Ensuring that your child’s voice is heard: The role of an Independent Children’s Lawyer in Family Law proceedings

Posted by Hannah Palos on 1 August 2017

Family law matters involving children are often heavily focused on each parent’s side of the ‘story’ and what each parent considers to be best for their child. Although children are not able to attend Court or represent themselves in Family Law proceedings, one way that a child’s voice may be heard in Family Law matters is by the appointment of an Independent Children’s Lawyer (ICL).

An ICL is a lawyer who is independent from the Family Court and the other parties to the proceedings, and who represents your child’s best interests in Court. The appointment of an ICL gives your child the opportunity to express their independent views and ensures that those views are submitted before the Family Court.

An ICL ensures that your child is involved in Family Law proceedings and in any decisions which are made in those proceedings. Although an ICL must consider your child’s views and wishes, they are not bound to follow your child’s instructions and views. Ultimately, an ICL makes their own judgment and recommendations based on what they consider to be in your child’s best interests after taking all of the evidence, including your children’s views, into account.

An ICL may be appointed in the following two ways:-

  1. A party to Family Law proceedings may make an application to the Family Court for an ICL to be appointed in the matter; or

  2. The Family Court may itself decide to appoint an ICL where it considers it to be in the child’s best interests to do so.

It is important to be away that the Family Court will not be automatically appoint an ICL even if a request is made. Before appointing an ICL in Family Law proceedings, the Family Court will consider a number of factors including the following:-

  • Whether there is a high level of conflict between the parties.

  • Whether there are allegations of child abuse (physical, sexual or psychological).

  • Whether there are any allegations of family violence.

  • Whether there are issues of cultural or religious difference.

  • Whether the child has strong views and is mature enough to express these views.

  • Whether either of the parents and/or the child suffers from serious mental health issues.

  • Whether the matter involves complex issues.

Once an ICL has been appointed by the Family Court, Legal Aid NSW will then assign an ICL to your matter. An ICL’s role is to examine all of the available evidence to come to an independent views regarding the best interests of your child. This may involve the following:-

  • The ICL meeting and speaking personally with your child (unless your child is under school age).

  • The ICL speaking to your child’s counsellor and/or school teachers.

  • The ICL examining evidence (including medical, psychological and psychiatric records) regarding your child and/or either parent.

If you need advice regarding a Family Law matter involving children or would like further information about ICLs, please contact the Family Law team at Selvaggio Lawyers.