Croft & Croft - [2013] FMCAfam 182

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CROFT & CROFT

[2013] FMCAfam 182

FAMILY LAW – Interim ruling on application by Independent Children’s Lawyer for subpoena fee exemption – ruling that proper construction of the Family Law (Fees) Regulation 2012 means that Independent Children’s Lawyer exempt from fee – Independent Children’s Lawyer “has been granted legal aid” within meaning of Rule 2.04.

Family Law Act 1975
Family Law (Fees) Regulation 2012 rr.2.04, 2.04(1), 2.05

Applicant:

MS CROFT

Respondent:

MR CROFT

File Number:

MLC 9238 of 2012

Judgment of:

Burchardt FM

Hearing date:

20 February 2013

Date of Last Submission:

20 February 2013

Delivered at:

Melbourne

Delivered on:

22 February 2013

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Ms Teicher

Solicitors for the Respondent:

MPA Legal

Counsel for the Independent Children’s Lawyer:

Mr O’Connell

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid

IT IS NOTED that publication of this judgment under the pseudonym Croft & Croft is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 9238 of 2012

MS CROFT

Applicant

And

MR CROFT

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

On 20 February 2013 I made an order exempting the Independent Children’s Lawyer (“ICL”) from subpoena fees. I indicated I would give my reasons for doing so today, and I do so now.
I will commence by an outline only of the history of the proceeding. On 10 October 2012 the mother filed her recovery order application in relation to the three children of her relationship with the respondent: [X], born [in] 2006; [Y], born [in] 2008 and [Z], born [in] 2010. It should be noted that [Z] has serious health problems. The mother’s own material revealed that the children had been living with their father since May 2012 following a separation in 2011. It is the mother’s position that the children lived predominantly with her, at least until May 2012.
On 22 October 2012 Federal Magistrate Whelan made orders that the children live with the father and spend supervised time with the mother. On 14 November 2012 the father filed his response and affidavit. It should be noted that both parties were legally represented throughout the proceeding to this point. On 19 November 2012 the father filed a notice of abuse which can be distilled as an assertion that the mother had been suicidal and, indeed, had attempted suicide on more than one occasion, and that she had on occasions stated that she hated the children. These matters were said to give rise to risk.
On 20 November 2012 I made orders for the appointment of an ICL and on 28 November 2012 there was a s.11F report following which, orders were taken out on 29 November 2012 which refined the mother’s time with the children. A family report was ordered and is now available. On 12 February 2013 the mother filed an amended initiating application which seeks that the children live with her and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FMCAfam 182
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the case of Croft & Croft involved a dispute between Ms Croft and Mr Croft concerning the custody of their three children. The primary issue was the application by the Independent Children’s Lawyer (ICL) for an exemption from subpoena fees. The case was presided over by Federal Magistrate Burchardt, who was required to interpret the Family Law (Fees) Regulation 2012 to determine whether the ICL was exempt from the fees under the new regulation. The matter was further complicated by the financial constraints of both parties and the necessity for the ICL to issue subpoenas for the children’s medical records.

The legal issue central to the court’s decision was the interpretation of the Family Law (Fees) Regulation 2012, specifically Rule 2.04, to ascertain whether the ICL qualified for a fee exemption. Rule 2.04(1) provided an exemption from fees if the person had been granted legal aid. The court had to determine if the ICL, funded by Victoria Legal Aid, qualified as having been "granted legal aid." Magistrate Burchardt held that the phrase "granted legal aid" encompassed both in-house and external ICLs, as they are funded by Legal Aid in all but the rarest of circumstances. This interpretation aligned with the practical funding arrangements and the automatic nature of the exemption under Rule 2.04(1), as opposed to the discretionary nature of Rule 2.05.

Based on this reasoning, Magistrate Burchardt ruled that the ICL was exempt from the subpoena fees. The decision was made not only for the specific circumstances of the case but also to address a broader issue affecting other family law cases. The court found that the ICL, by being funded by Legal Aid, met the criteria for fee exemption under the regulation. Consequently, the ICL was exempt from the payment of subpoena fees, as decided on 20 February 2013 and elaborated on in the reasons provided on 22 February 2013.

Orders