Independent Children’s Lawyers- Why has the Court appointed one and what do they do?

If you are part of the small subset of family law matters where Court intervention is required because an agreement cannot be reached or your matter is urgent, the Court may ask whether it is appropriate for your child to be given their own lawyer.

Section 68L of the Family Law Act 1975 (Cth) (which is the governing legislation regarding children’s matters) provides the Court with the power to appoint a lawyer for a child, such lawyer is called an Independent Children’s Lawyer (“ICL”). Despite the name, it is not the job of an ICL to act on the instructions of the child. Instead, an ICL acts as a “best interests advocate” for the child, brings their own independent view about what is in a child’s best interests, and is treated as another party to the proceedings. Parties tend to share the costs of an ICL being appointed.

Section 68LA outlines the statutory role of the ICL. An ICL:

1. must act impartially in dealings with the parties to the proceedings.
2. must ensure that any views expressed by the children are fully put before the Court. The weight the Court gives these views is based on the children’s maturity. This does not mean they are obliged to act on the instructions of the children or to disclose any information that the children communicate to them, to the Court. It must be noted that the best interests of the child sometimes do not align with the children’s views or wishes.
3. must ensure that the most significant matters in relation to the children’s best interests are properly drawn to the Court, from reports or other documents that relate to the children.
4. must endeavour to minimise the trauma to the children associated with the proceedings.
5. must facilitate an agreed resolution of matters at issue in the proceedings if it is in the best interests of the children.

In practice a large part of ICL’s job is to gather evidence about the children and any allegations of risk made by parents or other parties. This usually occurs by way of subpoenas being issued to organisations such as schools, doctor’s offices, the Police and the child welfare authority (DCJ/FACS) so that the Court has all the information it needs to make a decision.

ICLs are not appointed in every parenting matter and the case of Re K (1994) FLC 92-461 sets out that ICLs should be appointed where:

1. There are allegations of child abuse;
2. There is an intractable conflict between the parents;
3. A child is alienated from one or both parents;
4. There are cultural or religious differences affecting the child;
5. A person’s contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child’s welfare;
6. Where there are issues of significant mental or medical ill-health;
7. Where neither parent seems a suitable carer;
8. Where a child of mature years has expressed a strong view that would either upset a long-standing arrangement or cause that child to never see the other parent;
9. Where an international relocation is proposed;
10. Where siblings are proposed to be separated; or
11. Where the parents are self-represented.

Having an ICL involved in your matter adds an extra complexity to your family law matter and the Court tends to give great weight to the arguments of the ICL.

We have extensive experience in such matters. If you require assistance in a parenting matter or other family law matter, please do not hesitate to contact our office on (02) 4944 3322.