Children and Separation

Role and Responsibility of the Independent Children’s Lawyer 768 432 Dorter

Role and Responsibility of the Independent Children’s Lawyer

An Independent Children’s Lawyer has been appointed. What does this mean?

An Independent Children’s Lawyer (“ICL”) may be appointed by the Family Court in parenting matters involving complexity, such as issues of risk, family violence and abuse. The ICL is appointed to represent the “best interests” of the child(ren). It is important to note that this does not mean that the ICL represents the child(ren). An ICL is not bound by instructions from a child(ren) and does not represent them in the same manner as the parents to the proceedings are represented. The ICL’s ultimate duty is to the Court.

When an ICL is appointed, the standard procedures undertaken are as follows: –

  1. The parties provide a copy of their respective Court documents to the ICL;
  2. A copy of all Orders are provided to the ICL; and
  3. The ICL is provided permission from the Court to issue subpoenas to obtain independent evidence.

Does my matter need an ICL?

An ICL is appointed in matters where there is complexity. Some examples include, but are not limited to, the following:-

  1. When there are allegations of abuse (physical, verbal, emotion or sexual);
  2. Where there is an intractable dispute between the parties;
  3. When there are allegations of mental health concerns for the child(ren); or
  4. When there are allegations that one or both parents are suffering from mental health issues.

These issues are usually identified in a party’s Affidavit or Notice of Risk / Notice of Child Abuse, Family Violence or Risk.

The appointment of the ICL can be made by the Court of its own volition, or one or both of the parties may make an application to the Court.

What is the Role and Responsibility of the ICL?

The ICL’s role is effectively to: –

  1. Act in the bests interests of the child(ren);
  2. Ensure that the Court is aware of the child(ren)’s wishes (pending the age of the child(ren));
  3. Collect expert evidence relevant to the child(ren);
  4. Act upon the evidence;
  5. Assist the Court in the determination of the parenting dispute.

Should the ICL meet with my Child(ren)?

It is not required that the ICL meet with the child(ren). The ICL is required to make an assessment of the facts of each case and identify whether or not it is appropriate to meet with the child(ren). Some examples when an ICL will not meet with a child(ren) are: –

  1. Very young children who may be unable to express a view (generally under school age);
  2. There are exceptional circumstances such as a risk of systems abuse; or
  3. Where there are practical limitations on meeting the child such as geographical remoteness. However, this issue is becoming less relevant in the current landscape where electronic communication is ever increasing.

Who Pays for the ICL?

Generally, an ICL is appointed by Legal Aid NSW and it is expected that the parties to the proceedings meet the costs of the ICL in equal shares, unless you are in receipt of a grant from Legal Aid. This amount is currently $3,300.00 up to the Defended Hearing, however, the specific facts of the matter may cause this figure to change.

Legal Aid NSW has the ability to waive the ICL’s fee, however, this is only in exceptional cases.

The Family Court of Australia has developed a document titled “Guidelines for Independent Children’s Lawyers (2013)”. These guidelines are the basis upon which ICL’s act and may be accessed here.

If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact with us on (02) 99298840.

Rebekah Dorter
Principal

My partner and I have separated – Will I be able to stay in our home? 977 677 Dorter

My partner and I have separated – Will I be able to stay in our home?

Following the breakdown of a relationship it is common that both spouses may continue to reside in the home together until they have reached a property settlement. However, in some cases it is not practical or possible to do so. 

If one party seeks sole occupation of the home, and wants the other to vacate, they can file an Application with the Family Court seeking exclusive occupation. 

The Court has a wide discretion to make an order for exclusive occupation. The factors which the Court will take into consideration include:- 

  1. The respective financial position of each of party, and whether it would be practical and financially possible for either party to obtain alternate accommodation; 
  2. The needs of any children; 
  3. The hardship to either party or to the children; 
  4. The conduct of one party which may justify the other party being vacated – for instance, family violence; 
  5. Whether the Order is necessary and/or reasonable. 

Importantly, the above considerations are neither fixed nor exhaustive. Ultimately, each case must be decided on its own merits in light of the particular set of facts and circumstances of the case. Overall the Court will seek to make a decision that is just and equitable, or fair. 

If there are serious issues of domestic violence you may seek to apply for an Apprehended Domestic Violence Order that may restrain a person from attending upon a particular place(s), which can include the home. 

To assess your particular situation and determine whether you can stay in your home after separation, Dorter Family Lawyers & Mediators are expert family lawyers who specialize in all areas of family law and can assist. Please contact us on (02) 9929-8840.

Rebekah Dorter
Principal

Christopher Palumbo
Associate

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

What is Parental Alienation? 1024 683 Dorter

What is Parental Alienation?

What is Parental Alienation?

Parental Alienation is unique to families who have separated or who are having a parenting dispute. Parental Alienation occurs when one parent manipulates the relationship between a child and the other parent, for their own benefit, damaging the relationship between the child and the other parent.   The manipulator often sets out to destroy the relationship between the child and other parent by belittling and undermining the other parent. 

Parental Alienation results in the child actively rejecting their relationship with the other parent and refusing to spend time with that parent, for no apparent reason or justification. The child’s rejection usually reflects the attitude of the alienating parent, not the child’s own views, and can have devastating consequences on the child’s long-term emotional development.  It also has a devastating emotional impact on the parent who is separated from their child, which is often the aim of the alienating parent.

Common examples of conduct of an ‘Alienator’.

Parents, step-parents and/or grandparents can engage in alienating conduct. Some common behaviours include:

  1. Interfering with/monitoring communication between the child and the other parent;
  2. Deliberately speaking ill of the other parent in the child’s presence;
  3. Making unilateral decisions regarding the child’s long term welfare (eg moving residence or schools);
  4. Over-sharing unnecessary details of the separation with the child;
  5. Projecting their own fears and opinions of the other parent on to the child;
  6. Deliberately making the child unavailable to the other parent during scheduled times;
  7. Suggesting to the child, without justification or evidence, that the child has been the victim of abuse by the other parent.

Parental Alienation can be insidious. It can be difficult to detect the signs, or to differentiate it from other acts in a high-conflict separation. It is necessary to act quickly and obtain advice and help.

How and where to get HELP.

Steps should be taken quickly to address and stop the alienating parent’s conduct, to protect the child and the alienated parent. 

Fortunately, our Family Law system recognises the child’s right to have a meaningful relationship with both parents following separation, so long as it is in the child’s best interests. This means the child has a right to have both parents involved in their life, to the maximum extent consistent with their best interests.

When one parent alienates a child from the other parent, this is contrary to the child’s rights. Steps can be taken to ‘break’ this cycle, but timing is critical.

Our Family Law system provides different ways to protect children and the alienated parent. These include:

  1. Family Therapy;
  2. Counselling for the child, and the parent/s;
  3. Mediation and arbitration (Alternate Dispute Resolution);
  4. Court Orders.

If therapy, counselling, or Alternate Dispute Resolution are not successful, the Court can make orders to provide for the child to spend time with the alienated parent, and if appropriate, make orders that the child not spend time with the alienating parent for a period of time.

It is important to prioritise the health and welfare of your child. Whether you are concerned that your child is being alienated from you, or you are being accused of being an alienator, it is critical not to over-share your concerns or opinions with your child.

Ensure you obtain support from an adult network. Psychologists and family therapists are able to assist you through the process.

Seek legal assistance

Allegations of Parental Alienation should be taken seriously and help should be obtained promptly. Parental Alienation has a serious impact on you, your child and your relationship with your child. It also has an impact on your family law case. If you are concerned about Parental Alienation you should seek urgent assistance from professionals.

If you require advice about what steps to take, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 or mail@inst1045122-8984.ozhosting.com for a confidential discussion.

Dorter Family Lawyers and Mediators offers specialist family law advice in McMahons Point on Sydney’s Lower North Shore. Rebekah Dorter and Bronwyn O’Loan are experienced Family Lawyers working with Parental Alienation and are available to assist you.

 

Bronwyn O’Loan
Senior Associate

Rebekah Dorter
Principal

                                                                                                                

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.