Together or apart, both parents are essential people in children’s lives. Separation and divorce is stressful for everyone involved. However, children of divorce experience a range of emotions that are often difficult to digest.
Children from separated families can flourish just as well as or better than other children. This is as long as their parents offer them emotional comfort and a focus on their wellbeing and best interests. It’s the court’s aim to ensure that children’s best interests and kept at the forefront and that the children are supported through family law proceedings.
Children cannot attend court or represent themselves in family court proceedings. Although, their voice may be heard through an Independent Children’s Lawyer (“ICL”).
Are you currently going through court proceedings in the Family Court of Australia or Federal Circuit Court of Australia? Has an ICL has been appointed to your case?
Keep reading to learn more about the role of an ICL and how it relates to your case.
What Is an Independent Children’s Lawyer?
An ICL is appointed by the Court and represents your child’s best interests in proceedings. While they’re called “children’s lawyers,” ICLs don’t have a typical solicitor-client relationship. The ICL acts as a lawyer for parental responsibility and care of children—they don’t work for your child and do not have to follow their instructions.
The ICL will look at your family law case, collect evidence, and help the Judge determine orders that is in the best interest of your child.
As an ICL is not a legal representative for your child, their recommendations may conflict with your child’s expressed wishes. ICLs are involved in collecting vital information from third parties such as medical practitioners and welfare agencies, school records from educational institutions, police records, and other information that may be relevant to your case.
When and How Are ICLs Appointed?
The Family Court of Australia, the Federal Circuit Court of Australia, or the Family Court of Western Australia all may involve ICLs in family law cases.
When making an order to appoint an ICL, the court also requests the Legal Aid Commission in the respective State or Territory to appoint an ICL to the case.
The appointment of an Independent Children’s Lawyer for parental responsibility of children is at the discretion of the court. However, a parent, the Family Court, or an organisation concerned about the wellbeing of a child can make an application to the court seeking orders for the appointment of an ICL.
An ICL can be appointed for the reasons set out in the 1994 “Re K” case. The reasons include:
- Continuing hostility between parties
- One of the parties is not a natural parent of the children
- The children are under the care and control of a person other than their parents
- The children are the subject to an order under the State Children’s Welfare Legislation
- Issues of cultural or religious difference
- A parent with unusual sexual or antisocial tendencies
- A parent with issues of significant mental illness or personality disorder
- Difficulty adapting to a new family situation in either household
- History of recurring litigation over custody by one or both parents
- Both parties propose arrangements that will separate siblings
- There is a history of child abuse or domestic violence
If an ICL is appointed in your case, you may have to pay for their services. This depends on the state you’re in and the difficulty of your case, but generally, each parent must pay 50% of the cost.
If you receive Legal Aid or apply for financial hardship, the ICL fee can be waived.
What Is the Role of an ICL?
The Independent Children’s Lawyer will present their findings to the court regarding your child’s welfare and views. The ICL may:
- Meet with your children (if they are of an appropriate age and have the requisite maturity)
- Examine documents from organisations (such as schools, medical institutions, and the police)
- Speak to your children’s counsellors, school teachers, and principals
- Question witnesses, including parents and experts
- Examine any medical, psychological, and psychiatric records of both parents and your children
- Arrange for a family report from a consultant
The ICL will obtain evidence and submit their findings to the Family Court. They will read the material filed by each party before making recommendations at your proceedings. The ICL may also subpoena parties such as medical and treating practitioners, counsellors, and school teachers.
Are There Limitations to the Role of the ICL?
When necessary, the ICL should seek guidance from a Family Consultant or professional. They must never step out of his or her professional role.
The Family Law Act of 1975 and the Family Court Act of 1997 in Western Australia establish a confidential relationship between children and their ICL. However, there are circumstances where the ICL cannot guarantee that the relationship remains confidential. They may have to remind your child of this limitation periodically.
It is not the ICL’s job to conduct therapy or counselling with your child or become a witness in the proceedings. The ICL should remain sensitive to the risk of your child becoming dependent on him or her. If this situation arises, it’s the ICL’s role to seek professional advice.
The ICL should also prepare your child for the end of the professional relationship. This discussion should happen before the proceedings so that your child is ready. Before the case is over, your child should know what contact, if any, they will continue to have with the ICL.
How Do ICL’s Act in Children’s’ Best Interests?
Your child has a right to establish a professional relationship with their ICL. The ICL should be aware that each child has varying emotional, cognitive, and intellectual developmental levels. They also must take into account family dynamics, sibling relationships, family structures, cultural and religious backgrounds.
ICLs understand how children are vulnerable to external pressures when they find themselves in the middle of a dispute involving their parents.
Taking into Account Children’s’ Views
To act in your child’s best interests, the ICL should encourage your child to express his or her views in the circumstances outside of the influences of others. If your child doesn’t want to talk or express their feelings, they don’t have to. It’s their right to refuse to express their views, whether another sibling does want to or not.
If your child is interested in the status of your proceedings, the ICL must keep them informed. They will have ample opportunities to express views to the ICL—including the chance to refine or change any previously expressed viewpoints.
To determine how much weight to give to your child’s views, the ICL will examine several factors. They’re expected to be familiar with Family Law but can consult with an expert about the context of your child’s views.
It’s the ICL’s job to ensure that your child’s views are put before the court in the appropriate form. This includes details the ICL considers trivial but are essential to your child. They must also submit evidence to the court that explains how the child will feel if the case’s conclusion is not per the child’s best interests.
How Should You React to the Appointment of an ICL?
As a parent, learning of the appointment of an ICL can seem scary, especially if you don’t understand their role in your case. Rest assured that, as long as you’re honest, the ICL is only there to act for your child’s best interests and is to remain unbiased throughout the process.
There are a few things you can do to assist yourself in dealing with the appointment of an ICL.
Understand the ICL’s Role
You should research the role of an ICL and don’t make the mistake of expecting them to run your case on your behalf or take your “side” of the story.
The ICL is only there to represent the best interests of your child. However, this doesn’t mean they’re merely taking the child’s wishes and reiterating them to the court. The ICL may make recommendations to the court that suit your case, and they may not.
Regardless of where their views fall, you should treat the ICL with respect at all times. Take their comments to heart so you can appropriately prepare yourself for the proceedings and any concerns the ICL might raise.
Ensure a Timely Response to Requests
If you’re acting on your own behalf in court, provide information to the ICL as soon as you can if they request something from you.
If you don’t understand what they’re asking from you, or you’re reluctant to provide it, contact them and ask questions about the information they’re requesting. Once you understand why they need it, you can more easily comply with their request.
If you have a family lawyer acting on your behalf, you likely won’t hear directly from the ICL. It’s your lawyer’s job to communicate with the ICL and provide the requested materials.
Keep the ICL Informed
If something significant occurs during your case, let the ICL know. If there are new developments, they will need to collect additional evidence.
Examples of developments include a change in your contact address or details or new involvement in another court case.
Help However You Can
As a parent, you can help your child by making sure they attend appointments with the ICL or other experts as required by the court. Ensure that your children know how to contact the ICL whenever they want and always let them talk in private.
You mustn’t ask your child what they said to the ICL or other people who will report back to the court.
Can You Object to an ICL?
It’s common for one or both parties to disagree with the views of an ICL during a family law dispute. You should take some time to try to understand the position they take.
Their role is to examine your case and evidence without bias. If you can understand the evidence they’re presenting, you are in a better position to provide further information or take steps to address any concerns the ICL has raised.
For example, the ICL may recommend that your time with your child should decrease to provide more stability due to significant conflict between you and the other parent. If you want to increase time with your child, you can seek advice to minimise that conflict. Proactively addressing the issue is always better than engaging in battle with the ICL over their views.
Family Law Rules state that any party can apply for the removal of the ICL; however, a court will rarely grant this application.
Occasionally, the ICL assigned to your case may consider whether their appointment is necessary for the child. If the relationship between the ICL and your child has broken down, it can be impossible for the ICL to represent your child’s best interests effectively. In this case, the ICL should apply for a court order to discharge their appointment.
If you wish to complain about an ICL and proceedings are still underway, you should bring your concerns to the attention of the judicial officer.
Let Us Answer Your Questions About Divorce and Family Law
If you find yourself in Family Law proceedings concerning custody of your children, remember that the court is only trying to determine what is in the best interests of your child.
When possible, we try to achieve the best possible settlement without litigation—especially when children are involved. When an agreement isn’t possible, we’re here to confidentially discuss how to move forward.
Family law proceedings are difficult for all parties involved. If you need advice regarding a family law matter involving your children or would like additional information on ICLs, please contact our firm today.
