An Independent Children’s Lawyer Has Been Appointed – What you need to know

For those in the midst of a litigated parenting matter, you may have seen the other party apply to have

an Independent Children’s Lawyer (“ICL”) to be appointed. It may instead be the case that theCourt

has made an Order of its own motion, to appoint an ICL – what does this mean for your case?

What is an ICL?

An ICL is a separate legal representative who is appointed in a parenting matter to represent the “children’s best interests”. This does not necessarily mean that they advocate any views expressed by the children, or act strictly on the “instructions” of a child. Having regard to all the relevant factors set out in the Family Law Act 1975 (Cth), the ICL’s role is to assist the Court in determining an arrangement for children that is appropriate in all the relevant circumstances.

If an ICL has been appointed in your matter, it usually means that one (or more) of the following exist:

Allegations of family violence, abuse or neglect have been made;

The parties are in intractable conflict;

The parties have a differing understanding of the view expressed by the children about whom they wish to live or spend time with;

There are serious concerns about one of the parties’ or a child’s mental health;

The children are at risk of being removed from Australia;

Both parties are self-represented;

One of the parties has sought Orders which result in siblings being separated;

Neither party appears to be a suitable carer, on the material available to the Court; and/or

The issues in dispute are complex.

These circumstances are not exhaustive and the Court ultimately has the discretion to determine whether an ICL is required.

The ICL’s Role

In executing their role to assist the Court to determine a parenting arrangement that is in the children’s best interests, an ICL may (according to the Federal Circuit and Family Court of Australia):

Meet and speak with the children (where they are of an appropriate age and maturity);

Speak to the children’s counsellors, school teachers and/or principals;

Arrange for the production of, and examine, independent documents, including, material produced by organisations such as schools, the Department of Family Communities and Justice and the Police, and medical or psychological records produced for the children and/or parents;

Question witnesses (including parents and experts) at the final hearing; and/or

Arrange for a family or expert report.

ICL Costs

It is usually the case that ICL’s are funded by the Legal Aid Commission, though it is not uncommon for the parties to contribute to some of their costs (and you can request such costs from them).

ICL’s play a crucial role in parenting proceedings. We encourage parties to work with the ICL’s and give serious consideration to any recommendations they make, to ensure the best interests of your children can be achieved.

ALA Law are here to answer any questions you may have regarding Family Law Matters. Contact us to find out how we can help. We listen, and We Care.