Commonwealth Consolidated Acts Commonwealth Consolidated Acts1 Subsection 4(1) (definition of child representative )
Repeal the definition.
2 Subsection 4(1)
Insert:
"independent children's lawyer" for a child means a lawyer who represents the child's interests in proceedings under an appointment made under a court order under subsection 68L(2).
3 Subsection 4(1)
Insert:
"lawyer" means a person enrolled as a legal practitioner of:
(a) a federal court; or
(b) the Supreme Court of a State or Territory.
4 Section 60C (table item 10)
Repeal the item, substitute:
10 | Division 10--The representation of the child's interests the representation of a child's interests in proceedings by an independent children's lawyer |
5 Division 10 of Part VII
Repeal the Division, substitute:
Division 10 -- Independent representation of child's interests
68L Court order for independent representation of child's interests
(1) This section applies to proceedings under this Act in which a child's best interests are, or a child's welfare is, the paramount, or a relevant, consideration.
(2) If it appears to the court that the child's interests in the proceedings ought to be independently represented by a lawyer, the court:
(a) may order that the child's interests in the proceedings are to be independently represented by a lawyer; and
(b) may make such other orders as it considers necessary to secure that independent representation of the child's interests.
(3) However, if the proceedings arise under regulations made for the purposes of section 111B, the court:
(a) may order that the child's interests in the proceedings be independently represented by a lawyer only if the court considers there are exceptional circumstances that justify doing so; and
(b) must specify those circumstances in making the order.
Note: Section 111B is about the Convention on the Civil Aspects of International Child Abduction.
(4) A court may make an order for the independent representation of the child's interests in the proceedings by a lawyer:
(a) on its own initiative; or
(b) on the application of:
(i) the child; or
(ii) an organisation concerned with the welfare of children; or
(iii) any other person.
(5) Without limiting paragraph (2)(b), the court may make an order under that paragraph for the purpose of allowing the lawyer who is to represent the child's interests to find out what the child's views are on the matters to which the proceedings relate.
Note: A person cannot require a child to express his or her views in relation to any matter, see section 60CE.
(6) Subsection (5) does not apply if complying with that subsection would be inappropriate because of:
(a) the child's age or maturity; or
(b) some other special circumstance.
68LA Role of independent children's lawyer
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.
Disclosure of information
(6) Subject to subsection (7), the independent children's lawyer:
(a) is not under an obligation to disclose to the court;
(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.
68M Order that child be made available for examination
(1) This section applies if an independent children's lawyer is appointed to independently represent a child's interests in relation to proceedings under this Act.
(2) The court may, on application by the independent children's lawyer, order a person mentioned in subsection (3) to make the child available, as specified in the order, for an examination to be made for the purpose of preparing a report about the child for use by the independent children's lawyer in connection with the proceedings.
(3) The order may be directed to:
(a) a parent of the child; or
(b) a person with whom the child is to live under a parenting order; or
(c) a person with whom the child is to spend time under a parenting order; or
(d) a person with whom the child is to communicate under a parenting order; or
(e) a person who has parental responsibility for the child.
6 Subparagraph 69W(2)(b)(ii)
Omit "a person representing the child", substitute "an independent children's lawyer representing the child's interests".
7 Subparagraph 69ZC(3)(b)(ii)
Omit "a person representing the relevant child", substitute "an independent children's lawyer representing the relevant child's interests".
8 Subsection 117(3)
Omit "a child representative", substitute "an independent children's lawyer for a child".
9 Subsection 117(3)
Omit "the child representative", substitute "the independent children's lawyer".
10 Subsection 117(4)
Omit "a child representative", substitute "an independent children's lawyer for a child".
11 Subsection 117(4)
Omit "the child representative", substitute "the independent children's lawyer" (wherever occurring).
12 Subsection 117(5)
Omit "a child representative", substitute "an independent children's lawyer".
13 Subsection 117(5)
Omit "the child representative", substitute "the independent children's lawyer".
Part 2 -- Application of amendments and saving of appointments
14 Definitions
In this Part:
commencement means the commencement of this Schedule.
new Act means the Family Law Act 1975 as in force after commencement.
old Act means the Family Law Act 1975 as in force immediately before commencement.
15 Application of amendments
The amendments made by this Schedule apply to proceedings initiated under Part VII before, on or after the day on which this Schedule commences.
16 Saving of appointments
(1) This item applies if:
(a) a court made an order under section 68L of the old Act for separate representation of a child; and
(b) immediately before commencement, the proceedings in which the order was made have not been concluded.
(2) The person who was appointed as the child's representative under section 68L of the old Act is taken to be appointed as the independent children's lawyer under section 68L of the new Act.
(3) The order under section 68L of the old Act for separate representation of the child is taken to be an order under section 68L of the new Act for independent representation of the child's interests.