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    Do the children get a lawyer?

    The court may order (of its own motion, or when a child or any other person or organisation concerned with the child's welfare applies) that the child's interests be independently represented [Family Law Act 1975 (Cth) s 68L] and ask the Legal Services Commission to arrange the representation.

    In the case of Re K (1994) FLC 92-461 the Full Court of the Family Court laid down extensive guidelines for cases in which an independent children’s lawyer should be appointed. A lawyer may be appointed where:

    • there are allegations of abuse of the child
    • there is intractable conflict between the parties
    • the child is alienated from one or both parties
    • there are cultural and religious differences between the parents
    • there are concerns about the mental or physical illness or personality disorder of either parent
    • neither party seems to be a suitable residential parent for the child
    • a child of mature years indicates that they do not wish to have contact with one parent
    • there is a threat of removal of the child from the jurisdiction
    • the determination of the case may involve separation of siblings, or
    • neither party is represented.

    An independent children’s lawyer does not act on instructions from the child and, in this sense, is not the child's lawyer [Family Law Act 1975 (Cth) s 68LA(4)]. Rather, they gather evidence to be presented to the court to help it determine orders that will be in the best interests of the child.

    The independent children’s lawyer may propose any orders they consider to be in the best interests of the child. They may choose to support or oppose orders proposed by either of the parents.

    From 6 May 2024, an independent children’s lawyer must meet with the child and give them an opportunity to express their views about the court proceedings [s 68LA(5A)]. This requirement will not apply if:

    • the child is under 5,
    • the child does not want to meet with the independent children’s lawyer, or
    • there are exceptional circumstances that justify not meeting with the child (for example, if meeting with the child will have a significant adverse effect on the wellbeing of the child).

    The court will never require an independent children’s lawyer to disclose the child’s views to the court [s 68LA(6)]. The independent children’s lawyer may disclose information the child tells them if the disclosure is in the best interests of the child [s 68LA(7)].

    Do the children get a lawyer?  :  Last Revised: Fri May 3rd 2024
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