What is an Independent Children’s Lawyer in a Family Proceedings?

An independent children’s lawyer (ICL) represents your child’s best interests and makes sure that the child is the focus of any decisions about parenting matters. Unlike ordinary lawyer-client relationships, an Independent Children’s Lawyer will not necessarily act on the instructions of the child. Due to the age of the child there is no obligation for an ICL to do as a child directs them.

When is an Independent Children’s Lawyer Appointed?

An Independent Children’s Lawyer is appointed by order of the Court.

An ICL is not appointed in every parenting matter. There are a number of circumstances where an ICL may be appointed. The Court can appoint an ICL under the Family Law Act, or a child may apply for one as may an organisation concerned with the welfare of child or any other person that is representing and promoting the best interests of the child in family law proceedings.

While a person or organisation can request an ICL be appointed, it is for the Court to determine whether or not, they are required.

Independent Children’s Lawyers are often appointed in cases that involve:

  • allegations of family violence, child abuse or deglect;
  • a high level of conflict and dispute between the parents;
  • a parent or child with serious medical or mental health issues;
  • allegations about the views of the child/ren, who are mature enough to express their views;
  • a proposal to separate siblings, or for a parent to relocate a long way from the other parent; and/or
  • other combinations of difficult and complex issues.

What is the role of the Independent Children’s Lawyers role?

ICL’s 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.

An Independent Children’s Lawyer is there to consider the views of the child as paramount however their role is to provide an independent perspective about what arrangements or decisions should be made in the child’s best interests.

The ICL has a very important information gathering role to help the Court make the best decision for the child.

The ICL will be involved in gathering evidence from the child and others and put this before the Court. They will also help the child participate in the proceedings in a manner that is suitable for their age, maturity and understanding of the case. They may also be involved in contacting the child’s school, day care provider or other important people. The information gathered is intended to assist the Court in making a determination that is in the best interest of the child.

An ICL will essentially act as an independent person between the child and the parents and can facilitate settlement negotiations where appropriate.

Based on all the information available to the ICL, they will then form a view as to what parenting orders are in the best interests of the child. This is independent of the interested of the parents or other parties involved may be.

Does the Court have to make Orders based on the recommendations of the Independent Children’s Lawyer?

No, the judge determining the parenting dispute is not bound to make any orders sought by the ICL. However, as the ICL’s view is independent and informed it generally carries allot of weight.

Who Pays for the Independent Children’s Lawyer?

The Independent Children’s Lawyer is funded by Legal Aid. However, Legal Aid may request the parties to make a contribution towards the costs.

Legal Aid generally makes its decision, about funding the ICL, based on the parties’ respective financial positions. When Orders are made appointing an ICL, the parties will also be asked to file a financial statement that sets out their income, expenses, assets, liabilities, financial resources and superannuation entitlements. The amount to be paid will be determined by Legal Aid based on this information.

What is a family report and do I need one?

The Family Report is a written report which is prepared by a family consultant (usually qualified social workers or psychologists) who are appointed by the Court. The best interests of the child/ren are always the main focus of the report. The ICL may arrange for a Family Report if required.

A Family Report may be used to help the judge hearing the case to make decisions about arrangements for the child/ren as it provides an independent assessment of the issues in the case pertaining to the child.

 

If need advice from an experienced family lawyer give our family law expert at Dawson & Gardiner a call. Phone: 02 4954 8666.