Legal Aid ACT & Westwell
[2021] FamCAFC 50
•15 April 2021
FAMILY COURT OF AUSTRALIA
Legal Aid ACT & Westwell [2021] FamCAFC 50
Appeal from: Westwell and Anor & Westwell [2020] FamCA 654 Appeal number(s): EAA 119 of 2020 File number(s): CAC 1014 of 2016 Judgment of: AINSLIE-WALLACE, RYAN & ALDRIDGE JJ Date of judgment: 15 April 2021 Catchwords: FAMILY LAW – APPEAL – COSTS – Costs of the Independent Children’s Lawyer – Whether provision of a lawyer through the Family Violence and Cross Examination of Parties Scheme in accordance with s 102NA of the Family Law Act 1975 (Cth) constitutes receipt of legal aid pursuant to s 117(4) – Meaning of “legal aid” – Appeal allowed – Matter remitted on a limited basis – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII, Div 11, ss 4AB, 60CG, 67ZBA, 68L(2), 102NA, 117
Family Law Amendment Act 2003 (Cth) Sch 7, s 29A
Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Sch 5, ss 10, 11
Family Law Reform Act 1995 (Cth) s 54
Legal Aid Act 1977 (ACT)
Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (Cth)
Family Law Regulations 1975 (Cth) (repealed) reg 173(2)
Cases cited: Australian Finance Direct Ltd v Director of Consumer Affairs Victoria (2007) 234 CLR 96; [2007] HCA 57
Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36
Kline v Official Secretary to the Governor-General (2013) 249 CLR 645; [2013] HCA 52
McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633; [1979] HCA 19
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Registrar Of Titles (WA) v Franzon (1975) 132 CLR 611; [1975] HCA 41
SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51; [2002] HCA 18
Tabcorp Holdings Ltd v Victoria (2016) 90 ALJR 376; [2016] HCA 4
Visy Paper Pty Ltd v Australian Competition & Consumer Commission (2003) 216 CLR 1; [2003] HCA 59
Division: Appeal Division Number of paragraphs: 44 Date of hearing: 24 February 2021 Place: Sydney Counsel for the Appellant: Mr Kearney SC with Ms Tabbernor Solicitor for the Appellant: Legal Aid ACT The Respondent Litigant in person ORDERS
EAA 119 of 2020
CAC 1014 of 2016APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: LEGAL AID ACT
Appellant
AND: MS WESTWELL
Respondent
ORDER MADE BY:
AINSLIE-WALLACE, RYAN & ALDRIDGE JJ
DATE OF ORDER:
15 APRIL 2021
THE COURT ORDERS THAT:
1.The appeal against the refusal of a judge of the Family Court of Australia on 10 August 2020 to make an order for costs in favour of the Independent Children’s Lawyer against the respondent mother is allowed.
2.The issue of whether the respondent mother should pay the costs (or part of them) of the Independent Children’s Lawyer is remitted to the primary judge for consideration.
3.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Legal Aid ACT & Westwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, RYAN & ALDRIDGE JJ:
By Notice of Appeal filed on 19 August 2020 Legal Aid ACT (“the appellant”), on behalf of the Independent Children’s Lawyer, appeals against the refusal of a judge of the Family Court on 10 August 2020 to make an order for Ms Westwell (“the mother”) to pay the costs of the Independent Children’s Lawyer in relation to parenting proceedings. Neither Mr Westwell (“the father”) nor Ms Peake (“the maternal grandmother”) appeared in the appeal. The mother appeared but neither filed nor made written submissions and she did not seek to make oral submissions at the appeal hearing.
The mother, the maternal grandmother and the father were engaged in long running parenting proceedings. On the eve of the hearing before the primary judge, both the mother and maternal grandmother discontinued their part in the parenting proceedings. What then remained was the question of the costs of the proceedings. The father sought an order for costs against the maternal grandmother and the Independent Children’s Lawyer sought costs as against both the mother and the maternal grandmother.
The primary judge ordered the maternal grandmother to pay the father’s costs of the parenting proceedings in the sum of $31,910.
The Independent Children’s Lawyer sought an order that the mother and maternal grandmother pay her costs each in the sum of $3,938.40. The primary judge made that order against the maternal grandmother but found that he could not make that order in relation to the mother by reason of the operation of s 117(4) of the Family Law Act 1975 (Cth) (“the Act”).
The primary judge concluded that since the mother had been provided with a lawyer under the Family Violence and Cross Examination of Parties Scheme (“the Scheme”) she had, for the purposes of s 117(4)(a) “received legal aid in respect of the proceedings” and therefore could not be ordered to pay the costs of the Independent Children’s Lawyer.
The issue then is whether the provision of a lawyer through the Scheme is receipt of legal aid for the purposes of s 117(4).
The phrase “legal aid” has been used consistently in various iterations of s 117.
THE LEGAL FRAMEWORK
The Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth) (“the Amendment Act”) introduced s 102NA into the Act. The section provides protection for parties in certain cases, to prevent the examining party from directly cross-examining the witness party, in cases where there is an allegation of family violence and one of several criteria is satisfied. Where the criteria are established, the operation of the section prevents a party personally cross-examining the other and mandates that the cross-examination be conducted by a legal practitioner acting for the party wishing to cross-examine.
The Scheme established a fund which is used to provide legal representation for those who are otherwise unable to obtain private legal representation. The fund is administered by the Legal Aid Office of the state in which the proceedings take place. To be provided with a lawyer through the fund does not require means testing nor are the merits of the applicant’s case assessed.
The term “legal aid” is undefined in the Act and the Amendment Act nor is it defined in the Legal Aid Act 1977 (ACT), through which the Scheme was administered for the purposes of these proceedings.
THE MEANING OF LEGAL AID
The appellant’s primary submission was that the meaning of “legal aid” can be derived from the text of s 117 alone, having regard to the evidential purpose of each provision.
The modern approach to statutory interpretation is to commence with the text of the legislation and to attempt to give effect to the purpose of Parliament as so expressed.[1]
[1]Visy Paper Pty Ltd v Australian Competition & Consumer Commission (2003) 216 CLR 1 at [22]–[24]; Australian Finance Direct Ltd v Director of Consumer Affairs Victoria (2007) 234 CLR 96 at [34]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]–[71].
The purpose of the statute as a whole, or the relevant part of it should be considered rather than taking words in isolation.[2]
[2] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396–397; SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51 at [88]–[89].
The aim is to find the manifest purpose of the provision.[3]
[3] Bropho v Western Australia (1990) 171 CLR 1 at 20.
It is also well established that a word that is used in various sections of a provision was most likely intended to have the same meaning in each part of the provision, unless the context demands that it should be given a different meaning.[4]
[4] Registrar Of Titles (WA) v Franzon (1975) 132 CLR 611 at 618; McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 643; Kline v Official Secretary to the Governor-General (2013) 249 CLR 645 at [32]; Tabcorp Holdings Ltd v Victoria (2016) 90 ALJR 376 at [65].
Section 117 of the Act deals with the issue of costs. It is of assistance to set out here the relevant subsections:
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may… make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
…
(3)To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
(4)However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
…
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
…
(5)In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
In considering whether to make a costs order, the court is directed to take into account the considerations set out in s 117(2A). The first is the financial circumstances of the parties. The court is then to have regard to an associated matter, namely “whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant” (s 117(2A)(b)).
Whilst the phrase “assistance by way of legal aid” is capable of a wide meaning which could, for example, include pro bono assistance, it is qualified by the words that follow. A “grant” of aid and its terms are clearly intended to refer to the formal provision of legal aid by way of a grant rather than some less formal, more casual form of assistance. It is a reference to the commonly understood notion of a legal aid body or other assistance organisation, usually but not necessarily, funded by the government, which provides financial support to enable a lawyer to act for the recipient of the grant. The criteria for the provision of a grant of such aid almost always includes as a consideration, some form of financial disadvantage. The terms of the grant may vary from a direct provision of funds which are not refundable, to a conditional grant where funds may be recovered in the future, for example, by taking a charge over property and by requiring the recipient to seek a costs order from which the provided funds may be recovered.
There are many ways in which a grant of aid may be taken into account in determining whether a costs order should be made, but an obvious case is one in which both parties are legally aided, where, depending on the terms of the grant, there may be little point in making an order for costs, one against the other.
It is thus apparent that s 117(2A)(b) of the Act refers to a formal grant of funding by a legal aid body charged with that task, rather than a wider form of legal assistance. We are supported in this conclusion by the terms of the section’s predecessor, s 117(2) of the then Act, which required the court to take into account the matters set out in reg 173(2) of the Family Law Regulations 1975 (Cth) (repealed). Under that regime the Court had to consider “the availability of legal aid” (reg 173(2)(b)). The terms of the present provision are much more specific.
It is helpful to note the legislative pathway for s 117(4):
Section 117(3) and s 117(4) was originally enacted in the Act as follows:
(3)A person who has instituted a matrimonial cause or a person who is entitled to participate in proceedings either as a respondent or intervener may apply to the Australian Legal Aid Office for legal assistance under this section in respect of the proceedings.
(4)Where an application is made by a person under sub-section (3), the Attorney-General, the Director of the Australian Legal Aid Office or a person employed in the Australian Legal Aid Office authorized by the Director in writing in that behalf may (in the case of a person employed in the Australian Legal Aid Office, subject to any restriction in that authority in writing) authorize legal assistance to the applicant in accordance with the means and needs test of the Australian Legal Aid Office for the giving of legal assistance.
Pursuant to s 54 of the Family Law Reform Act 1995 (Cth), s 117(3) and s 117(4) was repealed:
54.Section 117 of the Principal Act is amended by omitting subsections (3) and (4).
Section 29A of Sch 7 of the Family Law Amendment Act 2003 (Cth) reintroduced subsection (4) to s 117 of the Act:
(4)However, in proceedings in which a child representative has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the child representative;
the court must not make an order under subsection (2) against that party in relation to the costs of the child representative.
Section 10 and s 11 of Sch 5 of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) amended s 117(4) as follows:
(4)However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
(Emphasis added)
Section 117(4) as it presently stands, applies when an Independent Children’s Lawyer has been appointed to the proceedings and a party “has received legal aid in respect of the proceedings”, which operates to shield that party from being ordered to pay the costs of the Independent Children’s Lawyer.
As s 117(5) makes plain, Independent Children’s Lawyers are “funded under a legal aid scheme or service established under a Commonwealth, State or Territory law, or approved by the Attorney-General”. Again the reference is to a recognised body providing legal aid with government funding or with its approval. Unlike in s 117(4) the reference is to “funding” rather than to legal aid.
We consider the distinction between a grant of legal aid and the provision of funding by a legal aid body to be significant. An Independent Children’s Lawyer is appointed because the Court has found it is in the best interests of the child or children the subject of the proceedings, that they be independently represented (s 68L(2) of the Act). Those best interests are not determined with regard to the financial disadvantage of the parties, but rather by looking at how the best interests of the children might best be advanced. The ability of the parties to pay for that representation, or lack thereof, does not bear on that question. Indeed, they may be wealthy enough to afford the most extravagant legal representation, but that would not affect the appointment of an Independent Children’s Lawyer.
It is a different position where one of the parties has received a grant of aid. It is inherent in the provision of that grant that there are circumstances that justify it, including, most likely, a degree of financial disadvantage.
Section 117(4) recognises the incongruity of a person under such a disadvantage, receiving funding from a legal aid agency for their benefit in the proceedings, then being ordered to pay to the same, or similar agency, the costs of the Independent Children’s Lawyer which have been provided from a different tranche of funds intended for a different purpose.
It follows that “legal aid” as it appears in s 117(4) should be given the same meaning as in s 117(2A)(b) – namely, a formal grant of aid from a recognised legal aid agency.
Therefore both s 117(4) and s 117(5) recognise that a legal aid body may receive funding for different purposes not all of which are categorised as “legal aid”, and the phrase “legal aid” is limited to the traditional meaning of legal aid as described above.
It is difficult to see what evident purpose would emerge from s 117(4) if the words “legal aid” were not given that meaning and were read more widely to include any legal assistance at all including pro bono assistance or the attendance of a “McKenzie” friend.
Returning then to the circumstances in which the provisions of s 102NA(1) apply, the examining party must not cross-examine the witness party personally and the cross-examination must be conducted by a lawyer acting on behalf of the examining party (s 102NA(2)).
The purpose of this section is evident – it is to prevent the continuation of family violence by preventing a person who has, or is likely to have had, committed family violence against the witness party, of exposing them to cross-examination at his or her hands. It is therefore for the protection of the witness party.[5] While there may be an adjacent benefit to the examining party by the provision of a lawyer, the purpose of the provision remains the amelioration of harm to the other party. The provision of legal assistance to the examining party merely provides the mechanism for doing so.
[5] Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (Cth) 1, 6 [13].
That this is so is made clear by the Explanatory Memorandum for the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (Cth) which prevents the examining party from cross-examining the witness party at all if no lawyer is provided to him or her.[6]
[6] Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (Cth) 1, 12 [37].
This consideration supports the above interpretation of the words “legal aid” by excluding any provision of a lawyer pursuant to s 102NA from its operation. In order to give practical effect to s 102NA the Commonwealth Government has entered into arrangements with the various State and Territory legal aid bodies (which are also funded by it for the provision of legal aid generally). It is legitimate to take into account this arrangement which we have already described.
By an Application in an Appeal filed on 12 February 2021, the appellant sought to adduce further evidence of documents produced by the Chief Executive Officer of Legal Aid ACT which sets out the Funding Agreement as between Legal Aid ACT and the Commonwealth Government to administer the funds necessary to implement the Scheme, a copy of the Legal Aid ACT Means and Merit Test Guidelines and a copy of the National Partnership Agreement 2020–2025 which covers the funding by the Commonwealth Government to Legal Aid ACT to be administered pursuant to the Legal Aid Act 1977 (ACT) and was executed between the Prime Minister and the Chief Ministers or Premiers of the States and Territories (“the National Partnership Agreement”). At the appeal hearing we allowed this application to further assist the understanding of the point being agitated on appeal.
The essence of that arrangement as per the National Partnership Agreement is that the Commonwealth Government gives funding to the various State and Territory legal aid bodies for them to provide lawyers to conduct cross-examination where the party is barred from directly cross-examining the other party. That is the sole criteria for the provision of any grant. It is quite different from the provision of funds by that government for the benefit of the litigant who, through disadvantage, cannot afford to be legally represented in circumstances which justify it. It is more akin to the provision of funds from the same government to the same organisations for the provision of Independent Children’s Lawyers, the sole criteria for such assistance being a request from the Court.
Although each might be described by the relevant body as a grant of aid as a matter of form, in substance, each is quite different as we have described.
In our opinion, this has been recognised by the legislature itself.
Section 117(5) of the Act, which provides that in considering any order for costs in a proceeding in which an Independent Children’s Lawyer has been appointed, requires the court to disregard the fact that the Independent Children’s Lawyer is “funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General”. It is significant that the legislature could have, but did not, use the phrase “legal aid” instead. This choice deliberately draws a distinction between legal aid and the funding of an Independent Children’s Lawyer. It indicates that “legal aid” is intended to be a reference to legal aid as understood in the traditional sense only – namely as the fund for the amelioration of the hardships of disadvantaged litigants.
So considered, the words “legal aid” have a consistent meaning throughout s 117 and sit comfortably with s 117(5) and the purpose behind s 102NA and the more general provisions of the Act relating to family violence.[7]
[7] See Pt VII, Div 11, ss 4AB, 60CG and 67ZBA of the Family Law Act 1975 (Cth).
We are therefore satisfied on balance, on a textual analysis of s 117, the reference to “legal aid” in s 117(4) does not include a reference to the provision of funding of a lawyer under s 102NA where that funding is from a legal aid body.
Further, it would be a bizarre outcome if a person who receives legal assistance by way of the provision of a lawyer under the Scheme brings with it an immunity against the costs of the Independent Children’s Lawyer to the alleged perpetrator of family violence, but the other party, the alleged victim, remains liable to pay them. Such an outcome is not consistent with the Act as a whole, with its many provisions dealing with family violence or s 102NA itself. The section, intended for the benefit of the witness party, would then be operating against them. Such an outcome would be intolerable.
We are thus of the view that the provision of legal assistance in the form of a lawyer to the mother for the purpose of cross-examination pursuant to the Scheme does not render her immune from an order that she pay the Independent Children’s Lawyer’s costs.
The appeal will therefore be allowed, and the matter remitted to the primary judge for consideration of whether the mother should be ordered to contribute to the Independent Children's Lawyer’s costs.
COSTS
The appellant did not seek an order for the mother to pay their costs of the appeal and no order shall be made.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Ryan & Aldridge. Associate:
Dated: 15 April 2021
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