By Stefan Pantellis (Lawyer) and Kristina Antoniades (Special Counsel)
When Court proceedings are initiated in relation to children, most parties are usually independently represented by lawyers who advise their clients (based on their particular circumstances) as to what would be a reasonable care arrangement for the children moving forward. Although the best interests of the children is the paramount consideration in parenting matters under the Family Law Act 1975, children are not always represented by lawyers. This may be because they don’t require representation, as the issues in dispute are relatively simple to navigate and resolve, but can also be due to the availability of resources and funding issues. There are times, however, when an Independent Children’s Lawyer (ICL) is appointed.
When an Independent Children’s Lawyer will be appointed
In certain circumstances, an ICL may be appointed in parenting proceedings to assist the court to make decisions in the best interests of the children.
Victoria Legal Aid (VLA) is responsible in Victoria for the appointment of an ICL upon an order being made by the Court (the legal aid bodies in other states and territories perform a similar role). The ICL will then liaise with the parties’ legal representatives (or the parties directly if self-represented) in their capacity as a party to the proceedings.
An ICL is usually appointed by the court upon application by one of the parties, or on its own initiative where one or more of the following circumstances exist:
- There are allegations of abuse or neglect in relation to the children
- There is a high level of conflict and dispute between the parents
- There are allegations made as to the views of the children and the children are of a mature age to express their views
- There are allegations of family violence
- Serious mental health issues exist in relation to one or both of the parents or children, and/or
- There are difficult and complex issues involved in the matter.
The role of an Independent Children’s Lawyer
The role of the ICL is to represent the interests of the children who are the subject of the proceedings and provide an independent perspective about what arrangements or decisions are in the children’s best interests. Their duties include arranging for necessary evidence to be obtained and put before the court, obtaining the children’s views and facilitating settlement negotiations, where appropriate.
ICLs will usually meet with the children to obtain their views and explain how the Court works depending on their ages and level of maturity, unless there are special circumstances. Children do not normally give evidence or go to court.
All communication with ICLs should be open and transparent with the other party or parties to the proceedings. Any information provided to ICLs may be disclosed to any of the other parties and/or to the court.
Who bears the cost of an Independent Children’s Lawyer?
VLA has recently introduced changes to financial contributions from parties in family law matters involving ICLs. Non-legally-aided parties are requested to pay a lump sum contribution amount for the cost of the ICL. For two parties, the fees are currently $3,342.50 (each) for matters before the Federal Circuit Court of Australia and $4,782.50 (each) for matters before the Family Court of Australia.
Parties are entitled to seek a reconsideration of the contribution amount by completing and returning a financial statement to VLA to assess whether the contribution should remain, be reduced, or be waived. The assessment is based on VLA’s means test.
If parties neglect or fail to meet the ICL’s costs, ICLs are required to consider making a cost application against parties if they think it is appropriate in the circumstances. Such circumstances include where a party’s assets and income are so significant that it would be an inappropriate burden on the public purse to fund an ICL, or where a party’s conduct has resulted in significant additional funding being expended on the ICL file. ICLs must also consider what impact a cost order might have on the children.
If an ICL is appointed, they can be very helpful in reducing the issues in dispute between the parties and assist the parties in resolving matters overall, which ultimately assists the children in moving forward with their new circumstances.
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