Latest / The Post-Separation Abuse Podcast / 109. Working as intended - Part 2: What an Independent Children's Lawyer (ICL) actually is

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109. Working as intended - Part 2: What an Independent Children's Lawyer (ICL) actually is · The Post-Separation Abuse Podcast

• 0:01
  SPEAKER_00: Welcome back to the Post Separation Abuse Podcast.
• 0:04
  SPEAKER_00: I'm Danielle Black and this is part two of the series that we are calling Working As Intended.
• 0:13
  SPEAKER_00: Before we get into today's content, I want to refine two things that were covered in part one.
• 0:20
  SPEAKER_00: First, the pre 1975 sexist double standard, where a man could divorce his wife for adultery alone, but a woman needed adultery plus an additional aggravating ground.
• 0:34
  SPEAKER_00: Now that was real, but I want to be even more precise about the timing of that.
• 0:40
  SPEAKER_00: That explicit double standard was primarily in the pre nineteen fifty nine state based laws derived from the United Kingdom Matrimonial Causes Act of 1857.
• 0:55
  SPEAKER_00: By the time the Federal Matrimonial Causes Act nineteen fifty nine came into operation in nineteen sixty-one in Australia, divorce had been standardized across the country under 14 gender neutral grounds.
• 1:11
  SPEAKER_00: So by the time we got to 1975, the formal double standard had already been removed from the statutes.
• 1:19
  SPEAKER_00: That said, the broader argument still stands.
• 1:24
  SPEAKER_00: Fault-based divorce, even after 1961, remained expensive, humiliating, and gendered in practice.
• 1:33
  SPEAKER_00: It was that lived experience, not just the formal letter of the law, that the 1975 reforms were responding to.
• 1:42
  SPEAKER_00: Before we get into today's episode, you know the drill.
• 1:47
  SPEAKER_00: While you're here, you might as well be working on some regulation techniques.
• 1:52
  SPEAKER_00: So I invite you to take a deep breath, to hold it for a few moments, and then to release it slowly.
• 2:02
  SPEAKER_00: You can do that a few times if you like, if you've got time to.
• 2:06
  SPEAKER_00: It is a great habit to get into.
• 2:09
  SPEAKER_00: And when you do it over time in just the ordinary day-to-day moments, it means that when you do it at a point of crisis or at a point of dysregulation, it's going to be far more effective.
• 2:25
  SPEAKER_00: So taking that deep breath and holding it and then letting it go, making a conscious effort to unclench your hands, unclench your jaw, lift your shoulders up to your ears and then let them drop.
• 2:38
  SPEAKER_00: Allow some of the tension that might be sitting in your body to dissipate even just slightly.
• 2:44
  SPEAKER_00: Again, part of the reason why I do this at the start of each episode now is because I'm wanting these things to become part of your daily life.
• 2:53
  SPEAKER_00: We really want to be normalizing these techniques.
• 2:57
  SPEAKER_00: On with today's episode.
• 2:59
  SPEAKER_00: If you missed part one, the central thesis of this four part series is this.
• 3:06
  SPEAKER_00: The system is not broken.
• 3:08
  SPEAKER_00: It's not rigged.
• 3:10
  SPEAKER_00: It's working exactly as it was designed to.
• 3:13
  SPEAKER_00: The problem is what it was designed for.
• 3:18
  SPEAKER_00: Part one was about how family lawyers are made and what the eleven mandatory areas of study to be admitted as a lawyer in this country do not contain.
• 3:28
  SPEAKER_00: I want to start today by picking up a question that so many parents that I work with ask me at some point, albeit it can arrive in different forms.
• 3:39
  SPEAKER_00: From the parent waiting for the ICL to be appointed, hoping that finally someone in the room might be, quote, on the children's side.
• 3:47
  SPEAKER_00: From the parent who's just received the family report and can't understand how the writer reached the conclusion that they reached, from the parent looking at the contradictions between what their lawyer says and what they themselves know about their children.
• 4:02
  SPEAKER_00: The question in its most common form is this if what the research says about children's needs is true, why doesn't the person appointed to represent my children's best interests know it?
• 4:16
  SPEAKER_00: This is an absolutely reasonable question, and the answer is the same as it was for your lawyer.
• 4:23
  SPEAKER_00: These professionals were never required to learn it.
• 4:27
  SPEAKER_00: Their accreditation does not demand it.
• 4:29
  SPEAKER_00: Their ongoing professional development does not mandate it.
• 4:33
  SPEAKER_00: They are using the language of child welfare while operating from a framework that was never actually built on the science of child well-being.
• 4:44
  SPEAKER_00: Today I'm going to show you exactly what that looks like, starting with the independent children's lawyer, also known as an ICL, and ending with an argument about children's nervous systems that I don't hear anyone else making and that I think changes how you understand everything that may happen to your family inside the system.
• 5:08
  SPEAKER_00: So let's start with the ICL.
• 5:10
  SPEAKER_00: When an independent children's lawyer is appointed to a family law matter, many parents, particularly protective parents who have been fighting to be heard, they feel a wave of relief.
• 5:22
  SPEAKER_00: Finally, they think someone whose job is specifically to represent my children's interests, someone independent, someone who is there just for the kids.
• 5:34
  SPEAKER_00: I get it, I understand that feeling.
• 5:37
  SPEAKER_00: But I do need to tell you the truth about it.
• 5:40
  SPEAKER_00: An ICL is a lawyer.
• 5:42
  SPEAKER_00: That's the starting point.
• 5:44
  SPEAKER_00: They completed the same Priestly Eleven that every other Australian lawyer completed.
• 5:48
  SPEAKER_00: They have the same mandatory training base.
• 5:51
  SPEAKER_00: No family law, no child development, no attachment science, none of those things that we spoke about in part one.
• 5:59
  SPEAKER_00: To become an ICL, a lawyer must meet specific eligibility criteria.
• 6:05
  SPEAKER_00: They need five years of post-admission experience in family law.
• 6:11
  SPEAKER_00: They need to complete a national accreditation training program, which consists of two phases, an online component and a face-to-face workshop.
• 6:22
  SPEAKER_00: And they need a current working with children check.
• 6:26
  SPEAKER_00: The National ICL Accreditation Program costs around$950 in total across both phases.
• 6:34
  SPEAKER_00: Phase one is online, phase two is a face-to-face workshop.
• 6:39
  SPEAKER_00: Together they constitute specialist training that qualifies a lawyer to represent children's best interests in family court.
• 6:48
  SPEAKER_00: $950, an online module and a workshop, that is the specialist training that stands between a family lawyer and the role of representing your child's best interests in court proceedings.
• 7:02
  SPEAKER_00: Now let me tell you what's not covered in that training.
• 7:06
  SPEAKER_00: Child development, attachment science, the neuroscience of trauma, coercive control, developmental psychology, the research on what children need post separation, none of those things are mandatory components of ICL accreditation.
• 7:23
  SPEAKER_00: Research by the Australian Institute of Family Studies found that there were no uniform professional development requirements for ICLs across jurisdictions.
• 7:34
  SPEAKER_00: No uniform professional development requirements for the person appointed by the court to represent your child's best interests.
• 7:43
  SPEAKER_00: The ICL's job, as it is defined, is to provide an independent assessment of what is in the child's best interests based on their legal training, their family law experience, their review of the family report, and any conversation that they might have with your child.
• 8:00
  SPEAKER_00: They are not bound by the child's stated wishes.
• 8:03
  SPEAKER_00: They can and do make recommendations that go against what the child says that they want.
• 8:09
  SPEAKER_00: If the ICL believes that the child's wishes are, quote, not in their best interests.
• 8:15
  SPEAKER_00: The ICL's assessment of best interests is shaped by the legal training in which child development does not appear, family law experience in which ideology of contact, that is the presumption that children benefit from a relationship with both parents, is so embedded that frankly it functions as an axiom.
• 8:36
  SPEAKER_00: That is a starting assumption that's just accepted as true without any actual proof or evidence.
• 8:44
  SPEAKER_00: A baseline, in other words.
• 8:46
  SPEAKER_00: And a nine hundred and fifty dollar accreditation program with no mandatory developmental science content.
• 8:53
  SPEAKER_00: That is the independent voice appointed to represent your children.
• 8:57
  SPEAKER_00: Now something important that needs to be said here.
• 9:01
  SPEAKER_00: I'm not saying that every ICL is bad at their job.
• 9:05
  SPEAKER_00: I'm not saying that every ICL is incompetent and knows as much about child development as what I know about brain surgery.
• 9:13
  SPEAKER_00: Some ICLs are genuinely skilled, genuinely child focused, and do really important work in very complex matters.
• 9:21
  SPEAKER_00: The problem is not the individuals, the problem is the structural framework that produces and accredits them, and that framework does not require them to understand what children actually need.
• 9:34
  SPEAKER_00: Independent refers to their independence from the adult parties.
• 9:39
  SPEAKER_00: It does not mean independent expertise in child development.
• 9:44
  SPEAKER_00: Those are completely different things.
• 9:46
  SPEAKER_00: Something that I've pondered for a while is that the old family law system, the pre 1975 fault-based deeply sexer system, in which parenting was considered women's work and fathers got every other weekend, was in many ways profoundly inadequate.
• 10:05
  SPEAKER_00: It was built on the assumption that children belonged with their mothers, not because the research said so, but because society had decided that parenting was not a domain for men.
• 10:17
  SPEAKER_00: That is not child-focused thinking, that is gender role rigidity.
• 10:23
  SPEAKER_00: But here's the thing, that system built on sexist assumptions and not on developmental science accidentally produced outcomes that were far more consistent with what the attachment research would later confirm than the reformed system that replaced it.
• 10:41
  SPEAKER_00: Children's attachment systems are not egalitarian, they're not equal.
• 10:47
  SPEAKER_00: They are hierarchical.
• 10:49
  SPEAKER_00: A child has a primary attachment figure, the person whose presence most consistently regulates their nervous system, and whose absence most consistently leads to dysregulation.
• 11:03
  SPEAKER_00: In the vast majority of cases in the pre-1975 era, that person was the mother, because mothers were, on the whole, the primary caregivers, because mothers were the ones doing the school runs, the nighttime wakings, the management of any illness, the emotional attunement, the thousands and thousands of daily acts of parenting that build a secure attachment.
• 11:29
  SPEAKER_00: Every other weekend with Dad, the non-primary parent, was a contact arrangement that can look punitive to our contemporary eyes.
• 11:40
  SPEAKER_00: It can sound like it's marginalizing fathers.
• 11:44
  SPEAKER_00: And that would be unacceptable as a starting point in today's family court.
• 11:50
  SPEAKER_00: But from an attachment perspective, for a child whose primary caregiver was their mother, that arrangement protected the primary attachment relationship.
• 12:01
  SPEAKER_00: It kept the child's nervous system regulation anchor intact.
• 12:06
  SPEAKER_00: It did not require a young child to spend half their time away from the person whose presence was most essential to their felt sense of safety.
• 12:15
  SPEAKER_00: Not because anyone was actually thinking about attachment, not because anyone understood nervous system regulation or the hierarchy of attachment or what research would later show about the cost of disrupting secure primary attachment relationships, but because the sexist assumption that children belonged with their mothers happened by accident to align with what the developmental science would later confirm.
• 12:42
  SPEAKER_00: The old system was not child-focused, it was gender-focused, but its outcomes were by accident far more aligned with children's developmental needs than what replaced it.
• 12:54
  SPEAKER_00: In the decades that followed the 1975 Act, something genuinely positive happened in Australian families.
• 13:02
  SPEAKER_00: Many fathers became more actively involved in parenting.
• 13:06
  SPEAKER_00: The rigid gender roles that had confined both men and women started to loosen.
• 13:12
  SPEAKER_00: Fathers began to be present at the birth of their children, involved in early childhood, engaged in the day-to-day work of parenting.
• 13:21
  SPEAKER_00: This is real, it's meaningful, and it needs to be acknowledged.
• 13:26
  SPEAKER_00: But alongside that positive shift, something else happened.
• 13:30
  SPEAKER_00: A narrative emerged, amplified by organized fathers' rights groups and embedded in legislative reform that framed parenting time as something that both parents were owed in proportion to their involvement.
• 13:49
  SPEAKER_00: Not what does the child need, but rather I've been involved, therefore I'm entitled to time.
• 13:56
  SPEAKER_00: Parenting, the most profoundly relational act a human being can engage in, was reframed as a transaction, as a return on investment, as a contractual entitlement based on contribution.
• 14:13
  SPEAKER_00: The child became the dividend on a parenting investment.
• 14:17
  SPEAKER_00: Time became something owed to the parent rather than something given for the benefit of the child.
• 14:26
  SPEAKER_00: And what happened to the developmental science in that conversation?
• 14:30
  SPEAKER_00: Well, it was nowhere to be seen.
• 14:32
  SPEAKER_00: Surprise, surprise.
• 14:34
  SPEAKER_00: The 2006 amendments introduced a presumption of equal shared parental responsibility.
• 14:40
  SPEAKER_00: Not equal time per se, but close enough in practice that family report writers, registrars, ICLs, lawyers, mediators, the common person on the street routinely recommended arrangements that prioritized equity between adults over and above attunement to individual children's developmental needs.
• 15:03
  SPEAKER_00: Now, those amendments were repealed in 2023.
• 15:08
  SPEAKER_00: The presumption is gone, but the culture that it produced is not.
• 15:13
  SPEAKER_00: The ideology of contact, the unexamined assumption that children benefit from equal or significant time with both parents, regardless of circumstances, that a relationship with both parents trumps everything else, that is still the operating framework for many, if not most, of the practitioners in the current system.
• 15:38
  SPEAKER_00: It did not evaporate with the legislation.
• 15:41
  SPEAKER_00: It is unfortunately still so very enmeshed and woven into the professional culture.
• 15:47
  SPEAKER_00: And children's nervous systems continue to bear the cost.
• 15:52
  SPEAKER_00: Because here is what hasn't changed.
• 15:54
  SPEAKER_00: Not in 1975, not in 2006, not in 2023, not at any point in the history of Australian family law.
• 16:03
  SPEAKER_00: The architecture of a child's attachment system has not changed.
• 16:09
  SPEAKER_00: The developmental science confirming that children have a primary attachment hierarchy has not changed.
• 16:19
  SPEAKER_00: The research showing that disrupting primary attachment carries measurable lasting neurological and psychological costs has not changed.
• 16:31
  SPEAKER_00: The evidence that a young child's capacity to thrive depends on the security and the continuity of their most important attachment relationship.
• 16:41
  SPEAKER_00: That has not changed.
• 16:42
  SPEAKER_00: None of it has changed.
• 16:45
  SPEAKER_00: Because it's not legislation, it's biology.
• 16:49
  SPEAKER_00: You cannot legislate a child's nervous system.
• 16:53
  SPEAKER_00: You cannot amend their attachment hierarchy.
• 16:56
  SPEAKER_00: You cannot make a child thrive in an equal, shared, or significant care arrangement because the court has decided that both parents should be equal.
• 17:06
  SPEAKER_00: I want to be very clear that I'm not telling you all of this to make you feel hopeless.
• 17:13
  SPEAKER_00: Rather, I'm telling you this because understanding the system that you're navigating changes what you do inside it.
• 17:21
  SPEAKER_00: And it helps to give even more context about why I am regularly telling clients that they need to become the experts in their own case.
• 17:30
  SPEAKER_00: When you know that your lawyer's mandatory training contains no child development content, you have the opportunity to compensate for that gap.
• 17:42
  SPEAKER_00: You can understand the research.
• 17:44
  SPEAKER_00: You can translate the developmental science into language that the legal framework can use and can see.
• 17:52
  SPEAKER_00: You can frame your child's needs not as a parent's preference, but as an evidence-based position grounded in the literature.
• 18:02
  SPEAKER_00: When you know that the ICL's accreditation does not require expertise in attachment science, you can understand the attachment science.
• 18:12
  SPEAKER_00: You can learn how to convey this.
• 18:15
  SPEAKER_00: You can mention specific research to your lawyer, again, in language that the legal framework can see.
• 18:24
  SPEAKER_00: You can become, again, as I say so repeatedly in this work, the expert in your own case, because the reality is that the professionals around you are not required to be.
• 18:37
  SPEAKER_00: They are required to understand the law.
• 18:40
  SPEAKER_00: They are not required to understand children.
• 18:43
  SPEAKER_00: If you know that the ideology of contact, of relationships with both parents is cultural rather than evidence-based, you can challenge it, not as a hostile parent who wants to limit the other parent's involvement, but as an informed advocate who understands the difference between involvement and primary attachment.
• 19:04
  SPEAKER_00: The difference between equitable time and child-focused care arrangements.
• 19:10
  SPEAKER_00: The difference between what parents might believe they're entitled to and what children actually need.
• 19:16
  SPEAKER_00: This is the work, not the legal work, but the knowledge work, the capacity work, the work of becoming so informed, so regulated and so credible, that the gap between what the professionals know and what you know becomes impossible to ignore.
• 19:32
  SPEAKER_00: That's exactly what the post-separation parenting blueprint was built for.
• 19:36
  SPEAKER_00: That is what AI Daniel is available for at any hour.
• 19:40
  SPEAKER_00: That is what the entire ecosystem of this work is designed to support.
• 19:45
  SPEAKER_00: So if you're listening to this series and thinking that you need a structured way through this, the blueprint is it.
• 19:52
  SPEAKER_00: It's the work organized, sequenced, at your fingertips.
• 19:56
  SPEAKER_00: AI Daniel is there for the questions that arise at midnight when no humans available and the answer can't wait until morning.
• 20:04
  SPEAKER_00: These things are not supplementary, they are the infrastructure, and they're built for protective parents in exactly the situation that you are in.
• 20:13
  SPEAKER_00: The system is not going to fix itself before your matter is resolved.
• 20:19
  SPEAKER_00: Change, if it comes, is going to be slow, uneven, and not without enormous resistance from entrenched interests.
• 20:28
  SPEAKER_00: In the meantime, you are the most important variable in how your children's story unfolds.
• 20:34
  SPEAKER_00: Not the ICL, not the family report writer, not the registrar, you.
• 20:40
  SPEAKER_00: The most powerful thing a protective parent can do is become more informed than the system expects them to be.
• 20:48
  SPEAKER_00: The system didn't build in expertise on children.
• 20:52
  SPEAKER_00: But you can bring that yourself.
• 20:54
  SPEAKER_00: Another note on ICLs, and that is that when one is assigned to your case, what you can almost always guarantee is that their position is going to pretty much align with whatever is in the child impact report or the family report.
• 21:11
  SPEAKER_00: Please don't be thinking that the ICL is going to bring a completely different set of eyes to things, will see things and will understand things that maybe the report writer doesn't see.
• 21:21
  SPEAKER_00: That's not going to happen.
• 21:23
  SPEAKER_00: I would say in 99.99999% of my clients' cases, the ICL has without fail aligned with the recommendations of the report writer.
• 21:36
  SPEAKER_00: Irrespective of how off the mark those recommendations might be, irrespective of how contradictory the recommendations might be to the concerns that were raised in the body of the report.
• 21:50
  SPEAKER_00: Honestly, it's almost become a little bit of a running joke with me and some of my clients in that we actually wonder if the ICLs even read the reports or if they just skip to the Last page, and then just regurgitate word for word what the recommendations of the report are.
• 22:09
  SPEAKER_00: I say this so that you can go into this process with your eyes wide open.
• 22:15
  SPEAKER_00: Importantly, though, it's not uncommon for report writers to be given an opportunity to, quote, revise their recommendations.
• 22:24
  SPEAKER_00: These reports really are just one piece of evidence.
• 22:28
  SPEAKER_00: They can be challenged at final trial.
• 22:31
  SPEAKER_00: That's not uncommon.
• 22:33
  SPEAKER_00: Judges absolutely can decide on parenting arrangements, parenting orders that differ from the recommendations of report writers and where an ICL has been appointed.
• 22:44
  SPEAKER_00: They can even differ from the views of the ICL.
• 22:48
  SPEAKER_00: So this is not about giving up hope, but it is about going into this process with your eyes wide open.
• 22:54
  SPEAKER_00: Just because an ICL might be appointed in your case does not mean that you suddenly then don't have to be the expert in your own case.
• 23:03
  SPEAKER_00: If anything, it really enhances the need for you to.
• 23:07
  SPEAKER_00: And to get support when preparing for meeting with a report writer, because if an ICL is appointed in your case, there is going to be a real fucking echo chamber for the recommendations of that report writer.
• 23:19
  SPEAKER_00: Again, I can count on one hand the times that I have heard of an ICL disagreeing with the recommendations of a report writer.
• 23:28
  SPEAKER_00: It's just the path of least resistance.
• 23:30
  SPEAKER_00: It's the easiest thing for them to do.
• 23:32
  SPEAKER_00: And again, when they have absolutely no training or understanding of child development attachment signs, any of it, again, they're not required to.
• 23:41
  SPEAKER_00: Their understanding is the law.
• 23:42
  SPEAKER_00: Why wouldn't they agree with the recommendations of the person that has been positioned as a quote unquote expert?
• 23:51
  SPEAKER_00: There's something with all of this that I think is worth sitting with, and that is that we have a system that was built by men protecting property and moral reputation.
• 24:03
  SPEAKER_00: That was reformed in 1975 by a coalition that included a group that was motivated largely by financial resentment.
• 24:11
  SPEAKER_00: That established a training framework in 1992 that excludes family law and anything to do with children from its mandatory content.
• 24:21
  SPEAKER_00: That created a role called the Independent Children's Lawyer and accredits people to fill it with a$950 training program.
• 24:29
  SPEAKER_00: That amended its legislation in 2006 to prioritize adult equity over child developmental need, and then repealed those amendments 17 years later, leaving behind a culture it had spent two decades building.
• 24:45
  SPEAKER_00: And every day, in mediation rooms, in family report interviews, in courtrooms across Australia, parents are being told by practitioners trained in this framework that their concerns about their children are excessive, that they need to be less protective, that the research doesn't matter, that kids are resilient, they'll cope, they'll adapt.
• 25:08
  SPEAKER_00: They're not being told this because these practitioners are evil.
• 25:12
  SPEAKER_00: They're being told this because the practitioners were trained in a framework that was never designed to answer the question of what do children really need?
• 25:23
  SPEAKER_00: That question, the most important question, has been left off the list consistently.
• 25:29
  SPEAKER_00: But it's the question that you are asking every single day by being here, by doing this work, by refusing to accept that the system's inability to see what you can see means you're wrong.
• 25:42
  SPEAKER_00: You're not wrong.
• 25:43
  SPEAKER_00: The system has a huge training gap and you and so many protective parents like you are filling it for your kids, and through this work for the children of every parent who finds their way to this podcast.
• 26:00
  SPEAKER_00: And that is not a small thing.
• 26:02
  SPEAKER_00: Next week in part three, we widen the lens.
• 26:06
  SPEAKER_00: The architecture that we've been talking about here does not stop at the legal system.
• 26:11
  SPEAKER_00: The wider post-separation industry, the mediators, the family therapists, the coaches, the parenting programs, dare I say the reunification therapists, has built itself around the language of child welfare while operating from the same training gap.
• 26:30
  SPEAKER_00: Part three next week is about what the minimum standards actually look like.
• 26:35
  SPEAKER_00: The post-separation parenting blueprint is available by going to the website Danielle Blackcoaching.com.au.
• 26:44
  SPEAKER_00: AI Danielle is available anytime at any hour.
• 26:48
  SPEAKER_00: She's available on a limited basis to the public.
• 26:52
  SPEAKER_00: You can access her by going also to the website and following the relevant links.
• 26:58
  SPEAKER_00: AI Danielle is available on an unlimited basis to everyone who purchases access to the Blueprint.
• 27:06
  SPEAKER_00: You can also learn about one-on-one coaching by heading to the website.
• 27:10
  SPEAKER_00: And this podcast, all of it, is here.
• 27:13
  SPEAKER_00: Thank you so much for being here with me for this conversation.
• 27:17
  SPEAKER_00: I really do value your time.
• 27:20
  SPEAKER_00: I value the fact that you're making space for this.
• 27:24
  SPEAKER_00: I value the fact that you're becoming the expert in your own case.
• 27:29
  SPEAKER_00: That you are taking on board the reality that you may very well be the last line of defense for your children.
• 27:36
  SPEAKER_00: Thank you so much.
• 27:38
  SPEAKER_00: I look forward to chatting with you again soon.