Divorce & family law

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

Should we mediate our family dispute? 1024 695 Dorter

Should we mediate our family dispute?

Mediation is a quick, economical and effective means of resolving family law disputes regarding property and/or custody.

Should we mediate?

If you and your ex-partner are experiencing conflict and wish to resolve your dispute with less intervention from a third party, mediation is a forum which ensures you and your ex-partner drive the process and the outcome.

What is Mediation?

Mediation is a negotiation process in which an independent third party, known as the mediator, assists parties to identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement which reflects the key objectives of the parties.

What are the benefits?

Mediation:

  • offers parties more control over the outcome;
  • is less formal and less intimidating than appearing in Court; and
  • provides an efficient, speedy and significantly less expensive method to empower parties to settle their matter.

Settlement of a dispute through mediation can assist to preserve a working relationship and is, therefore, particularly beneficial for separated parents who will continue to communicate and care for their children together.

Mediation can also be helpful if there is the potential for a negotiated outcome that better suits the needs and interests of the parties than a judge’s decision, or if there is a possibility that a judge’s decision will not end the dispute.

Confidentiality

Confidentiality is the hallmark of mediation. As far as permitted by law, all discussions during the course of a mediation are private and confidential. If a matter is in Court, the judge is not informed of any information disclosed during the mediation.Do we mediate?

Dorter Family Lawyers

Rebekah Dorter is an Accredited Mediator with LEADR (The Resolution Institute), an international organisation promoting mediation for conflict resolution. In her role as a Mediator, Rebekah acts as a neutral facilitator by asking questions, encouraging open discussion, offering different perspectives, expressing issues in alternative ways and presenting her view as to how a Court might determine the issues.

Parties can attend mediation alone, or with their legal representatives present.

If you would like to book a mediation or would like to make further enquiries, please call our office on (02) 9929 8840 or email rebekah@inst1045122-8984.ozhosting.com or sabrina@inst1045122-8984.ozhosting.com

Three common questions about family law 1024 683 Dorter

Three common questions about family law

How do I get a divorce?

Australia operates under a ‘no fault’ divorce regime. This means that there is only one ground for divorce, being the ‘irretrievable breakdown of marriage’. This is proven by there being a period of 12 months separation between the parties to the marriage. This separation can occur even while the parties are still living under the same roof. After these 12 months have passed, either party, or the parties jointly, can successfully apply to the court for a divorce.  There are important consequences to obtaining a divorce, however, and you should seek legal advice before proceeding.

How do I obtain a fair property settlement arising from my marriage or de facto relationship?

In broad terms, in Australia property settlements are determined by following a 4 step process:

Step One involves identifying and valuing the pool of assets between both parties to the relationship. This includes all assets, including houses, cars, business assets, trusts, and superannuation.

Step Two involves assessing the contributions of each party to obtaining, conserving or maintaining the property pool. Contributions do not only include direct financial contributions, but also include indirect financial contributions (such as offering ones’ house as security for the purchase of other property), non-financial contributions (such as assisting with renovations on the matrimonial home), homemaking contributions and parenting contributions. Based on these contributions, an initial percentage division of the property pool determined in Step 1 will be determined.

Step Three involves considering whether the division contained in step 2 should be varied on the bases of a number of different factors, including the age and health of the parties, the financial resources of the parties, the care of children, eligibility for social security benefits, the earning capacities of each of the parties, and any other factor relevant matter.

Step Four involves determining whether the division of the asset pool is just and equitable in all the circumstances. Every relationship is different, meaning what is just and equitable in the circumstances differs in every case.

It is important to seek legal advice as each of the steps in this process are multifaceted and can be complex, depending greatly on the individual circumstances of each case.

How do I know how to divide time with a child between parents?

Australia takes a children’s rights approach to family law, rather than a parental rights focus. This means that in any decision about a child, the best interests of the child must be a paramount consideration. The primary considerations in determining the best interests of the child are the benefit to the children of having a meaningful relationship with both children’s parents and the need to protect the child from being exposed to abuse, neglect, or family violence. There are, however, a number of additional considerations, such as the views of the children (depending on their maturity), the ability of the parents to cooperate, and other practical considerations.

Every family relationship is different, so it is important to seek legal advice to know the best solution for you when it comes to family breakups.