A Child's Views in Family Court and the Independent Children's Lawyer (Australia)

In Australian parenting proceedings, a child's views are one of six factors a court must weigh under section 60CC(2)(b) of the Family Law Act 1975, heard through a family report, an Independent Children's Lawyer, or another court-approved method, never by requiring the child to give evidence.

This article covers how a child's views reach an Australian family law court and what an Independent Children's Lawyer does under the Family Law Act 1975. It assumes the six section 60CC(2) best-interests factors and the 2024 repeal of the presumption of equal shared parental responsibility, already covered on Parenting Orders in Australia. For where an ICL and a family consultant fit into a matter generally, see The Family Court Process in Australia.

The child's views as a factor: section 60CC(2)(b)

Section 60CC(2) sets out six matters the court must consider in every parenting decision. Paragraph (b) reads simply: "any views expressed by the child." Unlike the safety factor in paragraph (a) or the developmental-needs factor in paragraph (c), paragraph (b) carries no built-in age or maturity qualifier, and no minimum age appears in the text.

This is a change from the wording in force before 6 May 2024, which, as it then read, directed the court to weigh a child's views together with factors such as the child's maturity or level of understanding. The 2024 rewrite dropped that express weighing language; the Act still leaves the court to decide what weight a particular view carries, including through the residual factor in section 60CC(2)(f) and through how the view reached the court under the mechanisms below. See Parenting Orders in Australia for the full six-factor framework.

How the court hears a child's views: section 60CD

Section 60CD does not let a child's views arrive in court unfiltered. Under section 60CD(2), the court may inform itself of a child's views by three channels: a family consultant's report under section 62G(2); an Independent Children's Lawyer ordered under section 68L; or, subject to the Rules of Court, any other means the court thinks appropriate. A note tied to the report channel points to section 62G(3A) (a family consultant must generally ascertain and include the child's views); a note tied to the ICL channel points to section 68LA(5)(b) (the ICL must ensure the child's views are fully put before the court). Both are covered below.

None of these channels can compel a child to speak. Section 60CE is a flat rule: nothing in Part VII permits the court or any person to require a child to express their views. Section 100B keeps a child out of the witness box and the affidavit process by default: under section 100B(1)-(2), a child who is not a party must not swear an affidavit, be called as a witness, or be present during proceedings, without a court order (section 100B(3) defines "child" as under 18).

Family reports under section 62G

Section 62G lets the court direct a family consultant to prepare a report on matters relevant to the proceedings, where a child under 18's care, welfare and development is relevant. Under section 62G(3A), the consultant must ascertain the child's views and include them in the report, unless section 62G(3B) applies: it is inappropriate because of the child's age or maturity, or some other special circumstance. The report may be received in evidence under section 62G(8).

The Act itself uses only this generic language, "a report ... on such matters relevant to the proceedings as the court thinks desirable." It does not use the term "Child Impact Report" anywhere in the compiled text, so this article does not use that phrase as if it were a statutory term.

The Independent Children's Lawyer: appointment and role

Section 68L sets the trigger. It applies to proceedings in which a child's best interests are the paramount or a relevant consideration, including under the Hague Child Abduction Convention regulations. Under section 68L(2), if it appears to the court that a child's interests ought to be independently represented, the court may order it: an open-textured judgment call, with no checklist of grounds in the section itself. Under section 68L(4), the order can be made on the court's own initiative, or on application by the child, a child-welfare organisation, or any other person, in practice including a parent or a legal aid commission. The section itself lists no factors; how that discretion is exercised in a given case is a matter for the court. Where a parenting case involves allegations of family violence, the way the court screens and manages risk is covered in family violence and parenting orders in Australia.

Once appointed, section 68LA sets the role. Under section 68LA(2), the ICL must form an independent view of the child's best interests, based on the evidence, and act accordingly; section 68LA(3) requires a submission to the court where a course of action is, in the ICL's view, in the child's best interests. Critically, section 68LA(4) states the ICL is not the child's legal representative and is not obliged to act on the child's instructions. Section 68LA(5) adds duties to act impartially, ensure the child's expressed views are fully put before the court, analyse the evidence, minimise trauma to the child, and facilitate an agreed resolution.

The 2024 duty to meet the child: section 68LA(5A) to (5D)

Since 6 May 2024, section 68LA(5A) has required an ICL to meet with the child and give them an opportunity to express views relevant to the proceedings, not necessarily at the same time (section 68LA(5AA) leaves the ICL discretion over when, how often, and how, subject to any court order).

Section 68LA(5B) sets three exceptions: the child is under 5; the child does not want to meet or express views; or exceptional circumstances justify not performing the duty, defined non-exhaustively in section 68LA(5C) as an unmanageable risk of physical or psychological harm, or a significant adverse effect on the child's wellbeing. A safeguard attaches only to that third ground: under section 68LA(5D), if an ICL relies on it, the court must, before final orders, determine whether it is satisfied exceptional circumstances exist, and if not, order the ICL to meet the child. The under-5 and child-doesn't-want-to exceptions carry no equivalent mandatory court check.

This duty was inserted by the Family Law Amendment Act 2023 (No. 87, 2023), assented 6 November 2023, under Schedule 4, "Independent children's lawyers and Hague Convention proceedings," which commenced 6 May 2024, the same date as the section 60CC rewrite and the section 61DA repeal.

Who pays for the Independent Children's Lawyer: section 114UC

An ICL's costs are governed by section 114UC, not section 68L. Under section 114UC(1), the court may order that each party bears, in a proportion it considers just, the costs of the ICL. Section 114UC(2) limits that power: no costs order against a party receiving legal aid, or one the court considers would suffer financial hardship. Under section 114UC(4), the court must disregard, when deciding any costs order, that the ICL is itself funded under a Commonwealth, State or Territory legal aid scheme, or one approved by the Attorney-General.

For the wider family-law framework, see the Australia family law hub and The Family Court Process in Australia. Where a grandparent is a party alongside an ICL, see Grandparents' Rights in Australia.