What is an Independent Children’s Lawyer?
An Independent Children’s Lawyer (ICL) represents a child’s best interests.
The Court can appoint an ICL under section 68L of the Family Law Act 1975, or on the application of a child, an organisation concerned with the welfare of children, or any other person, to represent and promote the best interests of a child in family law proceedings.
An ICL is usually appointed by the Court upon application by one of the parties where one or more of the following circumstances exist:
- there are allegations of abuse or neglect in relation to a child
- there is a high level of conflict and dispute between the parents
- there are allegations made as to the views of a child, and the child is of a mature age to express their views
- there are allegations of family violence
- serious mental health issues exist in relation to one or both of the parents, or the child, and/or
- there are difficult and complex issues involved in the matter.
What is the role of an ICL?
ICLs are obliged to consider the views of the child, but ultimately provide their own, independent, perspective about what arrangements or decisions are in the child’s best interests.
Their main roles include:
- arranging for necessary evidence, including expert evidence, to be obtained and put before the Court
- facilitating the participation of the child in the proceedings in a manner which reflects the age and maturity of the child and the nature of the case
- acting as an honest broker between the child and the parents and facilitating settlement negotiations where appropriate.
National Legal Aid has published a set of Guidelines for Independent Children’s Lawyers about what an ICL should do to fulfil their role and responsibilities, and how they should represent and promote the best interests of a child in family law proceedings. The Guidelines are endorsed by the Court and provide useful guidance on all aspects of the role of the ICL.
What information does an ICL consider to determine what is in the child’s best interests?
The ICL has numerous options when determining what is in a child’s best interest. They may:
- meet with the child, unless the child is under school age, or there are exceptional circumstances
- speak to the child’s counsellors, school teachers and principals
- examine documents from organisations such as schools, child welfare authorities, or the Police
- examine medical, psychiatric and psychological records of the child and their parents
- question witnesses, including parents and experts, at the final hearing, and/or
- make arrangements to obtain independent expert evidence, including from the Court Children’s Service.
Who pays for an ICL?
It’s important to realise that although in many situations the ICL is funded under a Legal Aid scheme established under Commonwealth, State or Territory laws, it’s not a “free” service. From a court’s perspective, an ICL is presumed to be unfunded (unless privately funded) and the courts are generally inclined to order parties to contribute to the ICL’s costs.
You can check with the Legal Aid commission in your state or territory about how the costs of an Independent Children’s Lawyer will be paid.
Legal Aid NSW also has a helpful video explaining the ICL’s role to parents on the Best for Kids website.
An ICL has been appointed, how do I explain their role to my child/ren?
Practice directions are procedural guidelines issued by the Court. They complement legislation, rules and regulations. They provide specific direction about the practice and procedure that must be followed in certain types of proceedings.
Practice directions are issued by the Chief Justice/Chief Judge upon advice of judges of the Court, pursuant to the Court’s inherent power to control its own processes, as well as the power under the Federal Circuit and Family Court of Australia Act 2021 for the Court to give directions about the practice and procedure to be followed in a proceeding.
In general, practice directions are issued to:
- complement particular legislative provisions or rules of court
- set out more detailed procedures for particular types of proceedings, and
- notify parties and their lawyers of matters which require their attention.
Below are links to the practice directions that apply to this area of law: