An Independent Children's Lawyer (ICL) is appointed by the Court to represent and promote the best interests of a child in family law proceedings. The ICL must act independently of the Court and the parties and use their own judgement to determine what orders would promote the best interests of the child. The ICL is required to consider the views of a child (where they are able to express them), however, this does not mean that the child becomes a decision-maker in the court process.

The appointment of an Independent Children’s Lawyer

In family law parenting proceedings, if it appears to the Court that the child's best interests in the proceedings should be independently represented, section 68L of The Family Law Act (1975) enables the Court to make an order for the appointment of an Independent Children's Lawyer.

An Independent Children's Lawyer (ICL) is typically appointed by the Court when one of the parties applies and/or one or more of the following situations are present:

• Accusations of child abuse or neglect have been made;
• There is a significant level of conflict and disagreement between the parents;
• Allegations have been raised concerning the child's opinions, and the child is of an age where they can express their views;
• There are claims of domestic and family violence within the family;
• Serious mental health challenges affect one or both parents or the child;
• The case involves intricate and challenging issues.

The role of the Independent Children’s Lawyer

The primary responsibilities of the ICL are to:

• ensure that all necessary evidence is obtained and put before the court;
• facilitate the child's involvement in the legal proceedings, taking into consideration the child's age, maturity, and the case's nature; and
• serve as an unbiased intermediary between the child and the parents, and promote settlement discussions when appropriate.

An ICL will typically:

• meet with the child unless the child is under school age or there are exceptional circumstances;
• speak to the child’s counsellors, school teachers and principals;
• examine documents from organisations such as schools, child welfare authorities, or the Police;
• examine medical, psychiatric and psychological records of the child and their parents;
• question witnesses, including parents and experts, at the final hearing; and/or

make arrangements to obtain independent expert evidence, including from the Court Children’s Service.

Who pays for the Independent Children’s Lawyer?

In many situations, the appointment of an ICL is funded under a Commonwealth, State or Territory Legal Aid Scheme. Whilst some ICLs may be privately funded, the Court generally considers ICLs to be unfunded and therefore makes orders requiring the parties to share the costs associated with the appointment of the ICL.

Depending on a party’s financial circumstances, an application may be made to the Legal Aid Commission for a waiver of their contribution to the costs of the ICL's appointment. Whether that party’s costs can be waived will depend on evidence being provided of their financial position.

It is important to note that even if a waiver has successfully been obtained, this does not prevent the ICL from seeking costs against that party at a later stage, particularly if that party's financial position has changed over time.

Who can be appointed as an Independent Children’s Lawyer

When the Court makes an order for an ICL, it also requests the Legal Aid Commission in the State or Territory in which the proceedings are being conducted to make an appointment of an ICL to that case.

Each State or Territory Legal Aid Commission has a panel of practitioners that have completed specialist training through the Family Law Section of the Law Council of Australia and are able to satisfy the commission that they have appropriate experience and expertise to be included on that panel.

The panel typically consists of in-house solicitors who work for the commission and solicitors from privately run firms who seek to undertake this type of work.

Explaining the role of the Independent Children’s Lawyer to your child

Understandably most parents want to distance their child from what is going on when family law proceedings are on foot. This becomes a bit more difficult when the Court decides that the child's interests should be independently represented and an ICL is appointed.

How parents choose to discuss this with their child will ultimately be guided by the age of their child and their ability to understand what is going on and why they need to meet with the ICL. In recognition of this difficulty, National Legal Aid have produced a range of brochures (available in both downloadable PDF format or interactive videos) aimed at various age groups to assist the child in understanding the court process and the role of the ICL.

Get help from a family lawyer

If you have any further questions about the role of the Independent Children's Lawyer or a parenting dispute in general, you should contact one of our experienced family law solicitors who can assist you with any of your family law queries.

Contacting E&A Lawyers

For more information or to arrange a consultation with a lawyer, you can call or email us.

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