10 Jan 2017

 

What is an ICL?

Independent Children’s
Lawyer (ICL) are appointed by the Family Court to represent the child’s
interests.  The ICL is not your child’s
legal representative, and they are not bound by children’s instructions.  They are however permitted to meet with
children and play a key role in ensuring children’s views are heard by the
court if it is appropriate to do so.

 

When will an ICL be appointed?

The appointment of an ICL in family law proceedings
is at the discretion of the Court. 
In Re K (1994) FLC 92-461,
the Full Court of the Family Court of Australia identified the sorts of cases
in which an Independent Children’s Lawyer ought to be appointed. These cases
are as follows:

                     
i.       
Cases
involving allegations of child abuse, whether physical, sexual or
psychological.

                    
ii.       
Cases
where there is an apparently intractable conflict between the parents.

                   
iii.       
Cases
where the child is apparently alienated from one or both parents.

                  
iv.       
Where
there are real issues of cultural or religious difference affecting the child.

                   
v.       
Where
the sexual preferences of either or both of the parents or some other person
having significant contact with the child are likely to impinge upon the
child’s welfare.

                  
vi.       
Where
the conduct of either or both of the parents or some other person having
significant contact with the child is alleged to be anti-social to the extent
that it seriously impinges on the child’s welfare.

                 
vii.       
Where
there are issues of significant medical, psychiatric or psychological illness
or personality disorder in relation to either party or a child or other persons
having significant contact with the children.

                
viii.       
Any
case in which, on the material filed by the parents, neither seems a suitable
custodian.

                  
ix.       
Any
case in which a child of mature years is expressing strong views, the giving of
effect to which would involve changing a long standing custodial arrangement or
a complete denial of access to one parent.

                   
x.       
Where
one of the parties proposes that the child will either be permanently removed
from the jurisdiction or permanently removed to such a place within the
jurisdiction as to greatly restrict or for all practicable purposes exclude the
other party from the possibility of access to the child.

                  
xi.       
Cases
where it is proposed to separate siblings.

                 
xii.       
Parenting
cases where none of the parties are legally represented.

                
xiii.       
Applications
in the Court’s welfare jurisdiction relating in particular to the medical
treatment of children where the child’s interests are not adequately
represented by one of the parties.

 

Role of the ICL 

The ICL must
form an independent view, on the evidence, of what is in the best interests of
the child, and act in the proceedings on this basis.  If satisfied that a certain course of action
is in the best interests of the child, the ICL must make submissions about this
to the court.  The ICL must analyse
relevant reports and documents and bring these to the court’s attention. More
guidance about the role is provided by the National Legal
Aid Guidelines for Independent Children’s Lawyers.

This is general
information only, and does not constitute specific legal advice. If you would
like further information in relation to this matter or other legal matters
please contact our office on Freecall
1800 609 945
or
email us now.

 

 

 

 

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