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  • Writer's pictureJarrod Carter

Independent Children's Lawyers: Family Court

An Independent Children's Lawyer (ICL) is a lawyer who is appointed by the Family Court to represent the best interests of a child or children in family law proceedings in Australia. The ICL's role is to provide the Court with an independent perspective on the child's needs and wishes, and to advocate for the child's best interests in Court.

They are expected to be neutral and to act independently of the parents or other parties involved in the case. The ICL may also conduct investigations and gather evidence to help the Court make a decision. The idea behind the ICL is that the child should have an advocate to look out for them, in situations where the parents are unable or unwilling to do so due to bias and risk factors.

Appointing an ICL

If a parent applies for a parenting order from the Court and there are substantial risk issues, the Court may appoint an ICL. Furthermore, If the child is the subject of a child protection proceeding, the Court may appoint an ICL. In disputes over the child's schooling, religion or cultural background that has the potential to harm the child's welfare, the Court may appoint an ICL to represent the child's best interests.

Usually an ICL is appointed when an application for parenting orders is made to the Court. The Court has discretion to appoint an ICL in any proceedings that concern the care, welfare and development of a child and when the Court is satisfied that it is necessary to ensure the best interest of the child to do so.

Investigation of Relevant Evidence

The specific investigations that an independent children's lawyer (ICL) conducts will vary depending on the individual case and the information that the Court has requested. Generally, however, an ICL may conduct the following types of investigations:

  • Interviews: The ICL may conduct interviews with the child or children involved in the case, as well as with other people who have relevant information, such as the parents, other family members, teachers, doctors, and other professionals who have been involved with the child.

  • Home Visits: The ICL may conduct home visits to assess the living conditions and environment of the child, and to observe the child's interactions with their parents and other family members.

  • Review of documents: The ICL may review relevant documents, such as medical records, school reports, and previous Court orders, to gather information about the child's history and any relevant background information.

The ICL will use the information they gather from these investigations to advise the Court. The investigations will be done in a child-centered approach and the best interest of the child is the paramount consideration.

Engaging an Expert Witness

An independent children's lawyer (ICL) may also engage and work with a single expert witness in a family law case. A single expert witness is an individual who has specialized knowledge, skills, or experience in a specific area and who is called upon to provide expert testimony. Single expert witnesses are appointed by the Court or the parties to give evidence on specific issues that are relevant to the case, usually in the form of written reports or oral testimony in Court.

The expert's role is to provide the Court with an unbiased, objective and impartial opinion based on their own knowledge, research, or experience. Their testimony is considered to be of high weight in the Court decision making process, as it helps the Court understand complex technical, scientific or specialized matters, which are beyond the knowledge of the average person. In child custody cases, the expertise is often in Child Psychology, and Family Therapy.

The expert's evidence is subject to examination and cross-examination by the parties and their legal representatives, to ensure the evidence is accurate, credible and relevant to the case, and that the expert is impartial, neutral, and not showing bias towards any particular party.

An ICL may engage and work with an expert witness in the following ways:

  • Commissioning a report: An ICL may commission a report from an expert witness to provide the Court with information about a specific issue in the case, such as a child's mental health or developmental needs.

  • Arranging for an assessment: An ICL may arrange for an expert witness to conduct an assessment of a child, such as a psychological evaluation, to provide the Court with information about the child's emotional and mental well-being.

  • Consulting with an expert: An ICL may consult with an expert witness to gather information and opinions about a specific issue in the case, such as the child's best interests or the impact of a proposed parenting plan on the child.

  • Calling an expert witness to testify in Court: An ICL may call an expert witness to testify in Court to provide the Court with expert opinion on matters related to the case.

An ICL will work closely with the expert witness to ensure the expert's evidence is presented in a clear and objective way to the Court, and be able to cross-examine the witness as necessary to further clarify their testimony. The expert witness' testimony is then used to make the case for the best interest of the child, as determined by the ICL after thorough investigations and information gathering.

Legal Costs

The cost of an independent children's lawyer (ICL) in Australia is typically covered by the government. The specific arrangements for payment may vary depending on the state or territory in which the case is heard.

In most cases, the ICL is appointed by the Court and the cost of the ICL is covered by the government through legal aid funding. This means that the parents do not have to pay for the services of the ICL directly, although they may still be required to contribute towards the cost of legal representation through the payment of legal aid contributions.

There are situations where the Court orders the parties to pay for the ICL directly. This occurs mainly when the parents have the means to pay and the ICL was appointed to support the child in a complex and high-conflict case. The cost would be considered as a disbursement in the case and the Court would order how much each party is to pay in these scenarios.

It's important to note that even though the cost is covered by the government or Court, the ICL remains independent, impartial and neutral in their representation of the child. The funding source does not influence the ICL's decision making or advice to the Court.

When is the ICL discharged?

The Family Court can discharge an ICL from a case if the Court believes that it is no longer necessary for the ICL to continue to represent the child. This can happen in a few different circumstances:

The case is resolved: If the parents reach an agreement or the Court makes a final order, the ICL's role may no longer be necessary, and the Court can discharge the ICL.

  • The child's wishes change: If the child's wishes change, or if the child reaches the age of 18 and is capable of making their own decisions, the Court may decide that it is no longer necessary for the ICL to continue to represent the child's best interests.

  • Child's interests are protected: If the Court is satisfied that the child's best interests are protected and the child will not be harmed by discharging the ICL, the Court can discharge the ICL from the case.

  • Funding ends: In some cases where the funding for the ICL ends, the Court may decide that it is no longer necessary for the ICL to continue to represent the child's best interests.

It's important to note that the Court will only discharge an ICL if it is satisfied that it is in the best interests of the child to do so. The Court will also ensure that the child's right to be heard and to participate in the proceedings are respected and protected.

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