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Costs – provision of a lawyer through the Family Violence and Cross-examination of Parties Scheme is not legal aid, such that the recipient is still exposed to the costs of an ICL

In Legal Aid ACT & Westwell [2021] FamCAFC 50 (15 April 2021) the Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) heard Legal Aid ACT’s appeal from Gill J’s refusal to make an order for costs in favour of the independent children lawyer (ICL).

The mother discontinued parenting proceedings but a costs order was not made, as her lawyer was provided under the Family Violence and Cross-examination of Parties Scheme, which the court said was “legal aid in respect of the proceedings”.

The Full Court said (from [22]):

“Section 117(4) … applies when … a party ‘has received legal aid in respect of the proceedings’, which operates to shield that party from being ordered to pay the costs of the [ICL]. (…)

[24] … An [ICL] is appointed because the Court has found it is in the best interests of the child … Those best interests are not determined with regard to the financial disadvantage of the parties, but rather by looking at how the best interests of the children might best be advanced. The ability of the parties to pay for that representation … does not bear on that question… (…)

[27] It follows that ‘legal aid’ as it appears in s117(4) should be given the same meaning as in s117(2A)(b) – namely, a formal grant of aid from a recognised legal aid agency. (…)

[40] We are therefore satisfied … the reference to ‘legal aid’ in s117(4) does not include a reference to the provision of funding of a lawyer under s102NA where that funding is from a legal aid body.

[41] … [I]t would be a bizarre outcome if a person who receives legal assistance … under the Scheme brings with it an immunity against the costs of the [ICL] to the alleged perpetrator of family violence, but the other party … remains liable to pay them. Such an outcome is not consistent with the Act as a whole, with its many provisions dealing with family violence or s102NA itself…”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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