Week 8 Family Law Act

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

The ICL forms an independent view on the best interests of the child, represents the child's views in court, acts impartially, and ensures the child's voice is heard without being bound by the child's instructions.

When should an ICL be appointed according to Re K factors?

An ICL should be appointed in cases involving allegations of abuse, intractable conflict, child alienation, cultural/religious differences, concerns about a parent's health, unsuitable residential parents, children's expressed wishes, threats of removal from jurisdiction, sibling separation issues, or when neither party is represented.

What are the requirements of an ICL under Section 68LA of the Family Law Act?

The ICL must demonstrate an independent view of the child's best interests, present submissions to the court, act impartially, ensure children's views are communicated, and minimize trauma to the child.

Explain the significance of the United Nations Convention on the Rights of the Child (UNCRC) in relation to ICL.

The UNCRC emphasizes that the best interests of the child must be a primary consideration in all actions concerning children and affirms the child's right to express their views freely.

What is the balancing act between children's rights and parental interests in relocation cases?

Relocation cases require balancing the child's right to maintain relationships with both parents against the residential parent's freedom of movement, evaluated through the best interests of the child.

What case established that allegations of sexual abuse must be treated with caution in parenting matters?

M v M (1988) established that courts should not grant custody/access if it exposes a child to an unacceptable risk of abuse and that the focus is on assessing risk rather than determining the truth of allegations.

List the key factors considered in risk assessment as highlighted in N & S and Separate Representative (1996).

Key factors include the nature of the allegations, who made them, their details, the child's exhibited effects, the basis and reasonableness of the allegations, evidence provided, and potential future effects on the child.

What steps must be taken before a change of child's name can occur?

A Family Dispute Resolution Practitioner must be consulted before filing a name change application, requiring consent from both parents if both are on the birth certificate.

What is the significance of Briginshaw v Briginshaw (1938) regarding evidence in family law?

The Briginshaw standard is applied to positive findings in family law, requiring the court to be satisfied on a higher level of evidence to make factual determinations.

What does the 'unacceptable risk' standard imply in family law cases?

The 'unacceptable risk' standard assesses whether a child might be exposed to future harm without needing to establish a positive finding of abuse, focusing on predictive risk and its magnitude.

What key case determined the framework for evaluating relocation applications in family law?

The case A v A: Relocation Approach (2000) established principles for evaluating relocation applications without requiring compelling reasons, prioritizing the child’s best interests.

What role do Family Consultants play in family law?

Family Consultants assist parties in proceedings, advise the court, help resolve disputes, prepare reports, and offer expert opinions on children's matters.