The primary purpose of an Independent Children’s Lawyer (“ICL”) is to provide independent and impartial assistance to the Court in determining care arrangements that are in the best interests of the child.
The role of the ICL in family law proceedings was defined for the first time under section 68LA of the Family Law Act in 2006. Whilst their role may vary between cases, ultimately they support and facilitate the participation of the child in the proceedings, gather evidence relevant to the best interests of the child and assist as the ‘honest broker’ in settlement negotiations.
The use of ICLs in family law proceedings further satisfies Australia’s obligations under the United Nations Convention on the Rights of the Child, which is referenced in part VII of the Family Law Act.
Article 3 of the Convention specifically provides that in all matters concerning children, the best interests of the child shall be the primary consideration.
Article 12 of the Convention requires that the appropriate body consistent with procedural rules ensures that children who are capable of forming their own view, be given an opportunity to express that view freely in matters which affect them and that those views be given weight in accordance with the age and maturity of the child either directly by them or through a representative.
ICLs are appointed by the Court, generally in complex matters where there are allegations of child abuse and/or family violence, where there is and has been prolonged and intractable conflict between parents, or in cases where both parents are without legal representation and the matter is impacted by complex and difficult issues.
An ICL is not the child’s legal representative and is not obliged to act on the child’s instructions. The ICL will, after considering all the relevant evidence, make recommendations to the Court on what they believe the best interests of the child are. Whilst the Court is not bound by the recommendations of an ICL, the evidence adduced will be considered by the Court when making a final determination in relation to parenting matters.
The fees associated with the appointment of an ICL are usually paid for the by the relevant Legal Aid authority, however, an Order can be made by the Court that either or both parties pay or contribute for the costs associated with their representation.
If you believe that an ICL should be appointed to your matter or you are unsure of their role and the process, please contact one of our experienced child support lawyers for advice.