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An independent children’s lawyer (ICL) is a lawyer who advocates for the best interests and welfare of a child in relevant proceedings under the Family Law Act 1975 (Cth).

The Family Court will order that a child be represented by an ICL if the child’s best interests or welfare is of significant importance to the proceedings and it appears to the Family Court that the child’s interests ought to be independently represented by a lawyer¹.

In the case of Re K Nicholson CJ, Fogarty and Baker JJ set out an extensive list of some circumstances which might call for the appointment of an ICL. Some of the examples they listed included:

• –          Cases involving allegations of child abuse whether physical sexual or psychological;
• –          Cases where there is an apparently intractable conflict between the parties;
• –          Cases where the child is apparently alienated from one or both parents;
• –          Cases where there are real issues of cultural or religious difference affecting the child;

Cases where the sexual preferences of either or both parents or some other person having significant contact with the child is likely to impinge on the child’s welfare…²

What is their role?

According to the Family Law Courts’ “Guidelines for Independent Children’s Lawyers”, the appointment of an ICL is one means of giving effect in family law proceedings to the United Nations Convention on the Rights of the Child, which states that:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”³

“Parties shall assure to the child who is capable of forming his or her views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”⁴

In Australia, an Independent Children’s lawyer’s roles are broadly set out in section 68LA of the Family Law Act 1975 (Cth). This particular provision sets out the general natureof what ICLs must do and the specific duties they have.

General Nature of the Role of Independent Lawyers:

• –          ICLs must form their own, independent view about the best interests of their client and they must act according to that view in any relevant proceedings.⁵
• –          If the ICL sees that a particular course of action is in the best interests of their client they must make a submission to the court suggesting the adoption of that course of action.⁶
• –          The ICL is not the child’s legal representative and is not obliged to act on the child’s instructions in relation to the proceedings.⁷ preceding the instalment of s 68LA in 2006 has clearly stated (consistent with current statute) that the ICL does not necessarily have to advance what the client “wants”⁸

The Specific Duties of the Independent Children’s lawyer:

• –          The ICL must act impartially in dealings with parties to the proceedings.⁹ (Note: the appearance of bias may be tested by asking whether a “fair-minded observer might reasonably apprehend that the ICL might not bring an impartial or unprejudiced mind to the task of independently representing that child”¹⁰]).
• –          The ICL must fully put any relevant views the child might have to the court.¹¹
• –          The ICL must analyse any report or document relating to the child that is used in the proceedings, and identify those matters which are most significant to the child’s best interests.¹² They must then ensure that the court is made fully aware of those particular matters.¹³
• –          The ICL must endeavour to minimise the trauma to the child associated with the proceedings.¹⁴
• –          The ICL must “facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child”.¹⁵

In addition to these statutory provisions, a recent report from the Attorney General’s Department identified three overlapping functions in the ICL role: facilitating child participation, evidence gathering and litigation management (being an ‘honest broker’).¹⁶

Facilitating child participation

An ICL has the responsibility of facilitating the participation of children and young people in family law proceedings. This role arises from a number of articles within the United Nations Convention on the Rights of the Child (UNCRC), including article 9 which upholds a child’s right to participate in proceedings relevant to their care.  The ICL must ensure that the child’s views are heard and respected, and that the child is able to have an impact upon the outcome of any proceedings affecting them.

Evidence Gathering

ICLs also bear the responsibility of ensuring that the necessary evidence is obtained and put before the court. This role involves arranging subpoenas for documents or witnesses, conducting criminal history checks, gathering formation about personal protection order relevant to people involved with the child, and obtaining family reports or reports by single expert witnesses.

Litigation Management

ICLs must ensure that litigation is conducted in a child-focussed manner, that the settlement of a matter is encouraged when appropriate and that they themselves act as ‘honest brokers’ where necessary.

Who pays for them?

According to regulation 8.02 of the Family Law Rules 2004 (Cth) the court may:

• –           Request for a relevant legal aid authority to arrange representation for the child; and
• –           Order that the costs of an ICL be met by a party to the proceedings¹⁷.

The fees of an ICL are usually footed by the relevant Legal Aid State authority. Legal Aid New South Wales has determined that it will likely not cover matters where the total costs and disbursements exceed $18,000¹⁸. However, in exceptional circumstances arrangements may be made with the chief executive officer, Legal Aid NSW, for additional funding¹⁹.

Legal Aid NSW mandates that parties to the proceedings who are not in receipt of legal aid should contribute equally to the costs of the independent children’s lawyer. Any party not in receipt of legal aid will generally be required to pay their share of a basic composite fee totalling $3,300 (including GST) which covers the anticipated cost for work up to but not including the defended hearing of the matter²⁰.

In addition to the basic composite amount, each party will be required to contribute in the same proportion to any additional costs of the independent children’s lawyer including on the final hearing (including counsel fees, if any)²¹.

Legal Aid NSW provides an approximate estimation of all the costs associated with ICL representation ²².

Do we really need them?

In considering this question it is vital to consider the emphasis that Australian courts place upon the welfare and best interests of any child involved in the proceedings. Several sections of the Family Law Act 1975 (Cth) require the court to regard the welfare (or interests) of a child involved in proceedings as the paramount consideration, including sections 60CA, 67L AND 67V.

Selby J further explained in Clarkson v Clarkson that in family law litigation the interests of the parties take second place and that “regard for the interests of the child is the determining factor”²³.

In fact, the Best Practice Guidelines for Lawyers Doing Family Law Work encourages lawyers who act for a parent to explicitly clarify that the court approaches the matter from the viewpoint of what is best for the child, which can override the wishes of parent and/or child²⁴. Because there is such a heavy emphasis on maintaining the child’s best interests and welfare it is evident that independent family lawyers are necessary.

SURVEY: Tell us about your experience with an Independent Children’s Lawyer (ICL)

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Karan Dayal

Online Legal Information Author at Family Law Express

I am currently in my second year of a Bachelor of Laws/Commerce (Majoring in International Business) at Macquarie University. Personally I take an interest in legal research and courtroom advocacy and participating in many law moots. Upon graduating I hope to enter the legal profession as a public prosecutor.

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