LSB November 2018_Web

FAMILY LAW
The Family Law Act & the
Independent Children’s Lawyer
GRAEME HEMSLEY , FAMILY LAW COUNSEL, LEGAL SERVICES COMMISSION
One of the features of our system of
family law, which sets it apart from
most other jurisdictions, is the Independent
Children’s Lawyer.
Independent Children’s Lawyers (or
ICLs) are appointed under the Family Law
Act 1 in contentious children’s cases in both
the Family Court and the Federal Circuit
Court.
The position has its origins in the
Chancery Division of the High Court in
England, where an official solicitor was
appointed to appear in wardship cases. 2
It is replicated in Care and Protection
matters as well as family law cases and has
been described as having a similar wideranging
role as that of counsel assisting a
Royal Commission 3 .
The role of the Independent Children’s
Lawyer has changed as the Family Law
Act and its jurisprudence have evolved.
Initially ICLs were tasked with arranging a
report for the court (including interviews
with children and the parties), ensuring all
relevant facts were disclosed and making
recommendations. That role has developed
through a series of cases and with
legislative amendments. The role of an
ICL is now closer to that of a lawyer for
the child/children (with some differences.)
Most courts operate on an inter partes
basis i.e., matters are between two or
more parties and the applications of those
parties define the dispute and its outcome.
It is the case with children’s matters before
the Family Court 4 that the applications
of the parties have a role in defining
the dispute. However, there remains a
fundamental difference which epitomises
not just the role of the ICL but the
function of the Courts themselves.
The Family Law Act prescribes that
any dispute is to be determined not by
reference to the applications of the parties
but by reference to the best interests of the
child/children. 5 In this sense the decision
maker has an inquisitorial role which is
enlivened by the applications. This is
reflected in these decisions being described
as discretionary. While there are various
descriptions of an ICL’s role, a simple
summary of the ICL’s role is to assist the
court with that inquisitorial function of
determining the best interests of children.
That is not to suggest that there is no
overlap with the inter partes function which
provides the structure for the court to
operate. A court would not normally need
assistance to determine a dispute between
two parties. An ICL assists the court by
searching out further information, liaising
with the child/children and presenting
the children’s views to the court, as well
as by negotiating between the parties
(particularly where one or both of the
parties are unrepresented) and presenting
creative solutions to the court.
THE APPOINTMENT PROCESS
An ICL is appointed pursuant to S 68L
of the Family Law Act. This does not
occur in every case but occurs typically
where the parties are unable to separate
their needs from those of their children or
where there are serious allegations (eg of
abuse.)
The statutory criterion for determining
if an ICL is required is contained in
sub-section 68L (2) which says that an
ICL should be appointed where a court
considers that a child’s interests should be
independently represented. Any party may
request the appointment of an ICL and
the normal process is to file an Application
in a Case. 6 However the majority of ICLs
are appointed on the initiative of the
judicial officer and to a lesser extent, on
the oral application of the parties. 7
The Full Family Court provided
some guidance as to the criteria for the
November 2018 THE BULLETIN 19