WESTALL & VARLIA - [2013] FMCAfam 353

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WESTALL & VARLIA

[2013] FMCAfam 353

FAMILY LAW – Orders sought for a declaration in relation to the issuing of subpoenas by the Independent Children’s Lawyer – consideration of ‘a person who has been granted legal aid’ – consideration of the role of the Independent Children’s Lawyer – consideration of the Court’s access to the best evidence.

Family Law Act 1975 (Cth) s.116(C)(5)
Family Law (Fees) Regulations 2012, regs.2.03, 2.04, 2.04(1)(a), 2.11(3)

Croft & Croft [2013] FMCAfam 182
Re K (1994) FLC 92-461
Redden & Mayes & Anor [2013] FMCAfam 272

Applicant:

MR WESTALL

Respondent:

MS VARLIA

File Number:

MLC 5106 of 2012

Judgment of:

Whelan FM

Hearing date:

10 April 2013

Date of Last Submission:

10 April 2013

Delivered at:

Melbourne

Delivered on:

11 April 2013

REPRESENTATION

Counsel for the Applicant:

No appearance by or on behalf of the Applicant

Solicitors for the Applicant:

Aaron Eidelson

Counsel for the Respondent:

Mr Serra

Solicitors for the Respondent:

Richard Calley Family Lawyers Pty

Counsel for the Independent Children’s Lawyer

Ms Jenkinson

Solicitors for the Independent Children’s Lawyer

Kenna Teasdale Lawyers

ORDERS

THE COURT DECLARES:

That for the purposes of regulation 2.04(1)(a) of the Family Law (Fees) Regulations 2012 the Independent Children’s Lawyer is a person who has been granted legal aid under a legal aid scheme or service, and it is requested that the Registrar of this Court waive the fee associated with filing a subpoena in so far as it relates to the Independent Children’s Lawyer.

THE COURT ORDERS:

That in the event that a waiver of fees is not granted, pursuant to regulation 2.11(3) of the Family Law (Fees) Regulations 2012 any subpoena requested to be filed by the Independent Children’s Lawyer be allowed to be filed, notwithstanding that the filing fee has not been paid.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 5106 of 2012

MR WESTALL

Applicant

And

MS VARLIA

Respondent

REASONS FOR JUDGMENT

Background

This is an application for parenting and property orders filed by MR WESTALL (“the Husband”) on 7 July 2012. There are two children of the marriage X, born (omitted) 2007 and Y, born (omitted) 2009 (“the children”).
Material in response filed by MS VARLIA (“the Wife”) raised issues of extensive family violence – an Intervention Order naming the children was made on 20 April 2012 – as well as drug and alcohol abuse by the Husband, and referred to him having numerous criminal convictions. The Wife deposed to the older child suffering from an attention deficit disorder and the younger child being diagnosed with autism.
On 3 July 2012, an Order was made that the children be independently represented and on 9 July 2012, the Court was advised that Ms LESLIE (“Ms Leslie”) of the firm Kenna Teasdale had been appointed as the Independent Children’s Lawyer.
Interim Orders made on 10 August 2012, provided for the Husband to have supervised time with the children at a Contact Centre and for a psychiatric assessment and report on the Husband to be conducted by a psychiatrist nominated by the Independent Children’s Lawyer.
On 10 April 2013, the parties sought orders for a Family Report and for the matter to be listed for trial. The Independent Children’s Lawyer also sought that the Court make certain orders with respect to the issuing of subpoenas by the Independent Children’s Lawyer.
MS JENKINSON of Counsel (“Ms Jenkinson”) who appeared for the Independent Children’s Lawyer addressed the orders sought and referred the Court to the judgments of Burchardt FM in Croft & Croft [2013] FMCAfam 182 (“Croft & Croft”) and Lindsay FM in Redden & Mayes & Anor [2013] FMCAfam 272 (“Redden & Mayes”). At the conclusion of Ms Jenkinson’s submissions, I granted the orders sought and indicated that I would issue my reasons for judgment in due course.
I have given consideration in this matter to the decisions of Burchardt FM in Croft & Croft and Lindsay FM in Redden & Mayes.
In paragraphs [13] to [23] of his judgment, Lindsay FM sets out the relevant statutory and regulatory provisions which provide for the imposition of a fee for the issuing of a subpoena under the provisions of the Family Law (Fees) Regulations 2012 (“the Regulations”). Of particular relevance to the matter before me is reg.2.04 of the Regulations which provides:
2.04 Persons exempt from paying fee—general
(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 ASTUDY Scheme.
(2)    For paragraph (1) (b), the holder of a card does not include       a dependant of the person who is issued the card.[1]
[1] Family Law (Fees) Regulations 2012.
The issue which has arisen in this case is whether the Independent Children’s Lawyer in these proceedings is “a person who has been granted legal aid under a legal aid scheme or service”[2] as defined in reg.2.04(1)(a) of the Regulations. Unlike the proceedings before Lindsay FM, there has been no determination by the Registrar or other ‘authorised officer’ that the Independent Children’s Lawyer is not entitled to the exemption of paying the fee.
[2] Ibid.
What the Independent Children’s Lawyer seeks in this matter are the following orders:
THE COURT DECLARES THAT for the purposes of Rule 2.04(1)(a) of the Family Law (Fees) Regulations 2012 the ICL is a person who has been granted legal aid under a legal aid scheme or service, and IT IS REQUESTED that the Registrar of this Honourable Court waive the fee associated with filing a subpoena insofar as it relates to the ICL.
In the event that a waiver of fees is not granted, IT IS ORDERED that pursuant to Rule 2.11(3) of the Family Law (Fees) Regulations 2012 any subpoena requested to be filed by the ICL be allowed to be filed, notwithstanding that the filing fee has not been paid.[3]
[3] Document headed “Minute of Orders sought by ICL”.
At paragraphs [30] to [38] of his judgment in Redden & Mayes, Lindsay FM deals with the issue of the terminology used in reg.2.03 of the Regulations, in particular the use of the terms ‘person’ and ‘party’ and also deals with the capacity of the Court to appoint an Independent Children’s Lawyer and the issue of whether an Independent Children’s Lawyer is a ‘party’ to the proceedings.
I concur with his Honour’s conclusions that the issue of whether the Independent Children’s Lawyer is a party to the proceedings need not be determined as the Independent Children’s Lawyer is clearly a person who can request a subpoena to be issued. In particular, I concur with his Honour’s conclusion at paragraph [34] of Redden & Mayes that:
If the ICL (or the child himself or herself for that matter) can be taken to be a “person” (and it is difficult to discern how they would not fit that description) they would be entitled to the exemption from paying fees at the time of filing the subpoena but only provided that they have been granted legal aid under the legal aid scheme or service referred to in s.2.04(1)(a) of the Regulation.
In the matter before Lindsay FM, the relevant authority was the Legal Services Commissioner of South Australia. In this case, it is Victoria Legal Aid (“VLA”). There is no doubt however that VLA is a ‘relevant authority’ for the purposes of s.116C(5) of the Family Law Act 1975 (Cth) (“the Act”).
I accept that a body such as VLA is a “legal aid scheme or service” for the purposes of reg.2.04 of the Regulations.
Consistent with the views of Lindsay FM in Redden & Mayes and Burchardt FM in Crofts & Croft, I am satisfied that an Independent Children’s Lawyer is a person who “has been granted legal aid under a legal aid scheme or service” within the meaning of reg.2.04(1)(a) of the Regulations.
The Independent Children’s Lawyer in this matter is not asking the Court to waive the fees and I accept that the Regulations do not empower the Court to do so. Neither is the Independent Children’s Lawyer asking the Court to review a decision by the Registrar not to waive the fees. So far as I am aware, no such request has been made of the Registrar or other authorised officer. Further, the Independent Children’s Lawyer is not asking the Court to direct the Registrar to act in any particular way.
The Independent Children’s Lawyer is asking the Court to make a declaration which requires the Court to interpret the meaning of the regulation. This, I am satisfied, the Court has the power to do.
Further there is a power under reg.2.11(3) of the Regulations to allow a document to be filed even if the fee is not paid.
Reg.2.11(3) of the Regulations provides:
(3)However, the relevant court for the proceeding, or a Judge, Federal Magistrate or Registrar of that court, may allow the document to be filed or the service to be provided despite the fee, or part of the fee, not being paid.
Should the Registrar not waive the fee associated with the filing of subpoenas in this matter, I order that such subpoenas may be filed despite the fee not being paid.
This Court, in deciding whether to make a particular parenting order in relation to a child, must regard the best interests of the child as the paramount consideration. In making such decisions, the Court should act on the best evidence available.
There are well-established principles for the appointment of an Independent Children’s Lawyer.[4] In most, if not all cases where an Independent Children’s Lawyer is appointed, there will be a need for subpoenas to be issued.
[4] Re K (1994) FLC 92-461.
The provisions of reg.2.04 of the Regulations exempt persons who have been granted legal aid from paying certain fees. This is consistent with the Regulations supporting the policy that the Court should not be denied access to the best evidence because of the cost of producing such evidence.
For these reasons I make the orders as sought by the Independent Children’s Lawyer.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Whelan FM

Date: 11 April 2013