Who Pays for the Independent Children's Lawyer?

Imagine spending years locked in a bitter parenting dispute, then being handed a bill at the very end — not from your own lawyer, but from a lawyer the court appointed to represent your children, the independent children's lawyer (ICL). Can a judge really make you pay for that? Absolutely! We review some of the recent decisions of the Federal Circuit and the Family Court of Australia regarding the ICL's costs.

In high-conflict or complex parenting cases, the court can appoint an Independent Children's Lawyer, or ICL. The ICL doesn't take instructions from mum or dad. Their job is to form an independent view of what arrangements are in the children's best interests and to put that view before the court. ICLs are usually funded through Legal Aid, but that funding isn't always the end of the story.

Since 10 June 2025, a new Part XIVC of the Family Law Act 1975 (Cth) governs costs. Under section 114UC, the court may order each party to pay a share of the ICL's costs "in such proportion as the court considers just." Importantly, when the court is deciding this, it must ignore the fact that the ICL is government-funded.

But there is a hard limit. The court must not order a party to contribute if that party is receiving legal aid, or if paying a share would cause that party financial hardship. That hardship test is where most of these disputes are won and lost.

Three Recent Decisions

In Golly & Wolberink (No 4) [2025] FedCFamC1F 738, the ICL asked each parent to pay $17,975.16 — half of the ICL's costs each.

Both parents had privately funded six years of litigation, neither was found to be a witness of credit, and most of their proposals at trial failed. Justice Smith was blunt: the parents' conduct looked like it justified a costs order, and the judge would have preferred to impose one as a disincentive to others behaving the same way.

Yet the application was dismissed. Why? On the evidence, requiring either parent to pay would cause genuine hardship — hardship that would ultimately be felt by the three children who had already suffered through the litigation. Being short of money is not, by itself, an automatic shield. But here the conduct was not so egregious as to justify imposing real hardship.

The sprawling property and parenting dispute in Hamdan & Alzahrani (No 2) [2025] FedCFamC1F 650 reached the same destination. The father had no funds, and the mother was the sole carer of the children. The court was satisfied a contribution would cause her hardship, so the ICL's costs application was dismissed.

In the matter of Aonghuis & Aonghuis [2026] FedCFamC1F 249, after making orders that the children live with the mother and spend no time with the father, Justice Boyle turned to the ICL's costs. The father was in full-time employment, so he was ordered to pay his 50 per cent share — $8,417.75 — to the Legal Aid Commission of NSW within 42 days. The mother, recently made redundant and solely responsible for the children, was excused entirely on hardship grounds.

Notice what did the heavy lifting in all three cases. It wasn't who "won," and it wasn't who behaved worst. It was capacity to pay.

Picture two parents at the end of a parenting case. One has a steady salary; the other is unemployed and caring for the children full-time. Even if both conducted themselves poorly, a court is far more likely to order only the employed parent to contribute to the ICL's costs — and may excuse the other altogether. That is, in essence, exactly what happened in Aonghuis.

What This Means for You

If an ICL is appointed in your matter, understand that their involvement is not automatically free to the parents. You may be asked to contribute, and the court has a genuine power to order it.

That said, your financial position matters more than your conduct. A stable income makes a contribution order more likely; genuine hardship can take it off the table entirely — even where the court is unimpressed with how you ran your case.

Underpinning all of it is the children's welfare. Courts are reluctant to make costs orders that, in practice, end up punishing the very children the ICL was appointed to protect.

If you are facing parenting proceedings, or an ICL has been appointed in your matter, and you're worried about a costs bill, the team at Surge Legal can help you understand where you stand. Call us on (02) 8551 7851, contact us online or book a consultation. You can also learn more about how we assist with parenting matters.

This article is for information purposes only. It does not constitute legal advice. Please contact Surge Legal to discuss your individual circumstances.