Unraveling the ICL Enigma: Unjustified Barriers and the Quest for Fair Child Contact Rights
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Question
I have evidence that the ICL has given one party some legal advice. This legal advice was to help further restrict me from having contact with the children, this despite no evidence of harm by myself.
I have been advised that the ICL is not to provide Legal Advice to either party, what can I do?
Answer
LEGALEASE OUTPUT: ( FLAST-AI Converts your question into Facts and Issues)
Facts:
1. The Independent Children's Lawyer (ICL) has allegedly provided legal advice to one party.
2. The purpose of the legal advice was to further limit my contact with the children.
3. There is no evidence of harm caused by me to the children.
4. I have received information that the ICL is not permitted to provide legal advice to either party.
Issues:
1. The issue of whether the ICL has breached their duty by providing legal advice to one party.
2. The question of what recourse is available if the ICL has indeed provided such advice.
Analysis:
Family Law Act:
1. The relevant sections of the Family Law Act 1975 (Cth) are Section 68L and Section 68LA, which provide the role and obligations of an Independent Children's Lawyer (ICL). Under these sections, an ICL represents the best interests of the child and has a duty to act impartially in dealings with the parties. The ICL is not permitted to act as the legal representative for either party in the proceedings.
2. If an ICL has allegedly provided legal advice to one party, it could be seen as a breach of their duty to remain impartial, as they are tasked with representing the best interests of the child, not the interests of either parent.
3. If such a breach has indeed occurred, recourse may be sought by raising this issue before the court handling your case. You might consider filing a complaint about the ICL's conduct or seeking their removal from your case on grounds of bias. However, you should seek legal advice before taking any such steps.
4. In addition to this, under Section 10J of the Family Law Act 1975 (Cth), anything said or any admission made by or in company of a family dispute resolution practitioner is not admissible in court unless it indicates that a child under 18 has been abused or is at risk of abuse. This section might be relevant depending on what was said during your discussions with the ICL.
Family Law Court Rules:
1. The Independent Children's Lawyer (ICL) has a duty to act in the best interests of the child or children involved in a family law dispute, as per rule 116 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. This includes not acting as a legal representative for either party in the proceedings. If the ICL has provided legal advice to one party with the intent to limit your contact with your children, this may indeed constitute a breach of their duty.
2. If you believe that an ICL has breached their duty, you may bring this issue to the attention of the court. The court can then decide how to proceed based on the evidence provided. Depending on the severity and impact of the alleged breach, possible outcomes might include a warning, reprimand, or removal of the ICL from their role in your case. It is recommended that you seek independent legal advice to discuss your options further.
Relevant sections:
- Rule 116: Outlines the responsibilities and duties of an Independent Children's Lawyer (ICL). This includes acting in the best interests of the child, not providing legal advice to parties and maintaining impartiality.
- Rule 1215: States that non-compliance with pre-action procedures could result in cost penalties against a lawyer if they have failed to comply with these procedures.
Family Law Rules (Regulations):
1. According to the Family Law Rules 2004 (the 'REGS'), an Independent Children's Lawyer (ICL) does not represent the child's wishes per se but represents the child's best interests. The ICL is expected to remain impartial and independent, facilitating communication between parties, and assisting the court to make a decision that is in the child's best interests.
2. If it can be substantiated that the ICL has provided legal advice to one party, this could potentially be a breach of their duty. As per Rule 16.05 of REGS, an ICL should avoid any conduct that may give rise to a reasonable apprehension of bias or partiality.
3. In terms of recourse, Rule 16.07 of REGS provides for a party to apply for the removal of an ICL if they believe there has been a breach of duty or misconduct by the ICL. This application would need to be supported by evidence demonstrating that the ICL has acted outside their role and duties.
4. Further, Rule 16.06 also outlines that complaints about an ICL can be made directly to Legal Aid in your respective state or territory.
5. It is recommended that you seek legal advice before taking any action as the matters involved are serious and may have significant implications for your case.
Case Analysis - Compare Facts and Applicable Law to known recent cases and precedents.
The case study presented poses two primary issues: the allegation that the Independent Children's Lawyer (ICL) has breached their duty by providing legal advice to one party, and the question of what recourse is available if the ICL has indeed provided such advice.
In relation to the first issue, it is important to note that the role of an ICL is not to represent a child in the same way as a lawyer represents an adult client. As stated in section 68LA of the Family Law Act 1975 (Cth), the role of an ICL includes forming an independent view of what is in the best interests of the child and ensuring that this view is fully put before the court. The ICL should remain impartial and should not act on instructions from any party.
Turning to relevant case law, we can look at "Marella & Marella [2022] FedCFamC2F 1564 (16 November 2022)" which involves a situation where there was an allegation that an ICL had provided legal advice to one party. In this case, it was held that providing legal advice would be a breach of their duty as it could potentially compromise their impartiality.
On the second issue, recourse for alleged breaches by an ICL can be sought through several mechanisms. The court itself has powers under section 68LA(5) of the Family Law Act 1975 (Cth) to limit or end the involvement of an ICL in a proceeding if it considers that they have not properly carried out their obligations.
1. The issue of whether the ICL has breached their duty by providing legal advice to one party:
In Gillen & Lindo [2021] FedCFamC1F 7, the court held that the ICL has an obligation to form an independent view based on the evidence available to them and act in relation to the proceedings in what they believe to be the best interests of the child, as outlined in s 68LA of the Family Law Act 1975 (Cth). This duty is not so as to exclude an ICL forming views of the case and the best interests of the child prior to the full presentation of evidence, as stated in Howell & Carter (No 2) [2017]. In this case, it appears that the ICL has provided legal advice to one party, without considering all available evidence or taking into account any potential harm caused by limiting contact with a parent. As such, it seems likely that this would be a breach of their duty.
2. The question of what recourse is available if the ICL has indeed provided such advice:
If it is found that the ICL has breached their duty by providing legal advice to one party without considering all available evidence or taking into account any potential harm caused by limiting contact with a parent, then recourse may be available. Section 68N(1)(a) of the Family Law Act 1975 (Cth) allows for an application for removal of an ICL from a case if there are reasonable grounds for believing that they have failed to fulfil their obligations under s 68LA. In this case, it may be possible for an application for removal of the ICL to be made on these grounds.
Case Law
In Lloyd & Lloyd and Child Representative (2000) FLC 93-045, Holden CJ outlined circumstances that would lead a court to consider discharging a separate representative (now known as an ICL). One such circumstance was if there was evidence that the separate representative had acted contrary to the children’s interests or demonstrated a lack of professional objectivity. If it can be shown that providing legal advice amounted to acting contrary to the children's interests or demonstrated bias, this may justify removal of the ICL.
Further, Howell & Carter (No 2) (2017) 317 FLR 151 provided that while an ICL must remain impartial, they are not excluded from forming views about what is best for the child before all evidence is presented. However, offering legal advice goes beyond forming a view and ventures into advocating for one party's position.
If it is found that there has been misconduct by the ICL through providing legal advice, recourse could potentially involve reporting this misconduct to their governing legal body for potential disciplinary action. If you feel their actions have significantly impacted your case, you may also consider seeking legal advice about possible remedies or next steps, which may include applying to the court for the ICL's removal and replacement.
It is important to note that these are potential remedies and the specific facts of your case would need to be taken into consideration. Any allegations of misconduct should be supported with evidence, and it is recommended that you seek legal advice to discuss your options further.
IRAC Analysis
Issue: The issue at hand is whether the Independent Children's Lawyer (ICL) has breached their duty by allegedly providing legal advice to one party, and what recourse is available if such a breach has occurred.
Rule: According to the Family Law Act 1975 s 68LA, the ICL must form an independent view based on the evidence available to them about what is in the best interests of the child. They must act in the proceedings in what they believe to be the best interests of the child. Furthermore, Howell & Carter (No 2) provides that an ICL's obligation includes impartiality and does not exclude them from forming views about the case and the best interests of the child before full presentation of evidence.
Application: If it is found that the ICL has indeed provided legal advice to one party with the intent to limit your contact with your children, this could potentially be a breach of their duty under s 68LA as it may suggest a lack of impartiality. However, it would need to be determined whether such advice was provided and whether it was contrary to the best interests of the child. The case law supports that an ICL should remain impartial but also form views about what they believe are in the best interests of the child based on available evidence.
As for recourse, Lloyd & Lloyd and Child Representative provides circumstances that may lead a court to consider discharging an ICL. These include evidence that an ICL acted contrary to children's interests, demonstrated a lack of professional objectivity, or breached fiduciary duty or had a conflict of interest. If it can be proven that any of these circumstances apply due to the alleged advice given by the ICL, then there may be grounds for their discharge.
Conclusion: Therefore, if there is evidence supporting your claim that the ICL has provided legal advice to one party with intent to limit your contact with your children without any evidence of harm caused by you, it could potentially be seen as a breach of their duty. However, this would be contingent on whether such advice was contrary to the best interests of the children and whether it demonstrated a lack of professional objectivity. If these conditions are met, there may be grounds for discharging the ICL.
Please note this is general information only and does not constitute legal advice. It is always advisable to seek professional legal advice based on your specific circumstances. It is important that you consult with your own legal counsel regarding these matters as they can provide guidance tailored specifically to your situation and advocate on your behalf if necessary.
Please note that this analysis is based on general principles and should not be considered as legal advice. It is strongly recommended that you consult with a qualified family law attorney for guidance tailored to your specific circumstances.
This answer is FLAST-AI assisted, consult with a lawyer before using this information.