An Independent Children’s Lawyer (ICL) is a court appointed legal representative for a child in a family law matter, before the Federal Circuit Court or Family Court. An ICL will represent your child or children throughout the legal proceedings.
If appointed, an ICL will present to the Court submissions based on a child’s views (depending on the age of the child) and what is in the child’s best interests. The ICL will consider a number of different factors in determining what is in a child’s best interests.
How does an Independent Children’s Lawyer decide what is in a child’s best interest?
Although every family law matter is different, an Independent Children’s Lawyer will typically base their submissions and views on the following:
· Meetings with the child or children and having age appropriate discussions with the child about the Court matter and their views and wishes
· A review of all the Court documents filed by all parties in the proceedings
· A review of the recommendations made by any experts such as by a family consultant in a Child Inclusive Memorandum, Child Dispute Memorandum or a Family Report
· A review of all of the Orders made in the matter and the Orders sought by the parties
· A review of subpoenaed material (including Subpoenas the ICL issues)
· Review of other relevant evidence, such as drug and alcohol test results and mental health assessment reports
· Information from other people involved with the children, such as teachers and counsellors.
The ICL will then apply relevant case law and consider the Family Law Act in the context of the particular circumstances of your matter.
After completing the above steps, the ICL will form an independent view of what is in the child’s best interests to present to the court. The ICL will indicate what the views of the child are to the Court (if the child is of an age where they can give a view), however the weight that the Court will determine those views holds, ultimately depends on the age and mental capacity of the child.
Will the Judge make the Orders sought by the Independent Children’s Lawyer?
In family law proceedings, the Judge must consider all of the Applications and the Orders proposed by each party. The Judge will make a decision based on the evidence presented in the proceedings. The Judge is impartial, does not have to, and may not always make a decision in line with what the ICL has recommended.
However, the Court will place considerable weight on the independent children’s lawyers views, as the independent children’s lawyer is impartial, unbiased and a highly experienced, qualified and skilled family lawyer.
What do I do if an Independent Children’s Lawyer is appointed?
The first thing you should do is remain calm. An ICL being appointed is a good thing, not a bad thing, as it means your child or children will have their own voice in the proceedings. If the ICL requests a meeting with your child or children it is important that you facilitate this. It is important however that you make sure you don’t coach the children in what to say to the ICL.
If an Independent Children’s Lawyer is appointed in your matter you should speak to your solicitor about what this will mean for you, your children and your matter. If you have a family law matter before the Court in which an ICL has been appointed and you don’t have a solicitor you should obtain legal advice. Contact our office today to speak to a family law solicitor about your matter. You can either call us on 02 4050 0330 or book an appointment online.
