Published: 18 December 2017
Author: Ryan Carlisle Thomas

Independent Children's Lawyers are invaluable in high conflict cases

Sadly, family law spikes for our firm from October through to around February.

Clients tell us that the close of the year and the prospect of a New Year is often the tipping point and catalyst for change.

Some of these end of year cases are fraught with conflict and clients seek legal counsel as both parties stand their ground and are not willing to negotiate. The matters of divorce conflict tend to fall into two camps – property or children.

By the nature of property settlement, there are some clear black and white guidelines to follow, but arrangements for the children can be a greyer area where emotions run high.

Our approach to family law

In every case, we encourage clients to try and settle matters on their own and to do their utmost to stay out of court.

In most cases we can help parties negotiate arrangements with one another or with the lawyer from the other side and matters are resolved.

In five per cent of cases that proceed, matters proceed to a final hearing or a final trial which is the final stage of the court process. Some of these cases are so complex that an Independent Children’s Lawyer (ICL) is appointed to represent the interests of the children.

While I am not trained nor practice as an Independent Children’s Lawyer, I embrace working with an ICL as it adds a valuable insights and perspective to the case which assists with negotiations. In complex cases involving parental drug use or mistreatment of children or concerns about the welfare of the children, an ICL can be critical.

Sometimes in family law the court will ask Victoria Legal Aid to appoint an Independent Children’s Lawyer which are Government funded and means tested. This is what was once called ‘the child representative’. The ICL helps the court decide what arrangements are in the best interests of the child or children. The court can make an order allowing the lawyer to find out the child’s views.

The role of an Independent Children's Lawyer

According to Victorian Legal Aid, the role of a lawyer is as follows:

• Decide what they think about a child’s welfare and best interests, based on evidence in the case
• Act in a way that they believe is in the child’s best interests
• Ask the court to take action, if the lawyer believes it is right to do so
• Be completely independent (this is called acting ‘impartially’)
• Ensure that the court knows about any thoughts or feelings that the child has spoken about, to do with the case
• Make sure the court is aware of important issues, to do with the child’s best interests, in any reports or documents, including any reports to the Department of Health and Human Services that involve other children in the household
• Do their best to lessen any trauma to the child caused by the family law case
• Try to help everyone involved in the case (the ‘parties’) make a final agreement, where the lawyer believes this is best for the child.

If the child is mature enough and old enough, the ICL will usually meet them, unless there are special circumstances. The lawyer will explain what they do and how court works. They will ask if the child wishes to let the court know what the child thinks. A child does not have to do this. Also, the lawyer does not have to tell the court any information that the child may give them, unless they believe this is in the child’s best interests. Children do not normally give evidence or go to court.

People separate and divorce all the time, yet in the same way every individual and family is different, no two-family law cases are the same.

An ICL listens to how the children feel and this can be an invaluable process for a parent and child when family disputes are being resolved and settled.