Family law · 20 September 2026
Ask a parent in the family court who the Independent Children’s Lawyer is and most will say the child’s lawyer. The Family Law Act says otherwise, and almost everything strange about the role follows from that.
Ask a parent in the family court who the Independent Children’s Lawyer is, and most will give the obvious answer. The child’s lawyer.
The Family Law Act says otherwise. Section 68LA(4) provides that the Independent Children’s Lawyer, or ICL, “is not the child’s legal representative” and “is not obliged to act on the child’s instructions in relation to the proceedings.”
That single subsection explains most of what is strange about the role. The ICL is not the child’s lawyer. The ICL is not a lawyer for either parent. The ICL is not a witness. And the ICL is not accountable to anyone in the room in the way every other lawyer in that room is.
This article is about the design of the role, not the people who fill it. The record, examined below, does not show that ICLs are dishonest. What it shows is a role with real influence over the outcome and almost none of the ordinary checks. That is a problem worth naming, because a design that cannot detect a failure will not correct one.
Under section 68LA(2), the ICL must “form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child” and must “act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.”
The child’s own view is something the ICL must put before the court. It is not something the ICL must argue for. The Court’s own guidance says that ICLs “are obliged to consider the views of the child, but ultimately provide their own, independent, perspective about what arrangements or decisions are in the child’s best interests.”
SourceFederal Circuit and Family Court of Australia, Independent Children’s Lawyer
The Guidelines for Independent Children’s Lawyers go further. Where the ICL disagrees with a mature child, the ICL must “provide clear and cogent submissions as to why the child’s views do not promote the child’s best interests.” In other words, the person the child has been told is their lawyer may stand up in court and argue against what the child has asked for.
Nor can the child speak to the ICL in confidence. Section 68LA provides that the ICL “cannot be required to disclose to the court” what the child says, but may disclose it “if the independent children’s lawyer considers the disclosure to be in the best interests of the child”, and that this “applies even if the disclosure is made against the wishes of the child.” The Guidelines require the ICL to warn the child at the outset that “there are circumstances where the ICL cannot guarantee the child a confidential relationship.”
SourceFamily Law Act 1975 (Cth), s 68LA; Guidelines for Independent Children’s Lawyers (2024)
The Australian Law Reform Commission described the model with unusual candour in 1997. “The court, rather than the child, may best be considered the client of the best interests representative. The child cannot dismiss the representative if he or she is unhappy with the performance or conclusions reached by the representative. The representative’s focus is on the court and is intended to assist the court.” The Commission noted that the Full Court had compared the role to that of “counsel assisting a royal commission.”
SourceALRC, Seen and Heard (Report 84, 1997), chapter 13
The High Court confirmed the consequence in 2017. Because the ICL “is not the child’s legal representative, and is not by that provision obliged to act on the child’s instructions”, the Court said, “It would follow that they need not be sought.” Until May 2024 there was no statutory duty on an ICL even to meet the child.
SourceBondelmonte v Bondelmonte (High Court of Australia, 2017), paragraph 47
That is the honest description of the role. An officer who assists the court, funded by legal aid, styled as the child’s lawyer.
The Guidelines list the things an ICL does not do. One of them is to “become a witness.”
That matters because of what the ICL does do. The Court describes the ICL’s main roles as including “arranging for necessary evidence, including expert evidence, to be obtained and put before the Court.” The Guidelines have the ICL liaising with the parties on “the identity of the report writer, the terms of reference” for a family report. The ICL then analyses that report, and makes submissions to the court about the weight it deserves.
So one person helps choose the expert, relies on the expert, and tells the judge how much the expert should count. The ICL’s own view of the case reaches the judge as a submission. It is never given on oath and never cross-examined. The Guidelines do say the ICL “is not bound to make submissions which adopt the recommendations made by the report writer.” That is true, and it is also the point. The choice is the ICL’s alone.
One real safeguard exists and deserves credit. The Guidelines provide that the ICL’s communications with a family consultant or single expert “are not privileged”, so they can be put in evidence.
SourceGuidelines for Independent Children’s Lawyers (2024), sections 4.18 and 7.9
Every other lawyer in a family court is disciplined by three things. A client who can instruct them and sack them. An opponent who can cross-examine their witnesses. A regulator who acts on a client’s complaint. The ICL is exposed to none of these in the ordinary form.
The appointing body, the paying body and the supervising body are the same body. When a court orders an ICL, the Guidelines explain, it “requests the Legal Aid Commission in the respective state or territory to make an appointment of an ICL to the case.” The ICL must “report and account to the Legal Aid Commission in a timely manner.” When the Joint Select Committee on Australia’s Family Law System recommended a legislated duty for ICLs to comply with the Guidelines, the Australian Government declined. Its response said: “The legal aid commissions appoint and oversee ICLs and are responsible for enforcing compliance with the Guidelines.” It added: “There is a risk that introducing a legislative requirement could lead to protracted disputes about an ICL’s compliance.”
Read that again. A duty to follow the rules was rejected because parties might litigate whether the rules had been followed. Compliance that cannot be litigated is compliance that cannot be enforced.
SourceAustralian Government response to the Joint Select Committee (January 2023)
The complaints path narrows further while a case is on foot. The South Australian Legal Profession Conduct Commissioner’s fact sheet on ICLs says that a complaint “must be more than a disagreement with the approach taken by, or the judgment of, an ICL”, that “the courts are generally best placed to decide whether an ICL is meeting their obligations”, and that the Commissioner “cannot order, direct, recommend or otherwise act to have an ICL removed from legal proceedings.” Victoria Legal Aid tells parents that removal “is a decision that can only be made by the court.”
SourceLegal Profession Conduct Commissioner (SA), ICL fact sheet (2025); Victoria Legal Aid, I have a problem with the independent children’s lawyer
And the court? The case law, as the Law Society Journal summarised it in 2022, is that a court should be slow to discharge an ICL on the complaints of one party. In Bookhurst v Bookhurst, quoted in the national evaluation of the scheme, the Family Court held that an ICL “may hold a view which is aligned to that of one party and can pursue that view in the proceedings.” Taking a side is lawful. Nothing in this article suggests an ICL must favour either parent, or any particular arrangement. The point is narrower. When an ICL does align with one side, the other side has almost no way to test whether that alignment came from the evidence.
The person with the most at stake has the least recourse of all. The Australian Institute of Family Studies, in the only national evaluation of the scheme, concluded that “the stakeholder who is most directly affected by the ICL’s actions, the child, is in the weakest position to assess ICL performance and exercise agency through a feedback or complaints mechanism.” The same study found that legal aid commissions “apply varying approaches to monitoring performance and have varying approaches to dealing with complaints”, that at the time “Victorian Legal Aid does not have a formal mechanism for auditing ICL practice”, and that “these mechanisms need to be strengthened.” No legal aid commission or legal regulator that we could find publishes statistics on complaints about ICLs.
SourceAIFS, Independent Children’s Lawyers Study: Final Report (2014)
Parents, meanwhile, often pay. The Court’s page is direct: “it’s not a ‘free’ service”, and “the courts are generally inclined to order parties to contribute to the ICL’s costs.” A parent can be ordered to pay for a lawyer who can argue against them and against their child’s stated wishes, and whom they cannot effectively complain about.
The influence is not in doubt. The AIFS evaluation found that 89 per cent of judicial officers surveyed agreed that having an ICL involved improves outcomes for children. The Law Reform Commission wrote in 2019 that once a party seeks an appointment, “the court invariably orders such an appointment.” National Legal Aid says the commissions are “delivering over 6,800 grants of aid per year nationally” for ICL work. A University of Technology Sydney paper argues that judges “will continue to increasingly rely on children’s lawyers who are being placed more in the role of ‘Counsel Assisting the court’ as opposed to acting as the child’s representative.”
SourceALRC, Family Law for the Future (Report 135, 2019); National Legal Aid, ICL program at crisis point (2024); Kaye, The increasing demands on the role of children’s lawyers (UTS)
The quality is variable, on the evidence of the system’s own participants. The AIFS study found that “the performance of some ICL practitioners falls short of the required standard, primarily in terms of acting independently, impartially and with professional rigour.” One judicial officer told the researchers that the available pool “ranges from a very few excellent practitioners to a large group of very ordinary, ranging to utterly incompetent.” Asked about their last three cases, 54 per cent of ICLs said they “rarely or sometimes” had direct contact with the child, and 8 per cent said they never did. Children interviewed for the study “conveyed feelings of disappointment and even betrayal.” The Law Reform Commission found in 2019 that the dominant practice of not meeting children “is not consistent with the Guidelines”, and the Joint Select Committee wrote in 2021 that it “is concerned that some ICLs may not be meeting the Family Law Act’s stated objective.”
SourceJoint Select Committee on Australia’s Family Law System, Second Interim Report (2021)
Parliament responded. Since 6 May 2024, section 68LA(5A) requires the ICL to meet the child and give the child an opportunity to express views, unless the child is under five, does not want to, or there are “exceptional circumstances”. Where an ICL claims exceptional circumstances, the court must decide the point before making final orders and, if it disagrees, must order the meeting. That is a real improvement, and it deserves to be said plainly.
It is also the only part of the accountability problem that Parliament has touched.
The system pays for this role at a rate that cannot reliably attract the best, vets it unevenly once the door is open, and then gives its holder more weight than either parent’s lawyer.
The numbers are public. Legal Aid NSW pays ICLs at “the hourly rate of $150”, and when it lifted the preparation fee for a final hearing in 2023 it described the rise “from $1350 to $1650” as “an additional two hours’ work.” National Legal Aid said in October 2024 that the program was at crisis point, that “it can take up to 3 months for an ICL to be allocated”, and that “Legal Aid Western Australia currently only has 15 private lawyers available” for the work. The Law Council says “the current legal aid grants for ICL work are well below private practice rates”, that “some ICLs receive an effective hourly rate below the minimum wage”, and that “the pool of lawyers able to take on this work is shrinking.” For comparison, our family law cost guide puts private solicitors at $350 to $650 an hour and senior counsel at $700 to $1,400.
SourceLegal Aid NSW, Policy Bulletin 2023/11 (ICL preparation fee); National Legal Aid, ICL program at crisis point (2024); Law Council of Australia (7 May 2026); Lawyer Reviews, family law legal costs guide
That raises a question nobody in the funding debate likes to ask. If a family lawyer’s practice is busy at private rates, why would they take this work at a fraction of them? The honest answers are on the record. Some do it out of commitment: private practitioners told the AIFS researchers that the work is “extremely under-funded, meaning much of this work is performed pro bono.” Some are the legal aid commissions’ own salaried lawyers. But a scheme that runs on goodwill at below-market rates cannot guarantee the calibre that the role’s influence demands, and a shrinking pool is the predictable result.
The vetting is uneven too. On paper the door is demanding. Legal Aid NSW requires “5 years post-admission experience (PAE) in family law with at least 75% of total workload in family law, and successful completion of the National ICL training course.” Once through it, the AIFS evaluation found “significant differences in the approaches taken by each commission to auditing the practice of ICLs, managing quality and dealing with complaints”, that at the time of the study “Victorian Legal Aid does not have a formal mechanism for auditing ICL practice”, and that in Queensland there was “no formal feedback arrangement in relation to specific panel members.” It was judicial officers, not aggrieved parents, who described “a huge discrepancy between the most competent and those going through the motions.”
SourceLegal Aid NSW, private lawyer panels (ICL panel requirements); AIFS, Independent Children’s Lawyers Study: Final Report (2014)
And still the court, in the Law Reform Commission’s words, “invariably” appoints one when asked, and nine in ten judicial officers say the ICL improves outcomes. A role paid like a legal aid grant is weighted like an expert. The gap between what the system invests in the person and what it lets that person’s view carry is the accountability problem in its plainest form. None of this is a criticism of the many ICLs who do the work well for less than it costs them. It is a criticism of a design that depends on them.
Fairness requires the other half of the picture.
No published judgment we could find has held that an ICL acted dishonestly or with actual bias. Applications to remove ICLs for their conduct have, in the reported cases we located, generally failed. We found no disciplinary decision or legal aid fraud prosecution naming a practitioner acting as an ICL. Judges value the role. Many ICLs plainly do the work well, and do it for legal aid rates that the Law Council says can amount to “an effective hourly rate below the minimum wage.”
So this is not an argument that ICLs are dishonest. It is an argument that the role is built in a way that would make dishonesty, or simple carelessness, hard to detect and harder to act on. A person who shapes the evidence, is trusted by the judge, cannot be cross-examined, cannot be sacked by the child, cannot be complained about with effect while the case runs, and answers to the body that pays them, is a person whose errors will rarely surface. In most parts of the legal system, that combination is treated as a conflict to be designed out. In the family courts it is the design.
The Law Council of Australia is campaigning for more ICL funding, and it is right that “the ICL is the one person in the room whose only job is to speak on behalf of the child.” Money is necessary. It is not sufficient. Nothing in the funding campaign touches accountability.
SourceLaw Council of Australia, Children’s voices at risk as family law safety net frays (7 May 2026)
England and Wales use what is called the tandem model. A children’s guardian from Cafcass investigates and reports, and is a witness who can be cross-examined. A separate solicitor advocates. Where a child who is old enough to understand gives instructions that conflict with the guardian’s, the rules provide that “the solicitor must conduct the proceedings in accordance with instructions received from the child.” The investigator and the advocate are two people, and the investigator can be examined.
SourceFamily Procedure Rules 2010 (England and Wales), rule 16.29
The American Bar Association’s standards distinguish a “child’s attorney”, who acts on the child’s instructions in a normal lawyer and client relationship, from a “best interests attorney”. The labels are honest. Ontario’s Office of the Children’s Lawyer says its lawyer “will generally take a position that is consistent with a child’s views and preferences”, while a separate clinician writes the best-interests report.
SourceAmerican Bar Association, Standards of Practice for Lawyers Representing Children in Custody Cases (2003); Ontario, Office of the Children’s Lawyer
Australia fuses the investigator and the advocate into one person, calls that person the child’s lawyer, and makes them examinable by nobody.
The Family Law Amendment Act 2023 provides for a review of its amendments three years after they commenced, which means from May 2027. The Law Council is already positioning that review around funding. Accountability belongs on the same agenda. The question the review should ask is simple: who, in the current design, can hold an Independent Children’s Lawyer to account, and how?
Lawyer Reviews is making this a standing area of its work. We are calling for independent audits of Independent Children’s Lawyers, published numbers by registry, and a complaints path that works while a case is running. If you agree, whether as a parent, a lawyer, an ICL, a researcher or an organisation, you can [add your name to the register of support](/icl-audit/). Names are not published. The count is.
No. Section 68LA(4) of the Family Law Act provides that the Independent Children’s Lawyer “is not the child’s legal representative” and “is not obliged to act on the child’s instructions in relation to the proceedings.” The ICL forms an independent view of the child’s best interests based on the evidence, and argues for that view, which may differ from what the child wants. The Guidelines describe the ICL as an “impartial, best interests advocate”.
Yes. Section 68LA(5)(b) requires the ICL to ensure that any views expressed by the child are fully put before the court. But the ICL is not required to argue for those views, and where the ICL disagrees with a mature child the Guidelines require the ICL to give “clear and cogent submissions as to why the child’s views do not promote the child’s best interests.”
Since 6 May 2024, yes, subject to exceptions. Section 68LA(5A) requires the ICL to meet the child and give the child an opportunity to express views. The duty does not apply if the child is under five, if the child does not want to meet the ICL or express views, or if there are exceptional circumstances. Where the ICL relies on exceptional circumstances, the court must decide whether they exist before making final orders.
A parent can complain to the legal aid commission that funds the ICL or to the state legal regulator, but the regulators say a complaint must be more than a disagreement with the ICL’s approach or judgment, that the court is best placed to judge whether an ICL is meeting their obligations, and that a regulator cannot remove an ICL from a case. Removal is a matter for the court, and the case law indicates courts are slow to discharge an ICL on one party’s complaints.
The ICL is usually funded through a grant of legal aid, but the Court says it is not a free service and that courts are generally inclined to order the parties to contribute to the ICL’s costs. Section 117 of the Family Law Act prevents a costs order against a party who has received legal aid, or who would suffer financial hardship.
ICL work is funded by legal aid grants at rates well below private practice. Legal Aid NSW pays an hourly rate of $150 and, since 2023, a preparation fee of $1,650 for a final hearing. The Law Council of Australia says some ICLs receive an effective hourly rate below the minimum wage once the costs of running a practice are counted, and that the pool of lawyers able to take on the work is shrinking. Private family law solicitors typically charge $350 to $650 an hour.
No. We found no published judgment finding that an ICL acted dishonestly or with actual bias, and no disciplinary decision naming a practitioner acting as an ICL. The argument is about design: a role with real influence over parenting outcomes that sits outside the ordinary checks of client instructions, cross-examination and an effective complaints path.