How to deal with Children and Separation
An Independent Children’s Lawyer has been appointed. What does this mean?
An Independent Children’s Lawyer (“ICL”) may be appointed by the Family Court in parenting matters involving complexity, such as issues of risk, family violence and abuse. The ICL is appointed to represent the “best interests” of the child(ren). It is important to note that this does not mean that the ICL represents the child(ren). An ICL is not bound by instructions from a child(ren) and does not represent them in the same manner as the parents to the proceedings are represented. The ICL’s ultimate duty is to the Court.
When an ICL is appointed, the standard procedures undertaken are as follows: –
- The parties provide a copy of their respective Court documents to the ICL;
- A copy of all Orders are provided to the ICL; and
- The ICL is provided permission from the Court to issue subpoenas to obtain independent evidence.
Does my matter need an ICL?
An ICL is appointed in matters where there is complexity. Some examples include, but are not limited to, the following:-
- When there are allegations of abuse (physical, verbal, emotion or sexual);
- Where there is an intractable dispute between the parties;
- When there are allegations of mental health concerns for the child(ren); or
- When there are allegations that one or both parents are suffering from mental health issues.
These issues are usually identified in a party’s Affidavit or Notice of Risk / Notice of Child Abuse, Family Violence or Risk.
The appointment of the ICL can be made by the Court of its own volition, or one or both of the parties may make an application to the Court.
What is the Role and Responsibility of the ICL?
The ICL’s role is effectively to: –
- Act in the bests interests of the child(ren);
- Ensure that the Court is aware of the child(ren)’s wishes (pending the age of the child(ren));
- Collect expert evidence relevant to the child(ren);
- Act upon the evidence;
- Assist the Court in the determination of the parenting dispute.
Should the ICL meet with my Child(ren)?
It is not required that the ICL meet with the child(ren). The ICL is required to make an assessment of the facts of each case and identify whether or not it is appropriate to meet with the child(ren). Some examples when an ICL will not meet with a child(ren) are: –
- Very young children who may be unable to express a view (generally under school age);
- There are exceptional circumstances such as a risk of systems abuse; or
- Where there are practical limitations on meeting the child such as geographical remoteness. However, this issue is becoming less relevant in the current landscape where electronic communication is ever increasing.
Who Pays for the ICL?
Generally, an ICL is appointed by Legal Aid NSW and it is expected that the parties to the proceedings meet the costs of the ICL in equal shares, unless you are in receipt of a grant from Legal Aid. This amount is currently $3,300.00 up to the Defended Hearing, however, the specific facts of the matter may cause this figure to change.
Legal Aid NSW has the ability to waive the ICL’s fee, however, this is only in exceptional cases.
The Family Court of Australia has developed a document titled “Guidelines for Independent Children’s Lawyers (2013)”. These guidelines are the basis upon which ICL’s act and may be accessed here.
If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact with us on (02) 99298840.