Will an Independent Children’s Lawyer be appointed for my children in my parenting proceedings?

An ICL (Independent Children’s Lawyer) can be appointed in parenting matters in which proceedings have been commenced in the Federal Circuit and Family Court of Australia. An ICL is a court-appointed, legally aided solicitor who independently acts on behalf of a child or children in proceedings. However, they are not appointed in every single parenting matter before the Court.

An ICL does not ‘take instructions’ from children in the same way that solicitors act on behalf their parents. Rather, an ICL acts on the best interests of the child. An ICL is required to consider the views of the child; however, in assessing the matter and all the evidence available, they are to provide the Court with their own perspective about what arrangements they view are in the child’s best interests.

Pursuant to a historical case of Re K [1994] FamCA21, the Court will only appoint an ICL if some or all of the following criteria are met:

• Alleged child abuse;
• Unsuitability of either parent to care for the child;
• Intractable parental conflict;
• Proposal to remove the child far away;
• Alienation of the child from a parent;
• Proposal to separate siblings;
• Cultural/religious difference;
• Neither party is legally represented;
• Special medical procedure is proposed for a child;
• Anti-social conduct of a parent;
• Strong wishes are expressed by a mature child.

As such, there are only specific types of matters in which an ICL is appropriate. If an ICL has been appointed by the Court and a Final Hearing has not occurred, there is a requirement for the ICL to meet with the child to give them the opportunity to express their wishes. The ICL is not, however, required to meet with a child under the age of 5 years, or if the child does not wish to meet with the ICL to express their view.

Although an ICL is paid for by legal aid, partners (mother and father) are requested to contribute to the ICL’s costs in the proceedings unless an exemption is granted.