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Who is an Independent Children’s Lawyer?

Nicole Stevens ||

An Independent Children’s Lawyer (“ICL”) is a lawyer appointed in family law proceeding to represent the best interest of a child.

When is an ICL appointed?

The appointment of an ICL can be as a result of an application being filed by either of the parties to the proceedings of by the Federal Circuit and Family Court of Australia (“the Court”) on its own motion.

When considering the appointment of an ICL, the Court will give consideration to the issues in dispute in that particular matter, the best interests of the child/children and, will have regard to a non-exhaustive list of criteria that is reported in a well-known and often referred to 1994 case of Re K (1994) FLC 92-461. These criteria include when a matter has:

  • Allegations of child abuse or family violence;
  • Severe conflict between the parties;
  • Disagreement between the parties about the children’s views and the children are old enough to express their views;
  • Serious concerns about the mental health of the child or one of the parties;
  • Risk the child being removed from the jurisdiction;
  • Both parties are self-represented;
  • One of the parties is seeking for the siblings to be separated;
  • Neither party seems to be an appropriate carer for the child based upon the material before the Court; and
  • There are especially complex issues to be determined.

What happens after an ICL is appointed?

Once an Order has been made, the Court will forward to the Legal Aid office in the state or territory where the child resides a request for the appointment of a lawyer for the child.  An ICL may be either a practice in private practice who accepts legally aided matters or a practitioner from Legal Aid itself.  A practitioner must be accepted on the board of practitioners for ICL before being allocated a matter.

Once an appointment has been made, the ICL is a party to the proceedings and will be required to file documents and attend court at each event.

What is the role of an ICL?

The role of the ICL is detailed in section 68LA of the Family Law Act.  The ICL is not the child’s legal representative and is not therefore not obliged to act on the child’s instructions.  Essentially the ICL is to obtain and form an independent view of the evidence available to the Court and otherwise act in the children’s best interest.

The Specific duties of the ICL are to:

  • act impartially in dealings with the parties to the proceedings; and
  • ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
  • if a report or other document that relates to the child is to be used in the proceedings:
    • analyse the report or other document to identify those matters in the report or other document that the independent children‘s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
    • ensure that those matters are properly drawn to the court‘s attention; andendeavour to minimise the trauma to the child associated with the proceedings; and
  • endeavour to minimise the trauma to the child associated with the proceedings; and
  • facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

Depending on the child’s age, the ICL may meet personally with the child and ascertain their views and wishes.The ICL is under no obligation to inform either the parents or the Court of any discussions they have had with a child unless the ICL forms a view that it is in the child’s best interest to do so.

Who pays?

The ICL is funded at first instance by the relevant Legal Aid body in the state or territory in which the child lives. An ICL has an obligation to seek an order upon the finalisation of the matter for the parties to contribute to the costs incurred by Legal Aid.The Court will, having regard to the party’s individual financial circumstances, strongly consider such an order.

For further information please view the following guidelines:

The Federal Circuit and Family Court of Australia have endorsed guidelines for Independent Children’s Lawyers. You can read them here.

The National Legal Aid has also published brochures that can help you explain the role of the ICL. You can access the brochures here.

If you have any questions that you might have in relation to the appointment or role of an ICL, one of our Accredited Specialists in Family Law will be happy to assist.

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