What is an ICL?

Children’s Best Interests

The Court must promote the best interests of the children. Any parenting order must reflect this. The Court will appoint an Independent Children’s Lawyer (ICL) to assist in achieving this outcome. It may be helpful to outline the role and responsibilities of the ICL and how they assist separated parties in promoting the best interests of the children.

Appointment of the ICL

The Family Law Act 1975 (Cth) (FLA) (S68L (2)) provides for the appointment of an ICL to independently represent the child or children in proceedings. The FLA further codifies the conduct and duties of the ICL. The Full Court of the Family Court highlighted situations where the need for an ICL may arise. These include allegations of sexual abuse involving the child; issues of religious conflict, which may negatively affect the child; where the welfare of the child may be adversely affected by psychiatric or psychological impairment of either party and in circumstances of parents’ intractable conflict.

Role and Responsibilities of the ICL

The FLA and case law underline the ICL’s role as an independent and impartial representative of the children’s best interests. The ICL only considers admissible evidence and not any personal view of the situation by either parent.

The ICL must confer with any court-appointed expert to consider what evidence is relevant to provide for the best outcome for the children. Other evidence may include school and medical reports to gauge how the child has been affected by proceedings or whether there are specific issues, which the Court needs to address. 

When preparing and collating evidence, trauma to the child must be minimised. The ICL must negotiate and guide conflicting parties to facilitate an agreed resolution to the proceedings.

Conflict and Communication 

When couples separate, extreme conflict may result in no communication between parents which is not helpful in encouraging a good outcome for the children. An ICL will allow negotiations to commence where you can each put forward proposed arrangements for the children without constant arguments. 

The ICL can objectively communicate what effect any suggestions may have on the children and how best to negotiate agreement. When there is intractable conflict, children are caught in the middle, and no decisions can be made, which does not promote a stable environment.

The ICL would also consult with both parents and may interview the children to understand what impact the situation has had on them at home, at school and psychologically.

Children’s Wishes

The ICL must communicate the children’s wishes to the Court. However, the ICL does not take instructions from the children and remains an independent advocate of their best interests. The Court is not ruled by the children’s wishes but will take them into account.

In the same way, when communicating with the family consultant, the evidence is not privileged. The ICL may communicate these to the Court. In this way all proceedings are transparent and the best interests of the children will be considered above the wishes of either parent.

What if One Parent Exhibits Violent Behaviour in front of the Children?

The Family Court takes very seriously family violence, which has a very broad definition including physical and verbal abuse. The children are considered to be at risk of psychological harm in witnessing such behaviour from a parent, which the ICL will consider. 

There are cases where one parent’s behaviour has resulted in the children spending time with that parent at supervised contact centres or even where that parent may be removed from the children’s lives for a period of time to receive counselling and allow the children a safe environment.

How Can the ICL help Parents Avoid Conflict?

There may be difficulties with parents’ work schedules where delays in picking up or dropping off the children may cause further conflict. As a parent you will want to keep the children out of the conflict and yet cannot give up work as you may be the parent who is paying child support and/or for private school fees and/or for extra-curricular activities.

The ICL will take this into account when making submissions and may recommend after-school care or arrangements where the parents can pick the children up from school to spend time with them before dropping them home to the other parent. This may avoid some conflict or at least reduce the disputes between the parties. Again, the ICL will consider what will promote the best interests of the children and make submissions accordingly.

The ICL at Court

The Court demands a high level of professionalism from ICLs. The ICL is a highly experienced and qualified legal representative who is appointed to act in the best interests of the children.

The Court may discharge an ICL for not acting in the child’s best interests, acting improperly, for not demonstrating professional objectivity or for having a conflict of interest.

The Court will always ensure that all parties promote the best interests of the children and will dismiss the ICL for any unprofessional conduct.

Please do not hesitate to contact us if you wish for further clarification and assistance with your parenting issues.

This article is a guide for information only. It is not legal advice.