The Independent Children’s Lawyer’s role in Parenting Proceedings

If you are involved in Court proceedings to decide parenting arrangements for your child in the Federal Circuit and Family Court of Australia then the Court has the power to appoint an Independent Children’s Lawyer as an independent advocate to put forward what the Independent Children’s Lawyer considers to be in the children’s best interests. Independent Children’s Lawyers play a significant role in family law proceedings as they bring a child-focused, impartial and independent perspective. The Independent Children’s Lawyer’s Court submissions may greatly influence judicial decision-making on matters affecting the best interests of the child.

When deciding whether to make a parenting order, Section 60CA of the Family Law Act (1975) (the Act) requires the court to consider “the best interests of the child as the paramount consideration”. Where a court considers a child’s best interests or welfare are the paramount consideration, then in proceedings under section 68L of the Act, an Independent Children’s Lawyer (ICL) can be appointed. Section 68L(2) of the Act defines an ICL as a court-appointed lawyer independently representing a child’s interest in proceedings.

Under section 68L(4) of the Act, an order for an ICL to be appointed may be made by the child, an organisation concerned with children’s welfare, or any other person. Subject to subsection 6 as to the child’s age, some other particular circumstance or the child’s maturity, the court may make an order to permit the ICL to determine the child’s views, however a child may not be required to express a view.

The criteria for the appointment of an ICL were set out by the Full Court in Re K [1994] FamCA 21. Here are some of the “Re K” criteria:

• Alleged child abuse or neglect (physical, psychological or sexual)
• Allegations of domestic or family violence
• Alienation from a parent
• Anti-social conduct by a parent that impacts the welfare of the child
• A parent’s sexual preferences, if those preferences are likely to have a negative effect on the child’s welfare
• Cultural or Religious Differences
• High levels of conflict between parents
• Medical or other disorder (physical or psychological) affecting the child, a parent or someone who has significant contact with the child
• Neither party legally represented
• Proposals to remove the child far away
• Proposals to separate siblings
• Special medical procedures for the child
• Strong wish of mature child for change
• Unsuitability of either parent for the child to live with on the basis of material filed in court.

The court may find other reasons to appoint an ICL.

What is the Independent Children’s Lawyer’s role?

The role of the ICL during parenting proceedings is set out in Section 68LA of the Act.

The main function of an ICL is to form an independent view about which arrangements or decisions are in the child’s best interests based on the evidence available. The ICL has a duty to remain impartial and to focus only on the child’s best interests. The ICL must act in what the ICL believes to be the child’s best interests and, if the ICL considers that there is a preferred course of action that will best promote the best interests of the child, then their submissions to the court must suggest that the court acts accordingly.

From 06 May 2024, there is a requirement for the ICL to meet with children over 5 years of age, and to give the child the opportunity to express their views. The ICL has discretion as to when, how often and how meetings occur, and when, how often and how the child is given an opportunity to express their views. The ICL does not have to meet with the child if the child does not want to meet or express their views or if there are exceptional reasons that justify that the ICL should not meet with the child. These exceptional circumstances include if a child would be exposed to a risk of physical and psychological harm that could not be safely managed or if there was an adverse effect on the child’s wellbeing.

The ICL must form their opinions and views on admissible evidence and not on their own personal perspectives. ICLs are obliged to carefully analyse documents and reports relied on in proceedings and assist the court by pointing out any matters that may significantly impact the child’s best interests. If required, the ICL may also arrange for additional evidence, such as family reports, or ICLs may reach out to experts. Any additional information may cause the ICL to amend an earlier recommendation that they made.

As the ICL represents the child’s interest and not the child, the ICL is not obliged to follow the views and wishes of the child, and the ICL may disclose information the child shares, even if that disclosure is against the child’s wishes. The ICL must ensure that the child’s views on any issues relating to the proceedings are put before the court, while at the same time, minimising any trauma that the child may experience during the court proceedings.

The ICL will assist the parties to achieve an agreement outside of court through negotiation or through judicial decision-making, but only to the extent that any agreed settlement is in the child’s best interests. If a settlement occurs and the ICL does not find that agreement to be in the child’s best interests, then the ICL will notify the court.

Does your child instruct the Independent Children’s Lawyer?

Under section 68LA of the Act, the ICL is not your child’s legal representative and will not take instructions from your child. The ICL is not simply your child’s spokesperson, and your child is not a decision-maker. However, the ICL is obliged to make sure that the court is fully informed on matters relating to the proceedings. It is possible that the ICL could make decisions, recommendations and suggestions that differ from your child’s expressed opinions, views and wishes, if the ICL believes that your child’s views are not in your child’s best interests. If the ICL is going to take a position that is contrary to your child’s expressed views, then the ICL will inform your child.

The ICL guidelines set out that the child’s best interests are usually served by the ICL enabling the child’s involvement in the decision-making process. A key aspect of the ICL’s role is to facilitate the child’s participation in the proceedings.

The ICL must consider several factors when determining how much weight to give your child’s views or when deciding on the child’s level of involvement in the decision-making process:

• The child’s views
• The child’s maturity
• The child’s emotional state
• How much involvement the child wants
• The child’s age and developmental state

How does the Independent Children’s Lawyer determine your child’s ‘best interests’?

To determine your child’s best interests, different sources of information are considered and consulted.

The ICL will meet with your child in-person or online except if the following apply:

• There are exceptional circumstances;
• Your child is under 5 years of age; or
• Your child does not want to meet with the ICL.

This meeting gives your child an opportunity to speak to the ICL about how they feel and to express their views about the parenting matter.

ICLs should not pressure your child into sharing their views, especially if your child does not want to do so. The ICL has no obligation to disclose to the court any information your child reveals to them, however they may choose to share information if it is in your child’s best interests to do so.

The ICL may speak to educational, psychological and medical experts who support your child, for example school principals, guidance counsellors, or child psychologists. They may examine any documents held by the school. Your child’s counsellors or therapists may also be asked to provide information, if applicable.

The ICL may request and arrange for a family report. A family report is a document written by a court-appointed family consultant who is usually a social worker or a psychologist. That family consultant will interview you, your child’s other parent, your child and anyone closely involved in the dispute or in your child’s life. They form and record an independent view about the issues in your family law matter. The family consultant may make recommendations about the sort of parenting orders that should be made or the agreements to be reached. The family report assists the ICL and the court to make arrangements for care of your child.

If your matter progresses to a final hearing, the ICL may question you, the other parent, experts or witnesses.

Can you talk to the Independent Children’s Lawyer?

In all communications with you, the other parent, or legal representatives, the ICL must remain impartial and independent.

If you have a lawyer, then your legal representative will communicate with the ICL. Should the ICL need to contact you or the other parent, this will be arranged through your legal representatives as appropriate. You or the other parent will need to consent to the ICL contacting them directly.

If you or the other parent do not have legal representation, then the ICL will communicate directly with them, but the ICL will need to inform the other parties that this communication has occurred.

The ICL will not reveal what your child has said to you or to the other parent. Once the ICL has consulted with the child and taken their views into consideration, if the ICL forms an initial opinion about what orders or outcomes would best promote the child’s interests, the ICL will inform you and the other parent.

Can you object to the Independent Children’s Lawyer?

While courts are generally reluctant to grant an application to remove an ICL, Rule 3.11 of the Federal Circuit and Family Court (Family Law) Rules 2021 allows for an application to the court for the removal of an ICL.

If the court finds that an ICL has behaved in a way that is contrary to the child’s best interests, acts improperly, lacks professional objectivity or has a conflict of interest, then a court may discharge an ICL.

There may be circumstances where an ICL’s relationship with a child has irretrievably broken down and so it would be impossible for that ICL to represent the child’s best interests. In that case the ICL should consider whether their appointment is of benefit to the child. The ICL guidelines set out situations where an ICL should request to be discharged from a matter.

Who funds the Independent Children’s Lawyer?

Usually, the Legal Aid organisation in the state or territory is responsible for making arrangements for the ICL. Legal Aid cannot usually meet all of the ICL’s costs and so, in most cases, parties contribute to the costs of an ICL.

UnderRule 3.11 of the Federal Circuit and Family Court (Family Law) Rules 2021 the court may order one or other of the parties to pay for the ICL’s costs.

The cost of an ICL is necessary to fully protect children’s interests in critical decisions regarding their care until they reach 18 years.

Closing thoughts

Independent Children’s Lawyer involvement assists in ensuring that your child’s interests are properly represented and not overlooked. The Independent Children’s Lawyer brings a child-focused, impartial and independent perspective that consistently addresses the best interests of your child, where your focus may be on navigating stressful litigation rather than holding the needs and wishes of your child front and centre. Independent Children’s Lawyers assist in facilitating care arrangements that primarily concern the best interests and welfare of your child today, tomorrow and into your future.

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