Independent Children’s Lawyer In the Family Court

Independent Children’s Lawyer In the Family Court

Independent Children's Lawyer In the Family Court

Find out more about the role of an independent children’s lawyer, what information they require to make a recommendation, and why they are needed in the Family Law Court.

Going to family court can be an overwhelming and stressful experience for parents. 

Understanding a little more about the court process can help ensure that you are better prepared. 

In parenting order cases, independent children’s lawyers represent children’s interests and present information to the court in an impartial, professional and independent manner. They work independently of your legal team and will focus on the needs of your child. Let’s take a look in more detail.

What Is An Independent Children’s Lawyer?

In family law proceedings, the court can appoint someone who will represent your child’s best interests and who will ensure that parental care and decisions are made with the child’s welfare as their primary focus. An independent children’s lawyer will be appointed generally after one of the parties has applied to the court. Under the Family Law Act 1975, the court, or a child welfare organisation, or any other person, can appoint an ICL to represent the best interests of a child in a family law proceeding.

What Is The Role Of An ICL?

An independent children’s lawyer must always consider the views of the child to determine what is in their best interests. An ICL will provide their own independent perceptive about what decisions and arrangements to recommend in parenting order cases. They will present expert evidence to the family law courts and help facilitate the child’s participation in the court proceedings suitably and appropriately for their age and the nature of the case. Evidence must support their opinions. They may also act as an independent agent of the court to help with facilitating settlement negotiations between the parents and the child. Their extensive experience and skill base can help minimise any trauma the child may experience during the court proceedings.

An ICL will try to encourage the parties to negotiate outside of court to settle their dispute independently.

If an independent children’s lawyer needs to contact either party, they will communicate through their legal representative. If they do not have their own lawyer, then the ICL can communicate directly, but they will remain impartial and advise the other party the communication has occurred.

An ICL is not your child’s lawyer. They are not required to follow your child’s instructions. They will communicate to the court what your child has said about who they want to live with and how much time they want to spend with their parents and other important people in their lives. As well as explaining to your child how family law works they will also describe their role and how they help during the child’s case. With a focus on achieving an outcome that meets your child’s best interests.

How Does An Independent Children’s Lawyer Determine My Child’s Best Interests?

The independent children’s lawyer will gather information from various sources including, medical and psychological records and school and community services documents. They will arrange for a family report to be compiled by a court consultant. The ICL will speak to the child’s school teachers, principal and counsellors and examine documents from the police, the children’s school and the Department Of Community Services. 

They will meet with the children, if they are of school age, and have an opportunity to express their future parenting wishes and views. If the child is unwilling to discuss their thoughts or opinions, the ICL will not pressure them to talk.

An independent children’s lawyer will also question witnesses at the final hearing.

Why Is An ICL Appointed?

An ICL is appointed as an independent agent to the court. They are an impartial intermediary who primarily focuses on the children of the case. Because children do not attend the family law hearing, the ICL will present all relevant information about your child’s welfare. They ensure that the court is fully aware of the views of the child. They are highly skilled and trained in negotiation and act as an honest broker on behalf of the children. They have extensive experience and professional judgement and can help provide objectivity, an independent perspective in a volatile or emotional environment.

An ICL could be an appointee in family law cases when it involves:

  • Child Abuse or neglect allegations
  • Extreme parental conflict and abuse
  • Family violence allegations
  • Children’s viewpoints
  • Mental health issues
  • Difficult and complex issues
  • Extreme medical health issues
  • Proposal to separate siblings
  • One parent to relocate far away from the other

Can I Object To The ICL?

The Family Law Rules state that an application can be made to the court by any party to remove the independent children’s lawyer, but the grants are rarely approved. The family court can discharge the independent children’s lawyer if they:

  • Act improperly
  • Lack objectivity
  • Has a conflict of interest
  • Not focused on the child’s best interest

There are exceptional circumstances where the ICL can request discharge from their case. For example, if their relationship with the child has broken down, or their service is no longer needed or useful or adversely affects the child’s interests. Some guidelines specify situations when they should request to be discharged.

What Is A Family Report?

A family report is a document that is written by a family consultant who the court appoints. It is an independent assessment that helps the judge make decisions about child arrangement issues in parenting cases.

The consultant will consider the family’s circumstances and explore relevant issues to the case and ultimately make recommendations in the report which will meet the child’s best interests. With a specific focus on future care, developmental needs and their welfare.

What Is A Family Consultant?

A family consultant is an individual who has experience working with children and families. They may be a qualified psychologist or social worker and are appointed by the court to help achieve the best outcome for the children. They are experts in children’s matters in court and can help parents and judicial officers.

How Do You Get A Family Report?

The court orders and provides the family reports, and there is no fee for either party.

After a family report is ordered, you will receive notification from the court advising you of your appointment times and location of interviews. You must attend as it is a court-ordered appointment. 

Interviews And Observation Sessions

The family consultant will conduct a series of interviews. Your children will also be seen separately from their parents. They may attend an observation session, where the consultant will have the opportunity to view the interaction between each parent and their child.

The sessions are carefully monitored, and children are supervised in a safe, neutral environment to ensure that they are not exposed to any adult conflict. 

What Information Goes Into The Family Report?

The family consultant will obtain permission to gather information about your children from relevant professionals, like their doctors and teachers.

The information contained in the report could include:

  • Disputed issues
  • Current and previous parenting arrangements
  • Parental capacity
  • Your child’s relationships 
  • Your child’s thoughts and requests
  • Potential risks to children

The court will release the report, and only the lawyers and other parties in the court case will view it unless the court grants permission. It is an offence to release any part of the report to the public.

On occasion, matters may settle based on what is in the family report. This means parties will not have to attend court. Instead, sign consent orders to complete the process.

Summary

An ICL is appointed as an independent agent to the court. They are an impartial intermediary who primarily focuses on the children of the case. They ensure that the court is fully aware of the child’s views. They are highly skilled and trained in negotiation, gather information from various sources, and provide their own independent perceptive about what decisions and arrangements to recommend. They will present expert evidence to the court.

Their extensive experience and skill base can help minimise any trauma the child may experience during the family court proceedings. They will arrange for a family report to be compiled by a court consultant.

A family report is an independent assessment that helps the judge make decisions about child arrangement issues in the case. The family consultant will conduct a series of interviews. The consultant will consider the family’s circumstances and explore problems relevant to the case and ultimately make recommendations in the report which will meet the child’s best interests. 

Independent children’s lawyers will represent your child’s interests, offer sound legal advice, and make recommendations based on what is best for your child and your circumstances.

FAQs

1. What Does An ICL Do?

Answer: They will present expert evidence to the family court and will ensure that parenting arrangements and decisions are made with the child’s welfare as their primary focus. They will provide their own independent perceptive about what decisions and arrangements to recommend. The independent children’s lawyer will gather information from various sources. The ICL will speak to the child’s school teachers, principal and counsellors and examine relevant supporting documents, such as police reports, the children’s school records and affidavits etc.

They will meet with the children and have an opportunity to express their future parenting wishes and views.

2. Who Pays For An ICL?

Answer: An ICL can be arranged through the Legal Aid organisation. Costs will vary from state to state, but generally, the expectation is that the parties involved contribute to the costs. Legal aid NSW asks the parents to cover the entire cost of the ICL. Legal Aid can advise the charges and how to pay them. In some circumstances, the family court may order one party to pay for the ICL fees.

3. How Is An ICL Appointed?

Answer: An independent children’s barrister will be appointed generally after one of the parties has applied to the court. Under the Family Law Act, the court, or a child welfare organisation, or any other person, can appoint an ICL to represent the best interests of a child in a family law proceeding.

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