What is an Independent Children’s Lawyer
In some children’s cases in the Family Court/Federal Circuit Court the Judge will make an Order for an Independent Children’s Lawyer (“ICL”). An ICL is an independent solicitor who is expert in children’s matters who are there to represent the children’s best interests.
They are appointed often at the start of a case but can also be appointed at any time the Judge believes it would be helpful for the Court and the parties. They are often appointed in difficult parenting matters involving:
- Allegations of drug or alcohol use;
- Mental health issues;
- Splitting of siblings;
- Sexual or other abuse allegations;
- International relocation cases;
- Other complex parenting cases.
What does an ICL actually do and what does it mean for me?
An ICL is a party to the proceedings which means they will get copies of all documents on the Court file and any correspondence between solicitors. They are there to assist the Court to make the best decision they can for your children with all the relevant information. They are not Judges deciding the case. Their view is one of many factors assisting the Judge to determine the matter.
They may do things like:
- Subpoena written information from schools/ health professionals or
- Look at the subpoenaed information already on the Court file
- Speak to teachers/counsellors etc that are involved with your children to try and get as much relevant information as possible;
- Speak to a Family Consultant who prepares the Family Report;
- As to the Court to order other reports they may think are relevant like psychiatric assessments, supervised contact reports;
- Sometimes, speak to the children themselves.
As a parent you may need to sign an authority to enable the ICL to speak to the school or other organisations.
Will they speak to my children directly?
Not usually when the children are under school age. When they are school aged the ICL may meet or have a conversation with them which is age appropriate about who they are and their role. The ICL will tell both parents if they are going to speak with the children and this will be done without either parent being in the room.
The ICL does not need to disclose to the parents what was said by the children and they are not a counsellor or a witness for the Court.
It is important that you do not try and coach your children either before meeting with an ICL or try and get information from them after a meeting.
How can the ICL help resolve the case
An ICL may assist parties by organizing a conference/mediation at a Family Dispute Resolution service to try and come to an agreement at any time during the case or leading up to the trial.
An ICL will be asked by the Court to make recommendations as to what they believe is in the children’s best interests when the matter is in Court. Sometimes the ICL will not be able to make specific recommendations until other evidence is obtained such as a Family Report prepared or psychiatric assessments obtained.
Furthermore, there are some situations where an ICL will not be asked to make a specific recommendation until they hear all the evidence from the witnesses and parties in a trial.
Does the ICL have to follow the children’s wishes?
No. The ICL does not have to follow the children’s wishes if they do not believe it is in their best interests. If the ICL is not going to follow what the children are requesting then it is best practice for them to tell the children why they will be recommending something different to the Judge.
Can I write or speak to the ICL “off the record”
No. All correspondence between the ICL and one parent, should be provided to the other parent so there is complete transparency between everyone. The ICL should be seen as the “honest broker” trying to assist the Court and the parents to make the best arrangements for their family.
Does the Judge have to follow what the ICL does?
No. The ICL is just another party to the proceedings and the ultimate decision as to what is in the best interests of the children and what Orders should be made will be left up to the Judge if you get to a trial. The Judge will listen to all the evidence in the case before they make a decision.
The ICL can make recommendations but the Judge will make any Orders they believe appropriate.
How can Pearsons Lawyers help?
Pearsons Lawyers are experts in all matters involving Family Law including parenting matters including where an Independent Children’s Lawyer has been appointed.
If you require advice on your Family Law matter and want to “Know where you stand” please contact one of our lawyers at Pearsons Lawyers for your free consultation on 1300 699 688.