What is the role of an Independent Children’s Lawyer (ICL)?

An Independent Children’s Lawyer (ICL) is a lawyer appointed by the Court to assist the Court in determining what parenting arrangements are in the child (or children’s) best interests.

ICLs are experienced family lawyers who have completed the national ICL accreditation program. Their fees are usually met in the first instance by the local Legal Aid authority, but parties are often requested to make a contribution to the costs of the ICL, and the Court may order that they meet the costs of the ICL.

An ICL is not appointed by the Court in every parenting matter. The Court can appoint an ICL on its own motion, or following an application by one or more of the parties. When considering whether to appoint an ICL the Court may take into account factors, including:

• Any allegations of risk or family violence;

• The age and maturity of the children;

• Where there is significant conflict between the parties; or

• Where one (or both) parties are not legally represented.

Once appointed, the ICL will read all of the documents filed by the parties, consider any relevant subpoena material, express their view (where applicable) to the parties about any issues that arise, and attend and participate in each listing of the matter before the Court.

Although the ICL may meet with the children to discuss their views and may communicate those views to the Court, they are not appointed to be a lawyer for the children or to act on their instructions. Instead, their role is to provide an independent view and assist the Court in working out arrangements that are in the children’s best interests. This may, or may not, be consistent with the children’s views or the views held by the parties.

The ICL also helps the Court by ensuring important evidence is available for the Court’s consideration, such as by issuing subpoenas to obtain relevant records from the children’s schools, the police or child protection bodies.

If the matter proceeds to a final hearing, the ICL will also ask each of the parties questions during cross-examination and, having read, heard and considered all of the evidence, make submissions to the Court about the final orders that they consider are in the best interests of the children.

The ICL plays an important role as an independent ‘honest broker’ between the parties and can help negotiate a settlement of their parenting matter without the need for a determination by the Court, such as by organising and participating in a mediation with the parties and their lawyers.

Although the ICL’s view is likely to carry some weight in the proceedings, the ultimate determination about the children’s arrangements rests with the Court.

If you think an ICL may need to be appointed you should seek legal advice from a family lawyer about whether this is appropriate in the circumstances of your matter.

For advice in relation to your family law matter, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

What’s in a name? Changing a child’s surname after separation

While it may sound unusual, situations can arise when parents may wish to change their child’s name. A child may have always informally been known by one name, but legally has a different name and now wants to make that change formal. A child may no longer have a relationship with the parent whose surname they bear and wish to have the surname of the parent who cares for them full time. Parents may have separated, and one parent may decide that they would like to add their own surname to the child’s surname, or substitute it for their existing surname. In very rare cases, a parent may need to change their child’s name as a safety measure to try to conceal them from the other parent who is a significant risk to that child.

If both parents agree, changing a child’s surname is a relatively straightforward process. But if there is no agreement, a parent seeking the change will need to apply to the Court for Orders which will permit them to change their child’s name without the consent of the other parent. That application can form part of a broader application for Orders about parenting arrangements, or can be a ‘single issue’ application brought by one parent without seeking any other Orders.

When considering an application to change a child’s name, the Court will treat the child’s best interests as the paramount consideration. To determine whether or not the particular change is actually in a child’s best interests, the Court will look at a number of factors including the long and short term effects of the change, any embarrassment to the child, whether the change will cause the child confusion in their identity, the contact each parent has with the child, and the degree to which the child identifies with each parent.

Ultimately whether or not it is appropriate to change a child’s name after they are born will turn on the particular facts of each case. If you are considering applying to change your child’s name, you should seek specialist family law advice.

If you would like to make an appointment to discuss your circumstances with a member of our team, please contact us on (02) 6225 7040, via email on info@rmfamilylaw.com.au or get started online here.

Adult Child Maintenance – what is it, and can I get it?

Child support usually continues from when a child is born until they turn 18, though it can stop earlier in some cases, for example if a child is adopted, marries or becomes self-sufficient. If a child is still completing their final year of secondary school, it is also possible for the parent receiving child support to apply to extend child support until the end of the school year.  

However, lots of young adults (dare we say, most?) do not magically become financially self-supporting at the stroke of midnight on their 18th birthday, or as they are walking out of their final year 12 exam. This is particularly the case if they are about to embark on a new course of study instead of heading straight into the workforce.

Section 66L of Family Law Act provides for the payment of “adult child maintenance” if it is necessary to enable an adult child to complete their education, or because of a mental or physical disability. This means that a child, or a parent on their behalf, may be able to make an application to the Court to compel their parent or parents to continue contributing to their financial upkeep into adulthood.

How much maintenance is paid depends on a number of factors, including the child’s necessary expenses, each parent’s financial position, and the amount each parent needs to support themselves and other people they have an obligation to support. Necessary expenses can include food and housing, medical needs, and costs to do with study like books and laptops. The court will also consider whether the course the child is pursuing will help the child earn an income, and whether the child can work part time to contribute to their own costs.

If you are being asked to pay child support for an over 18 year old, or you want to apply for child support for a child who is over 18, the first step is usually to try to work it out within the family. If that does not work, or you want to understand your rights and obligations before that discussion takes place, you may wish to seek legal advice from a specialist family lawyer.

If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online. 

Parentage Testing in Family Law Matters - Can I be Ordered to take a test?

What can you do if you think you are a parent of a child, but the other parent does not agree? Or if someone is telling you they think you are a parent of a child, but you do not think you are? These situations can be incredibly stressful for everyone involved, especially if one person asks the other to take a parentage test – and the request is refused.

When parentage of a child is an issue in a family law matter, the Court does have the power in certain circumstances to make orders requiring that a person undertake parentage testing. That power is not just limited to asking potential fathers to take a test, the Court can also order essentially any person that it believes will assist in determining the parentage of a child to take a test, including the mother and other relatives of the child

Parentage testing is only appropriate in cases where the person asking for the test has an honest and reasonable belief to doubt the assumptions about paternity, and where there is evidence that places doubt on the parentage of that child. The Court cannot make the order just to satisfy the doubts of a parent. There must be more than a mere suspicion that a person is not that child’s parent, and what evidence is necessary to satisfy it is appropriate to make parentage testing orders will depend on the circumstances of each case.

The Family Law Act 1975 has very specific provisions dealing with the procedures that must be followed, the kind of reports that are permitted, and how they are admitted into evidence. It is a technical area of law. If you find yourself in a situation where you might want to take a test, or someone is asking you to, it is important that you seek advice from a specialist family lawyer.

If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online. 

Can I apply to have a Care and Protection Order revoked?

The ACT Childrens Court can make a care and protection order for a child or young person if the Court is satisfied that the child or young person is in need of care and protection, that the Order is necessary to ensure their care and protection, and that the Order is in the best interests of the child or young person.

Often, care and protection orders are made where there are risks (or allegations of risk) to the child or young person arising from parental drug use, family violence or mental health issues, resulting in circumstances where there is no parent ‘willing and able’ to care for the child or young person.

Depending on the circumstances of the case and the alleged risks to the child or young person, the Court may make orders that enable the ACT Child and Youth Protection Services (‘CYPS’) to decide where the child or young person should live, and who they should have contact with. Often, the child or young person is placed with another family member, or with foster careers.

These orders can be made on an interim basis, or on a longer-term basis. Depending on the circumstances, the final orders may provide an opportunity for the parent to address the issues that led to an order being put in place, and for the child to be gradually returned to their care (for example over a 12 or 24 month period).

The Court may be satisfied, however, that the Order should be made on a ‘final’ basis, until the child or young person turns 18. Often this means that CYPS will determine where the child lives, and who they have contact with, including how often (and in what way) they have contact with their parents: which may be limited to a few occasions each year.  

There may be grounds, however, for a person to apply for the care and protection order to be revoked (i.e. for the order to be removed/dismissed by the Court). The Court may decide to revoke the order (or a provision of the order) if satisfied that:

- The child or young person would not be in need of care and protection if the order were revoked. For example, if an order was made because the parent caring for the children was experiencing serious illicit substance abuse, and the parent is now clean of illicit drug use, they could argue that the order is no longer necessary to ensure the protection of the child or young person;

- The child or young person is persistently refusing to comply with a residence provision. For example, a decision may have been made by CYPS for the child or young person to live with foster carers, but the child or young person may be insisting on returning to the care of their parent (even if the Court has formed the view that that parent is not willing and able to care for them); or

- If it is otherwise in the best interests of the child or young person to revoke the order.

In making a decision about whether or not the order should be revoked, the Court also needs to consider the child or young person’s age, maturity, views, wishes and the risk of harm if the order is revoked.

A person seeking to revoke a care and protection order will need to file with their Application an Affidavit which addresses the basis on which they say the Court should revoke the Order, including any necessary supporting evidence, such as drug test results or a letter from a psychologist, and addresses the other factors the Court needs to consider, such as the age of the child and their wishes.

To obtain further information or book an initial appointment please contact us on 02 6225 7040, by email info@rmfamilylaw.com.au or get started online now by clicking here.

Who can apply to the Court for parenting orders?

Someone other than a parent of a child may bring an application seeking parenting orders in relation to a child. It is not uncommon for a child to be cared for by a person other than one of their parents, such as a grandparent, sibling, relative, or family friend. The Family Law Act recognizes that children can be raised outside of traditional familial relationships.

Under 65C of the Family Law Act, any of the following people can bring an application to the Court seeking parenting orders:

1. Parents;

2. The child;

3. Grandparents; or

4. A person concerned with the care welfare and development of a child.

The first three categories are self-explanatory, however, the third requires the Court to make a decision about whether the person bringing the application meets a particular threshold, being whether they are a person concerned with the care, welfare, and development of a child.

There are no set criteria that the Court uses to determine who is a person concerned with the care, welfare, and development of a child. In one case, a step-parent or an aunt or uncle may be declared to have leave to bring an application, in other cases, a great-grandparent’s application to bring proceedings has been refused. Each case will depend on the set of facts before the Court at the time, and the strength of the persons’ concern with the care and welfare of the child. For example, the Court is more likely to declare that a person is concerned with the care, welfare, and development of a child if they have been the primary carer of the child, or spent significant time with them throughout their lives, or if they have brought the application due to concerns about the risk of harm to a child.

Although parents and grandparents already have standing to bring an application for a parenting order, the case law confirms that there is no “hierarchy of applicant”. This means that an application brought by a parent or grandparent, will not be considered with any greater weight or priority than an application brought by someone concerned with the care, welfare, and development of a child. The Court must consider each application with regard to the legislative framework, in particular, with the best interests of the child as the paramount consideration. Any person seeking that the Court make parenting orders must have a proper basis to bring the application, irrespective of what their relationship is to the child the subject of the proceedings.

It is important to seek specialized advice from a family law solicitor about whether you have the standing to bring an application seeking parenting orders, and to obtain general advice in relation to your family law matter.

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

By Margot McCabe

Allegations of Risk to Children in Family Law Matters

Family law cases that involve allegations of risk to children can be difficult for everyone involved, particularly because of the broad range of issues which can arise. Children can be at risk of sexual or physical abuse, or at risk because a parent’s mental health, alcohol or substance abuse impacts on their parenting capacity. They can be at risk of harm by neglect, or a ‘flight risk’ if one parent is seeking to relocate overseas without the other parent’s consent. They can be at risk of emotional harm by being exposed to family violence, or of emotional harm arising in some other way.

When an allegation of risk is made, the Court must carefully consider what Orders are necessary (if any) to protect that child from that risk. The Court must consider the level of risk and the type of harm, and then look at those factors along with all of the other considerations that must be taken into account when determining what outcome will be in a particular child’s best interests. The Court might make Orders requiring that one parent be supervised when spending time with a child, or that they undergo drug or psychological testing. What is appropriate will vary depending on the specific circumstances of each case, and every case is different.  

Sometimes allegations of risk in family law matters turn out to be nothing but mere allegations, but it can take time for a Court to sort through whether or not a child really is at risk or not. This can be incredibly frustrating for the parent against whom the allegation is made, particularly if their time with the children is stopped or curtailed while the allegations are being examined. In other cases, the risk of harm ultimately proves to be real and Orders will be made either trying to manage that risk, or to prevent the risk entirely by stopping a child from spending any time with that parent.  

In the recent case of Syms & Syms (2021) FLC 94-010, the Mother made allegations that the Father was sexually abusing their three children. She refused to allow him to spend any time with them, and so the Father commenced Court proceedings in the Family Court. The matter went on for several years and the trial Judge ultimately formed the view that Father was not a risk to the children, but that they were at risk – from the Mother’s unshakeable view that they were being abused. The Judge was concerned that if the children stayed living with the Mother, they would not only lose their relationship with their Father, but they would also come to accept their Mother’s belief that they were being sexually abused. This represented an unacceptable risk of emotional harm, and accordingly Orders were made of the children to live with their Father. They were prevented from spending any time at all with the Mother for four months, and were then permitted to spend supervised time with the Mother until the Father decided the supervision requirement was no longer necessary. The Mother appealed the decision and was ultimately unsuccessful. This case serves as a reminder that risk and harm can exist in many different forms, and that sometimes where a family law matter starts out can be very different from where it ends.

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

What if we can’t agree on vaccinating our child?

Now that Australians are starting to dip their toes into the brave new world of COVID-19 vaccinations, family lawyers are expecting to see a particular issue in parenting matters raise its head– vaccinating children, and what happens when parents cannot agree.

Whether or not a child is vaccinated is a major, long term parenting decision and falls within the scope of ‘parental responsibility’ under the Family Law Act. If you and the other parent really cannot agree on what, if any, vaccinations you are going to give your children, you can ask the Court to step in to make that decision for both of you.

In the recent case of Covington & Covington (2021) FLC 94-014, the Mother had consented to an order allowing their daughter to be vaccinated but tried to withdraw her consent a few days later. She filed an appeal, arguing that the Australian Constitution prohibited the Family Court from making Orders for a child to be vaccinated and that any doctor administering the vaccination would be committing an assault against their child. In dismissing her appeal, the Court held that it is well settled that the Family Court does in fact have the power to make Orders about vaccinations, both by consent and without the consent of one parent. Each matter turns on its own facts, and in this particular case, the fact that the mother changed her mind later was not a proper basis for the Court to change the original Order.

If you do find yourself in this situation, you should seek specialist family law advice before taking any steps. There is no ‘one size fits all solution when parents disagree about vaccinations. It is a complex area, and any application to the Court seeking orders about vaccinations must properly address the advantages and disadvantages of vaccinating or not vaccinating your child, not just children generally. Evidence about your child’s personal medical history and circumstances must be put forward along with expert evidence from medical specialists who are appropriately qualified to give that evidence.

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

5 Things You Need To Know About Surrogacy

1. Commercial surrogacy is not permitted in Australia.

Although each state has different laws relating to surrogacy arrangements, there is one consistent theme throughout Australia. Commercial surrogacy is not permitted in Australia, and any surrogacy arrangement must be altruistic. This means that one party cannot bargain with another party in order to persuade them to become a birth parent.

In some states, a birth parent may be entitled to be reimbursed certain expenses which they incur as a result of the pregnancy, such as medical expenses.

2. Surrogacy laws vary from state to state.

There is no uniform national legislation in relation to surrogacy arrangements in Australia. This means that the laws relating to surrogacy vary state to state. Accordingly, it is necessary for you to receive specialist advice which is tailored to where the child of a surrogacy arrangement will be born.

3. It is necessary for a person entering a surrogacy agreement to obtain legal advice and also independent counselling.

To ensure that each party entering into a surrogacy agreement is emotionally equipped to do so counselling is required.

Thereafter, and prior to entering into a surrogacy arrangement, each party must obtain independent legal advice regarding the surrogacy arrangement to understand the associated risks and processes.

4. Surrogacy arrangements are not enforceable.

Surrogacy arrangements are not enforceable in Australia. They are however evidence of each party’s intention that a biological parent may not ultimately be the legal parent of a child born of a surrogacy arrangement. In some states, surrogacy arrangements may be able to be enforced in relation to the reimbursement of any expenses, such as medical expenses, which a birth parent has incurred as a result of the pregnancy/birth.

5. After a child of a surrogacy arrangement is born, you may not be the legal parent.

There are complex presumptions which apply in relation to parentage in Australia. A birth mother is considered to be a legal parent until the making of a Parentage Order by a Court, as envisaged by a surrogacy arrangement.

There is also a presumption that any person who is married to, or in a de facto relationship with, the birth parent is also a legal parent of a child born of a surrogacy arrangement.

If you are considering a surrogate, or have been asked to be a birth parent, it is important to obtain independent legal advice to fully understand your options and position at law. Please contact one of our family law specialists in Canberra on (02) 6225 7040 to make an appointment.