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 an extensive list of guidelines for cases in which an independent children’s lawyer should be appointed. These stipulate that 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
It is well established that the independent children’s lawyer does not act on instructions from the child and in this sense, is not the child's lawyer. Rather, they gather evidence to be presented to the court to assist it in determining where the child's best interests may lie. The independent children’s lawyer may seek any orders he or she considers to be in the best interests of the child, and may choose to support or oppose the making of orders proposed by one or other parent. Naturally, this can give rise to dissatisfaction on the part of the other parent and the child. In general it is not considered desirable for an independent children’s lawyer to interview children who have already been extensively interviewed for example by doctors, counsellors, social workers, psychologists etc.
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