered in the reasons for judgement”, pales in significance to the paramount aim of the court to apply the two FLA primary considerations. Furthermore, in the principles the court must give effect to in conducting child related proceedings, having regard to the child’s views receives no mention.
It’s important to note that the family law rule regarding interviewing of a child in family law proceedings by a judge was removed by the Family Law Amendment Rules 2010.  Perhaps an indictment to the fact that research by Dr Michelle Fernando has shown that most Family Court Judges have never actually met with children in parenting disputes. This reluctance still lingers despite Richard Chisholm, a former Judge of the Family Court, stating that it is important for children’s views and experiences be heard by the judiciary.

Letting the kids speak up

This desire of children to express their views rather than have them filtered via social workers, psychologists and ICLs has been accepted and appropriately legislated for in countries like New Zealand and Scotland.
For example, the Care Of Children Act 2004 (COC) in New Zealand states that children must be given opportunities to express their views and these must be taken into account. The COC also requires a lawyer acting for the child to explain parenting orders in a language that the child understands. Peter Boshier, the former Principal Family Court Judge in New Zealand noted that the COC gives the Court a less adversarial model that offers “a realistic view of the child’s view and for the child…a meaningful way to participate”.
Contrast this with the expressed disapproval of  Australia’s recent Family Court Chief Justice to the practice of judges ascertaining children’s views. [Here I refer to former Chief Justice Bryant commenting in The Australian article , ‘Judges Urged to Talk to Kids in Family Disputes’ ] 
However, when Australian judges do listen to children they find it very helpful when making decisions about parental orders and custody as was shown in ZN v YH and Child Representative.  Indeed, as the New Zealand model has shown, the key to fostering a child inclusive family law proceeding is to not pretend that there is this magical commodity called the “best interests of the child” that must be in the forefront of judges, lawyers, and parents minds, and instead develop a less adversarial model that takes the time to listen to and understand children in their own unique way. 
Solutions
Children can only feel comfortable expressing themselves when they are offered an environment that helps them cope with the bereavement and change they endure when their parents decide to separate. The current legislation and the common law processes fail to fully comprehend this.
Dr Robyn Fitzgerald notes that a move is needed towards a national framework for children’s participation in family law processes. In this framework, the key is to both conform with the UNCRC and elevate children’s views to an object and principle of the Family Law Act and a primary consideration in section 60CC(2).

So how do you get the child’s voice heard?

The current Less Adversarial Trial (LAT) model, whilst being more flexible and child-focused, still does not specifically encourage the participation of children.
In addressing this, judicial meetings with very young children might involve the judge interacting in “toy play” in the company of a child psychologist helping to interpret the child’s views. For an older child, it may simply be getting an invitation to speak freely with the judge in an environment that lacks the formality of chambers.
Judges must also be given  training and guidelines to help facilitate a child’s views being heard and understood.  As a prerequisite to this, the FLA needs to be amended to create a pathway so that family law proceedings and judges can embrace this. It is important that judges and children both feel comfortable with the process.

It is children who are the victims of their parent’s disputes and eventual separation, and it is essential that the courts and all the players pay them the recognition and respect they deserve by giving them a voice. The great logic in fostering this inclusiveness, according to Professor Judy Cashmore, is that children’s views have been proven to lead to better decisions and happier workable arrangements in family law proceedings.

So I guess they were right all those years ago, you just can’t… and shouldn’t shut the kid up.

Other helpful reads from The Legal Eagle…

What happens to my kids when I separate or divorce?

The secrets that help to win family law cases

What happens when kids only want to spend time with one parent?