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How does the independent children’s lawyer assist in a parenting matter?

By 28 February 2022Family Law
independent children's lawyer

An independent children’s lawyer (ICL) will often be appointed by the court in matters involving children where one or more of the following factors are at play1:

  1. intractable (significant) dispute
  2. domestic violence
  3. criminal histories of parents
  4. mental health or medical issues of parents or children
  5. matters involving abuse of children.

The ICL’s role is to ensure that the “best interests of the children” pursuant to s60cc of the Family Law Act continue to be the paramount principle behind all parenting decisions made.  They often will arrange for family reports or psychiatric reports to be undertaken by appropriately qualified professionals, as well as filing subpoenas to relevant agencies, to assist the court in determining the needs of the children and what is in their best interests.

Hurt, grief, anger and lack of trust can sometimes cloud a separating party’s judgment and decision-making, and it is the ICL’s role to ensure that parents (and sometimes lawyers and the courts) are thinking about the children first.  They will often be able to come up with solutions that others may not have thought of or will advise as to their views in respect of what might be in the child’s best interests.  Sometimes this will include one or both parents undertaking parenting courses.  Other times, where there are particular concerns about a parent spending time with the child, the ICL may suggest supervision or other protective arrangements be put in place. Alternatively, when a parent has shown that they have undertaken courses or training or complied with treatment, the ICL may suggest reduced restrictions.

An ICL may choose to meet the child or may not ever meet the child. While they are a “child’s lawyer”, they are not required to take instruction from a child.  Further, the views of the child do not necessarily need to be taken into consideration, although those can be advised to the court if appropriate.

Due to their independent nature, the ICL should use their best efforts to be involved in all relevant matters in the parenting issue, however, is to provide an independent view and position to the court. The ICL can form their view and position in respect of parenting matters from any means available to them.

The ICL is only another party to a proceeding and, while sometimes the judge will accept the position of the ICL, in other cases the ICL will present a view that the judge does not agree with.

If an ICL is involved in your parenting matter, it is important that you know what they can and cannot do for your child.  At Best Wilson Buckley, in addition to lawyers who will represent adult parties in a parenting matter, we also have an Independent Children’s Lawyer and, as such, are well placed to answer any questions you may have about this role.  Please contact us Toowoomba Family lawyers  on 1300 959 568 or online.

 


1 The guidelines for the appointment of an ICL are set out in the Full Court case of Re: K (1994) FLC 92-46