Commonwealth Consolidated Acts

FAMILY LAW ACT 1975 - SECT 68LA

When section applies

  (1)   This section applies if an independent children's lawyer is appointed for a child in relation to proceedings under this Act.

General nature of role of independent children's lawyer

  (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.

  (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.

  (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.

Specific duties of independent children's lawyer

  (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.

Requirement to meet with the child and give the child the opportunity to express their views

  (5A)   Subject to subsection   (5B), the independent children's lawyer must perform the following duties (not necessarily at the same time):

  (a)   meet with the child;

  (b)   provide the child with an opportunity to express any views in relation to the matters to which the proceedings relate.

Note:   A person cannot require a child to express the child's views in relation to any matter (see section   60CE).

  (5AA)   The independent children's lawyer has discretion in relation to the following matters (subject to any order or direction of the court with respect to the matter, for example under paragraph   68L(2)(b) or paragraph   (5D)(b) of this section):

  (a)   when, how often and how meetings with the child take place;

  (b)   when, how often and how the child is provided with an opportunity to express views.

  (5B)   The independent children's lawyer is not required to perform a duty if:

  (a)   the child is under 5 years of age; or

  (b)   the child does not want to meet with the independent children's lawyer, or express their views (as the case requires); or

  (c)   there are exceptional circumstances that justify not performing the duty.

  (5C)   Without limiting paragraph   (5B)(c), exceptional circumstances for the purposes of that paragraph include that performing the duty, would:

  (a)   expose the child to a risk of physical or psychological harm that cannot be safely managed; or

  (b)   have a significant adverse effect on the wellbeing of the child.

  (5D)   If the independent children's lawyer proposes not to perform a duty because of paragraph   (5B)(c), the court must do the following before making final orders:

  (a)   determine whether it is satisfied that exceptional circumstances exist that justify not performing the duty;

  (b)   if the court determines that those circumstances do not exist--make an order requiring the independent children's lawyer to meet with the child or provide the child with an opportunity to express their views (as the case requires).

Note:   The court may also make such other orders it considers necessary to secure the independent representation of the child's interests (see paragraph   68L(2)(b)).

Disclosure of information

  (6)   Subject to subsection   (7), the independent children's lawyer:

  (a)   is not under an obligation to disclose to the court; and

  (b)   cannot be required to disclose to the court;

any information that the child communicates to the independent children's lawyer.

  (7)   The independent children's lawyer may disclose to the court any information that the child communicates to the independent children's lawyer if the independent children's lawyer considers the disclosure to be in the best interests of the child.

  (8)   Subsection   (7) applies even if the disclosure is made against the wishes of the child.