Table of Contents
The ICL must file and serve an Address for Service to advise the court and the parties of their appointment.
The ICL is to advise all necessary agencies, for example, the Federal Circuit and Family.
Court’s Court Children’s Service and the State Welfare Authority, of their appointment.
To the extent that such information has not been made available as a result of responses to Notices of Child Abuse, Family Violence or Risk, the ICL is to utilise the section 69ZW process (section 202K Family Court Act 1997 (WA)) to seek information about:
It is expected that the ICL will meet the child unless:
A Family Consultant may be in a position to provide information to the ICL of the following if they have been involved in a court event:
The ICL is to remain independent, objective and focused upon promoting the child’s best interests in all dealings throughout the proceedings.
The parties and their legal representatives should be encouraged to be non-adversarial where possible and to maintain a focus on the child’s best interests. The ICL should promote this approach whenever appropriate.
The ICL should as soon as practicable inform the parties of their role and use their best endeavours to ensure the parties understand the ICL’s role within the proceedings.
Where parties are legally represented, communication between the ICL and the parties should normally be through the legal representatives.
The ICL may need to have direct contact with the parties during the course of the proceedings. Such contact must have the consent of the party concerned and should normally be arranged through the parties’ legal representatives.
If one or more parties are unrepresented, the ICL is to communicate directly with the party and should advise the other parties of the fact of any meeting with an unrepresented party.
The ICL is not required to communicate to the other parties the substance of his or her conversations with the child.
The ICL must at all times be and be seen to be independent and at arm’s length from any other party to the proceedings.
The ICL is to act as an “honest broker” on behalf of the child in any negotiations with the other parties and their legal representatives.
Once the ICL has formed a preliminary view as to the outcomes which will best promote the child’s best interests, the ICL will consult with the child and take into consideration any expressed views of the child, as may be appropriate in all the circumstances. The ICL will then communicate their views and details of proposed orders to the parties where possible.
If during the period of appointment of the ICL there are proceedings between other parties in respect of contravention of an order, generally the role of the ICL ought not be an active one.
However, this is subject to the proviso that where the ICL considers (a) that such proceedings are detrimental to the best interests of the child or (b) that the presence of the ICL may further the best interests of the child, then it is appropriate for the ICL to be present and, if necessary, to seek to appear in the proceedings.
The ICL must, however, be served with the application and any supporting material, and be notified by the parties of any findings and sanctions imposed by the court.
The ICL is to seek to develop a case plan at the earliest opportunity, where appropriate, in consultation with any Family Consultant or other expert involved in the case.
In the case plan, the ICL should:
The appointment of an ICL for sibling groups can present special difficulties. Cases may arise where the ICL may need to give consideration to the court making a further assessment as to whether the proceedings require another ICL to be appointed.
The ICL should consider the usefulness of the order for representation of the child from time to time during the course of a case. The matter should be relisted and an order sought from the court discharging the appointment if the ICL is of the opinion that:
The ICL should ensure that arrangements are made to inform the child or children of any alterations to the arrangements affecting their representation in accordance with their age, developmental level, cognitive abilities and emotional state.
The ICL’s communications with a Family Consultant or expert are not privileged. Evidence of these communications may be included in a report or given in oral evidence.
If a Family Consultant or other expert is requested to prepare a report, the ICL should, to the extent that the issue is not the subject of an order by the court:
Where the report is a family report or other report prepared by a Family Consultant or a report of a single expert the writer is the court’s witness. The ICL is not bound to make submissions which adopt the recommendations made by the report writer or any expert called in the proceedings. Evidence given by a single expert or Family Consultant or other expert is one part of the total evidence and must be evaluated within that context.
It is not the role of the ICL to direct the methodology to be used by the family report writer or single expert. The methodology must be based upon the author’s sound clinical experience.
Time constraints and the circumscribed nature of interim hearings may result in the ICL not having the opportunity to fully investigate the child’s circumstances.
However where possible, the ICL should have issued subpoenas to relevant agencies and be in a position to tender relevant material. Such evidence is particularly helpful to the court where allegations of unacceptable risk are present in the case.
In circumstances where little is known about the child’s situation the ICL should be circumspect and should not feel compelled to make a submission as to the child’s best interests, presenting rather an analysis of the available options to the extent possible.
Where the court is to make interim or procedural orders, the ICL should consider whether they adequately promote the best interests of the child and make submissions as appropriate.
The ICL should ensure so far as is possible, that the child’s wishes are made known to the court in admissible form.
If the matter proceeds to trial, the ICL should comply with all procedural and timetable requirements. The ICL should identify and obtain relevant documentation, organise the preparation of appropriate reports and arrange for relevant witnesses such as State Welfare Authority officers, police officers, school teachers or similar persons to give evidence.
The ICL should be proactive in matters heard under Division 12A and be familiar with community based organisations which can provide continuing assistance to the child and the child’s family.
The ICL is to promote the timely resolution of the proceedings that is consistent with the best interests of the child. The ICL should be proactive and bring to the court’s attention matters which might hinder the court’s capacity to determine the matter on a final basis (for example, a family report not being progressed).
Where the ICL has formed a preliminary view as to the outcomes which will best promote the child’s best interests, it may be appropriate to inform the court at the commencement of the first day of hearing of those views and where appropriate, provide details of draft orders.
The ICL is to arrange for the collation of all relevant and reasonably available evidence including expert evidence where appropriate, and otherwise ensure to the extent possible, that all evidence relevant to the best interests of the child and the considerations set out in section 60CC of the Family Law Act 1975 is before the court. The ICL is not responsible for adducing evidence to establish the case of a party.
The ICL is to test by cross-examination or other processes where appropriate, the evidence of the parties and other witnesses, including witnesses who are called by the ICL.
The ICL is to make submissions evaluating the evidence and the proposals of each party and in doing so it is expected that the ICL will consider any practical problems associated with, and possible solutions for, such proposals. In appropriate cases the ICL will also make submissions as to the proposed terms of orders.
Children rarely give evidence in proceedings. However, there may be cases where consideration is to be given to what direct role the child might have in giving evidence to the court.
If the ICL believes that it may be appropriate for the child to give evidence, the ICL should consult with the Family Consultant or single expert.
Where a child of sufficient maturity wishes to give evidence, the child should be appropriately advised and the opportunity to apply to give direct evidence canvassed. The purpose of section 100B should be explained to the child.
The ICL should consider whether leave should be sought to provide copies of the orders, reasons for judgment of the court and any other material, including expert reports, to any relevant professional involved with the family.
In appropriate circumstances the ICL has a responsibility to explain to the child, or to facilitate an explanation by a Family Consultant or other appropriate expert who has provided a report in the case:
In consultation with a Family Consultant or an appropriate expert in the case, the ICL should determine who is the most appropriate person to explain the orders, taking into account their current respective relationships with the child.
Where the ICL is appointed for a sibling group, consideration should be given to whether explanations are best provided on an individual or group basis.
The ICL does not monitor final orders unless there are exceptional circumstances and there is an order to this effect.
The ICL should ensure that the file contains a record of outcomes of proceedings so that it is informative to any subsequent ICL that may be appointed and easily understood by the child if he or she is able to access it in later life.
The ICL has a right to appeal orders made by the court on behalf of the child.
The ICL should consider whether an appeal is appropriate. An appeal should only be lodged where the interests of the child would be promoted by such a procedure and after taking the views of the child into account.
If one of the other parties appeals, the ICL should inform the child and explain the process involved unless there are particular reasons not to do so. Where appropriate the ICL should participate in the hearing of the appeal.
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