WEARDEN & SCOTLAND
[2013] FMCAfam 268
•25 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WEARDEN & SCOTLAND | [2013] FMCAfam 268 |
| FAMILY LAW – Practice and procedure – whether Independent Children’s Lawyer is exempt from paying fees for the issuing of subpoenas. |
| Family Law (Fees) Regulation 2012 (Cth) reg.2.04 |
| Bennet & Carter (No.2) [2013] FMCAfam 215 Croft & Croft [2013] FMCAfam 182 |
| Applicant: | MS WEARDEN |
| Respondent: | MR SCOTLAND |
| File Number: | DGC 1698 of 2012 |
| Judgment of: | Roberts FM |
| Hearing date: | 25 March 2013 |
| Date of Last Submission: | 25 March 2013 |
| Delivered at: | Launceston |
| Delivered on: | 25 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | No appearance (by arrangement) |
| Solicitors for the Applicant: | Robin Harrison & Associates |
| Counsel for the Respondent: | No appearance (by arrangement) |
| Solicitors for the Respondent: | Grant Tucker |
| Counsel for the Independent Child’s Lawyer: | Mr P Welch |
| Solicitors for the Independent Child’s Lawyer: | Philip Welch |
ORDERS
That the Court declares that pursuant to reg.2.04(1) of the Family Law (Fees) Regulation 2012 PHILIP ANDREW WELCH in his capacity as Independent Child’s Lawyer in these proceedings is a person entitled to exemption from the payment of fees, including but not limited to exemption from payment any fees in relation to the issue of subpoenas.
IT IS NOTED that publication of this judgment under the pseudonym Wearden & Scotland is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
DGC 1698 of 2012
| MS WEARDEN |
Applicant
And
| MR SCOTLAND |
Respondent
REASONS FOR JUDGMENT
The application before the court is an Application in a Case filed by
Mr Welch, the Independent Child’s Lawyer, for an order:
That the Independent Children’s Lawyer be exempt from the payment of Subpoena fees in accordance with Regulation 2.04(1) of the Family Law (Fees) Regulation 2012.
I take that to be an application for a declaration that, in his capacity as an Independent Child’s Lawyer, he is exempt pursuant to that Regulation. There is no opposition to the application from either the applicant mother or the respondent father.
I note that Mr Welch was appointed as the Independent Child’s Lawyer pursuant to an order that I made on 28 November 2012. He filed a Notice of Address for Service on 10 December 2012, and I note also that he was also the Independent Child’s Lawyer in earlier proceedings concerning the child in question.
An issue that is causing significant angst amongst the Family Law legal community is the requirement by the Court’s administration for each Independent Children’s Lawyer (“ICL”) to pay fees that are claimed to have been imposed by the Family Law (Fees) Regulation 2012 (“the Regulation”). In general, the angst results from Registry staff requiring a sum of $50 to be paid before the issue any subpoena sought by an ICL.
Reg.2.04 of the Regulation refers to persons who are exempt from paying the prescribed fees and provides inter alia as follows:
(1) A person is exempt from paying a fee mentioned in Schedule 1 (other than the fee mentioned in item 1 or 2 of Schedule 1) if, at the time the fee is payable, one or more of the following apply:
(a) the person has been granted legal aid under a legal aid scheme or service:
(i) established under a law of the Commonwealth or of a State or Territory; or
(ii) approved by the Attorney-General;
for the proceeding for which the fee would otherwise be payable;
(b) the person is the holder of any of the following cards issued by the Commonwealth:
(i) a health care card;
(ii) a pensioner concession card;
(iii) a Commonwealth seniors health card;
(iv) any other card that certifies the holder’s entitlement to Commonwealth health concessions;
(c) the person is serving a sentence of imprisonment or is otherwise detained in a public institution;
(d) the person is younger than 18;
(e) the person is receiving youth allowance or Austudy payments under the Social Security Act 1991 or benefits under the ABSTUDY Scheme.
Further, I note that the Regulation’s Explanatory Statement reads in part as follows:
Section 2.04 – Persons exempt from paying fee – general
This section provides a fee exemption (except for an application for a divorce order or decree of nullity of marriage prescribed by fee items 1 and 2) for the same categories of persons who paid the reduced fee under regulation 11A of the Family Law Regulations and regulation 8D of the Federal Magistrates Regulations. These categories of persons are:
recipients of legal aid under a scheme or service approved by the Attorney‑General
persons holding certain concession cards
persons serving a term of imprisonment or otherwise detained in a public institution
persons aged less than 18 years, and
persons receiving youth allowance, Austudy payments or benefits under the ABSTUDY scheme.
I note also that the Regulation’s Statement of Compatibility with Human Rights contains the following:
The Regulation advances the right to access to justice by providing a fee exemption for certain disadvantaged litigants specified in the proposed Regulation or where payment of the fee would cause financial hardship to the individual. These persons will be able to access court services without paying court fees. These disadvantaged persons include recipients of legal aid, people receiving Commonwealth income support, and minors under 18 years of age.
Nothing in either the Explanatory Statement or the Statement of Compatibility suggests that ICLs will have to pay $50 for each subpoena that they request be issued in the pursuit of outcomes that are intended to be in the best interests of children.
I am aware that the Attorney-General’s Department (“the AGD”) have indicated they do not consider ICLs fall into the general fee exemption category in reg.2.04. I also aware that letters from the AGD to Legal Aid Commissions said the following:
Section 2.04(1) is intended to capture persons granted legal aid for the purpose of proceedings in which they are a party (and which will concern the rights, duties or obligations that they will or may have that are the subject of those proceedings). The subsection is not intended to extend to persons who are funded by the legal aid budget to provide services in relation to those proceedings. Further ICLs are not the child's legal representative and are not obliged to act on the child’s instructions in relation to the proceedings (s 66LA(4) FLA). The appointment of an ICL does not mean that the child becomes a party to the proceedings such that the exemption in s 2.04(1)(d) would be enlivened.
I also understand that, notwithstanding the very sound reasoning of FM Burchardt in Croft & Croft[1] and FM Harman in Bennet & Carter (No.2),[2] the AGD maintains that view to this day. Frankly, I consider that view to be plainly wrong and inconsistent with the best interests of children.
[1] Croft & Croft [2013] FMCAfam 182
[2] Bennet & Carter (No.2) [2013] FMCAfam 215
I note the following:
·The fee of $50 for issuing a subpoena is referred to at Item 19 of Schedule 1;
·All ICLs in Tasmania are persons granted legal aid by the Legal Aid Commission of Tasmania at the time of their appointment; and
·The Legal Aid Commission of Tasmania administers a legal aid scheme or schemes established under the laws of Tasmania.
Consequently, on a plain English interpretation of reg.2.04(1), it is my very firm view that any ICL seeking to have a subpoena issued is entitled to a declaration that he or she is exempt from paying the fee pursuant to that Regulation. I therefore propose to make such a declaration in this matter.
It is my very firm view that, if the AGD wishes to persist with the instruction to Registry staff to collect $50 for every subpoena issued by an ICL, then that needs to be put in plain English in an amended Regulation. I will therefore arrange for a copy of these Reasons to be forwarded to the Secretary of the Attorney-General’s Department in Canberra.
There will be a declaration in this matter that pursuant to reg.2.04(1) of the Family Law (Fees) Regulation 2012 the ICL is a person who is entitled to exemption from the payment of fees.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 25 March 2013
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