Presentation by Robyn Hamilton about exceptional circumstances best interests representation of children unable to give instructions in the Family Division of the Children's Court.

1. THE DEVELOPMENT OF THE
BEST INTERESTS LAWYER IN
CHILDREN’S COURT
PROCEEDINGS
Robyn Hamilton
Family Law Advocate
VLA Chambers

2. Overview…
• UN Convention of the Rights of the Child
and the Charter of Human Rights and
Responsibilities Act 2006
• What is the best interests lawyer aka ICL
or separate representative?
• Appointment
• Duties and Role
• Issues for consideration
• Case examples.

3. UN Convention on the Rights of the Child
The appointment of a child’s representative is one
means of giving effect to provisions of the
CROC;
• In any proceedings…all interested parties shall
be given an opportunity to participate in the
proceedings and make their views known
(art9.2)
• Parties shall ensure that a child who is capable
of forming a view has the right to express that
view and ensure that due weight is given to the
child’s view in accordance with age and maturity
of the child (art 12.1)

4. CROC (cont)
• The child shall be given the opportunity to be heard in
any judicial and administrative proceeding affecting the
child either directly or through a representative (art 12.2)
• No child shall be subjected to arbitrary or unlawful
interference with his or her privacy, family, home or
correspondence…the child has the right to the protection
of the law against such interference (art 16.1 and 16.2)

5. Charter of Human Rights and
Responsibilities
• S. 8 Recognition and equality before the
law
• S.17 Right to protection of family and child
• S.24 Right to a fair hearing

6. Appointment – how and when?
• S. 524(4) of the Children Youth and
Families Act 2005 provides:
If in exceptional circumstances, the court
determines that it is in the best interests of a
child who, in the opinion of the Court is not
mature enough to give instructions, for the
child to be represented in a proceeding in the
family division, the court must adjourn the
hearing of the proceeding to enable that legal
representation to be obtained.

7. Cf Appointment under Family Law Act
s68L(2) if it appears to the Court that the child’s
interests ought to be represented the Court will
request the appointment of an Independent Children’s
Lawyer.
s68L(4) A court may make an order for an ICL:
(a) on its own initiative; or
(b) on the application of:
(i)
the child; or
(ii) an organisation concerned with the welfare
of children; or
(iii) any other person

8. s. 524(4) CYFA 3 elements
1. Exceptional circumstances; and
2. Best interests; and
3. Child not mature enough to give
instructions

9. 1. Exceptional circumstances
• Not defined in the CYFA
• Case law specific to the Children’s Court
jurisdiction not yet sufficiently developed to
provide a guide.
• Examples: PCO (particularly to non family), no
parents participating, proposed removal from
jurisdiction, child under 10 expressing strong
views

10. exceptional circumstances (cont)
• The FLA does not specify criteria for appointments
either, however the 1994 case of Re K is authority for
circumstances warranting the appointment of an ICL
• Re K (1994) FLC 92-461
Sets out guidelines for cases in which there should be an
appointment and includes a discussion of the power to
appoint, the role of representative and the United
Nations Convention on the rights of the child

11. Re K Factors
• Allegations of child abuse (physical, sexual or
psychological)
•
Intractable conflict between the parents
• Where the child is apparently alienated from one or both
parents
• Issues of cultural or religious difference affecting the
child

12. Re K factors (cont)
• Sexual preference of either or both parents or other
significant person, which are likely to impinge on the
child’s welfare
• Antisocial conduct of either or both parents impinging on
the child’s welfare
• Significant medical, psychiatric or psychological illness or
personality disorder
• Neither parent seems a suitable custodian

13. Re K factors (cont)
•
A child of mature years is expressing strong views,
which involve changing a long standing arrangement
• Where one of the parties proposes a permanent removal
from the jurisdiction
Where siblings may be separated
• Where no one is legally represented
• Medical treatment cases

14. 2. Best Interests Principles
•
s. 8 CYFA : the Court and the Secretary must
have regard to the principles in making any
decision or taking any action
•
s. 10 CYFA
The primary definition of best interests
(i) Protection from harm;
(ii) Protection of rights; and
(iii) Promotion of development

15. 3. Child not mature enough to give
instructions
• Children’s Court Clinic opinion = < 7
• CYFA s 524 = < 10 or >10 and not mature
enough to instruct
• Case of A & B [2012]VSC 589
• Although ‘mature’ usually regarded as age
related, provision could include intellectual
disability, autism or other factors impinging on
ability to give instructions – Re Marion (1992)
175 CLR 218

16. Mechanics of appointment
• Procedural Orders / Directions
Examples:
• within 48 hours of notice of appointment, parties
to send ICL relevant documents;
• Release of clinic report, subpoenaed material to
the ICL,
• order for child to attend ICL,
• an order that the ICL is considered to be a party.

17. Example Family Law rules
Rule 8.02 – Status as party
(3)A person appointed as an independent children’s lawyer:
...
(c) may do anything permitted by these Rules to be
done by a party.
(4)If an independent children’s lawyer is appointed, the
parties must conduct the case as if the independent
children’s lawyer were a party.
Meeting with the child
(5) The Court may make an order to allow the ICL to find
out what the child's views are

18. DUTIES OF ICL
The CYFA mandates 2 duties:
• S. 524(11):
– a lawyer representing a child not mature
enough to give instructions must
(a) act in accordance with what he or she believes
to be in the best interests of the child; and
(b) to the extent that it is practicable to do so,
communicate to the Court the instructions given
or wishes expressed by the child.

19. (a) best interests
Implicit in s. 524(11) (a) is the requirement to form a view
about what constitutes the child’s best interests
• S. 10 CYFA Best Interests principles - s10(2) includes
the need to protect children from harm and to promote
development (note s.17(2) Charter; arts 6(2), 19 Croc)
• the definition of best interests also includes the need to
protect rights – articles 3,12 and 16 CROC; ss 8(3), 17
and 24(1) of the Charter
• DoHS v Sanding [2011] VSC 42 – rights and limited
interference; A & B v Children’s Court [2012] VSC 589 –
best interests cannot be complied with if art 12 of CROC
not satisfied.

20. How to form a view in best interests ?
By gathering and assessing evidence
i. Subpoena material, eg police records, crèche, school,
doctor, hospital, MCHN, counsellors, DoHS file, etc;
ii Request information from parties, speak with parties,
carers, school;
Iii Meet the child (note: expressed views or observations
made need to be in admissible form)
iii. Request Children’s Court Clinic Assessment or other
type of assessment

21. Australian Law Reform Commission and HREOC
ALRC report No 84 in relation to child protection cases:
• Role of ICL must go further than child’s instructions or
wishes;
• In relation to non verbal children, should include–
–
–
–
–
–
Investigating all relevant facts, parties and people;
Subpoena all documents
Retain experts as needed
Observe child in caretaker’s setting and formulate optional plans
Challenge basis for experts and agency conclusions
Advocate for legal rights of child, incl safety, visitation and sibling
contact
– Ensure all relevant and material facts are put before the Court
(from material produced by Magistrate Peter Power)

22. Role under Family Law Act
General Nature of the Role - s68LA
(2) The ICL must form an independent view of what is
in the child’s best interests, based on evidence and
act in what the ICL believes to be in the best
interests of the child
(3) If the ICL is satisfied that a particular course is in the
best interests of the child, the ICL must make a
submission to the court suggesting the adoption of
that course
(4) The ICL is not the child’s legal representative and is
not obliged to act on the child’s instruction

23. Case law
• P & P (1995) FLC 92-615
Guidelines for the role and duties of the ICL
(generally adopted by s 68LA of the Family Law
Act)
• B & R and the Separate Representative
(1995) FLC 92-636
Deals with the role of the ICL at trial including
evidence gathering

24. (b) Communicate instructions or wishes to
the Court
• R & R: Children’s Wishes (2000) FLC 93-000
•
Court to give “appropriate and careful consideration”
to wishes; and
•
ICL to arrange for evidence as to how children would
feel if outcome not as they wished
• Communicating instructions/wishes in admissible form;
eg through clinic assessment, psychological report,
counsellor, a party.

25. Issues for consideration
• Act impartially (‘honest broker’)
- copy all correspondence and communications
to all parties
- confirm all communication in writing, including
arrangements to meet with the child
- given that the child’s wishes/instructions must
be communicated to the Court, these should be
provided to the parties prior to Court.

26. Issues for consideration (cont)
• Assist resolution
- recommend and participate in NMC,DRC
- advise parties of the ICL’s recommendations
(incl disposition and conditions) in advance of
hearing (can be provisional)

27. Issues for consideration (cont)
• Role at trial
- communicate child’s wishes/instructions
(the ICL should not be a witness)
- call witnesses
- cross examine
- make submissions
- be available to give instructions

28. Note: Mandatory Reporting
• FAMILY LAW ACT 1975 - SECT 67ZA
Where member of the Court personnel, family counsellor, family dispute
resolution practitioner or arbitrator suspects child abuse etc.
(1) This section applies to a person in the course of performing duties or
functions, or exercising powers, as:
(a) …(g)
(h) a lawyer independently representing a child's interests.
(2) If the person has reasonable grounds for suspecting that a child has been
abused, or is at risk of being abused, the person must, as soon as
practicable, notify a prescribed child welfare authority of his or her suspicion
and the basis for the suspicion.
(3) If the person has reasonable grounds for suspecting that a child:
(a) has been ill treated, or is at risk of being ill treated; or
(b) has been exposed or subjected, or is at risk of being exposed or
subjected,
to behaviour which psychologically harms the child;
the person may notify a prescribed child welfare authority of his or her
suspicion and the basis for the suspicion.

29. Mandatory Reporting (cont)
(4)
The person need not notify a prescribed child welfare authority of
his or her suspicion that a child has been abused, or is at risk of
being abused, if the person knows that the authority has previously
been notified about the abuse or risk under subsection (2) or
subsection 67Z(3), but the person may notify the authority of his or
her suspicion.
(5) If notice under this section is given orally, written notice confirming
the oral notice is to be given to the prescribed child welfare authority
as soon as practicable after the oral notice.
(6) If the person notifies a prescribed child welfare authority under this
section or subsection 67Z(3), the person may make such
disclosures of other information as the person reasonably believes
are necessary to enable the authority to properly manage the matter
the subject of the notification.

30. Case studies
•
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Oregan
Reid
Wisjman
Clarke