Independent Children’s Lawyers in Australian Family Law Proceedings

Statutory Basis for Appointment — Section 68L

Section 68L of the Family Law Act 1975 (Cth) applies to proceedings under the Act in which a child’s best interests are the paramount consideration, or are relevant. In such proceedings the Court may order that the child’s interests be independently represented by a lawyer, and may make any consequential orders it considers necessary to secure that independent representation.

Section 68L identifies who may set the process in motion. The Court may make the order on its own initiative, on the application of the child, on the application of an organisation concerned with the welfare of children, or on the application of any other person. That last category is broad; whether the Court will exercise its discretion depends on the specific circumstances of the proceeding.

Section 68L does not identify categories of case in which an ICL must be appointed. Appointment is discretionary and fact-specific. The Court weighs the particular issues, the evidence available, safety considerations, the age and circumstances of the child, and any other matter relevant to whether independent representation would materially assist the Court. It is inaccurate to describe ICL appointment as routine, as automatic where any particular issue is raised, or as always following from any particular category of allegation.

Functions and Duties — Section 68LA

Section 68LA prescribes the ICL’s functions and general duties. The ICL must form an independent view, based on the evidence available, of what is in the child’s best interests, and must act in what the ICL believes to be the child’s best interests. That obligation is the organising principle of the role and applies at every stage of the proceeding.

Section 68LA(4) makes clear that the ICL is not the child’s legal representative and is not obliged to act on the child’s instructions in relation to the proceedings. The distinction matters. The ordinary solicitor–client relationship involves acting on the client’s instructions within the law; an ICL relationship does not. The ICL forms an independent view and advances that view, even where it differs from what the child would prefer.

The ICL’s functions include analysing reports and documentary material, arranging for the collection of further evidence relevant to the child’s best interests, examining and cross-examining witnesses where appropriate, making submissions at interim and final hearings, and, where the ICL considers it in the child’s best interests, participating in negotiations and settlement discussions. The ICL is not a witness and does not give evidence.

Meeting the Child — Sections 68LA(5A), (5AA), (5B)–(5D)

Section 68LA(5A) generally requires the ICL to meet the child and to provide the child with an opportunity to express any views in relation to matters to which the proceedings relate. The section is expressed as a general duty; it is not a prescription of a fixed number of meetings, meeting formats or meeting durations. The manner in which the ICL discharges the duty depends on the child, the family and the case.

Section 68LA(5AA), (5B), (5C) and (5D) qualify the general requirement. The meeting requirement does not apply where the child is under five years of age, or where the child does not want to meet the ICL or express any views to the ICL, or where the Court is satisfied that there are exceptional circumstances that justify not requiring the meeting. Exceptional circumstances may include a risk of physical or psychological harm to the child, safety issues or specific therapeutic considerations supported by evidence.

Where an ICL meeting takes place, it is conducted with the child in a setting appropriate to the child’s age and circumstances. The ICL explains, in age-appropriate terms, who the ICL is, that the ICL is independent, that the ICL will help the Court to understand the child’s circumstances, and the limits on confidentiality. Parents do not attend ICL meetings and should not question the child about what was discussed.

Confidentiality and Disclosure — Sections 68LA(6)–(8)

Section 68LA(6) provides that the ICL is not under a duty, and cannot be required, to disclose to the Court any information the child communicates to the ICL. That protection is important. It allows the child to express views to the ICL without a fear that everything said will necessarily be repeated to a judge or to the parents.

Sections 68LA(7) and (8) provide the complementary permission. The ICL may disclose information communicated by the child if the ICL considers the disclosure to be in the best interests of the child, and may do so even where the child does not want it disclosed. The framework balances the child’s interest in candid communication with the child’s interest in the ICL being able to raise matters relevant to safety and welfare.

The ICL should not promise the child unconditional secrecy, and should not treat every statement made by the child as necessarily requiring disclosure. The operation of the confidentiality and disclosure framework in a particular case depends on the nature of the information, the evidentiary context and current professional guidelines.

ICL, Family Consultant, Court Child Expert and Other Roles

A parenting proceeding may involve several professional roles. Distinguishing them is important because their functions, powers and evidentiary status are different.

• Independent Children’s Lawyer.A lawyer appointed under section 68L to represent the child’s best interests as defined by section 68LA. The ICL is not a witness.
• Court Child Expert / family consultant.A psychologist, social worker or similarly qualified professional engaged by the Court to observe, assess and report. Court Child Experts may prepare Child Impact Reports and family reports and may give evidence.
• Single expert or report writer.A privately or jointly retained expert who prepares a report under the applicable Rules and may be called to give evidence.
• Child’s representative in the ordinary sense.A lawyer directly retained on the child’s instructions is not an ICL and is not created by section 68L. The distinction is preserved by section 68LA(4).
• Litigation guardian or case guardian.A person appointed under the applicable Rules to conduct a proceeding on behalf of a party who is a child or a person with impaired capacity. A litigation guardian is not an ICL.
• State or territory child-protection authority.A statutory body exercising functions under state or territory child-protection legislation. That role is separate from Family Law Act proceedings, although it may intersect with them.
• Each parent’s lawyer.A parent’s lawyer acts for the parent on the parent’s instructions in the ordinary way. That lawyer does not represent the child and does not perform the ICL’s functions.

How the ICL Handles Evidence

The ICL forms views on the evidence, not on speculation. Common sources of material include the parties’ affidavits, expert reports, communications between the parents produced under disclosure, prior court orders, parenting plans, and material obtained by subpoena. Which categories of subpoenaed material are appropriate, and whether any category attracts a leave requirement or objection, is determined by the current Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and by the Court on the facts.

The ICL is entitled to identify gaps in the evidence and to propose that further material be obtained. The ICL may support or oppose particular experts and may make submissions on the weight of evidence. Where a Court Child Expert or single expert has prepared a report, the ICL considers that report as part of the overall evidence rather than as decisive on its own.

Participation in Hearings and Negotiations

The ICL participates in interim and final hearings, and may cross-examine witnesses called by the parties or the Court. The ICL is expected to be child-focused and purposeful in cross-examination, and to avoid unnecessary duplication with the parties’ lawyers. The ICL is not required to cross-examine every witness and may adopt another party’s cross-examination where appropriate.

The ICL may participate in mediation, family dispute resolution and settlement discussions where the ICL considers participation to be in the child’s best interests. The ICL is not required to endorse any particular agreement between the parents and may indicate that a proposed agreement is not one the ICL is prepared to support. The Court retains its supervisory role in relation to consent orders and may decline to make orders that are not in the child’s best interests.

Interaction with the Parents

Communications with the ICL are expected to be professional, restrained and, where a party is represented, channelled through the party’s lawyer. The ICL is not a forum for personal grievance, is not obliged to respond to excessive or hostile correspondence, and is not required to keep parents informed on the same basis as a lawyer keeps a client informed. Parents should not attempt to lobby the ICL, should not attack the other parent through the ICL, and should not use the child as an intermediary.

A parent who considers the ICL has proceeded on incorrect factual material may address that through evidence and submissions in the proceeding. Disagreement with the ICL’s position is not itself a matter of professional conduct; it is dealt with by testing the ICL’s position through the ordinary trial process, including cross-examination of the family report writer and Court Child Expert.

Interaction with the Child

The ICL’s interaction with the child is guided by the statute and by current professional guidelines. The ICL respects the child’s age, maturity, wishes and circumstances, provides an age-appropriate explanation of the role, listens to any views the child chooses to express, and does not pressure the child, ask the child to choose between parents, or promise a particular outcome. The child’s participation is not to be manufactured, coached or scripted.

Funding and Contributions

ICLs are commonly appointed and administered through Legal Aid arrangements. The precise funding position depends on the appointment order, the relevant Legal Aid commission’s current arrangements and any orders the Court makes about contributions. It cannot be assumed that a party will be required to contribute, that contribution will be at a particular level, or that the Legal Aid position in one jurisdiction applies in another.

The source of funding does not change the ICL’s independence. The ICL is not the lawyer for either parent and is not the lawyer for Legal Aid. The financial position in a particular case should be confirmed from the actual appointment order and current Legal Aid correspondence rather than inferred from general expectations.

Ending, Reviewing or Replacing the Appointment

The Court may discharge or replace an ICL where there are proper grounds — for example a demonstrated conflict of interest, inability to continue, or another matter that materially affects the ICL’s capacity to represent the child’s best interests. An application to remove an ICL must be supported by evidence and is not a mechanism for a party to displace an ICL whose position the party dislikes.

The appointment ordinarily continues until the parenting proceeding is concluded, whether by final orders after hearing, by consent, by discontinuance or by further order of the Court. Whether an ICL is engaged in relation to an appeal depends on the terms of the appointment order and any subsequent orders. The ICL’s role does not continue as an ongoing personal lawyer for the child after the proceeding ends.

Complaints and Professional Conduct

Genuine professional-conduct concerns about an ICL may be raised with the appointing Legal Aid commission where the ICL is on a Legal Aid panel, with the relevant legal-profession regulator (in Victoria the Victorian Legal Services Board and Commissioner) and, in appropriate cases, with the Court. Complaints should be evidence-based, proportionate and directed to conduct rather than to disagreement about outcomes.

Practical Preparation for an ICL Case

• Organise documents relevant to the child — school reports, medical records, therapeutic material, prior orders, correspondence — and provide them to your lawyer in an organised form.
• Focus on the child’s circumstances, safety, routines, schooling, health and relationships, rather than on personal grievances against the other parent.
• Comply with disclosure obligations under Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
• Do not question, debrief or reward the child in relation to ICL meetings; do not use the child as a messenger.
• Communicate with the ICL professionally, through your lawyer where represented; avoid hostile, repetitive or lobbying correspondence.
• Prepare for cross-examination of experts and, if relevant, cross-examination by the ICL, on the basis of the evidence.

Related Reading

Parenting proceedings intersect with other family-law topics. For context on the current best-interests framework see our article on family violence and parenting orders. For the interaction with state and territory intervention orders see family violence intervention orders in Victoria.

Frequently Asked Questions

How Parke Lawyers Can Help

Parke Lawyers acts for parents, grandparents and other carers in parenting proceedings where an Independent Children’s Lawyer has been appointed under sections 68L and 68LA of the Family Law Act 1975 (Cth), through our Family Law team. ICL appointed in your case? Speak with a family lawyer early so the ICL’s role, procedural obligations and relevant material can be understood.