Gillen & Lindo (No 2)

The case of Gillen & Lindo (No 2) involved a dispute concerning the mother's ability to bear costs related to Independent Children's Lawyers (ICL) in family law proceedings. The matter was before the Family Court of Australia where the legal issues centred on the interpretation of a particular subsection and whether the mother's past receipt of legal aid barred the court from making a costs order against her.

The court needed to decide if the past receipt of legal aid by the mother, irrespective of whether she was currently receiving it, was sufficient to prevent the court from making a costs order against her for the ICL. This interpretation hinged on the wording of the subsection, which was unqualified and simply stated in the past tense, indicating that a past grant of legal aid was sufficient to invoke the prohibition against making a costs order. The court also had to consider the mother's financial circumstances and whether she had demonstrated that she would suffer financial hardship if ordered to pay a proportion of the ICL costs.

The court found that the mother had provided sufficient evidence to demonstrate that she had received legal aid for the proceedings, which was enough to prevent the court from making a costs order against her for the ICL. The court concluded that the past receipt of legal aid, even if no longer current, was enough to activate the subsection's prohibition. Consequently, the application for a costs order was dismissed. The court emphasised that while the mother had provided evidence of a $30,000 loan, it did not establish that the loan was for legal fees or that she would suffer financial hardship if required to contribute to the ICL costs. Therefore, the mother had not met the burden to show that the court should not make a costs order against her.