Independent Children’s Lawyers: Role and Evidence

What an Independent Children’s Lawyer Does

The ICL gathers relevant evidence and makes submissions about the arrangements that best serve the child. The role is independent of each parent’s instructions. It also differs from a lawyer who acts on a child’s instructions: the ICL can recommend an outcome the child opposes.

The Family Law Act’s independent representation provisions require impartial dealings with parties and the child’s views to be put fully before the court. The ICL also identifies material passages in reports and seeks to minimise the child’s trauma during proceedings.

Other people in the case have different jobs. A family report writer assesses the family and provides expert evidence. The ICL can question that evidence and need not adopt the report’s recommendation. Your client’s privately retained lawyer advances the client’s case within their professional duties. The judicial officer decides the parenting outcome.

Explain these differences before your client assumes the ICL’s agreement can be secured by paying a contribution or supplying a favourable report.

When the Court Appoints One

The court orders independent representation when it considers the child’s interests need it. Under section 68L, the court can act on its own initiative or on an application. A parent does not select an ICL as they would retain their own solicitor.

The Federal Circuit and Family Court of Australia’s appointment guidance identifies circumstances that can justify an ICL. These include alleged abuse or neglect, family violence, serious mental health issues and high parental conflict. Complex issues or a mature child’s disputed views can also support an appointment. An allegation alone does not guarantee one.

Explain why independent representation would assist this child in this proceeding. Identify the disputed evidence and the participation or safety issue requiring attention. In federal proceedings, rule 3.11 provides for an appointment application using an Application in a Proceeding.

The court ordinarily asks the relevant legal aid commission to arrange representation. The commission allocates an in-house lawyer or a practitioner from its panel, as the National Legal Aid guidelines explain.

Western Australia has its own court and procedural framework. The Family Court of WA can order Legal Aid WA to appoint an ICL. For proceedings under the state Family Court Act 1997, sections 164 and 165 govern appointment and role. Use the applicable WA procedure instead of assuming the federal application form applies.

The Child’s Views and Participation

The ICL must meet the child and give the child an opportunity to express views, subject to statutory exceptions. These duties need not happen at the same time. Section 68LA gives the ICL discretion over their timing and manner, subject to court directions.

A duty need not be performed where the child is under five or does not want the relevant meeting or opportunity to express views. Exceptional circumstances are another basis. They include an unmanageable risk of physical or psychological harm, or a significant adverse effect on the child’s wellbeing.

If the ICL relies on exceptional circumstances, the court must determine that issue before final orders. If it rejects that basis, the court must order performance of the relevant duty. The WA Act’s section 165 contains corresponding duties and exceptions for proceedings under that Act.

The child can decline to express views. Explain to your client that preparation means helping the child understand the ICL’s role and attend arrangements safely. It does not mean rehearsing answers or asking the child to deliver a parent’s message.

The ICL must ensure expressed views reach the court, but need not disclose every conversation to the parents. Avoid promising absolute confidentiality to the child. The legislation permits the ICL to disclose information to the court where the ICL considers disclosure serves the child’s best interests.

The independent children’s lawyer guidelines also require the ICL to explain their role in a way the child can understand. Raise a concern about participation with the ICL through your client’s solicitor, identifying the missed step and any proposed directions. The child’s wishes inform the case without becoming instructions the ICL must follow.

Prepare Evidence and Communicate With the Independent Lawyer

Give the ICL a focused account of the child’s circumstances with the supporting records identified. The national guidelines encourage early case planning and coordination of relevant evidence. A parent’s solicitor can prepare the following material.

• Supply current parenting orders and relevant family violence orders, with any restrictions affecting meetings or communication clearly identified.
• Prepare a factual chronology. Separate agreed events from allegations and identify the source supporting each disputed entry.
• Identify existing family reports and relevant school or treating-professional material. State who holds records that have not been obtained lawfully.
• Explain safety concerns and the action sought. Identify the supporting notices and affidavits. Present an allegation as an allegation, even where an agency has recorded it.
• List outstanding evidence and any hearing deadline that makes its production urgent. Keep the request tied to a disputed parenting issue.

Send case communications through the solicitors where parties are represented. Legal Aid Queensland’s communication guidance tells represented parents to communicate through their lawyer. Agree practical arrangements for correspondence and sensitive attachments with the ICL.

In federal proceedings, treat the ICL as a party for procedural purposes. Serve documents that must also be served on the ICL under the Family Law Rules. An informal email summary does not replace required service.

An appointment does not give unrestricted access to school, police or health records. Identify the lawful route for each record, including consent where sufficient, disclosure obligations or a court process. Protected material, inspection restrictions and objections can require directions. Use the family court subpoena process where compulsory production is appropriate, with any required permission and safeguards.

In a hypothetical attendance dispute, a parent alleges repeated absences while a school summary records unexplained lateness. Preserve that distinction in the chronology. Supply the summary and identify the fuller attendance record sought, so the ICL can assess the actual evidence.

Costs, Disagreement and the Court’s Decision

Legal aid funding does not make an ICL universally free to the parents. Contributions depend on the commission’s policy, financial circumstances and any court order. Explain the likely contribution process early, separately from your own retainer.

For proceedings under the Family Law Act, section 114UC limits ICL costs orders. The court must protect a party receiving legal aid in the proceedings or facing financial hardship from bearing those costs. Assistance only under the Commonwealth cross-examination scheme is excluded from the legal aid protection.

For example, Legal Aid NSW’s contribution guidance seeks contributions from parties without legal aid. It permits applications for reduction, waiver or deferral supported by financial information. That commission also publishes funding-stage changes affecting final hearings and appeals. Match its funding rules to the matter’s listing history and stage before advising on continued representation. Another commission’s rules can differ.

For an independent children’s lawyer in NSW, the court requests Legal Aid NSW to arrange representation under its policies. A funding or contribution decision does not change the ICL’s independent best-interests duty. The national guidelines expect that duty to continue throughout the appointment, even where funding is limited.

Respond to an evidentiary error by identifying the exact passage and supplying the correcting record. If you disagree with a recommendation, address its reasoning and supporting evidence in submissions. Put any requested procedural remedy before the court.

A conduct concern needs a separate response. Tasmania Legal Aid’s complaint guidance distinguishes disagreement with the ICL’s view from failure to meet professional obligations. Use the relevant commission’s complaints process or the jurisdiction’s professional regulator for conduct complaints. Removal requires the appropriate court process, not a parent’s instruction to dismiss the ICL.

The court decides the parenting outcome and is not bound by the ICL’s recommendation. Before the next hearing, separate the correction sought from the parenting orders sought. Address those orders through the evidence and the child’s best interests, using parenting after separation to explain proposed living and communication arrangements to your client.