BENNET & CARTER (NO.2)
[2013] FMCAfam 215
•4 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BENNET & CARTER (NO.2) | [2013] FMCAfam 215 |
| FAMILY LAW – Practice and procedure – whether an Independent Children’s Lawyer is a “person” for the purpose of exemption to the filing fee for a subpoena. |
| Family Law Act 1975, ss.68L, 68LA Family Law (Fees) Regulation 2012, regs.1.03, 2.01, 2.03, 2.04, 2.05 Acts Interpretation Act 1901 (Cth) ss.15A, 15AA, 15AB |
| Bennett & Bennett (1991) FLC 92-191 Croft & Croft [2013] FMCAfam 182 |
| Applicant: | MS BENNET |
| Respondent: | MR CARTER |
| File Number: | PAC 5816 of 2012 |
| Judgment of: | Harman FM |
| Hearing date: | 4 March 2013 |
| Date of Last Submission: | 4 March 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 4 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Batey of Counsel |
| Solicitors for the Applicant: | Mcphee Kelshaw |
| Counsel for the Respondent: | Ms Cominos |
| Solicitors for the Respondent: | Cominos Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Walkden |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of NSW |
ORDERS
The proceedings are adjourned to 9.30am on 20 May 2013 for further mention directions and, if required and time permitting, possible Interim Hearing.
Pursuant to s.11F of the Family Law Act1975, the parties are directed to attend with a Family Consultant for the purpose of a further Child Inclusive Child Dispute Conference at 9.00am on 16 May 2013 and:
(a)The parties shall continue to attend at such times, dates and places as the consultant may advise;
(b)The parties and each of them shall do all things necessary to ensure the attendance of their child/ren the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;
(c)The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is a appropriate to do so, the parties) a memo outlining and reporting on:
(i)Any agreement reached between the parties;
(ii)The issues raised by the parties and which will require determination by the Court;
(iii)Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;
(iv)Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report or Part 15 experts report.
The Notice of objection to subpoena is stood over to the adjourned date.
By consent, leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant, appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.
The Court declares that it is satisfied that the Independent Children’s Lawyer is a person to whom the provisions of Regulation 2.04 apply and is thus exempt from payment of fees and thus is entitled to file subpoena without collection of any fee.
By consent, orders are made in accordance with the terms of settlement marked Exhibit ‘A’ and attached hereto.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Bennet & Carter (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5816 of 2012
| MS BENNET |
Applicant
And
| MR CARTER |
Respondent
REASONS FOR JUDGMENT
An application is made by the Independent Children’s Lawyer for leave to issue more than five subpoena and an application is also made to address payment of fees with respect to same.
These proceedings relate to parenting issues in relation to the children, [X] born [in] 1999 and [Y] born [in] 2001.
The parties to the proceedings are the parents of the subject children being their mother, Ms Bennet who is the Applicant and their father, Mr Carter, who is the Respondent.
The proceedings came before the Court on 30 January 2013 in response to an Application for Review of the Registrar’s decision. Orders were made on that day and reasons for judgment delivered with respect to the application then before the Court. Orders were also made on that day, and by consent, appointing an Independent Children’s Lawyer pursuant to section 68L of the Family Law Act 1975.
The Independent Children’s Lawyer advises the Court today that, notwithstanding that they filed a Notice of Address for Service, they have been precluded by Registry staff from filing subpoena it being suggested that they are unable to do so prior to their first appearance in the matter. Further, difficulty arises with respect to filing such subpoena in light of the fees which would be payable as a consequence of interpretation and application of the Family Law (Fees) Regulation 2012.
That Regulation provides at Regulation 2.03 as follows:
Persons liable to pay fee
(1) A fee mentioned in Schedule 1 is payable in relation to a proceeding (including an appeal) by:
(a) for the fee mentioned in item 5 of Schedule 1 (filing a response to an application) or item 9 of Schedule 1 (filing an interim order application)--the person for whom the document is filed; and
(b) for the fee mentioned in item 19 of Schedule 1 (issuing a subpoena)--the person who requests that the subpoena be issued; and
(c) in any other case--the person who commences the proceeding.
(2) However:
(a) any party to the proceeding may pay the fee; and
(b) the relevant court for the proceeding, or a Judge, Federal Magistrate or Registrar of that court, may order that another party to the proceeding is liable to pay the fee or part of the fee instead of the person mentioned in subsection (1).
The fees payable in accordance with Regulation 2.03 includes a fee payable with respect to the filing of a subpoena.
Regulation 2.04 deals with the persons who are exempt from paying fees. Regulation 2.04(a) is as follows:
Persons exempt from paying fee--general
(1) A person [emphasis added] is exempt from paying a fee mentioned in Schedule 1 (other than the fee mentioned in item 1 or 2 of Schedule 1) if, at the time the fee is payable, one or more of the following apply:
(a) the person has been granted legal aid under a legal aid scheme or service:
(i) established under a law of the Commonwealth or of a State or Territory; or
(ii) approved by the Attorney-General;
for the proceeding for which the fee would otherwise be payable;
It is germane and important to note at this point that the Regulations speak in terms of “persons” required to pay fees or who might be exempted from payment of fees rather than “parties”. It is to be remembered that the Independent Children’s Lawyer is not a party to the proceedings (see for instance, Bennett & Bennett (1991) FLC 92-191).
Within the definition provision of the Regulation, being Regulation 1.03, there is no definition of person.
Thus I am satisfied that I am entitled to accept and adopt the common English and Legal usage of that term (which would include both a natural person or individual as well as a corporation or Agency such as the Legal Aid Commission).
By reference to the above regulations and in the event that a fee is payable then it is payable by the person who seeks to file the subpoena (subject to the power in Regulation 2.03(2) to require some other person to pay the fee).
The appointment of the Independent Children’s Lawyer, whilst administered and attended to by the Legal Aid Commission (NSW) at the request of the Court, is an appointment of an individual or person. The appointment is specific and personal to the appointee and is in no way generic[1]. The individual appointed is then the subject of a grant of legal aid and whether a private practitioner or an in-house appointee.
[1] Section 68L(3) and (4) both specifically refer to the appointment of “a lawyer” to represent the interests of the child which adds further force to the personal and individual nature of the appointment and s.68LA, dealing with the role of the Independent Children’s Lawyer, further reinforces the personal and independent role of the individual appointed (for example to “form an independent view, based on the evidence available to the independent children's lawyer, of what is in the best interests of the child” being a personal obligation thus attaching to a person.
If the Regulation was intended to apply so as to require the payment of fees by the Independent Children’s Lawyer notwithstanding that they are, at least in New South Wales, always funded[2] (or almost always funded) by the Legal Aid Commission with a grant of legal aid, the Regulation providing for exemptions could clearly have been drafted so as to restrict it to a party rather than a person. On that basis, the Independent Children’s Lawyer would not have recourse to the Regulation.
[2] Subject to the emerging practice of private, consensual appointment of the Independent Children’s Lawyer – For a discussion of same see for instance “Private ICLs- So It's Come to This?” Roger Harper 27 May, 2011.
Having regard to the above I am satisfied that “person” must and should, for the purpose of Regulations 2.03 and 2.04, be interpreted to include and apply to the Independent Children’s Lawyer.
As the Regulation on its face and with application and appreciation of common usage of the words used therein is clear I am satisfied that I need not have recourse to any other document (as would be appropriate in light of the relevant provisions of the Acts Interpretation Act 1901 (Cth)) as the legislation, on its face, can be clearly interpreted and applied without the need for such explanatory memoranda or additional assistance[3].
[3] See s.15AB Acts Interpretation Act 1901
The interpretation as above is not, in any way, inconsistent with the express purpose of the Regulations[4] nor the Constitution[5].
[4] See Regulation 2.01 of the Family Law (Fees) Regulation 2012 and s.15AA of the Acts Interpretation Act 1901.
[5] See s.15A of the Acts Interpretation Act 1901.
On that basis, I am satisfied that the Independent Children’s Lawyer is a person pursuant to Regulation 2.04 who is exempt from payment of fees.
I take some comfort in the above views they are consistent with those expressed by my brothers Burchardt FM and Curtain FM in Croft & Croft [2013] FMCAfam 182 and F & F (unreported) respectively and whose jurisprudential acumen I respect enormously.
Accordingly I declare that I am satisfied that the Independent Children’s Lawyer is a person to whom the provisions of Regulation 2.04 apply and is thus exempt from payment of fees and is thus entitled to file subpoena without collection of any fee from them.
Therefore, I make orders as set out at the commencement of this Judgment.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Harman FM.
Associate:
Date: 13 March 2013
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