Horn and Gabin (No 3)

In *Horn and Gabin (No 3)*, O’Reilly J of the Family Court of Australia considered an application by an independent children's lawyer for costs against the mother. The central dispute revolved around the mother's capacity to pay these costs, particularly in light of her de facto partner's financial position and the policies of Legal Aid Queensland.

The court was required to determine whether the mother had the capacity to pay the costs sought by the independent children's lawyer. This involved considering the relevance of her de facto partner's property in assessing her capacity, the enforceability of Legal Aid Queensland's policy concerning a de facto partner's contribution to such costs, and the interaction between Legal Aid Queensland Guidelines and the court's general discretion under s 117 of the *Family Law Act 1975* (Cth).

O’Reilly J reasoned that the court's discretion to award costs is independent and not bound by the policies or determinations of Legal Aid Queensland. While acknowledging Legal Aid Queensland's policy regarding de facto partners, the judge emphasised that the assessment of a party's capacity to pay must be undertaken by the court, considering all relevant circumstances, including the de facto partner's financial resources, but not solely based on the Legal Aid policy. The court ultimately found that the mother lacked the capacity to pay the costs.

Consequently, the independent children's lawyer's application for costs against the mother was dismissed.