What is an Independent Children’s Lawyer?

What is an Independent Children’s Lawyer (“ICL”)? They are a lawyer appointed by the Court to help determine a child’s best interests.

ICLs are experienced family lawyers who have completed the national ICL accreditation program. Their fees are usually met in the first instance by Victoria Legal Aid, but parties are often requested to make a contribution to the costs of the ICL and the Court may order this.

An ICL is not appointed by the Court in every parenting matter. The Court can appoint an ICL on its own motion or following an application by one or more of the parties. When considering whether to appoint an ICL the Court may consider a number of factors, including:

• Any allegations of risk or family violence;
• The age and maturity of the children;
• Where there is significant conflict between the parties; or
• Where one (or both) parties are not legally represented.

Once appointed, the ICL will read all the documents filed by the parties, consider any relevant subpoena material, express their view (where applicable) to the parties about any issues that arise, and attend and participate in each listing of the matter before the Court.

Although the ICL may meet with the children to discuss their views and may communicate those views to the Court, they are not appointed to be a lawyer for the children or to act on their instructions. Instead, their role is to provide an independent view and assist the Court in working out arrangements that are in the children’s best interests.  This may, or may not, be consistent with the children’s views or the views held by the parties.

The ICL also helps the Court by ensuring important evidence is available for the Court’s consideration, such as by issuing subpoenas to obtain relevant records from the children’s schools, the police or child protection bodies.

If the matter proceeds to a final hearing, the ICL will also ask each of the parties questions during cross-examination and, having read, heard and considered all of the evidence, make submissions to the Court about the final orders that they consider are in the best interests of the children.

The ICL plays an important role as an independent ‘honest broker’ between the parties and can help negotiate a settlement of their parenting matter without the need for a determination by the Court, such as by organising and participating in a mediation with the parties and their lawyers.

Although the ICL’s view is likely to carry some weight in the proceedings, the ultimate determination about the children’s arrangements rests with the Court.

If you think an ICL may need to be appointed, you should seek legal advice from a family lawyer about whether this is appropriate in the circumstances of your matter.  Give our team a call on 9793 7888 or send us an email at reception@justfamilylaw.com.au