What is an Independent Children’s Lawyer?

Same-Sex parents battling about the living arrangements of their baby daughter highlight the Court’s use and need for Independent Children’s Lawyers.

The Courier Mail today reported the circumstances of a matter involving a very young child who is in the midst of “a tug of war” over her custody. – Same-sex mothers battle for baby girl living in a women’s refuge after vicious break up

Whilst the notion of “custody” is no longer good law in Australia, the circumstances of the matter highlight the ever increasing need for independent representatives to be appointed to assist the Court in determining what is in a child’s best interests.

In the Family Law jurisdiction, these representatives are known as Independent Children’s Lawyers or ICL’s.  Funded by Legal Aid Queensland, ICL’s are given the often burdensome and extremely difficult role of sifting through the mountain of allegations in parenting proceedings to bring to light the relevant and pertinent information that our Judge’s need to enable them to make a decision about a child’s living arrangements and the circumstances in which parents can see their children.

The need for an ICL can arise in many and varied circumstances including:-

1. Cases involving allegations of child abuse whether physical sexual or psychological;
2. Cases where there is an apparently intractable conflict between the parties;
3. Cases where the child is apparently alienated from one or both parents;
4. Where there are real issues of cultural or religious difference affecting the child;
5. Where the sexual preferences of either or both parents or some other person having significant contact with the child is likely to impinge on the child’s welfare;
6. Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that is seriously impinges on the child’s welfare;
7. Where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other person having significant contact with the child;
8. Any case in which, on the material filed by the parents, neither parent seems a suitable carer for the child;
9. Any case in which a child of mature years is expressing strong view which would involve changing a long standing arrangement or a complete denial of contact to one parent;
10. Where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or exclude the other party from the possibility of contact with the child;
11. Cases where it is proposed to separate siblings;
12. Cases where neither party is legally represented;
13. Applications in the court’s welfare jurisdiction relating in particular to the medical treatment of children where the child’s interests are not adequately represented by one of the parties.

If an ICL is appointed in a matter, their role and obligations are clearly defined in both the Family Law Act as well as in case authority.  The role of an ICL and their duties include:-

1. They must form an independent view, based on the evidence available to them, as to what is in the best interest of a child;
2. Act in the proceedings in a manner in which the ICL believes to be in the best interests of a child;
3. Make submissions to the Court as to the best course of action so as to achieve an outcome which is in the best interests of a child;
4. The ICL must act impartially in their dealings with parties in the proceedings;
5. Ensure that a child’s views and wishes are put before the court;
6. Analyse reports or documents available to them and identify the matters that they consider most significant for the determination of the child’s best interests and bring those matters to the Court’s attention;
7. Try to minimise trauma to the child as a result of the proceedings; and
8. Facilitate an agreed resolution to matters to the extent that doing so is in the best interests of a child.

If you have a parenting dispute and are concerned about whether or not an ICL is necessary in your matter, or if you have any queries in relation to parenting matters and family law in general, please contact our Family Law Department Manager, Donna Tolley, on direct line 07 5506 8241 or email dtolley@attwoodmarshall.com.au to discuss your circumstances.