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ICLs and how are they appointed

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request for information on how are ICL appointed and what court process needs to occur first

Hello again

This particular query is in regard to ICLs and how are they appointed.

For example, ex's lawyer is saying they are seeking the appointment of an ICL.  We are not in court yet, just sparing with letters back and forth.

What process are they supposed to follow?  Are they first supposed to apply to the courts to get the court to accept that the orders need to be changed?  Do i get to represent to refuse the change request at this stage, and if court states no change required, no ICL is appointed?  Or do they file some application direct to the court which i don't know about.  Or if papers are filed requesting an ICL, one is automatically selected regardless of my desire to defend a position of "no change"?  and when I go to court do I have to "deal" with both her lawyer and the ICL at the same time?

I understand the aspects regarding costs if one is appointed - costs may be awarded to the ICL either 50/50 or one side carries the burden or no costs for ICL at all.

Just wondering if i get to say "no" to a ICL being appointed?  and would that be part of the hearing for saying no to a change in orders?  and if i lodge papers for contravention, can she turn around and request ICL?

Also, had it from someone, that ICL are generally only appointed in cases of abuse, domestic violence, extreme dysfunction etc.  Is this true?

Cheers
Grey
By definition, ICLs are appointed, in the usual course, only in difficult cases where a number of factors individual to the particular parents are likely to impinge upon their parenting. (See See Re K [1994] FamCA 21)

In its 1989 report the Family Law Council suggested, inter alia, that the Act be amended to state criteria and adopted a list suggested by Lambert J of this Court (now retired) in an address which he made to the Australasian Conference on Family Law in July 1980. In that address his Honour said:

"Given that for practical reasons the limited availability of Legal Aid
funds to finance separate representation requires the setting of
priorities, the following situations are suggested as appropriate for
the Court to seriously consider the making of an order under s.65 of
the Act;

(i) Where there is manifest continuing hostility between the parties to
the proceedings and particularly where the children are being used by
either or both parties to hurt the other;
(ii) Where one of the parties to the proceedings is not a natural
parent of the children;
(iii) Where the children are ordinarily in the possession, care and
control of a person other than their parents;
(iv) Where the children are subject to an order under the State
Children's Welfare Legislation;
(v) Where there are real issues of cultural or religious difference;
(vi) Where there are issues of exotic sexual or anti social tendencies
on the part of a parent or parents or other persons with whom the
children come regularly into contact;
(vii) Where there are issues of significant mental illness or
personality disorder in relation to either party or a child, or to
other persons having significant contact with the children;
(viii) Where there is a history of recurring resort to litigation over
custody or access by either or both parents;
(ix) Where it appears that the children are having difficulty adapting
to a new family situation in either parent's household;
(x) Where it appears that both parties propose arrangements which will
have the effect of separating siblings;
(xi) Where child abuse is an issue."

I went to a SRL workshop run by legal aid Victoria. I was told the average cost to the public for an ICL to be involved in case is $17,000.

Personally I would avoid the appointment of an ICL if at all possible. They do nothing and are invariably on the side of the custodial parent and virtually impossible to remove or impugn (in the public interest). The rarity of an order discharging a properly appointed Independent Childrens Lawyer has been commented on most notably by Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045. One is left is the most unenviable position of being unrepresented against the opposition barrister tag team.

 
Thank you srldad101

The information you provided gives me a fair idea that they have no chance of getting an ICL appointed.  So far its been legal letters back and forth, and frank discussions at changeover, although the kids are aware that mum & dad can't agree at the moment.  So continued hostilities may be the only way, but there has been no yelling/screaming/threats/violence etc which i imagine would need to occur for an ICL to be appointed.

I suppose i just need an answer on the procedural side of things - at this stage, it would appear that I will have to lodge an application for contravention.  I suspect that when I do, they will lodge 2 applications, one for putting the orders aside and the other for appointment of an ICL.

What would be the best way to oppose the appointment of the ICL?  Does the judge just look at whats been lodged and make a determination, or do i get some sort of say to oppose his/her appointment? Do i lodge an application of my own opposing the ICL?

regards
Grey
Greyman said
I suppose i just need an answer on the procedural side of things - at this stage, it would appear that I will have to lodge an application for contravention.  I suspect that when I do, they will lodge 2 applications, one for putting the orders aside and the other for appointment of an ICL.

What would be the best way to oppose the appointment of the ICL?  Does the judge just look at whats been lodged and make a determination, or do i get some sort of say to oppose his/her appointment? Do i lodge an application of my own opposing the ICL?
 We think you are slightly confused about an application for an ICL. An application is normally heard verbally by submissions in the Court. The appointment of an ICL is at the discretion of the FM or Judge and normally made after they have actually heard some of the case details.

You can argue against the need for an ICL, but it needs to be child focused legal argument. You will have little choice of who in Legal Aid becomes the case ICL. If the ICL is external then you may have the chance to argue for or against a particular appointment.

An important point to remember is that many communications from solicitors are 'ambit' claims be they for childrens or property matters. Ambit as in ambitious, often to scare the other party into some form of submission or compromise. Whilst ambit claims can initially be very disturbing to the recipient they are often amusing and inventive and once understood lose their sting.

You may find there is some gamesmanship going on here. An application to change existing orders needs to overcome the Change of Circumstances threshold (Rice and Asplund ) whereas responding to a contravention opens the possibility of minor changes in the orders.

SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
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