What is an ICL?
In the Family Court of Australia or Federal Circuit Court of Australia, an Independent Children’s Lawyer (“ICL”) can be appointed. When the court includes an ICL, it is to protect the interests of the children involved. They can be appointed upon an application by one of the parties. Alternatively, they can be appointed by the court in one of the following circumstances:
- There are allegations of abuse or neglect of the children.
- A high level of conflict exists between the parties.
- Allegations have been made as to the children’s views and the children are of a mature enough age to express their views.
- Allegations of family violence have been made.
- One or both of the parties or the children have serious mental health issues.
- The matter has difficult and complex issues which warrant the appointment of an ICL.
An Independent Children’s Lawyer is typically an experienced family law solicitor. When required, Legal Aid organises their appointment.
The Functions and Duties of an ICL
The Independent Children’s Lawyer’s duty is to represent and promote the children’s best interests at all times. Additionally, they arrange for evidence, including evidence from relevant experts, to be put before the court.
An ICL’s function also includes facilitating the participation and involvement of the children in the proceedings. This depends on the age and maturity of the children and the nature of the proceedings. Furthermore, they facilitate in settlement negotiations where appropriate.
Determining the Best Interests of the Child
To determine what is in the best interests of the children, an ICL may:
- meet with the children unless they are under school age or there are exceptional circumstances why they should not.
- speak to the children’s counsellors, school teachers and principals.
- examine documents from organisations such as schools, Department of Family and Community Services, the police and the medical, psychiatric and psychological records of the children and their parents. These documents are obtained by way of subpoenas issued by the ICL during the proceedings.
- question witnesses including parents and experts at any hearings.
- arrange for a family report to be prepared by a court-appointed family consultant. A family report provides an independent assessment of the issues in the case. Therefore it can assist the Judge to make decisions about arrangements for the children. It may also help the parties reach an agreement.
There is a cap on the costs of the ICL and any counsel instructed by them. It is in relation to the specific work they do, for example in New South Wales, the fee for an appearance of an ICL as solicitor/advocate per day is $1,125.
If you are part of a family law matter with an ICL, or you think one might be required, please get in touch. We can provide advice specific to your situation.