Independent Children's Lawyer (ICL)

What is an Independent Children's Lawyer?

An ICL is a legally appointed practitioner whose sole focus is the best interests of a child in family court proceedings. Their appointment is governed by Section 68L of the Family Law Act 1975, which gives the court broad discretion to order independent representation where it would be in the child's best interests.

The ICL becomes a party to the proceedings with specific duties and powers. Crucially, the ICL does not take instructions from the child — unlike a traditional lawyer-client relationship — but forms their own independent view of what arrangements would best serve the child, which may or may not align with what the child has expressed.

The court quoted in Section 68L states: "A court may order that a child's interests in proceedings under this Part be independently represented by a lawyer." The ICL then acts as an impartial participant, maintaining neutrality between both parents and focusing solely on the child.

When the court appoints an ICL

Courts appoint ICLs in complex or high-conflict parenting disputes where a child's interests require independent protection — typically where one or more of the following circumstances exist.

Allegations of harm

• Allegations of child abuse or neglect
• Family violence concerns
• Drug or alcohol issues affecting a parent
• Mental health concerns impacting parenting capacity

Complex circumstances

• High-conflict parenting disputes
• Parental alienation concerns
• A child refusing contact with a parent
• International relocation applications
• Neither party is legally represented
• A child has special needs requiring careful consideration
• Cultural or religious issues require exploration
• A mature child has strong views that should be heard
• The case involves multiple children with differing needs
• Proceedings are protracted or particularly bitter

ICL duties: representing best interests

Section 68LA of the Family Law Act 1975 sets out the specific duties of an ICL. These duties shape how the ICL approaches every aspect of the proceedings.

Form an independent view of best interests

The ICL must form their own view of what is in the child's best interests based on the evidence available. This is the core of their role — gathering relevant information from multiple sources, considering all evidence objectively, applying the best interests framework under Section 60CC, and maintaining independence from both parents.

Ensure the child's views are before the court

The ICL must ensure that any views expressed by the child are fully put before the court, having regard to the child's maturity and level of understanding. This includes meeting with the child where appropriate, presenting their expressed wishes, and clearly distinguishing those wishes from the ICL's own recommendations.

Analyse expert reports and evidence

The ICL must analyse any family report or other expert report and, where appropriate, ensure the report writer is cross-examined on relevant matters. This includes reviewing reports critically, identifying gaps or concerns, and ensuring thorough testing of all relevant evidence.

Act as an impartial participant

The ICL must act impartially — neither favouring one parent over the other — and must focus solely on what serves the child's best interests. This means maintaining neutrality between the parties, not becoming an advocate for either parent, and taking steps to minimise trauma to the child from the proceedings.

How the ICL gathers information

To form an independent view, the ICL investigates beyond what the parties themselves provide, drawing on a wide range of sources.

Sources the ICL may use

• The child directly — age-appropriate meetings to understand the child's world, relationships, and expressed views
• School and education — school reports, teacher observations, counsellor input, and attendance records
• Health professionals — medical records, psychologist or counsellor reports, allied health assessments
• Child protection agencies — agency records and case histories where relevant
• Police records — where relevant to allegations of violence or harm
• Family report authors — cross-examination and clarification of expert conclusions
• Extended family members — where they can provide relevant context

As a party to the proceedings, the ICL has the power to issue subpoenas for documents and to call witnesses. This allows the ICL to obtain material that might not otherwise be available — such as child protection records, police reports, or medical records — giving them a genuinely independent picture of the child's circumstances.

ICL vs direct legal representative vs child representative

There are distinct forms of legal involvement for children in family law proceedings. Understanding the differences helps parents know what to expect.

Independent Children's Lawyer (ICL)

The most common form. The ICL represents what they determine to be the child's best interests, does not take instructions from the child, must ensure the child's views are put before the court, and may advocate for a position different from the child's expressed wishes.

Direct legal representative

Rarely ordered, and typically only for older, mature children in specific circumstances. A direct legal representative takes instructions from the child and advocates for what the child wants — the traditional lawyer-client relationship. The child must have sufficient maturity to give instructions.

Child representative (historical term)

"Child representative" was the terminology used before the 2006 amendments that created the ICL role with its specific statutory duties. The Guidelines for Independent Children's Lawyers (2013) now govern this practice, and "ICL" is the current preferred term.

Costs of an Independent Children's Lawyer

ICL costs are typically funded by Legal Aid, though the arrangements vary by state and financial circumstance.

Legal Aid funding

When the court orders the appointment of an ICL, Legal Aid will assess whether funding is available. Each state and territory has its own Legal Aid commission with its own policies regarding ICL funding. Legal Aid may seek a contribution from one or both parties — particularly if they have income or assets above Legal Aid thresholds.

Private funding

In some cases, if Legal Aid funding is not available (for example, due to the financial circumstances of the parties), parties may need to fund the ICL privately. This is less common but can occur in higher-asset matters.

Costs are indicative only and vary by state, complexity, and individual circumstances. Legal Aid contribution requirements differ between states.

What to expect when interacting with an ICL

Working constructively with the ICL benefits your child. Understanding the process helps proceedings run more smoothly.

Initial contact

The ICL will usually contact both parties shortly after appointment. They will explain their role, request relevant documents, and may arrange to meet with you to gather information about the child and your perspective.

Meeting with your child

The ICL may meet with your child if appropriate given their age and circumstances. This is not a formal interview — it is an opportunity for the ICL to understand the child's world and hear their perspective in a child-friendly way.

Ongoing involvement

The ICL participates in court events, conferences, and hearings. They may facilitate settlement discussions and help identify issues requiring resolution. The ICL is an additional party, not a replacement for your own legal representation.

Submissions and recommendations

At trial or final hearing, the ICL makes submissions about what orders they believe would be in the child's best interests. These submissions carry weight but the court is not bound to follow them.

Guidelines for Independent Children's Lawyers (2013)

The Guidelines for Independent Children's Lawyers provide the framework governing how ICLs perform their role. They were developed by the Family Court of Australia and the Federal Circuit Court of Australia.

Independence

The ICL must act independently, not as an advocate for either party. Their sole focus is the child's best interests. This requires maintaining professional distance from both parents and their positions.

Child-focused practice

The ICL should minimise the potential for trauma to the child from the proceedings. This includes considering how and when to meet with the child, and ensuring the child is not placed in a position where they feel responsible for outcomes.

Active participation

The ICL should actively participate in all aspects of proceedings — attending conferences, filing evidence where appropriate, cross-examining witnesses, and making submissions. The ICL is not a passive observer.

Facilitating resolution

Where appropriate, the ICL should facilitate settlement discussions and help identify areas of agreement. Resolution by consent is generally preferable to contested hearings for children's wellbeing.

Common questions