For the past six years I've had the pleasure of working as an Independent Child Lawyer (ICL) in the Family Courts here in Brisbane. It's a role that I take very seriously and consider very privileged to have. It is also a role that I think is at times misunderstood by the parents that find themselves having to deal with an ICL in what is already a very complicated and confusing Court process. This is not surprising as every ICL just like every Family Law case, is different and will approach their cases in their own way. It is important to understand the role of an ICL and to best understand how to work with them when you find yourself in proceedings before the Family Courts.
An ICL is ultimately a family lawyer who has undertaken specialist training to represent the best interests of children in family law proceedings. Many ICL's work within the various Legal Aid offices throughout our country and many others are employed in private practice.
Not all family lawyers are qualified as ICLs. Once you have undertaken specialist training, you then generally need to proceed through an application process to be selected to work as an ICL. It is a position that is held with high regard and is taken very seriously by family law professionals.
An ICL is appointed to provide assistance to the Court by representing the best interests of the children in the proceedings. The ICL is not a direct representative of the child or children. In other words, the ICL does not take instructions from the children and then act upon them as a family lawyer would with a client. It is perhaps this distinction that leads to most confusion when understanding the role of an ICL.
Section 68LA of the Family Law Act sets out very clearly the role of an ICL. An ICL is to act pursuant to the legislation as set out in that section and as such an ICL must:
Form an independent view based on the evidence available to the ICL of what is in the best interests of the child; and
Act in relation to the proceedings in what the ICL believes to be the best interests of the child; and
Act impartially in dealings with the parties to the proceedings; and
Ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the Court (although it should be noted that a child cannot be compelled to state a view); and
Endeavour to minimise the trauma to the child and facilitate a resolution of matters to the extent to which doing so is in the best interests of the child.
Importantly, the section also clearly sets out what an Independent Children's Lawyer is not:
The ICL is not the child's legal representative; and
The ICL is not obliged to act on the child's instructions in relation to the proceedings.
It should also be noted that an ICL is not under an obligation to disclose to the Court information the ICL might receive from a child.
An ICL is appointed by Order of the Court. This can be on application of one or both of the parties or by the Court's own motion. When deciding whether to appoint an ICL, the Court will consider the factors set out in the decision Re K (1994) 17 FAMLR 537. In this decision the Full Court of the Family Court set out a series of guidelines to assist future Courts when being asked to appoint an ICL. As such, cases involving the following issues may warrant the appointment of an ICL-
allegations of child abuse;
intractable conflict between the parents;
alienation of children from either parent;
cultural or religious differences that affect a child;
sexual preferences of parents or parties that could impact on the welfare of the child;
serious anti-social behaviour of a parent or carer that impacts on a child;
serious medical or other illness suffered by a parent, carer or child;
circumstances where neither parent seems an appropriate carer for a child;
a mature child expressing strong views not to see a parent or to change a longstanding arrangement;
circumstances where it is proposed to remove a child from Australia or to a place in Australia that will make it difficult for a child to see a parent;
circumstances where siblings may be separated;
where all parties in a matter are unrepresented;
applications regarding special medical procedures.
These are only guidelines and are not an exhaustive list of the reasons for which an ICL might be appointed, but if you are before the Courts and seeking the appointment of an ICL, it would be appropriate to include, in any affidavit material, evidence that addresses the guidelines above and you should look to the specific guidelines set out by the Court in the decision of Re K (1994).
Once the Court has determined that it is appropriate to appoint an ICL, the Court will generally make an Order for the Legal Aid Office of the particular State to engage an ICL. The process differs between each State in Australia and is affected from time to time by the funding available to the various Legal Aid Offices.
It can take some weeks between the Courts making an Order for the appointment of an ICL to the time when that lawyer actually receives a copy of the Court file. Generally in Queensland this will take between 8 and 12 weeks.
After receiving notification of an appointment in a matter, an ICL will generally be provided with a copy of all of the Court material in the matter. The ICL will then assess the material that is already before the Court and give consideration to the need to obtain further evidence. This may be done in a number of ways, for example by issuing subpoena to institutions, getting information from a child's school or doctor or through expert reports such as a Family Report or psychiatric assessments.
The ICL at this early stage is trying to gather information that will be relevant to assist the Court in making any interim or final determination in the matter. The ICL will also be considering any options that may assist the parties to resolve their differences and reach agreement.
The process that each ICL follows is unique to that lawyer. There is no right or wrong way as long as the lawyer is acting according to the legislative principles set out in the Family Law Act. The process tends to vary from State to State. For example, I practise in Queensland. Generally ICLs in Queensland do not meet with children the subject of the proceedings. In my personal practice, I will meet with children from time to time, but generally only with the involvement of a Family Report writer. I would normally do this by attending at Family Report writer interviews and, particularly with older children (10 years and above), I would take the time to meet with them and explain my role in their process.
This can be contrasted to the general practice of ICLs in New South Wales. In New South Wales, I understand it is more common for ICLs to meet regularly with children throughout a Court process.
Neither approach is right or wrong. It is appropriate if you have an ICL in your matter that you find out from them how they will engage with you and your children throughout the course of the proceedings. If you have a lawyer acting on your behalf then speak to your lawyer about their experience in dealing with the ICL. If you don't have a lawyer, speak to the ICL yourself and ask them.
If you can best understand how the ICL will operate, you can best assist them in gathering information that they need.
Accredited Family Law Specialist, Collaborative Lawyer and Mediator
Brisbane Family Law Centre, Brisbane Queensland.
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