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Independent Children's Lawyers - Who's telling the Truth ?

July 29, 2015

 

What a gig for a Judge dealing with a contested Parenting matter. Mum says "The Sky is Blue !" - Dad says "The Skye is Black" - Mums new partner says "The Father would not know the Sky if it bit him on the butt" - The Fathers new Boyfriend says "The Father knows best and is now off drugs" - the Aunt says "The Father is not on drugs as he drinks too heavy to be able to do so" - "Blah Blah Blah"

 

All to often Parenting matters in the Family Court (Federal Circuit Court) turns into a dark Boradway musical without the childrens voices being heard. Thank God for the Independent Childrens Lawyer the unsung hero (potentially, at least) of a very fractured and overburdened branch of the Law.

 

An ICL can often be the only voice in the proceedings which actually achieve the Human Right of the Child to be heard in the proceedings and to be informed about the proceedings (impartially). How can a court determine the truth of competing versions of reality ? Well a properly experienced and trained ICL can:

 

i. speak with the Child and seek the childs views directly;

ii.liaise with and recommend experts

iii. advise the court of furture directions deemed appropriate for the Court to fullfill its very difficult function

iv. Be an honest broker in proceedings seeking to have parties come to an agreement in the interest of the Child; and

vi. be an out of court "ears and eyes" on the rights of the child, gathering evidence by Subpena and other means to allow the Court to be fully appraised.

 

In many ways an ICL is akin to Counsel assiting in a Coronial Inquest whos function is to gather the evidence and inform the Court, not as an investigator but as an Officer of the Court well schooled in its proceesses ensuring that all necessary evidence (from other sources) is provided to fully inform the Court. And one of the most important functions of an ICL is to form a view and to make submissions in the best interest of the Child, just as in a Coronial Inquest where Counsel assisting will make formal submissions as any other lawyer will do at the Bar Table on behalf of the Public.

 

While ICL's are often complained about as they invariably:

 

a. will be seen to be putting a position which may favour one party or another;

b. operate on crumbs of financial and other resources (unlike the privately funded practitioner next to them acting for a party who may be being paid in the many tens of thousands to final hearing the ICL recieves Legal Aid funding which is a mere fraction of the fee they would command in commercial legal practice with their training and experience (not to mention the stress of the high stakes in acting for a vulnerable child in contested proceedings).

 

We should all thank God (or our "Lucky Stars" depending on your faith) for the ICL

 

Extracted below is some information on the ICL in parenting proceedings from the Legal Aid Website

 

Legal Aid NSW provides specialist representation for children in both the family law and care and protection jurisdictions.

In the family law jurisdiction, Independent Children’s Lawyers (ICLs) are usually appointed by the court upon application by one of the parties or of its own motion where one or more of the following circumstances exists:

  • There are allegations of abuse or neglect in relation to the children.

  • There is a high level of conflict and dispute between the parents.

  • There are allegations made as to the views of the children and the children are of a mature age to express their views.

  • There are allegations of family violence.

  • Serious mental health issues exist in relation to one or both of the parents or children.

  • There are difficult and complex issues involved in the matter.

 The main functions of the ICL include:

  • arranging for necessary evidence, including expert evidence, to be obtained and put before the court

  • facilitating the participation of the child in the proceedings in a manner which reflects the age and maturity of the child and the nature of the case

  • acting as an honest broker between the child and the parents and facilitating settlement negotiations where appropriate

When orders are made in the Family Court or Federal Circuit Court for the independent representation of a child or children Legal Aid NSW is asked to make arrangements for the assignment of an ICL to the matter.

 

Legal Aid NSW currently has a large number of in-house solicitors who have completed ICL training through the Family Law Section of the Law Council of Australia. In addition to the in-house specialist ICLs Legal Aid NSW has a panel of private practitioners who have completed the specialist ICL training and satisfied Legal Aid NSW that they have the appropriate experience and expertise to be included on the ICL panel.

 

All Legal Aid NSW ICLs are committed to ensuring that children have a meaningful voice in proceedings and that their rights and best interests are protected.

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