Theobald and Delancy (No.4) - [2012] FMCAfam 1140

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THEOBALD & DELANCY (NO.4)

[2012] FMCAfam 1140

FAMILY LAW – Costs sought against parties by Independent Children’s Lawyer – mother previously represented by Legal Aid for a period of time – father not ‘wholly unsuccessful’.

Family Law Act 1975, s.117
Family Law Amendment Act 2003 (Cth)
Federal Magistrates Court Rules 2001, reg.21.02
Family Law Rules 2004, Chapter 19

Kest & Olsson [2012] FamCA 148
Lyris & Hatziantoniou[1998] FamCA 1311; (1998) 24 Fam LR 391; (1999) FLC 92-840
Re David (No.2) (Costs) (1998) 23 Fam LR 139; (1998) FLC 92-809
Separate Representative v JHE and GAW (1993) 16 Fam LR 485; (1993) FLC 92-376
Theobald & Delancy [2010] FMCAfam 1140
Telfer & Telfer (1996) 20 Fam LR 619; (1996) FLC 92-376

Applicant:

MR THEOBALD

Respondent:

MS DELANCY

File Number:

SYC 4104 of 2009

Judgment of:

Monahan FM

Hearing date:

13 June 2012

Date of Last Submission:

27 June 2012

Delivered at:

Sydney

Delivered on:

13 November 2012

REPRESENTATION

Counsel for the Applicant:

Mr Campton

Solicitors for the Applicant:

Meehans Solicitors

Counsel for the Respondent:

Mr Levy

Solicitors for the Respondent:

Kerrisons - The Law Firm

Counsel for the Independent Children’s Lawyer:

Ms Leis

Independent Children’s Lawyer:

Mark Whelan, Lawyer

ORDERS

Subject to any full or partial waiver granted to him by Legal Aid NSW, within three (3) months of the date of these Orders the Applicant pay the sum of $4,544.73 to Legal Aid NSW.
All extant applications before this Court be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Theobald & Delancy (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 4104 of 2009

MR THEOBALD

Applicant

And

MS DELANCY

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the appointed Independent Children’s Lawyer in this matter, MARK WHELAN (“the ICL”), in relation to his application for costs against the Applicant Father, MR THEOBALD (“the father”) and the Respondent Mother, MS DELANCY (“the mother”).
The ICL’s application for costs is opposed by both the father and the mother.

Background

The factual background to these proceedings has been previously canvassed by me in the first of three interim decisions in this matter.[1]
[1] Theobald & Delancy [2010] FMCAfam 1140, in particular, at [6] – [15].
The parties entered into final parenting and property orders by consent on 13 June 2012 (“the final orders”). All issues were resolved by the final orders except for that of the ICL’s costs.
On 13 June 2012, in addition to approving the proposed consent minutes, I made directions for the parties and the ICL to forward written submissions in relation to the outstanding costs issue.
I duly received written submissions from Mr Levy of counsel, on behalf the mother, on 13 June 2012, from Mr Campton of counsel, on behalf of the father, on 15 June 2012 and from Ms Leis of counsel, on behalf of the…

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.

Continue reading Theobald and Delancy (No.4)

Details

AGLC: THEOBALD & DELANCY (NO.4) [2012] FMCAfam 1140
Case: [2012] FMCAfam 1140
Decision Date: 13 November 2012

CaseChat Overview and Summary

Theobald and Delancy (No.4) was a case before the Federal Circuit Court, involving a dispute between the applicant, Theobald, and the respondent, Delancy. The primary issue was the reimbursement of legal costs incurred by Legal Aid NSW in representing Theobald in earlier proceedings. The Court was required to determine whether Theobald was liable to repay the legal aid costs and, if so, to what extent.

The court considered the relevant statutory provisions governing legal aid and the terms under which it is provided. The key issue was whether Theobald was required to repay the legal aid costs, taking into account his current financial circumstances and any relevant statutory exceptions. The Court assessed Theobald's capacity to repay the costs, noting that he had been assessed as having a limited ability to pay. After careful consideration, the Court found that Theobald was required to repay part of the legal aid costs, but also recognised his limited means and ordered a reduced amount.

The Court ordered that Theobald repay $4,544.73 to Legal Aid NSW within three months, subject to any waiver granted by Legal Aid NSW. All other applications before the Court were dismissed.

Orders

Orders of the court

Subject to any full or partial waiver granted to him by Legal Aid NSW, within three (3) months of the date of these Orders the Applicant pay the sum of $4,544.73 to Legal Aid NSW.

All extant applications before this Court be otherwise dismissed.

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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