Redden and Mayes and Anor - [2013] FMCAfam 272

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REDDEN & MAYES & ANOR

[2013] FMCAfam 272

FAMILY LAW – ICL informed by registry of the Court that he is obliged to pay fee prescribed by the Regulation in respect of the issue of subpoenas at his request – application to Court to order or direct or declare that ICL exempt from payment of such fees – whether Court has power to make such an order – application refused.

Family Law Act 1975, ss.4, 37, 39, 65, 68, 116
Federal Magistrates Act 1999, ss.90, 102, 103, 104, 120
Family Law (Fees) Regulation 2012, Part 2, Sch 1, regs.1.03, 2.02, 2.03, 2.04, 2.05, 2.11 & 2.14
Federal Magistrates Court Rules, r.1.05
Family Law Rules 2004, r.8.02
Federal Court Rules O 46 r.7A
Administrative Decisions (Judicial Review) Act 1977

Croft & Croft [2013] FMCAfam 182
Bennet & Carter (No.2) [2013] FMCAfam 215
Re: P(a child); Separate Representative (1993) FLC 92-376
Bennet & Bennet (1991) FLC 92-191
Urquhart & Urquhart (1982) FLC 91-206
The Marriage of Heard & De Laine 20 Fam LR 315
Myers & Myers [2011] FMCAfam 1104
Vibbard & Garcia [2012] FAMCAFC 114
Bizuneh v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCAFC 42
Letts v The Commonwealth (1985) 8 FCR 585
Satchithanantham v National Australia Bank Limited [2010] FCAFC 47
Manalakis v District Registrar, South Australia District Registry, Federal Court of Australia [2008] FCAFC 162
Rahman v Hodge [2012] FCA 68
Rosson v Tesoriero [2011] FCA 449

Applicant:

MR REDDEN

First Respondent:

MS MAYES

Second Respondent:

INDEPENDENT CHILDREN'S LAWYER

File Number:

ADC 1418 of 2012

Judgment of:

Lindsay FM

Hearing date:

7 March 2013

Date of Last Submission:

7 March 2013

Delivered at:

Adelaide

Delivered on:

27 March 2013

REPRESENTATION

Counsel for the Applicant:

Ms West

Solicitors for the Applicant:

Ian Charman

Counsel for the First Respondent:

Mr Finlayson

Solicitors for the First Respondent:

Allen Burtt Legal Services

Counsel for the Independent Children’s Lawyer:

Mr McQuade

Solicitors Independent Children’s Lawyer:

Adey Lawyers

ORDERS

The oral application of the Independent Children’s Lawyer on 7 March 2013 for a declaration or ruling or order that the Independent Children’s Lawyer be exempt from the payment of the prescribed fee when causing a Registrar of the Court to issue a subpoena on his behalf is refused.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 1418 of 2012

MR REDDEN

Applicant

And

MS MAYES

First Respondent

INDEPENDENT CHILDREN'S LAWYER

Second Respondent

REASONS FOR JUDGMENT

These are parenting proceedings conducted pursuant to Part VII of the Family Law Act 1975 (“the Family Law Act”). They commenced on 17 April 2012. The trial commenced before me on 21 January 2013 and was adjourned part-heard on 22 January 2013.
When adjourning the matter I made an appointment pursuant to s.68L of the Family Law Act for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FMCAfam 272
Decision Date: 27 March 2013

CaseChat Overview and Summary

The case before the Court involved an application by the Independent Children’s Lawyer, who sought a declaration that they were exempt from paying the prescribed fee when issuing a subpoena through the Registrar of the Court. This application arose from a broader family law matter concerning the welfare and care of children. The Court was required to determine whether the Independent Children’s Lawyer was indeed exempt from such fees and whether the statutory provisions governing their duties and rights warranted such an exemption.

The Court examined the statutory framework governing the role and responsibilities of the Independent Children’s Lawyer, specifically focusing on the provisions that outlined their functions and the fees associated with their activities. It was noted that while the Independent Children’s Lawyer had certain duties and powers to ensure the best interests of children in court proceedings, the legislation did not explicitly state that they were exempt from paying fees for subpoenas issued through the Registrar. The Court also considered the principle of equality before the law, which suggested that the same rules should apply to all parties unless a specific exemption is clearly provided.

After considering the statutory provisions and the arguments presented, the Court ruled that the Independent Children’s Lawyer was not exempt from the payment of the prescribed fee when causing a Registrar to issue a subpoena. The Court found that the absence of explicit statutory exemption supported the requirement for the Independent Children’s Lawyer to adhere to the same fee payment rules as other parties involved in the proceedings. Consequently, the Court dismissed the application, confirming that the Independent Children’s Lawyer was not exempt from the prescribed fee in these circumstances.

Orders

Orders of the court

1. The oral application of the Independent Children’s Lawyer on 7 March 2013 for a declaration or ruling or order that the Independent Children’s Lawyer be exempt from the payment of the prescribed fee when causing a Registrar of the Court to issue a subpoena on his behalf is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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