The aim of this post is to help address a common question on everyone’s mind when an ICL is appointed. The first being the obvious – Just what is an Independent Children’s Lawyer (or ICL)? and the second being – Why exactly does my child need one?
The main consideration of the court during parenting cases is to determine what is in the best interests of the child. Unfortunately, this can be quite difficult in some circumstances where parents cannot agree on arrangements, or there are allegations of family violence involved. In this situation, it is the role of the ICL to act as an independent lawyer on behalf of the child, focussing on their best interests.
Since your child does not have the capacity under law to represent themselves, An independent children’s lawyer is appointed to represent the best interests of your child. Their purpose is primarily focused on decisions pertaining to parenting arrangements.
How Can An ICL Be Appointed?
- S68L of the Family Law Act 1975 provides the court the power to appoint an ICL.
- On application of the child – an organisation concerned with the welfare of the child may intervene.
Circumstances Where An ICL Is Appointed
- There are difficult or complicated issues involved
- There are allegations of family violence or neglect pertaining to the children
- There are serious health issues in relation to either the children, or one or both parents
- Where separating siblings is of concern
- Major cultural or religious differences which impact the child
- The parents are unable to come to an arrangement themselves due to high levels of conflict
- There has been allegations made regarding the views of a child – and that child is of a mature age to convey those views
- Where one parent is seeking to move elsewhere with the child, and this move would seriously inhibit the other parent’s access to the child
What Is An ICL? – Their Role
An Independent Children’s Lawyer is required to consider the views of the child. However, they ultimately must objectively decide what arrangements are in the best interests of the child.
What Encapsulates The Role Of An ICL
- Assuming an agent role between the child and parents and enabling negotiations to settle where appropriate in the circumstances
- Organising any form of evidence to be put before the court
- Enabling the involvement of the child in the proceedings in a way that indicates the maturity, age of the child, and circumstances of the case
What Does An ICL Consider In Determining The Bests Interests Of A Child?
- Speaking with the child, school teachers, principals, and counsellors
- Family reports from family consultants
- Psychological, medical and psychiatric reports of the parents and children
- The questioning of witnesses, such as experts and parents
- Documents from schools, the police and the Department of Family and Community Services
What Is A Family Report?
This is a report prepared by a court appointed family consultant. Its aim is to provide an impartial evaluation of the issues in the case to aid the judge make decisions regarding the arrangements of the child. The report is court ordered and comes at no cost to either party.
Important Things To Note For An ICL
- Can I talk to an ICL? – It is important to note, that in order for the ICL to remain independent in their role, their communications with both parents will be highly limited. If you wish to contact the ICL, matters should be raised by virtue of your own lawyer who can contact the ICL on your behalf.
- Ensure your child attends all their appointments with the ICL, and do not question your child regarding these sessions as they are required to remain private.
- Permit your child to contact the ICL whenever they please.
Can I Object To An ICL?
In this situation, the guidelines recommend that the ICL should apply for a court order discharging their appointment. The guidelines also discuss other situations where the ICL should request to be discharged.
With accordance to the Family Law Rules, the court may discharge the ICL upon application in circumstances where:
- The ICL acts in a way contrary to the best interests of the child
- The ICL displays bias, or has a conflict of interest
- The ICL does not act properly
The ICL should also periodically consider whether their appointment is still necessary, or of benefit to the child. For instance, if the relationship between the child and ICL has irreversibly broken down, it would likely be too hard for the ICL to adequately represent the bests interests of the child. When such a situation occurs, the guidelines provide that the ICL ought to apply for a court order terminating their appointment.
Who Pays For An ICL?
Legal aid is typically responsible for arranging an ICL. Despite this, It is highly likely that the parents also need to contribute to these costs.
In N.S.W, legal aid will pursue the costs of the ICL from the parents, except in the circumstances where the parent is already receiving legal aid.
Importance Of Seeking Legal Advice
Are you and your former spouse unable to come to an agreement regarding the distribution of your children’s time? Are there more complex matters involved?
Contact JB Solicitors today for legal advice involving your matter, or to get some representation.
Ph: 1300 287 911
If you have any more questions involving family law and your children, read some of our other articles: