Two is Customary – Three is Allowed

I am not alone when thinking of things in twos.

Holden v Ford

Pepsi v Coke

Optus v Telstra

Two teams in a match, two peas in a pod, two birds with one stone.

Two parties in a court case. Except – this last phrase is not always the case.

There are two ways a person can become a third party to a traditional two party case – either as an Independent Children’s Lawyer or an Intervener.

Independent Children’s Lawyers (aka ICLs) are the third ingredient in many a parenting matter in the family law courts. The name itself tells two things, they are independent and they act on behalf of the children. What it doesn’t clarify is the when and why.

– When they are appointed it is often in cases where there is high conflict and tension between the parties.

– Why they are appointed is to assist the parents in reaching a resolution that is in their children’s best interests, to alert the Court to the children’s wishes and to ensure the Court is informed of any factors in a case that could affect any of the settlement outcomes. A couple of questions always asked are: 1- Does the ICL take instructions from the child? and 2- Does the ICL have to always act on the wishes of the child? No and No.

When an ICL meets with the children it is to explain in child-friendly terms the reason for the meeting and ask the children’s wishes, they never take instructions from the children. They are there to protect their interests and ensure any settlement reached will be a working and beneficial one for the children. They are also obliged to tell the court what the children’s wishes are but not fight for those wishes if they are not in the children’s best interests.

So that’s that for the ICLs. But before I say ta-ta, the second part on third parties – Interveners –under the title To Intervene or not to Intervene – that is the question will be released shortly.

By Nadia Messiha

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