Independent children's lawyer
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How does the court protect children involved in court cases?
In working out how to manage a dispute about children, the court will look at the children's needs and how the case may affect them.
The case is managed to run as quickly and informally as possible and in a way that protects the children and everyone involved from family violence, child abuse and neglect.
The court will also manage the case so it can run in a way that promotes cooperation and child-focused parenting, and with as little formality as possible.
Will the court ask to speak to the children?
The judge or magistrate very rarely speaks directly to the children. Children do not go into the court room.
The court can make an order for the family consultant to make a family report. The person preparing the report will see the children and will include the children's attitudes and views in the report.
The independent children's lawyer may also speak to the children. There are many changes happening soon to the giving of evidence by either children or adults. Many of the rules of evidence will not be used in children's cases unless the court says they should. The changes are intended to make the process as informal as possible. Get legal advice as to how these changes will affect your case.
What is a family report?
A family report helps the court make a decision about what is best for the children. It is prepared by a family consultant or other expert approved by the court.
The person preparing the report can speak to the parents, the children and any other people who may have information about the children or the issues in the dispute. This report is independent evidence on the dispute and family relationships and can cover:
- the background to the dispute
- the current relationship between the parents and the children
- the children's views
- how the children see their relationship with important people in their lives
- information on the children's cultural and linguistic (language) background, and an opinion on how to make sure the children stay connected to this background
- an opinion on how to sort out the dispute.
What is an independent children's lawyer?
An independent children's lawyer is the new name for what was previously called a 'children's representative'. The independent children's lawyer also has more responsibility.
The court will appoint an independent children's lawyer when a dispute is difficult or complicated. This lawyer is not attached to the court, and does not represent the children but helps the court decide what arrangements are in the children's best interest, for example, where children should live and when they will spend time with the other parent and other people important to them.
The independent children's lawyer must make sure that any views expressed by the child in relation to the case are fully put before the court.
The court will decide whether to appoint an independent children's lawyer.
An independent children's lawyer may:
- get information from teachers, doctors or counsellors
- look at all other evidence presented to the court
- talk with the children.
An independent children's lawyer must make sure that the court knows what the children's views are but does not have to ask the court to follow this.
What is a family consultant?
Changes are happening to the way the court will manage cases about children. The Family Court of Australia, Federal Magistrates Court of Australia and the Family Court of Western Australia will have the assistance of family consultants in every case involving children.
Family consultants are child and family specialists whose role is to help and advise people involved in family law cases.
The court can ask for advice from family consultants and order people to see a family consultant. The court can order that a report be prepared by a family consultant.
Anything said to a family consultant is not confidential and can be admitted (used) in court as evidence. The family consultant is sworn in as a witness before the Court during the case hearing.
Programs for cases where there is high conflict or child abuse
Project Magellan
Project Magellan aims to help families in particularly difficult circumstances. This program currently runs in the Family Court of Australia around Australia.
If your case involves allegations of serious physical or sexual abuse of a child, the court will be able to use a number of specialist services that can manage you and your family throughout the case.
Child protection workers and child counsellors can investigate and assess the children's situation and report back to the court.
An independent children's lawyer will be appointed to represent the children's interests and a family report will be prepared.
The family report includes information about your relationship with the other parent, the children and each of your views about any abuse allegations.
The judge manages the case, making sure everyone involved is on track and informed and supported by various services in as short a timeframe as possible.
In Western Australia, the Columbus Program, which is similar to Project Magellan, runs in the Family Court of Western Australia.
Parenting contact orders program
The parenting orders program used to be called the contact orders program. This program may be suitable for you if you are a separated parent who has experienced a high level of conflict with the other parent about spending time with children and/or contact with the children has broken down. It is a service run by community based organisations available in Brisbane, Hobart, Melbourne, Perth, Sydney and Newcastle, with more places to come.
In many cases parents have already been through a court case and had parenting orders made which have since been broken. The program works by making you and the other parent focus on the impact your conflict is having on your children.
A case worker manages you and the other parent closely, helping each of you to understand the effect of your conflict.
Acknowledgement - Prepared using fact sheets which are copyright to the Commonwealth of Australia and National Legal Aid.