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…

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 353
Decision Date: 11 April 2013

CaseChat Overview and Summary

Westall and Varlia were before the Court, which was tasked with deciding whether the Independent Children’s Lawyer (ICL) is entitled to a waiver of fees under the Family Law (Fees) Regulations 2012. The ICL, who had been granted legal aid, sought a declaration that they were exempt from paying the filing fee for subpoenas under regulation 2.04(1)(a). The alternative request, should the waiver be denied, was for permission to file subpoenas without the fee under regulation 2.11(3).

The central legal issue before the Court was the interpretation of the term "person who has been granted legal aid" in regulation 2.04(1)(a) of the Family Law (Fees) Regulations 2012, and whether this term includes the ICL. The Court considered the objectives of the Family Law Act 1975, the role of the ICL, and the regulatory framework governing the ICL's activities. It also examined the context and purpose of the regulations in determining the scope of the term "person who has been granted legal aid".

The Court found that the ICL falls within the definition of a "person who has been granted legal aid" under the relevant regulation. The Court reasoned that the ICL's role and the legislative intent behind the Family Law (Fees) Regulations 2012 support the conclusion that the ICL is entitled to the fee waiver. The Court also noted the importance of ensuring that the ICL can perform their duties without financial barriers. As a result, the Court granted the declaration requested by the ICL and, in the event that the fee waiver is not granted, allowed the ICL to file subpoenas without paying the associated fee.

Orders

Orders of the court

THE COURT DECLARES:

1. 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:

2. 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.

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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