These days the main complaint mums and dads have about family court proceedings involving their children is the way the Independent Children’s Lawyer (ICL) is involved, and the perceived biased opinions they have about important issues like how co-parenting is to be managed.

And when it comes to your kids, ICLs carry a lot of sway in the courts, so it’s important to check and see whether yours is behaving appropriately and abiding by the guidelines that were set up back in 2013 and endorsed by the Chief Justice of the Family Court and Federal Circuit Court of Australia.

Before I begin, I’d like to share a little story about an ICL I use to know whose name shall remain sealed behind these lips.
Firstly, ICLs in many cases are often just normal lawyers often working in suburban firms with enough ‘kilometres on the clock’ to be considered “worthy” of being appointed by the court to act in that role.
Sometimes, ICLs work for legal aid and that work is just part of the mix of what they do.

But let’s go back to my ICL from the local law firm, and by god there are an awful lot of them with only this background.
Firstly, you have to remember that being an ICL isn’t their day in day out work and indeed may constitute just a small percentage of their already overburdened week with a dozen other clients and cases. And with that, they are often time poor and very hard to get a hold of when an anxious parent needs something clarified, or a decision explained.

The ICL I knew was regularly subject to formal complaints from both lawyers appearing for parents, and from self representing mums and dads. This person would often talk off the record about how they had a personal dislike for one of the parties lawyers or one of the parties. They would describe anxious and frustrated parents in very unkind terms like “neurotic”, “demanding”, “dangerous”, “deadbeat”, “promiscuous” and “useless”. And when you think about it, this is the person that is suppose to prepare non biased reports to the court so important decisions can be made about parenting.

Additionally, his reporting was often exaggerated, and as such, not accurate. Reading these reports made me wonder whether he understood that he was appointed to represent the best interests of a child in family law proceedings. To be honest, at times this average suburban lawyer seemed to be getting off on the power trip that came from making recommendations about a child’s future relationship with both their mum and dad. Time and time again the inaccuracies and bias in his reports reflected that.
But at least he got to be “king” for a day hey?

The Role of the ICL

So what are these court appointed lawyers meant to do?
Section 68LA of the Family Law Act regretfully provides the usual murky waters and vagueness to guide us.

Let’s take a look.

68LA (2)  The independent children’s lawyer must:

                     (a)  form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and

                     (b)  act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.

On first reading it almost sounds like the ICL gets to decide what is in the best interests of the child but that wouldn’t be right because the law is also pretty damn clear on what the best interests of the child are all about. And the primary consideration here is the benefit to the child of having a meaningful relationship with BOTH of their parents.

Naturally, the law also clarifies that where violence and abuse are prevalent, that can be overridden.

The law then goes on to state that:

68LA (3)  The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

Again it all seems so subjective. How can a ICL, who usually has no professional skills beyond the law decide on parenting outcomes? And the one I know would say, “well there’s a report from the family consultant and they met mum, dad and the kid for an hour so that’s what I’ll make all my recommendations for the child’s immediate future on”.
Good lord is it any wonder parents are up in arms about these flimsy processes about deciding their child’s future?

The law also reminds us of something very important about the ICL and their role and duties:

 68LA(4)  The independent children’s lawyer:

                     (a)  is not the child’s legal representative; and

                     (b)  is not obliged to act on the child’s instructions in relation to the proceedings.

Yep that’s right they are NOT the child’s lawyer, and although they are suppose to meet with kids who have reached school age, they don’t have to apply any regard to what a child might want.

Specific duties of ICLs to be impartial often are not done…

 68LA(5)  The independent children’s lawyer must:

                     (a)  act impartially in dealings with the parties to the proceedings; and

                     (b)  ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

                     (c)  if a report or other document that relates to the child is to be used in the proceedings:

                              (i)  analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

                             (ii)  ensure that those matters are properly drawn to the court’s attention; and

                     (d)  endeavour to minimise the trauma to the child associated with the proceedings; and

                     (e)  facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

Well we all know that much of the above in the way it is worded, leaves open the opportunity for overworked or power hungry ICLs to  steer towards subjectivity and personal bias.
One thing I would note is that it’s a rare day indeed when an ICL actually “facilitates an agreed resolution of matters at issue in proceedings”.

So how should an ICL behave?

How can a court appointed lawyer on a limited budget and a low hourly rate put the time into this sort of complex work of getting two warring parties at court to put together consent minutes. That is a substantial task and I don’t think I have ever seen an ICL achieve it. When in doubt, a good ICL should refer to what the court has set out as a guideline for appropriate behaviour.

♦ Be truly independent of the court and the parties
Act impartially
♦ In professional relationships be skilful, competent and an impartial best interests advocate
♦ Work with family consultants to ensure the best interests of the child (no subjectivity)
♦ Promote a timely resolution of proceedings consistent with best interests of the child
♦ Assist both parties to reach a resolution by negotiation… or judicial determination

The sad thing is that the system is broken and many good ICL’s don’t have the resources or funding to get negotiations on foot, so that agreed outcomes can be worked out.
For the bad ICLs, the work they do ends up being nothing more than a regular cash cow where time is only spent as per dollar allocated and often with bias and subjectivity.
These ones should frankly be shown the door.
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Written by The Legal Eagle