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Independent Children's Lawyer Do's and Don'ts

Clarissa Rayward | Lawyer | 22 June 2014

The role of an ICL is to ensure that the Court is equipped to...

...make a decision that is in the best interest of the child

Whether you have a lawyer acting on your behalf or you are self-represented, there are a few things that you can do to both assist an Independent Children's Lawyer (ICL) and also to assist yourself in dealing with them...

Understand the role of the ICL and don't expect them to run your case on your behalf - Remember that the role of an ICL is to independently represent the best interests of your children. This does not mean that the ICL will take on board the instructions of your children and simply reiterate them to the Court. The ICL may make submissions to the Court that suit your case and they may not. Regardless, you should always act respectfully and take on board their comments, particularly so that you can appropriately prepare your case to meet any of the concerns that the ICL might raise.
Timely communication – This is particularly important if you are acting on your own behalf. From time to time you will receive communication from the ICL seeking information from you. Do try and provide that information as soon as you can as it will ultimately assist in finalising your case in a timely manner. If you don't understand the information that is being requested of you or you are reluctant to provide it, then do telephone the ICL and try and have a conversation with them about the information that they're requesting and why they need it so you can better understand and comply with their request. If you have a lawyer acting on your behalf then they will communicate with the ICL and it is less likely that you will have direct communication with them.
Communicating with your ICL if you act for yourself - Whilst the ICL is not there to act on your behalf, they may be able to assist you with explaining procedural steps in your Court process. Keep your communication with the ICL professional. The communication you have with the ICL is not confidential. They are generally obliged to disclose all communication both to the Court and to the other party if necessary. I always recommend that anything you are writing in any Court process should be something that you are happy for a Judge to read- if not, don't send it.
Keep the ICL informed - Most importantly, do let the ICL know if something significant occurs for you or your children- keep the ICL informed of any developments so that they can gather any necessary additional evidence. A good example of this is making sure the ICL is kept aware of other Court cases you or your former partner are involved in, for example Domestic Violence proceedings, or making them aware if your contact address or details change.

What if I don't agree with the Independent Children's Lawyer?

It is not uncommon for parties in a family law dispute to disagree with the views or the position taken by the ICL. Do not engage in conflict with the ICL. Try to understand why they have formed the view they have. Their role is to independently assess all of the evidence before the Court. If you can understand the evidence upon which they have based their assessment, you will be best able to present further information or undertake steps that will assist in meeting any concerns that the ICL has raised.

For example, the ICL might be expressing a view that a parent's time with the child should decrease to provide stability for the children because of significant conflict between the parents. If you are the parent hoping to increase your time with the children, then it may be appropriate to seek advice as to the steps you can take to minimise that conflict. You would be better to address the issue in that way, rather than engaging in conflict with the ICL over the view that they have formed.

There is every chance that at some point in your case the ICL will form a view that is contrary to the position that you wish to put before the Court. This is quite normal and it is appropriate for you then to spend time preparing your case to address these issues. The ICL's view may change depending upon the evidence that is provided in the material. For example, their view at an interim hearing may not be the same view they have after hearing the evidence at a final trial.

And Remember...

The role of an ICL in the most simplistic sense is to provide the Court with assistance to ensure that the Court is in the best position to be able to make a decision that is in the best interest of the children who are the subject of those proceedings.

As is the case with any litigation in relation to children, there is no one right way of finding a solution. The ICL, like all of the other parties in a Court case, has a role to play in ensuring that relevant evidence is placed before the Court to assist a Judge in their decision making.

If you find yourself in Court proceedings in relation to your children, then try and remember that at the end of the day, the Court's role is to take into account the relevant evidence and apply it to the legislative principles to ultimately make a determination as to what is in the best interests of your children. The Court process is never easy for the people that find themselves there and, where possible, try and find solutions that keep you and your family out of the Courts.

Further ICL reading by this author:
What is an Independent Children's Lawyer?

Clarissa Rayward

Accredited Family Law Specialist, Collaborative Lawyer and Mediator

Brisbane Family Law Centre, Brisbane Queensland.

www.bflc.com.au www.thehappyfamilylawyer.com

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