WEARDEN & SCOTLAND - [2013] FMCAfam 268

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…

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 268
Decision Date: 25 March 2013

CaseChat Overview and Summary

The case of Wearden & Scotland involved a dispute under the Family Law (Fees) Regulation 2012, with Philip Andrew Welch, in his capacity as the Independent Child’s Lawyer, seeking an exemption from the payment of fees associated with the issuance of subpoenas in family law proceedings. The matter was brought before the Family Court of Australia, where the primary issue was whether the Independent Child’s Lawyer was entitled to the exemption as per regulation 2.04(1) of the Family Law (Fees) Regulation 2012.

The court had to determine whether the definition of an "independent child's lawyer" under the regulation included the entitlement to exemption from fees, including those for subpoenas. This interpretation hinged on the wording and intent of the regulation, particularly how "person entitled to exemption" was defined. The court needed to consider whether the exemption was limited to certain fees or whether it was broader, encompassing all fees associated with the lawyer's role.

The Family Court found that the regulation's language, when read in its entirety and in light of its purpose, supported a broad interpretation of the exemption. The court held that the Independent Child’s Lawyer, as defined, was indeed a person entitled to the exemption from all fees, including those for subpoenas. This interpretation aligned with the overarching aim of ensuring that independent child’s lawyers could perform their duties without financial barriers, thereby promoting access to justice for children in family law matters.

The court made a declaration that Philip Andrew Welch, in his capacity as the Independent Child’s Lawyer, was entitled to exemption from the payment of fees, including but not limited to fees in relation to the issue of subpoenas. This decision ensures that the independent child’s lawyer can carry out their responsibilities without financial impediments, facilitating the effective representation of children in family law proceedings.

Orders

Orders of the court

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.

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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