Legal Aid Commission of Tasmania & Lahey and Anor

This matter concerned an application by the Child Representative, Patrick Barry Fitzgerald, for an order that the husband and wife each pay the costs and disbursements of the Child Representative in parenting proceedings. The proceedings, which involved the children J and L, were initially commenced in Sydney in 2003, transferred to Hobart in 2004, and a separate representative for the children was appointed on 10 June 2004. The Child Representative, a legal practitioner employed by the Legal Aid Commission of Tasmania, acted for the children throughout the substantive proceedings, which were heard over nine days in late 2005. The parties themselves incurred substantial legal costs exceeding $500,000. Following a dismissed appeal by the husband, the Child Representative filed an application for costs in March 2006, which was heard on 13 March 2008. The parties agreed that the total costs of the Child Representative amounted to $28,351.00, and the application sought an order for each party to pay $14,175.50.

The legal issues before the Court were whether to make a costs order against the husband and wife for the costs of the Child Representative, and if so, in what amounts. Specifically, the Court had to consider the application of section 117 of the Family Law Act 1975 (Cth) and the general rule that each party bears their own costs, subject to exceptions under section 117(2). The parties submitted that circumstances justified considering a costs order under section 117(2A). The husband consented to an order for costs against him. The wife opposed the order, primarily on the grounds that the funds paid to the Legal Aid Commission might not be used for further proceedings and would therefore revert to consolidated revenue, and secondly, concerning her financial circumstances.

Benjamin J reasoned that the amendments to sections 117(3), (4), and (5) of the Act did not apply to these costs applications, which were determined under section 117. The husband consented to the costs order. While the wife initially argued against the order based on her financial circumstances, she did not press this submission. Her other ground of opposition, concerning the use of funds by the Legal Aid Commission, was not a basis to refuse a costs order. The Court found that the financial circumstances of both the husband and wife justified making a costs order. Consequently, the Court ordered the respondent husband and the respondent wife to each pay the costs and disbursements of the Child Representative, fixed at $14,175.50, with such payments to be directed to the Legal Aid Commission of Tasmania within sixty days. The application was then removed from the list of cases requiring determination.