Legal Aid ACT & Westwell

In the case before the Family Court of Australia, the Legal Aid ACT sought to recover the costs of an Independent Children's Lawyer from the respondent, Ms Westwell, in family law proceedings. The primary judge had previously dismissed the application for costs, leading to this appeal by the Legal Aid ACT. The central issue in this appeal was whether the provision of a lawyer through the Family Violence and Cross Examination of Parties Scheme under section 102NA of the Family Law Act 1975 (Cth) constituted receipt of legal aid for the purposes of section 117(4) of the Family Law Act 1975 (Cth).

The court found that the term "legal aid" as used in section 117(4) was not limited to direct state-provided legal assistance but could encompass legal representation provided under the Family Violence and Cross Examination of Parties Scheme. This interpretation allowed for a broader understanding of what constituted legal aid, thereby potentially extending the scope of costs recovery. The court held that the primary judge had erred in not considering this broader interpretation and allowed the appeal on this basis.

The appeal was allowed, and the matter was remitted to the primary judge for reconsideration of the costs issue, ensuring that the correct legal framework was applied. The court did not make any orders regarding the costs of the appeal itself, leaving this aspect to be dealt with by the parties in accordance with the outcome of the rehearing.