Have you ever wondered whether children can be independently represented during family law parenting proceedings? The answer to this question is yes. In some matters, a legal representative, namely an Independent Children’s Lawyer (‘ICL’) will be appointed to represent the child’s interests.
This is consistent with the overarching principle upheld by the Federal Circuit and Family Court of Australia (‘the Court’) in all parenting matters, which prioritises the ‘best interests of the child.’
In what circumstances will an ICL be appointed?
An ICL will not be appointed in all matters involving children. However, an ICL may be appointed in matters involving children that also involve (this is a non-exhaustive list):
- Allegations of abuse or neglect,
- Difficult or complex issues,
- High levels of conflict between parties,
- Suggestions by one parent to move somewhere with the child, which would deprive the other parent access to the child,
- Suggestions of separating siblings,
- Allegations of family and domestic violence,
- Significant disputes as to fact or law.
What responsibilities does an ICL have?
Section 68LA of the Family Law Act 1975 (Cth) (‘The Act’) outlines the specific responsibilities of an ICL during parenting proceedings.
In summary, the primary function of an ICL is to provide an impartial assessment regarding what parenting arrangements will be in the child’s best interest. This can be on either an interim or final basis.
To achieve this, an ICL will arrange for material evidence to be presented to the Court. They will also assist the child in engaging with the proceedings in a way suitable for their age and facilitate negotiations between the child and the parents.
While the ICL will seek to understand the child’s perspective, it is important to note that the role of the ICL is not to serve simply as a mouthpiece for the child. Instead, the ICL is responsible for independently forming opinions on the parenting arrangements that would be in the best interests of the child.
How does an ICL ascertain the child’s best interests?
The ICL can take a variety of measures to ascertain the child’s best interests. These may include (but are not limited to):
- Communicating with the child’s counsellors and school,
- Meeting with the child (depending on the circumstances),
- Reviewing records from organisations such as schools, child welfare authorities or the Police.
If you have any queries about the role of an ICL in parenting proceedings or wish to retain an ICL, please contact our office at 03 9670 4122 to arrange an initial consultation.