When parenting proceedings are initiated in the Federal Circuit and Family Court of Australia (‘the Court’), parties may seek an order for the appointment of an Independent Children’s Lawyer (‘ICL’) pursuant to Section 68L of the Family Law Act 1975 (Cth) (‘the Act’). The Court also has the discretion to appoint an ICL.
The primary role of an ICL is to form an independent view based on the available evidence as to what arrangements are in the best interests of the child. An ICL does not act as the child’s personal legal representative. Rather, the ICL can gather and evaluate relevant evidence such as subpoena material from the Department of Child Protection and the South Australian Police and present this information to the Court to assist in determining parenting orders that promote the child’s best interests.
One of the key benefits of appointing an ICL is their obligation to act independently and objectively throughout the proceedings. Where appropriate, an ICL may assist in facilitating parenting negotiations between the parties. The ICL may support or oppose orders proposed by either party, depending on their assessment of what outcome best serves the child’s interests.
In circumstances where there are allegations of family violence, serious mental health issues of both parties or the child, there is a high level of conflict and dispute between the parties or where there are difficult and complex issues involved in the matter, an ICL should be appointed.
Following amendments to the Act from 6 May 2024, there is a requirement for the ICL to meet with the child to proceedings. This meeting provides the child with an opportunity to express their views to the ICL. This requirement will not apply if:
- The child is under the age of 5;
- The child does not want to meet with the ICL; or
- There are exceptional circumstances, such as where meeting with the ICL may have a significant adverse impact on the child’s wellbeing.
The ICL is not under an obligation to disclose to the Court the child’s views unless the ICL considers the disclosure to be in the best interests of the child.
For further information about whether an Independent Children’s Lawyer should be appointed in your matter, please contact Swan Family Lawyers on (08) 8227 1970.