What is an Independent Children’s Lawyer?
An Independent Children’s Lawyer (ICL) is a lawyer appointed by the Family Court to represent the best interests of the child in parenting disputes.
Section 68L of the Family Law Act 1975 enables the child, as well as persons and organisations concerned with the wellbeing of the child, to apply for an ICL. The Court will usually appoint an ICL if one or more of the following circumstances are relevant:
- There are allegations of abuse towards the children;
- There is a high level of conflict and dispute between the parents;
- The child is mature enough to express their own views;
- There are allegations of family violence;
- Either one of the parents or child suffer from serious mental health issues;
- The case involves difficult and complex issues.
What do Independent Children’s Lawyers do?
ICL’s take into consideration the views of the child and form their own opinion about what arrangements and decisions are in the child’s best interests. This may include:
- Talking to the child.
- Talking to the family consultant and other relevant people, including teachers and doctors.
- Reading affidavits.
- Examining subpoenaed documents.
- Obtaining evidence to be presented to the Court.
- Facilitating the participation of the child in court proceedings (if appropriate).
- Acting for the child in settlement negotiations with the parents (if relevant).
What are the best interests of the child?
In family law the ‘best interests of the child’ has a very particular meaning. Generally, the following are considered in determining best interests:
- The need to protect the child from physical or psychological harm, abuse, neglect or family violence (including exposure);
- The need to ensure that the child has the benefit of both their parents having meaningful involvement in their life, in so far as it is consistent with the child’s wellbeing;
- The need to ensure that the child receives proper parenting; and
- The need to ensure that the parents fulfil their responsibility to care for the welfare and development of the child.
What is the role of the Independent Children’s Lawyer in court?
At the hearing, the ICL will conduct the case on behalf of the child. They will make submission, present evidence and cross-examine witnesses.
When does the Independent Children’s lawyer make a recommendation?
When the ICL knows what orders they wish to seek on behalf of the child they will inform the parent’s lawyers, or the parents directly if they are unrepresented.
Sometimes the ICL may be unable to make a recommendation until late in the proceedings or not at all.
If the ICL makes a recommendation, it may be subject to change, based on the evidence made available to the Court.