Independent Children’s Lawyers in Australian Family Law Proceedings

Direct Answer

An Independent Children’s Lawyer is a lawyer appointed by the Court to represent the child’s best interests in parenting proceedings. The ICL is independent of both parents. The ICL does not ordinarily act on instructions from the child and is not required to advocate the child’s preferred outcome. The ICL considers the child’s views, gathers and tests relevant evidence, participates in interim and final hearings and makes submissions to the Court about the arrangements that would best serve the child. Since 6 May 2024, section 68LA(5A) generally requires the ICL to meet the child and provide the child with an opportunity to express views, subject to statutory exceptions in section 68LA(5B) (child under five, child does not wish to meet or express views, or exceptional circumstances). Appointment is reserved for cases where independent representation would materially assist the Court. Appointment does not mean that any allegation has been believed and does not indicate that the Court has formed any particular view of a parent. The judge, not the ICL, decides the case.

Contents

• What is an Independent Children’s Lawyer?
• Why the role is independent
• The ICL and the child’s best interests
• The ICL and the child’s views
• The ICL is not either parent’s lawyer
• The ICL is not the judge, a witness or a family consultant
• When an ICL may be appointed
• Appointment situations at a glance
• Who may ask for appointment
• The statutory appointment power
• The ICL’s statutory duties
• Meeting the child
• Exceptions to meeting the child
• Confidentiality and disclosure
• Evidence, subpoenas and information sources
• Evidence and information reference
• ICLs, Court Child Experts, family reports and other experts
• Role comparison table
• Stages of a proceeding
• Stage-of-proceeding reference
• Interim and final hearings
• Negotiation and consent
• Family violence and safety
• Parent interaction checklist
• Child-meeting preparation checklist
• Child-meeting reference
• Funding, Legal Aid and contributions
• Appointment in Western Australia
• Complaints, disagreement and removal
• When the appointment ends
• Worked examples
• Common mistakes
• Practical action plan
• When legal advice is required
• Conclusion
• Frequently asked questions

What Is an Independent Children’s Lawyer?

An Independent Children’s Lawyer is a legal practitioner appointed by the Federal Circuit and Family Court of Australia (or, in Western Australia, the Family Court of Western Australia) under section 68L of the Family Law Act 1975 (Cth) to represent the best interests of a child in parenting proceedings. The ICL is a party to the proceeding for the limited purpose of representing the child’s best interests. The ICL is not a witness, is not the child’s ordinary solicitor and does not act for either parent.

In practice, most ICLs are private practitioners on the Independent Children’s Lawyer panel of the Legal Aid commission in the relevant state or territory, or solicitors employed by a Legal Aid commission. ICLs are required to meet training, experience and quality standards, are expected to follow the current national ICL practice guidance endorsed by National Legal Aid and the Court, and are supervised through the Legal Aid panel and professional-regulatory arrangements that apply to practising lawyers generally.

The ICL’s function is to help the Court to make evidence-based decisions about the arrangements that will best serve the child. That involves identifying the issues, ensuring that relevant evidence is before the Court, giving the child an appropriate opportunity to express views, testing evidence in interim and final hearings, participating in negotiations and making submissions on the appropriate orders. The ICL does not replace the parents’ lawyers, the judge, the family report writer or the Court Child Expert; the ICL sits alongside them and adds an independent child-focused perspective.

Why the Role Is Independent

Independence is the defining feature of the role. Parents in parenting proceedings have their own solicitors, their own evidence and their own positions. Even where a parent genuinely intends to act in the child’s best interests, the parent’s account is inevitably influenced by the parent’s own perspective, the history of the relationship and the parent’s wishes for the future. The child’s interests do not always align precisely with either parent’s case, and in some cases the child’s interests diverge from both parents’ positions.

The ICL provides an independent voice for the child’s best interests, forms an independent view based on the evidence and advances that view in the proceeding. Independence protects the ICL from being co-opted into one parent’s case. It also protects the child from being placed in the position of directing the litigation, which would expose the child to adult conflict, would place responsibility on the child for the outcome and would undermine the protective design of Part VII.

The ICL and the Child’s Best Interests

The paramountcy of the child’s best interests under section 60CA of the Family Law Act 1975 (Cth) governs every parenting decision. The current section 60CC framework (following the Family Law Amendment Act 2023 substituted list that commenced 6 May 2024) applies. Safety is the leading consideration; the child’s views, the child’s developmental, psychological, emotional and cultural needs, each proposed carer’s capacity, the benefit of relationships with parents and other significant persons where safe and any other relevant matter must be considered. Section 60CC(3) adds a further consideration about connection with family, community, culture, country and language for Aboriginal and Torres Strait Islander children.

The ICL does not perform a psychological or social-work assessment of the child and does not substitute the expertise of the Court Child Expert or family report writer. The ICL assists the Court to apply the best-interests framework by ensuring relevant evidence is identified and tested, by placing the child’s views before the Court in an appropriate way and by making legal submissions on how the best-interests factors apply to the particular evidence. For the detailed statutory framework see our specialist best-interests guide; this article does not repeat that analysis in full.

The ICL and the Child’s Views

The child’s views are relevant. Section 60CC(2)(b) makes them a mandatory consideration. Since 6 May 2024, section 68LA(5A) generally requires the ICL to meet with the child and provide the child with an opportunity to express any views. The ICL must not pressure the child to choose between parents, must not treat the child as a decision-maker and must not promise that a particular outcome will follow from the child’s wishes.

The weight given to a child’s views depends on the child’s age, maturity and reasoning, the consistency of the views over time and across contexts, the circumstances in which the views were expressed, and any evidence of pressure, coaching, loyalty conflict or influence. A settled, considered view expressed by a mature teenager without adult prompting is typically given more weight than an inconsistent statement made by a young child immediately after a difficult changeover. Views are also considered alongside evidence about safety, developmental needs and capacity of each carer, none of which the child is expected to weigh personally.

The child’s views may be communicated to the Court through the ICL’s analysis and submissions, through a Court Child Expert or family report writer who has interviewed the child, through a Child Impact Report or (rarely) through a judicial interview. In ordinary parenting cases the child does not give evidence and does not appear in court. The child does not instruct the ICL in the ordinary solicitor-client sense, and the ICL is not required to advocate the child’s preferred outcome under section 68LA(4).

The ICL Is Not Either Parent’s Lawyer

The ICL does not act for the mother, the father, a grandparent or any other party. The ICL cannot receive confidential instructions from a parent, cannot conduct settlement discussions on a parent’s behalf and cannot advise a parent on the parent’s own case. Parents remain responsible for their own conduct of the proceeding and should retain independent legal advice. Communications from a parent that treat the ICL as a partisan ally, that seek legal advice from the ICL or that ask the ICL to press the parent’s case will be declined and are likely to attract adverse comment.

The ICL Is Not the Judge, a Witness or a Family Consultant

The ICL is not the decision-maker. The judge, senior judicial registrar or judicial registrar who hears the matter decides the case on the evidence and the law. The ICL is not a witness and does not give evidence about the family or about the child’s wishes; the ICL’s observations of the child are not evidence in the usual sense and are conveyed to the Court through submissions, through the family report writer or through the Court Child Expert where appropriate. The ICL is not a family consultant or Court Child Expert, does not conduct psychological or observational assessments and does not author family reports or Child Impact Reports.

When an ICL May Be Appointed

Appointment is a matter of discretion. Circumstances in which appointment is commonly considered include serious allegations of abuse, neglect or family violence; entrenched high conflict between parents that has resisted normal case management and dispute resolution; allegations of alienation, coaching or manipulation of the child; complex medical or psychological issues concerning the child or a parent; cultural or kinship issues that require careful attention; proposed relocation, either interstate or overseas; recovery and concealment matters; sibling separation proposals; children with additional needs or disability; mature children expressing strong views that require careful communication to the Court; and cases where a parent or carer is unable to participate effectively because of illness, incapacity or self-representation difficulties in a complex case.

Appointment is not automatic. High conflict alone does not require appointment, and appointment does not follow every serious allegation. The Court balances the likely benefit of independent representation against the cost, the available Legal Aid resources and the practicalities of the case. In relatively simple contested matters an ICL may not be needed, and in some cases the appointment is deferred until the shape of the dispute becomes clearer.

Appointment Situations at a Glance

Who May Ask for Appointment

Appointment may be raised by any party to the parenting proceeding — a parent, a grandparent or other person with standing to seek parenting orders, an intervening state or territory child-welfare authority, or a family consultant or Court Child Expert in a report that identifies the need for independent representation. The Court may also raise appointment of its own motion. In practice, appointment is frequently raised at the first-return interim hearing, on a case-management event after affidavit material is filed, or after a Notice of Child Abuse, Family Violence or Risk (Form 4A) is filed.

Where appointment is opposed, submissions should focus on whether independent representation is likely to materially assist the Court in the particular case, not on whether the party wants an ICL involved. A party seeking appointment should identify the specific issues that make independent representation useful — for example, the age of the child, the strength of the child’s views, the complexity of expert material or safety concerns — rather than relying on generic assertions.

The Statutory Appointment Power

Section 68L of the Family Law Act 1975 (Cth) empowers the Court to order that a child be separately represented where it appears to the Court that the child’s interests ought to be independently represented in the proceeding. The Court exercises the discretion by reference to the child’s best interests and the practical considerations of the case. Once the order is made, the appointment is administered under Legal Aid arrangements or (in Western Australia) the arrangements applying to that jurisdiction, and a specific practitioner is allocated to act as ICL.

The appointment order typically identifies the child (or children), records that a Legal Aid commission or specified body will nominate the practitioner and directs the parties to cooperate with the ICL. The order may address contribution arrangements, information to be provided to the ICL and any specific issues on which the ICL is expected to focus. The appointment continues until final orders or discharge.

The ICL’s Statutory Duties

Section 68LA of the Family Law Act 1975 (Cth) sets out the ICL’s role and duties. The ICL must form an independent view, based on the evidence, of what would best promote the best interests of the child, and must act in relation to the proceeding in what the ICL believes to be the best interests of the child. The ICL must act impartially in dealings with the parties and must ensure that any views expressed by the child in relation to matters to which the proceeding relates are fully put before the Court. The ICL must analyse any report or other document that is to be used in the proceeding, must try to minimise the trauma to the child associated with the proceeding and must facilitate an agreed resolution of matters where doing so is in the child’s best interests.

The ICL is not the child’s legal representative in the ordinary sense and, under section 68LA(4), is not obliged to act on the child’s instructions. Section 68LA(5) deals with disclosure, requiring the ICL to disclose to the Court any information the child communicates to the ICL if the ICL considers the disclosure to be in the best interests of the child, subject to a narrow exception for certain communications made in circumstances of trust and confidence where disclosure would be contrary to the child’s best interests. The precise operation of these disclosure provisions should be verified in the particular case.

Meeting the Child

The Family Law Amendment Act 2023 introduced section 68LA(5A), which commenced on 6 May 2024. It generally requires the ICL to meet the child and provide the child with an opportunity to express any views in relation to matters to which the proceeding relates. The meeting requirement changed prior practice under which some ICLs met the child only in selected cases. The meeting is now the ordinary starting point, and the exceptions in section 68LA(5B) are limited.

A meeting is typically arranged after the ICL has reviewed the court file and any initial affidavit material, is conducted at the ICL’s office or another suitable child-friendly setting, and is age-appropriate in structure, tone and length. The ICL explains the ICL’s role, that the ICL is independent of the parents, that the ICL will help the Court to understand the child’s circumstances and that the child does not have to choose between parents. The ICL invites the child to express any views the child wishes to express and gives the child the option to be silent, to draw or write, or to communicate in another way that suits the child.

Exceptions to Meeting the Child

Section 68LA(5B) provides exceptions. The ICL is not required to meet the child, or to provide the child with an opportunity to express views, where the child is under five years of age, where the child does not wish to meet the ICL or express views, or where the Court is satisfied that there are exceptional circumstances that justify not meeting the child. Exceptional circumstances may include a risk of physical or psychological harm to the child from the meeting itself, particular disability, communication or trauma considerations supported by expert evidence, or circumstances in which another appropriate arrangement (such as a Court Child Expert interview) will better meet the underlying purpose.

The exceptions are applied with care. Age alone below the statutory threshold does not entirely displace the need to understand the young child’s circumstances — the ICL may still obtain information through other appropriate means. Refusal by the child should not be coached or engineered by a parent; a genuine refusal is respected but the ICL will consider whether the refusal reflects the child’s own position. Exceptional circumstances are not established by parental preference or by generalised concerns; specific, evidence-based reasons are required.

Confidentiality and Disclosure

Communications between the child and the ICL are not confidential in the same way as ordinary solicitor-client instructions. The ICL is not the child’s ordinary lawyer, does not take instructions from the child and must place relevant material before the Court. The ICL must explain the role, the purpose of the meeting and the limits of confidentiality in an age-appropriate way at the outset. Information relevant to safety or to the proceeding may need to be disclosed, whether directly or indirectly, and the ICL should not promise the child complete secrecy.

At the same time, the ICL should not treat every statement made by the child as necessarily requiring immediate disclosure to the parties. Some information can properly be considered by the ICL in forming an independent view without being reproduced verbatim in submissions or evidence. The precise application of the confidentiality and disclosure rules depends on the current statutory provisions, the Family Law Rules, the endorsed ICL practice guidelines and the particular circumstances, and should be verified in the specific case.

Evidence, Subpoenas and Information Sources

The ICL identifies, seeks and analyses evidence that bears on the child’s best interests. Common sources include prior parenting orders, parenting plans, affidavits and annexed material filed by the parties, communications between the adults, school records, medical records, therapeutic and mental-health material, police event records, child-protection records, intervention-order material, family reports, Child Impact Reports, single expert reports and treating-professional material. The ICL weighs objective, contemporaneous records against the affidavits of the parties and looks for reliable corroboration of significant assertions.

Subpoenas are the principal mechanism for obtaining documents from third parties. They are subject to the Family Law Rules and to the leave requirements that apply to particular categories of material. Parties may object to subpoenas on the usual grounds — relevance, oppressiveness, privilege or public-interest immunity — and objections are determined by the Court. The ICL must be able to explain why particular material is relevant and should not seek documents indiscriminately.

The ICL may also communicate directly with schools, treating professionals and agencies to obtain information relevant to the child’s circumstances, subject to any confidentiality and privacy considerations that apply. The ICL is not an investigator with unlimited powers; the ICL operates within the ordinary procedural framework and depends on the cooperation of parties and third parties or on the Court’s process for obtaining information.

Evidence and Information Reference

ICLs, Court Child Experts, Family Reports and Other Experts

The ICL, the Court Child Expert, the family report writer, a single expert and any treating professional occupy distinct roles. Confusing them is a common mistake in parenting cases. A Court Child Expert is a psychologist or social worker attached to or engaged for the Court who observes and assesses family members and provides child-focused expert evidence, including through Child Impact Reports and family reports. A family report writer may be a Court Child Expert or a privately retained single expert appointed to prepare a family report. A single expert is a court-appointed expert providing an opinion on a defined issue, and a treating professional gives evidence about their assessment or treatment of a party or the child.

The ICL is a lawyer. The ICL analyses the report writer’s evidence, cross-examines the report writer where appropriate, considers the report writer’s recommendations and makes submissions on how the evidence should be applied. The ICL does not conduct psychological or social-work assessments, does not write reports and does not give expert evidence.

Role Comparison Table

Stages of a Proceeding

The ICL’s role changes across the stages of a proceeding. At appointment the ICL reviews the court file, reads the affidavits and any Notice of Child Abuse, Family Violence or Risk, considers any prior orders and intervention orders, identifies immediate issues and establishes a communication protocol with the parties or their lawyers. Initial priorities include any urgent safety issues, the position on interim time and any imminent case-management event.

During the interim stage the ICL considers proposals for temporary arrangements and makes submissions on interim issues. Interim submissions are made on limited, untested evidence and are directed to arrangements that manage risk and preserve options while the full evidence is developed. The ICL’s interim position is preliminary and should not be treated as a final view.

The investigation and evidence stage involves the ICL issuing subpoenas, reviewing the produced material, engaging with the family report writer or Court Child Expert, considering any single-expert appointment and identifying gaps in the evidence. This is a working stage in which the shape of the case becomes clearer and in which the ICL’s position may evolve.

The negotiation stage may occur throughout, and often intensifies as final hearing approaches. The ICL may participate in dispute-resolution events and settlement discussions and may indicate whether the ICL can support a proposed consent outcome. The ICL is not required to support any particular agreement and may indicate that a proposal is not consistent with the child’s best interests.

At final hearing the ICL participates in the trial, may cross-examine witnesses, tests the evidence relevant to the child’s best interests and makes final submissions. After judgment the ICL completes any remaining tasks and concludes the role.

Stage-of-Proceeding Reference

Interim and Final Hearings

At interim hearings the ICL contributes to the identification of the issues, considers proposed interim arrangements and makes submissions on immediate safety and welfare concerns. Interim hearings are conducted on limited evidence without cross-examination and are directed to holding arrangements pending final hearing. The ICL’s interim submissions should be qualified accordingly and should not pre-empt the final assessment.

At the final hearing the ICL participates as a party. The ICL may cross-examine parties and expert witnesses, tender documents, examine the family report writer or Court Child Expert and make final submissions on the appropriate orders. The ICL’s submissions are informed by the whole of the evidence tested at hearing and by the current best-interests framework. The judge weighs the ICL’s submissions with those of the parties.

In urgent applications — including recovery applications, urgent relocation or return applications and urgent risk applications — the ICL may have limited time in which to consider material, but is still expected to make a considered contribution focused on the child’s immediate best interests. For urgent return of a child see our recovery orders guide; for relocation and proposed moves see our relocation guide.

Negotiation and Consent

The ICL may participate in negotiations, mediations, settlement conferences and family dispute resolution events. Where the parents reach agreement, the ICL may support a proposed consent outcome that the ICL considers to be in the child’s best interests. The ICL’s support is not automatic; the ICL will consider the proposal against the available evidence and may indicate that particular features of a proposed agreement are not in the child’s best interests. Where the ICL cannot support the agreement, the Court will consider whether the proposed orders should be made having regard to that position.

The ICL cannot compel agreement and cannot bind the parents. Where the parents agree and the ICL supports the outcome, the Court will still consider whether the proposed consent orders are appropriate and consistent with the child’s best interests. Consent orders are not rubber-stamped, particularly where the ICL has expressed any concern about the proposal.

Family Violence and Safety

ICL appointment may arise in cases involving serious risk. Appointment does not prove allegations of family violence, abuse or neglect — it means that the Court considers that independent representation would materially assist in evaluating and managing the issues. Family violence for these purposes has the broad meaning in section 4AB of the Family Law Act 1975 (Cth), covering physical, sexual, psychological, emotional, coercive-controlling and economic conduct, and includes the exposure of a child to family violence between adults.

In safety cases the ICL will typically obtain police, child-protection, intervention-order and expert material, will consider any Notice of Child Abuse, Family Violence or Risk filed by a party and will pay particular attention to the safety features of any proposed arrangement, including handover, supervision, communication and protective conditions. Meetings with the child may require safeguards, including timing and location arrangements that reduce the risk of exposure to conflict.

The ICL must consider safety while preserving procedural fairness. Interim positions in safety cases may need to differ from the eventual final position as more evidence becomes available. Neither exaggeration nor minimisation of allegations assists; particularised, corroborated evidence is important. Parents should not use the ICL as a conduit for allegations and should not use the child as a source of untested reports.

Parent Interaction Checklist

• Read the appointment order carefully.
• Identify the ICL’s contact and communication protocol.
• Communicate respectfully and professionally.
• Provide requested documents promptly and completely.
• Use lawyers where represented; do not communicate around your lawyer.
• Give a concise, chronological history of the issues.
• Separate objective facts from allegations.
• Disclose all current parenting and intervention orders.
• Disclose police and child-protection involvement.
• Identify relevant school, medical and treating professionals.
• Identify cultural, kinship and community information relevant to the child.
• Propose practical, child-focused arrangements.
• Respond accurately and on time to ICL requests.
• Avoid excessive or repetitive correspondence.
• Do not copy the child into any communication with the ICL.
• Do not coach the child before any meeting.
• Do not ask the child to lobby the ICL on your behalf.
• Preserve records that may be relevant to the case.
• Comply with court directions and subpoenas.
• Correct factual errors through evidence, not personal attacks.

Child-Meeting Preparation Checklist

• Give a simple, age-appropriate explanation of the meeting.
• Explain that the ICL is independent of both parents.
• Explain that the child does not have to choose between parents.
• Avoid predicting or listing the questions the ICL may ask.
• Avoid rehearsing answers with the child.
• Avoid asking for a report of the meeting afterwards.
• Do not promise the child that the meeting is secret.
• Ensure the child has practical support before and after the meeting.
• Disclose any communication, cultural or disability needs to the ICL.
• Disclose any safety, trauma or therapeutic considerations.
• Follow the ICL’s arrangements for the meeting.
• Avoid rewarding or punishing the child for what the child says.

Child-Meeting Reference

Funding, Legal Aid and Contributions

ICL appointments in the Federal Circuit and Family Court of Australia are ordinarily administered through the state or territory Legal Aid commission, which allocates the practitioner from an approved Independent Children’s Lawyer panel or from its own employed practitioners. National Legal Aid and the individual commissions publish guidance on ICL practice, funding and contribution arrangements. Funding practices, contribution rules and practical arrangements vary between jurisdictions and should be checked in the relevant matter.

Parties may in some circumstances be asked or ordered to contribute towards the cost of the ICL. Contribution arrangements are jurisdiction-specific, may be means-tested and may depend on the parties’ financial circumstances and the nature of the proceeding. Fixed amounts are not stated in this guide because contribution arrangements can change; the current position should be checked against the appointment order, Legal Aid correspondence and current local rules.

Legal Aid funding does not make the ICL the lawyer for either parent. The source of the ICL’s funding does not affect the ICL’s independent role. Parties should not treat the ICL as a Legal Aid representative of any party and should not seek personal legal advice from the ICL.

Appointment in Western Australia

Western Australia retains its own family court arrangements. Parenting proceedings involving married couples are heard in the Family Court of Western Australia; de facto and other proceedings are similarly heard within the state’s family court structure. ICL appointment, funding and administration in Western Australia operate through the arrangements of the Family Court of Western Australia and Legal Aid Western Australia, and the statutory framework applies in the Western Australian context. Parties in Western Australia should confirm current local arrangements with their lawyer or Legal Aid.

Complaints, Disagreement and Removal

Disagreement with the ICL’s position is not itself professional misconduct. Where a party disagrees, the appropriate response is to correct factual errors with evidence, identify any material the ICL may not have considered, advance the party’s own position on the merits through submissions and, where relevant, test the evidence that has informed the ICL’s view. The judge decides the case and is not bound to follow the ICL’s recommendation.

Genuine professional-conduct concerns — for example, a conflict of interest, a serious breach of the endorsed ICL practice guidelines or conduct falling below the professional standards expected of lawyers generally — 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.

Applications to discharge or replace an ICL require proper grounds and are not a mechanism to displace an ICL whose position a party dislikes. The Court considers the interests of the child, the stage of the proceeding, the practical impact of change on the case and the substance of any conflict or conduct issue. Parties should not harass, publicly criticise or seek to intimidate the ICL, and court orders and privacy restrictions applying to parenting proceedings continue to apply.

When the Appointment Ends

The ICL’s appointment ordinarily continues until the parenting proceeding is concluded, whether by final orders after a contested hearing, by consent orders, by discontinuance of the proceeding or by further order of the Court. Where an appeal is brought, whether a fresh appointment is required depends on the terms of the original appointment order, the nature of the appeal and the Court’s directions. After final orders the ICL is not the child’s ongoing personal lawyer and does not perform any continuing supervisory role in relation to the family; post-order variation, contravention, recovery or enforcement issues are dealt with on their own facts.

Worked Examples

The following examples are illustrative only. They are not actual cases, are not predictions and do not constitute legal advice.

• Serious family violence allegations. A parent alleges serious family violence. An ICL is appointed. The ICL obtains police, intervention-order and expert material, considers the Notice of Child Abuse, Family Violence or Risk, meets the child in a safe setting and makes interim submissions focused on safe interim arrangements while the final assessment is prepared.
• Child expressing a strong wish to live with one parent. A 12-year-old expresses a strong wish to live primarily with one parent. The ICL meets the child, considers the age, maturity, reasoning and consistency of the views, obtains a Court Child Expert report and forms an independent view of the child’s best interests that considers, but is not bound by, the child’s stated wish.
• Young child unable to articulate a view. A four-year-old is unable to articulate views. Under s 68LA(5B) a meeting is not required, but the ICL still considers the child’s circumstances through the family report, medical and childcare records and observation reports.
• Child declining to meet the ICL. A 10-year-old declines to meet the ICL. The refusal is respected under s 68LA(5B), and the ICL considers whether alternative communication (a letter or an interview with the Court Child Expert) may be appropriate.
• Child with communication disability. The child has a communication disability. The ICL arranges support appropriate to the child’s needs, consults with treating professionals and considers whether an alternative form of communication or a supported meeting is appropriate.
• Sibling group expressing different views. Three siblings express different preferences. The ICL considers each child individually, meets each in an age-appropriate way and forms independent views that may support different or shared arrangements.
• Relocation dispute. A parent proposes to relocate interstate with the child. The ICL obtains evidence about the proposed destination, schooling, support networks and the practical arrangements for time with the non-relocating parent and makes submissions on the child’s best interests.
• Recovery-order application. An urgent recovery application is filed. The ICL is appointed at an early stage. The ICL considers the interim arrangements for the child after recovery and makes submissions on safe interim time and safeguards.
• Complex medical needs. The child has complex medical needs. The ICL obtains treating-professional evidence, considers a single expert appointment and identifies which parent is best placed to meet the health needs of the child on the evidence.
• Conflicting psychological evidence. The parties tender conflicting psychological evidence about a parent. The ICL considers whether a single expert should be appointed to provide independent expert evidence and makes submissions accordingly.
• Aboriginal child with strong cultural and kinship connections. The child is Aboriginal with strong cultural and kinship connections. The ICL considers section 60CC(3), obtains evidence from family, community and cultural sources and gives careful attention to connection with family, community, culture, country and language.
• Parent sending the ICL excessive emails. A parent sends the ICL dozens of long emails. The ICL directs communication through the parent’s lawyer where represented, sets reasonable communication expectations and notes the correspondence as part of the material considered.
• Parent coaching the child before a meeting. A parent coaches the child before an ICL meeting. The child’s comments during the meeting appear rehearsed. The ICL notes the concern and weighs the child’s views accordingly.
• ICL changing position after a family report. The ICL’s interim position is supplanted by a different position after receiving a detailed Court Child Expert report. The change is a proper response to new evidence and is not a criticism of the ICL.
• Parties reaching consent with ICL participation. The parties reach a consent outcome after a settlement conference in which the ICL participates. The ICL supports the outcome as being in the child’s best interests and the Court makes consent orders.
• Parent disagreeing with the ICL’s final submissions. A parent disagrees with the ICL’s final submissions. The parent’s lawyer advances the parent’s case, tests the evidence and makes competing submissions. The judge decides.
• Intervention order affecting communication. An intervention order restricts communication between the parents. The ICL communicates with each parent (or their lawyer) separately and coordinates the process so that the intervention order is not compromised.
• ICL seeking school and police records. The ICL subpoenas school and police records. Objections are considered by the Court, redactions are made and relevant material is admitted into evidence.
• Mature teenager refusing existing arrangements. A 15-year-old declines to comply with existing arrangements. The ICL considers the teenager’s views, the reasons for the position and the practical enforceability of existing orders and may support variation on evidence.
• ICL appointment ending after final orders. Final orders are made. The ICL completes remaining tasks, notifies the parties and Legal Aid, and the appointment concludes.

Common Mistakes

• Treating the ICL as the child’s ordinary instructed solicitor.
• Assuming that the ICL must follow the child’s wishes.
• Assuming that appointment proves allegations of abuse or violence.
• Trying to recruit the ICL to one parent’s side.
• Sending excessive or repetitive correspondence to the ICL.
• Withholding relevant documents from the ICL.
• Providing selective or edited material rather than complete records.
• Copying the child into adult communications about the case.
• Coaching the child before an ICL meeting.
• Debriefing or interrogating the child about the meeting afterwards.
• Promising the child secrecy or complete confidentiality.
• Personally attacking the ICL rather than engaging with the evidence.
• Treating a preliminary interim position as final.
• Confusing the ICL with a family report writer or Court Child Expert.
• Assuming the judge must follow the ICL’s recommendation.
• Failing to correct factual errors with evidence.
• Ignoring cultural, kinship or disability considerations.
• Breaching confidentiality or publication restrictions in the proceeding.
• Assuming Legal Aid funding means the ICL acts for a parent.
• Failing to comply with subpoenas or court directions.

Practical Action Plan

• Read the appointment order carefully.
• Obtain the ICL’s contact and communication protocol.
• Identify all current parenting orders and intervention orders.
• Prepare a concise chronology of relevant events.
• Gather objective records — orders, communications, school and medical material.
• Identify safety and risk issues clearly and neutrally.
• Identify school, medical and therapeutic professionals involved with the child.
• Identify cultural, kinship and community information relevant to the child.
• Provide practical, child-focused parenting proposals.
• Respond promptly and accurately to ICL requests.
• Communicate through lawyers where represented.
• Prepare the child neutrally for any meeting.
• Do not coach or question the child before or after the meeting.
• Correct factual errors with evidence, not accusations.
• Comply with subpoenas, disclosure requirements and court directions.
• Recognise that the ICL’s position may develop as evidence emerges.
• Obtain legal advice about any concern regarding process or conduct.
• Keep the child out of adult conflict at all stages.

When Legal Advice Is Required

Legal advice is important where an ICL is proposed or has been appointed, where a party is preparing evidence for a hearing in which the ICL will participate, where a party is considering an application to discharge or replace an ICL, where a party is considering a complaint about an ICL, and where a party disagrees with the ICL’s position on a significant issue. Early advice narrows the issues, protects the party’s case and helps ensure that dealings with the ICL are conducted appropriately. For advice about ICL matters and parenting proceedings more broadly see our Family Law service page or the profile of our reviewer, Julian McIntyre.

Conclusion

The Independent Children’s Lawyer is an independent legal representative of the child’s best interests in Australian parenting proceedings. The ICL is appointed under section 68L of the Family Law Act 1975 (Cth) where the Court considers that independent representation would materially assist. The ICL’s statutory duties are set out in section 68LA. Since 6 May 2024 the ICL generally meets the child and provides an opportunity for the child to express views, subject to the statutory exceptions in section 68LA(5B). The ICL does not act on the child’s instructions, is not the child’s ordinary solicitor, is not the judge, is not a witness and is not a family report writer or Court Child Expert. The ICL gathers and tests evidence, participates in interim and final hearings, engages in negotiations where appropriate and makes submissions about the arrangements that would best serve the child. The judge decides the case. Parents who cooperate professionally with the ICL, provide relevant evidence, communicate through appropriate channels and keep the child out of adult conflict tend to fare much better — legally and practically — than parents who resist the ICL, attempt to co-opt the ICL or use the child as a messenger. Where an ICL is proposed or has been appointed, early legal advice is the most reliable way to protect a parent’s position and, more importantly, the child’s interests.

Frequently Asked Questions