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Children – failure of ICL to respond to self-represented litigant’s enquiries does not warrant ICL’s removal

In Fisher [2021] FamCA 236 (26 April 2021) Williams J heard an application by a father to discharge the appointment of an independent children’s lawyer (ICL).

The father sought the removal of the ICL as he lacked independence, had kept confidential information from the parties ([21]) and had been influenced by the mother’s lawyer ([24]).

After citing Horner & Horner [2018] FamCA 487 as to the removal of an ICL, the court said (from [29]):

“ … [T]here is nothing unusual about an [ICL], in discharging his duty and obligations, having contact with both legal practitioners for parties and/or the parties themselves, when they are underrepresented. I do not perceive that the [ICL] has acted improperly in failing to align his interpretation of the recommendations of the report with the father’s interpretation. He has most properly formed a view at an interlocutory stage of the proceedings, which was entirely consistent with the only independent expert evidence, has conveyed that to the parties and made the appropriate submissions to the court.

[30] … [I]t would of course be preferable for the [ICL] to promptly respond to any reasonable enquiries made by a self-represented litigant. However, after reading the father’s email to the [ICL] … some of the questions posed are problematic and inappropriate. … I am of the view that the conduct complained of by the father does not justify a discharge of the [ICL] and cannot be construed … as the [ICL] being derelict in his obligations to the court or representing the interests of the child …

[31] For these reasons, I do not intend to discharge the appointment of the [ICL] …”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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