In many parenting proceedings in the Federal Circuit and Family Court of Australia, the Court will appoint an Independent Children’s Lawyer or ‘ICL’.
What is an Independent Children’s Lawyer?
An Independent Children’s Lawyer is a legal practitioner appointed by an order of the Court under section 68L of the Family Law Act 1975 to represent the best interests of the child or children subject of a family law dispute.
When will the Court appoint an Independent Children’s Lawyer?
In the matter of Re K (1994) FLC 92-461, the Full Court provided guidance relating to the circumstances in which an Independent Children’s Lawyer may be appointed by the Court. These criteria include:
- Cases that involve allegations of child abuse, whether physical, sexual or psychological;
- Cases where there is an apparently intractable conflict between the parents;
- Cases where the child is apparently alienated from one or both parents;
- Where there are real issues of cultural or religious differences affecting the child;
- Circumstances where the sexual preferences of either or both parents or some other person having significant contact with the child are likely to impinge upon the child’s welfare;
- Where the conduct of either or both parents or some other person having significant contact with the child is alleged to be antisocial to the extent that it seriously impinges on the child’s welfare;
- Where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children;
- Any case in which, on the material filed by the parents, neither seems a suitable custodian;
- Any case in which a child of mature years is expressing strong views, the giving of effect to which would involve changing a long-standing custodial arrangement or a complete denial of access to one parent;
- Where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for all practical purposes exclude the other party from the possibility of access to the child;
- Cases where it is proposed to separate siblings.
However, their Honours stressed that this guidance is not exhaustive, and the Court may appoint an Independent Children’s Lawyer for reasons other than those listed.
What is the role of an Independent Children’s Lawyer?
As an advocate for the best interests of the child, an Independent Children’s Lawyer has an obligation to act impartially and in a manner that is independent of the Court and the parties.
An Independent Children’s Lawyer does not take direct instructions from the child. Where appropriate The Independent Children’s Lawyer will, provided it is appropriate to do so, meet with the children. This gives children an opportunity to express a voice in the proceedings and allows the Independent Children’s Lawyer to hear directly from a child about their views, experiences, wishes and concerns. In determining appropriate circumstances, an Independent Children’s Lawyer will have regard to the child’s age, developmental level, cognitive ability, emotional state, views, and to the extent the child may wish to be involved. An Independent Children’s Lawyer will meet children of a school age in most cases.
What will an Independent Children’s Lawyer do?
An Independent Children’s Lawyer will seek to promote the timely resolution of proceedings in the best interests of the child. In doing so, the Independent Children’s Lawyer must be satisfied that the adoption of any particular course of action is in the child’s best interests and will, in consideration of any relevant facts, call into question the advisability of any course of action or proposed settlement.
Throughout proceedings but particularly at final hearing, the Independent Children’s Lawyer will make a recommendations and submissions to the Court.
To inform their recommendations and submissions, the Independent Children’s Lawyer will read all the documents filed by the parties to proceedings. These documents will frequently include the party’s application or response, affidavits, and notices of child abuse, family violence or risk. An Independent Children’s Lawyer will also review any material produced under subpoena and/ or expert reports commissioned during the course of the proceedings.
An Independent Children’s Lawyer may also elect to contact relevant professionals, including allied health professionals and teachers, to help inform any submission that they may make to the Court.
What is the benefit of having an Independent Children’s Lawyer?
There are many benefits to the Court, the parties, and the child from the appointment of an Independent Children’s Lawyer. Some of these benefits include:
- An impartial perspective – An Independent Children’s Lawyer acts impartially. They are concerned with the best interests of the child having regard to the facts of the case.
- Expertise – In New South Wales, there is a requirement that an Independent Children’s Lawyer have 5 years of post-admission experience in family law and that 75% of their practice be in family law. They are required to undertake a three-phase training course and maintain a Working with Children Check.
- Representation of the child’s views and interests – where appropriate, the Independent Children’s Lawyer will convey the views of the child to the parties and Court. An Independent Children’s Lawyer will advocate for the rights and interests of children in family law proceedings.
- Resolution Facilitation – By virtue of their impartial perspective and expertise, an Independent Children’s Lawyer can assist in facilitating an amicable resolution to family law disputes.
Here at Gillard Family Lawyers, we have experienced solicitors in the area of family law to help you manage your parenting matters. We pride ourselves on empathy and compassion, so if you need legal help with a Family Law matter, simply get in touch with our friendly team.
