By Alexandra McCosker -
Snapshot
- An Independent Children’s Lawyer (‘ICL’) is a lawyer that is appointed by the Court in family law matters to represent the best interests of a child.
- A party may make an application to discharge an ICL, although such applications are not common.
- The case law provides guidance as to circumstances where a discharge application may be warranted.
- Courts will consider discharge applications very seriously and the case law suggests that a Court ‘should be slow to discharge’ an ICL merely due to complaints of one of the parties.
In family law proceedings, an Independent Children’s Lawyer (‘ICL’) may be appointed by the Court to represent a child’s best interests in the proceedings (Family Law Act 1975 (Cth), s 68L (the ‘Act’). The ICL’s role is set out in s 68LA of the Act and was discussed in detail in an earlier LSJ article (Alexandra McCosker ‘Representing the child’s best interests: The role of the Independent Children’s Lawyer’, 85 Law Society of NSW Journal, February 2022, 84-85). From time to time, a party may make an application to the Court to remove or ‘discharge’ an ICL from a matter.
What is a discharge application?
A ‘discharge’ application is where one party seeks to have the ICL ‘discharged’ – or removed – from a matter after the ICL has been appointed. There can be various reasons for such an application. The Act does not set out circumstances where a discharge application may be warranted, rather this has developed from the case law, and will turn on the particular circumstances of the matter.
The Court’s power to discharge an ICL
There is no section in the Act which provides for an overt power to discharge an ICL, however the case law generally agrees there is an implicit power available to the Court to discharge an ICL. Exercising such power is an ‘exercise of a discretion’ of the Court (see Lim and Zong [2021] FamCAFC 165 at [23]).
In Howell & Carter (No.2) [2017] FCCA 377 (‘Howell‘) the Court recognised that, while there may not be an overt power, ‘the power to order the removal of an ICL is so entrenched in family law jurisprudence that it cannot now be sensibly contended that no such power exists’ (at [46]).
The Court in Lim and Zong noted there was an indisputable correlative power (to the Court’s power to appoint under s 68L) to remove an ICL (at [17]). His Honour Justice Altobelli in Fielding & Mason [2021] FamCA 52 has suggested that a potential source of power to discharge an ICL may be found in s 34 of the Act, but in any event, there is a ‘well -established power’ to discharge the ICL (referring to Howell).
