Appeal from:; Westwell and Anor & Westwell

The Appeal Division of the Family Court of Australia considered an appeal by the Legal Aid Act against a Family Court judge's refusal to order costs in favour of an Independent Children’s Lawyer (ICL) against the respondent mother.

The central legal issue was whether the primary judge erred in refusing to make an order for costs in favour of the ICL against the respondent mother, and consequently, whether the respondent mother should be ordered to pay the costs, or part thereof, of the ICL.

The Court allowed the appeal, finding that the primary judge's refusal to consider an order for costs in favour of the ICL was an error. The Court reasoned that the circumstances of the case warranted consideration of an indemnity costs order, particularly concerning the manner in which the case was pursued. The Court remitted the issue of whether the respondent mother should pay the costs of the ICL to the primary judge for reconsideration. The Court made no order as to costs of the appeal itself.