Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 22 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
Working out the parenting arrangements after the breakdown of a relationship is not always easy. Parents who are in conflict with each other may find it hard to put the best interests of their children at the forefront of their decision making.
The Family Law Act recognises that there are times when the children need to have their own legal representation in a case about the future arrangements for their care.
What is an Independent Children’s Lawyer?
An Independent Children’s Lawyer or “ICL” is a lawyer who is appointed by the Court to represent the children’s interests in the Court proceedings. The ICL does not represent the child personally, but rather the child’s interests in the proceedings.
The Court has a wide power to appoint an ICL to a case if it is considered appropriate or necessary in the circumstances.
For example, an ICL may be appointed if the parents appear to be entrenched in the conflict with little hope of a resolution. An ICL may also be appointed where the parents seek Orders that are different to what is being recommended by a Court expert or where there are drug or violence issues.
What does the ICL do?
The role of the ICL is serious, because they are required to independently ascertain what is in the best interests of the child and inform the Court as to why they have formed that view. They do this by looking at all of the evidence in the case.
They will make submissions to the Court about what they consider to be in the child’s best interests. They will tell the Court about any views or opinions expressed by the child that are relevant to the issues to be decided.
Because the ICL does not act for the child directly, the lawyer is not obliged to follow the child’s wishes. This could be in circumstances where the child expresses a view that is not followed because the evidence does not support such an arrangement as being in the child’s best interest.
At all times, the ICL must try to minimise the distress of the proceedings on the child and also, where appropriate, try to assist the parties reach a suitable agreement about the issues that are in the child’s best interests.
The help of experts
The Family Law Act recognises that there are complex issues in families. The Courts regularly call on the assistance of Family consultants to report on matters concerning the children’s best interests.
A family consultant is a social worker or psychologist who is asked to provide a report about the issues in the case and make recommendations about what arrangements are likely to be in the children’s best interests.
There is no confidentiality between the parties and the family consultant. Anything said to the consultant may be included in the report.
There are a number of Family Dispute Resolution practitioners in the local area who are able to assist families to resolve the parenting arrangements out of the court system through mediation without having to go to Court.
Speaking to a solicitor about your options and the issues that concern you is a good place to start as this may help you to work out a realistic proposal that is in the best interests of your children.