Why can't children use the same lawyer as their parents?

Unfortunately parents often take adversarial and diametrically opposed positions in respect of what is in the “best interests” of children in Family Law Parenting Cases. As a result children are required to have separate legal representation in the Courts.

Accordingly it is practice for the Court to appoint an “ICL” i.e an Independent Children’s Lawyer to represent the Children’s best interests in any contested hearing before the Court.

The Independent Children’s Lawyer operates as a “Separate Representative” to ensure that submissions are made and evidence brought before the Court in order that a determination may be made in accordance with law and the principles of the Family Law Act.  The overriding responsibility of the Separate Representative is to ensure evidence is presented and submissions made as to what is in the best interests of the children.

Guidelines for the role of the Separate Representative or Independent Children’s Lawyer were set out in a Full Court Family Court decision of P and P in 1995.  They are as follows:

"The separate representative ought:-
1. Act in an independent and unfettered way in the best interests of the child.

2. Act impartially, but if thought appropriate, make submissions suggesting the adoption by the Court of a particular course of action if he or she considers that the adoption of such a course is in the best interests of the child.

3. Inform the Court by proper means of the children's wishes in relation to any matter in the proceedings. In this regard the separate representative is not bound to make submissions on the  instructions of a child or otherwise but is bound to bring the child's expressed wishes to the attention of the Court. 

4. Arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the Court.

5. Test by cross-examination where appropriate the evidence of the  parties and their witnesses.

6. Ensure that the views and attitudes brought to bear on the issues before the Court are drawn from the evidence and not from a personal  view or opinion of the case.

7. Minimise the trauma to the child associated with the proceedings.

8. Facilitate an agreed resolution to the proceedings."

Comment from Mark Streeter - Sydney Family Law Lawyer

The Independent Children’s Lawyer is not “bound” to take an adversarial or contradictory role and may either support one parent’s application over the other or alternatively submit a completely new third version of proposed orders in respect of children.

The Independent Children’s Lawyer is an incredibly powerful and influential role in parenting matters in the Family Courts. It is an important safeguard to ensure a “neutral” party is presenting as objectively and as “disinterested” submissions in the interests of the child (or children) as is possible in the circumstances.