Farrow and Harding
[2008] FMCAfam 1128
•24 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FARROW & HARDING | [2008] FMCAfam 1128 |
| FAMILY LAW – Costs – application by Independent Children's Lawyer – no basis for application – application made under condition of grant of legal aid for Independent Children's Lawyer that costs order must be sought – abuse of process – oppressive to party from whom costs sought – need to change condition of grant of legal aid. |
| Family Law Act 1975 s.117 |
| Applicant: | MR FARROW |
| Respondent: | MS HARDING |
| File Number: | PAM 5306 of 2006 |
| Judgment of: | Halligan FM |
| Hearing dates: | 25 & 26 March & 24 September 2008 |
| Date of Last Submission: | 24 September 2008 |
| Delivered at: | Parramatta |
| Delivered on: | 24 September 2008 |
REPRESENTATION
| Applicant: | Applicant in Person |
| Counsel for the Respondent: | Ms Harris |
| Solicitors for the Respondent: | James Papas Solicitors |
ORDERS
By consent, orders are made in accordance with the terms of settlement marked exhibit A.
Otherwise, all outstanding applications are dismissed.
The mother’s solicitor shall lodge a typescript of Exhibit A and the form of order with my Associate within 7 days.
The Independent Children's Lawyer's application for costs is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Farrow & Harding is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 5306 of 2006
| MR FARROW |
Applicant
And
| MS HARDING |
Respondent
REASONS FOR JUDGMENT
An application has been made on behalf of the Independent Children's Lawyer that the father pay half of the Independent Children's Lawyer's costs in the amount of $2774.20. The application is opposed by the father.
Counsel for the Independent Children's Lawyer has not advanced any reason why such an Order should be made. In fact, the only matters mentioned by counsel for the Independent Children's Lawyer are reasons why such an Order should not be made.
It was put by counsel for the Independent Children's Lawyer that whilst the father works, under the terms of the agreement that has now been reached between the father and mother with the support of the Independent Children's Lawyer, the father will have the primary care of the children, and that the father was effectively successful in the proceedings. I note s.117 in relation to the costs application, including the relevant matters under s.117(2A).
It was put by counsel for the Independent Children's Lawyer that the costs application has been made because it is required to be made as a condition of the grant of legal aid for the Independent Children's Lawyer. I have said before in a number of cases similar to this, and I repeat, that in my view such an application is an abuse of process. I emphasise that my comment is not directed at counsel, who is bound by the instructions received.
I understand it is the practice of the Legal Aid Commission to fix as an immutable condition of the grant of aid, be it for a party or, more usually, for an Independent Children's Lawyer, that a costs application must be made.
For a party to advance an application to the Court for which there is no foundation is abusive of the process of the court and is oppressive to the party against whom the application is made. It may expose the Commission to the risk of an indemnity costs order in some cases, for example if the application needs to be adjourned, as sometimes occurs, so that the precise amount of costs sought can be calculated and the precise Order formulated or, alternatively, to give a party an opportunity to meet the application.
As I have said before when dealing with similarly unmeritorious costs applications brought as a consequence of a condition under the grant of legal aid, it is incumbent upon the Commission to change its policy. I understand what lies behind it – a desire to protect the public purse. That is entirely appropriate. To the extent to which costs may be able to be legitimately sought, if they can be recovered, it increases the funding that is available for Legal Aid, and that is of benefit to those who would seek the assistance of the Commission in Court proceedings. If it enables legal aid to be granted to more litigants, it is also of benefit to the court and other litigants, as it may reduce the incidence of unrepresented litigants.
But to bring the application as an immutable and automatic obligation, even if there is no basis for the application, is, as I have said, in my view abusive of the process of the Court, and oppressive on the parties against whom the Order is sought. In my view, the problem can easily be fixed by the condition of the grant of legal aid becoming that a costs application must be made, unless it is clear to the practitioner with the conduct of the matter before the Court that there is no basis upon which the application might legitimately be pressed. In my view, that would meet the appropriate desire of the Commission to protect its funding base and the public purse, and would not burden the court and parties with applications that have no merit.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 25 November 2008
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