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ICL needed, say appeal judges

By August 20, 2020February 23rd, 2024No Comments

ICL: A mother has successfully appealed her family court matter after the trial judge was found to have erred, effectively placing her in an “impossible position” in her court proceedings.  In the appeal matter of Gosai & Gosai (court-ordered pseudonyms), the mother was appealing an order to return her two children, aged 12 and 15, to live in India where their father resides. The matter focused on questions around independent evidence of the children’s views and whether or not an Independent Children’s Lawyer (ICL) should have been appointed. Let’s take a quick look at the issues.

“Impossible position”

The mother had wanted the court to appoint an Independent Children’s Lawyer (ICL) to represent her children’s views, but her application for this was dismissed without being considered. Because there were no family reports or other expert evidence available in the matter, this left the mother in an “impossible position because she could only rely on her own evidence as to the children’s views, which was discounted because it was not independent and her efforts to obtain, amongst other things, such independent evidence, were dismissed”.

In relation to an ICL being appointed, the mother had told the court:

“So in regards to that I would request you to please appoint, you know, independent child lawyer so that they’re – you know, the best interest can be verified and can be checked by the court and a right decision is made…”

The mother was not cross-examined and no evidence was presented to challenge her reporting of the children’s views. However, the primary judge said the mother may not have been accurately reporting those views and that the views would perhaps have been different if reported by independent means. The conundrum was that because the avenue to receive independent evidence was blocked, the mother had no way to present such evidence–and yet her own testimony was not sufficient evidence. This led to “a critical gap in the evidence in a way that was unfair to the mother”.

Mature children’s views

Under our family law, children’s views are given some weight in parenting matters, with judges having the discretion to determine how much weight to attribute to them. Normally, the views of children of ages 12 and 15 would be given certain weight, depending on the particular child’s level of maturity. However, in this case the primary judge gave two reasons for giving the children’s views little weight:

  • there was no independent evidence as to the children’s views; and
  • the children had spent two years living with the mother and not seeing the father, so it was “hardly surprising that the children’s views coincided with the views of their mother”.

But the refusal to appoint an ICL meant the court could not receive independent evidence of the children’s views.

When should an ICL be appointed?

The judgment points out that the United Nations Convention on the Rights of the Child contains provisions around children’s views in matters affecting a child:

“For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of nation law.”

These provisions have been incorporated into our family law, too.

The guidelines around the appointments of ICLs mean that courts will typically appoint an ICL in situations where: there is intractable conflict between parents, where a child is alienated from a parent, where a child of mature years is expressing strong views, or when a parent wants to move a child out of a jurisdiction. The facts of this matter “satisfied each of these criteria”, yet an ICL was not appointed.

The appeal judges noted “this was an obvious case for an appointment of a lawyer to represent the interests of the children and for their voices to be heard through that lawyer”.

Father’s family violence

The primary judge was also found to have erred on the matter of the father’s relationship with the children, to which he had said that there was “no objective evidence which would indicate that prior to their removal from India by their mother the children had other than a good relationship with their father, as he asserts”.

However, there was in fact such objective evidence. The mother’s “detailed recitation of the persistent and severe family violence which she says was inflicted on her by the father” was supported by “photographs, medical reports and detailed complaints to authorities in India”.

The primary judge was found to have made a mistake in the facts on the issue of the father’s family violence and the mother’s evidence that the children were scared of their father.

“The evidence of family violence bore directly upon the findings as to the views of the children and informed the findings as to the existence of a meaningful relationship between the children and the father, yet it was not considered. This is sufficient to establish error .”

Unrepresented litigants need more direction

In addition, the mother was an unrepresented litigant. This meant the primary judge should have done certain things, including draw the mother’s attention to the relevant legal guidelines and invite the mother to make submissions. However, this did not occur.

Ultimately, the errors made meant the judgment was found to be “erroneous in principle and a denial of natural justice to the children”. The mother and father were granted costs certificates for the appeal.

You can read this case in full here.

If you need assistance with a family law matter or have any queries regarding Independent Children’s Lawyers, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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