Adoption Act 2000

In this section—

child means a person (including a birth parent) who is less than 18 years of age.

The Court—

must appoint an Australian legal practitioner to represent a child if a guardian ad litem is appointed for the child, and

may (whether or not a guardian ad litem is appointed) appoint an Australian legal practitioner to represent a child if it appears to the Court that the child needs to be represented in any proceedings before it under this Act.

Without limiting the role of an Australian legal practitioner representing a child, the role of the Australian legal practitioner representing a child in proceedings includes—

ensuring that the views of the child are placed before the Court, and

ensuring that all relevant evidence is adduced and, where necessary, tested, and

acting on the instructions of the child or, if the child is incapable of giving instructions—

acting as a separate representative for the child, or

acting on the instructions of the guardian ad litem.

There is a rebuttable presumption that a child who is not less than 10 years of age is capable of giving proper instructions to an Australian legal practitioner representing the child. This presumption is not rebutted only because a child has a disability.

The Court may, on the application of an Australian legal practitioner representing a child, make a declaration—

that a child who is less than 10 years of age is capable of giving instructions, or

that a child who is not less than 10 years of age is not capable of giving instructions and that the legal representative is to act as a separate representative of the child.

If—

a child is less than 10 years of age, or

a child who is not less than 10 years of age is incapable of giving proper instructions to the Australian legal practitioner representing the child,

the Australian legal practitioner representing the child is to act as a separate representative.

The role of a separate representative includes the following—

to interview the child after becoming the separate representative,

to explain to the child the role of a separate representative,

to present direct evidence to the Court about the child and matters relevant to his or her safety, welfare and well-being,

to present evidence of the child’s wishes (and in doing so the separate representative is not bound by the child’s wishes),

to cross-examine the parties and their witnesses,

to make applications and submissions to the Court for orders (whether final or interim) considered appropriate in the interests of the child,

to lodge an appeal against an order of the Court if considered appropriate.

An Australian legal practitioner representing, or acting as separate representative of, a child who has not been appointed by the Court may appear only with its leave.

The Court may withdraw its leave at any time if the child informs the Court that he or she does not wish to be represented by the Australian legal practitioner.