Parenting disputes involve two or more parents or other interested parties (for example, grandparents or step-parents) in conflict about how they should care for their child. The court is tasked with resolving this dispute in a way that supports the child’s best interests. This is difficult at times as it involves weighing up several competing considerations. The two primary and competing considerations are ensuring the safety and protection of the child and the need for a child to have a meaningful relationship with both of their parents.

Independent Children’s Lawyers – The ‘Best Interests’ Voice For Children?

Court proceedings generally are adversarial, and family law proceedings are no exception. This means the parties are arguing through the Court about the best way to raise a child in circumstances where they are going through their own highly emotional separation. Where allegations are going both ways regarding family violence, capacity (financial or otherwise) to care for the children or the presence of neglect, it can be challenging for the court to determine what outcome will best serve the children’s interests.

The judge is limited in their capacity as a third-party decision maker in that they cannot run their own case, make their own enquiries or call their own experts to give evidence. In high-conflict situations, the Court can order an ‘Independent Children’s Lawyer’ (‘ICL’) to be present

What Does An Independent Children’s Lawyer Do In Family Court Proceedings?

The ICL is a lawyer who joins proceedings and advocates to the court for a result in the children’s best interests. Sometimes, this aligns with what one party is arguing, but they can argue for a result that is somewhere between what both parties are seeking. They bring an independent perspective to proceedings and can facilitate the child’s appropriate involvement based on their age, maturity and the nature of the case.
The name of an ICL is somewhat misleading; while they advocate for a child’s best interests, they are not your child’s lawyer. This means they are not bound by your child’s instructions like your lawyer is. The ICL uses various information to determine what is in the child’s best interests; they can meet with the child, speak with any counsellors, school teachers and principals and examine school and medical reports. If an ICL is involved in your matter, they will attend all court events and may seek orders for a family report or other expert reports. They have the power to cross-examine at trial and make final submissions. Throughout the court case, they may also assist in facilitating negotiations.

Any person can ask that an ICL be appointed, including a child welfare organisation or a child; it is also possible for a court to appoint one if the circumstances require it.

Family Law Changes & Independent Children’s Lawyers – 2024

On a final note, the role of Independent Children’s Lawyers has come into the spotlight after recent changes to the Family Law Act 1975, passed in 2023 and coming into play on May 6th, 2024 in Australia.
It’s now essential that an ICL meets with children they are representing unless:

• The child is younger than five years old
• The child older than five does not want to meet them
• ‘Exceptional circumstances’ exist, such as that meeting the child could expose the child to physical or psychological harm.

If you need further information on working with an Independent Children’s Lawyer, please reach out to our team for advice.