Dalca & Hamid 2009 FamCA 1256

The judge noted that a rule of estoppel means that generally it is not in the interests of a child to have repeated applications concerning custody and access raised in a Court.  There must be an end to litigation.  Information that has been submitted in a previous hearing cannot be re-submitted and re-heard.

However a judge may admit evidence that was raised in an earlier trial that occurred many years before.  In this case, an assault had occurred 12 years ago and well before the Federal Magistrate’s determination, so it is necessary to have regard to the circumstances and severity of the assault when assessing the father’s current attitude to the mother and to family violence.

Independent Children’s Lawyer

The judge ruled that an Independent Children’s Lawyer ICL is appointed to form an independent view based on available evidence of what is in the best interests of children.  The ICL is not a legal representative retained by the children and is not bound by any instructions from the child.  The role of the ICL is to deal impartially with the parties, to ensure that any views expressed by the children are fully put before the court, to analyse documentary expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The ICL has a specific duty to take steps to minimise for each of the children the trauma associated with proceedings and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.

 

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