In parenting matters in family law, the court will often appoint an independent children’s lawyer to represent the best interests of the children.
Each parent knows what they want and what they believe to be the best thing for their children and themselves. They each participate in the court case and have a lawyer representing their point of view.
The independent children’s lawyer, or ICL, is there as a third party to perform the same function for the child or children in an unbiased way.
They listen to the children’s wishes and perspectives and ultimately promote the outcome that they have reasoned is best for the child’s welfare.
What is An Independent Children’s Lawyer
An ICL can be appointed for a variety of reasons.
The more common reasons are due to circumstances in which:
- There are allegations of child abuse or neglect
- There are allegations of domestic violence
- There is a high level of conflict between the parents
- There are significant physical or mental health issues affecting one or both parents, the children or someone else who has significant contact with the children
- The children are of a mature age to express their views
- There are cultural or religious differences affecting the child
- There is a proposal to separate siblings between different households
- There is a proposal for relocation by one parent with the children which would significantly limit the other parent’s access to the children
The court may also choose to appoint an independent children’s lawyer if, based on the material filed in court, it does not seem appropriate for the child to live with either parent.
These are not the only reasons.
The court or the parties involved in the case may present other reasons for appointing an independent children’s lawyer.
Who Can Appoint An Independent Children’s Lawyer
The court can appoint an independent children’s lawyer under section 68L of the Family Law Act 1975.
The court uses this authority when they feel that the child’s best interests ought to be independently represented. The court exercises their discretion when determining the need for an independent children’s lawyer.
Other parties to the case may make an application for the appointment of an ICL. An organisation concerned with the child’s welfare or any other person may do so as well.
What Is Role Of The Independent Children’s Lawyer?
The ICL will present information to the court, representing the child’s best interests from their independent perspective.
They must provide an independent opinion about the arrangements and outcomes of the case that they believe best promote the child’s interests.
One of their main responsibilities is to remain impartial.
Their decisions and recommendations may reflect the wishes of one of the parties, but the independent children’s lawyer will have reached these conclusions from their independent point of view.
They need to have a very good understanding of all the issues in the parenting dispute and will, therefore, read all affidavits, evidence and other documents filed in court.
Part of their duty in representing the child or children’s best interests is to talk to the children involved in the case and find out their wishes and views.
Whether the ICL speaks to the children will depend on the children’s age and maturity and their understanding of the situation.
In court, the independent children’s lawyer will make submissions and present evidence. They may be cross-examined.
It is not the role of the independent children’s lawyer to provide their personal opinion or base submissions or recommendations on their own personal beliefs.
They represent the best interests of the child from a family law perspective.
The best interests of the child are the utmost consideration in parenting disputes in the family court, and the independent children’s lawyer fulfils the important role of voicing these interests in necessary circumstances.
How Do They Determine The Child’s Best Interests?
Aside from closely reading and analysing all material put before the court, the independent children’s lawyer has other rights to allow them to determine the best interests of the child.
They may make arrangements for additional evidence, such as a report by a family consultant or the evidence of an expert, to seek other information or clarify existing material.
This can affect the ICL’s recommendations to the court.
Often, they will meet with the child. This allows the child to express their views and ensures that the independent children’s lawyer is fully informed.
However, the ICL does not solely use the opinions of the child to form their perspective.
The level of consideration given to the child’s views will depend on the child’s age, how involved the child wishes to be, their understanding of the proceedings and their emotional state.
The ICL facilitates the child’s participation in the family court case but does not take instructions from them.
If the child is unwilling to participate or express their views, the independent children’s lawyer must not put pressure on them to do so.
The independent children’s lawyer may speak to other people to assist them in establishing the child’s best interests.
They may speak to the child’s school teachers or school principal and seek documents from the school.
They may contact the child’s counsellors or other relevant professionals.
Documents from the police, information from government departments such as the Department of Family and Community Services and medical records of the child or their parents may also be examined by the independent children’s lawyer.
If the ICL finds that a family report is required, they will arrange for a family consultant to prepare one for the court.
In the court hearing, they may question witnesses, including experts or either party.
Does The ICL Always Make Recommendations?
During a court hearing, the independent children’s lawyer can make recommendations to the court based on the best interests of the child.
They will also communicate their recommendations to each party’s legal representative.
These recommendations usually take the form of orders for the court to consider.
However, the child’s best interests and the most suitable orders are not always clear.
In some cases, the ICL may not be able to make a recommendation or may only do so later on in the court proceedings.
The recommendations must always be based on admissible evidence sought by the ICL or put before the court by a party, witness or expert.
As new evidence may become available, the independent children’s lawyer has the ability to change their recommendations based, therefore ensuring that the children’s best interests are consistently represented.
They must consider the impact that all evidence has on the recommendations they make.
The judge will listen carefully to the evidence and recommendations provided by the independent children’s lawyer, but it is important to remember that the judge bases their decisions on all evidence and information put before the court by all people involved.
The independent children’s lawyer’s recommendations are not binding; the judge may or may not make orders in accordance with these recommendations.
Can The Parents Talk To The ICL?
The independent children’s lawyer must remain independent and impartial, and this means they will be limited in the communication they have with either party in the parenting dispute.
It is not the independent children’s lawyer’s duty to inform the parties of what their child has said.
The ICL will contact each party through their lawyer. If they need to contact a party directly, they will arrange this through the lawyer too.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.