In complex or difficult parenting cases your lawyer or the Judge may see fit to appoint an Independent Children’s Lawyer to represent your child or children. This article will explain what an Independent Children’s Lawyer is and how they can assist parents bring their court matter to a close.
Independent Children’s Lawyer
An Independent Children’s Lawyer (“ICL”) acts as a best interests representative for the child/ren but is not required to act on that child’s instructions. An ICL is given all the rights and responsibility of a party to the proceedings (i.e. the parents) and is expected to form their own independent view of the case. As the ICL is a party, they can also make submissions and propose Orders they believe are in the best interests of the children.
Role of an ICL
The role of an ICL has been discussed at length in case law and is included in the Family Law Act. An ICL’s role is to:
- Form an independent view based on the evidence available of what is in the best interests of the children.
- Act in accordance as to what they believe is in the best interests of the children.
- Make submissions to persuade the Court to make a certain Order if they are satisfied that Order is in the best interests of the children.
- An ICL is expected to provide guidance and impartial assistance to both parents to come to an agreement.
The ICL also has specific duties which they must meet. An ICL:
- must act impartially in dealings with the parties to the proceedings.
- 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 what the children’s views or wishes are. ICLs are specially trained and experienced practitioners skilled in identifying if a child has been coached as to what to say.
- must ensure that the most significant matters in relation the children’s best interests are properly drawn to the Court, from reports or other documents that relate to the children.
- must endeavour to minimise the trauma to the children associated with the proceedings.
- must facilitate an agreed resolution of matters at issue in the proceedings if it is in the best interests of the children.
It is common practice for the ICL to meet the child/ren. At these meetings the ICL will explain their role, the Court process and the other agencies and individuals that may be involved and the reasons for their involvement. The ICL is also likely to tell the children how they can have their say and make their views known during the process. The ICL will also explain any reports or documents and provide the children with a way to personally contact him.
In exceptional circumstances, (such as if the ICL believes meeting the child/ren will expose them to system abuse) the ICL will chose not to meet the child/ren.
At the end of each Court event the ICL will also likely explain the effect of the Orders to the child/ren in an age appropriate manner. This will alleviate some of the confusion for the child/ren if living or time arrangements change through the life of the matter.
Parenting cases are a difficult and delicate type of family law case. If you are having issues with another parent about parenting arrangement for a child, please contact our expert family law team on 4324 7699.