Maluka and Maluka (Costs)

[2011] FamCAFC 187

FAMILY COURT OF AUSTRALIA

MALUKA & MALUKA (COSTS) [2011] FamCAFC 187

FAMILY LAW – APPEAL – COSTS – costs of appeal – costs certificate in favour of Independent Children’s Lawyer – consideration of s 14 of the Federal Proceedings Costs Act 1981 (Cth).

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT: Mr Maluka

RESPONDENT: Ms Maluka

INDEPENDENT CHILDREN’S LAWYER: Ms A Grant

FILE NUMBER: HBC 733 of 2008

APPEAL NUMBER: SA 77 of 2009

DATE DELIVERED: 14 September 2011

PLACE DELIVERED:

PLACE HEARD: Hobart

JUDGMENT OF: Bryant CJ, Finn and Ryan JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 24 July 2009

LOWER COURT MNC: [2009] FamCA 647

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Blissenden

SOLICITOR FOR THE APPELLANT: Blissenden Lawyers

COUNSEL FOR THE RESPONDENT: Mr T Fitzgerald with
Ms M Ryan

SOLICITOR FOR THE RESPONDENT: Ms M Ryan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr P Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Butler, McIntyre and Butler

Orders

1. That the Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.

2. That the Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by the Independent Children’s Lawyer in relation to the new trial granted by orders dated 31 March 2011.

IT IS NOTED that publication of this judgment under the pseudonym Maluka & Maluka (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT HOBART

Appeal Number: SA 77 of 2009
File Number: HBC 733 of 2008

Mr Maluka

Appellant

And

Ms Maluka

Respondent

REASONS FOR JUDGMENT

1. On 31 March 2011 we allowed an appeal by Mr Maluka (“the father”) against parenting orders made in proceedings between him and Ms Maluka (“the mother”).

2. As we accepted that the appeal should succeed on an error of law pursuant to ss 9 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) for the appeal and rehearing costs certificates were granted to the parties.

3. Because as we later explain, we were under the misapprehension that a lawyer employed by the Legal Aid Commission of Tasmania was the Independent Children’s Lawyer, there arose for consideration the question as to whether as a consequence of s 14 of the Costs Act the Court was empowered to grant costs certificates to the Independent Children’s Lawyer (“ICL”). By Order 8 of our orders made 31 March 2011 leave was given to the ICL to file written submissions in relation to this issue which we received on 18 April 2011.

4. Section 14 of the Costs Act provides as follows:

   (1)  A court is not empowered by this Act to grant a costs certificate to:

   (a)  the Commonwealth;

   (b)  a State;

   (c)  the Northern Territory;

   (d)  a person suing, or being sued, on behalf of the Commonwealth, of any State or of the Northern Territory;

   (e)  an authority of the Commonwealth, of any State or of any Territory (including the Northern Territory and Norfolk Island);

   (f)  a body corporate that has a paid-up capital of $200,000 or more; or

   (g)  a body corporate that is not a body corporate referred to in paragraph (f) but is related to such a body corporate.

   (2)  For the purposes of subsection (1), the question whether bodies corporate are related to each other shall be determined in the same manner as the question whether corporations, within the meaning of the Corporations Act 2001, are related to each other would be determined under that Act.

5. By way of background, pursuant to s 68L(2) of the Family Law Act 1975 (Cth) (“the Act”) the Court ordered the subject children be independently represented and requested the Legal Aid Commission of Tasmania to appoint the ICL. The Legal Aid Commission of Tasmania made a grant of legal aid and appointed Ms Grant of Butler, McIntyre & Butler to the role. As it transpired a lawyer employed by the Legal Aid Commission of Tasmania appeared on her behalf before us. For reasons we need not explore this occasioned some confusion and resulted in the misapprehension by us that the ICL was a lawyer employed by the Legal Aid Commission of Tasmania. This gave rise to a question whether s 14(1)(a), (b), (e) or (f) of the Costs Act precluded us from granting costs certificates.

6. Upon clarification of the identity of the ICL we agree with the submissions made on her behalf that there is no statutory barrier to the issuance of a costs certificate.  For abundant caution, we wish to make plain that as presently advised we are not troubled about the Court’s capacity to grant a certificate in favour of an ICL employed by a legal aid body.  However, because that issue did not ultimately arise it is unnecessary to further discuss this matter. 

7. In these circumstances, we are satisfied there is no impediment to the issuance of costs certificates to the ICL consistent with those previously ordered in the parties’ favour.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Ryan JJ) delivered on 14 September 2011.

Associate: 

Date:  14/9/11