Croft & Croft [2013] FMCAfam 182 (22 February 2013)

1. On 20 February 2013 I made an order exempting the Independent Children's Lawyer ("ICL") from subpoena fees. I indicated I would give my reasons for doing so today, and I do so now.
2. I will commence by an outline only of the history of the proceeding. On 10 October 2012 the mother filed her recovery order application in relation to the three children of her relationship with the respondent: [X], born [in] 2006; [Y], born [in] 2008 and [Z], born [in] 2010. It should be noted that [Z] has serious health problems. The mother's own material revealed that the children had been living with their father since May 2012 following a separation in 2011. It is the mother's position that the children lived predominantly with her, at least until May 2012.
3. On 22 October 2012 Federal Magistrate Whelan made orders that the children live with the father and spend supervised time with the mother. On 14 November 2012 the father filed his response and affidavit. It should be noted that both parties were legally represented throughout the proceeding to this point. On 19 November 2012 the father filed a notice of abuse which can be distilled as an assertion that the mother had been suicidal and, indeed, had attempted suicide on more than one occasion, and that she had on occasions stated that she hated the children. These matters were said to give rise to risk.
4. On 20 November 2012 I made orders for the appointment of an ICL and on 28 November 2012 there was a s.11F report following which, orders were taken out on 29 November 2012 which refined the mother's time with the children. A family report was ordered and is now available. On 12 February 2013 the mother filed an amended initiating application which seeks that the children live with her and spend time with the father.
5. Both parties' lawyers have most recently withdrawn. I infer, although I do not think I have been formally told, that this is because of Legal Aid being withdrawn. Both parties are impecunious. The mother is on Centrelink benefits, and bearing in mind that the children do not live predominantly with her, her Newstart allowance is low, being some $564 per fortnight. The father is unable to work through injury. At the time of the filing of his affidavit, he was living on income insurance but I have not been given any up-to-date information as to his circumstances, save that it is clear that he is likewise impecunious.
6. Orders sought on 20 February 2013 included psychiatric assessment of both parents. Both parties have been ordered to provide the ICL with a list of mental and health professionals and hospitals they have consulted in the last seven years, which I note is about the time of the birth of the first child. I note, and this is important, that 18 such medical practitioners or hospitals have already been provided, as it were, to the ICL. Clearly, all will have to be subpoenaed. The parties, even on brief acquaintance, clearly will not have either the skill, or more importantly, the money to afford to issue subpoenas.
7. It is obvious that the ICL is the only party who can issue the 18 subpoenas, and possibly more, and it is equally obvious why exemption is sought from the payment of fees by the ICL. This is necessary because on 1 January 2013, the Family Law (Fees) Regulation 2012 commenced. Relevantly, it provides for a $50 fee for the issuing of each subpoena. I am aware that several other Federal Magistrates have exempted the ICL from the payment of fees. Federal Magistrate Curtain did so on the particular facts of the case in a matter which has not yet been anonymised or given a citation number but which I shall refer to as F & F, a decision given on 30 January 2013. I am aware that at least one other Federal Magistrate in Melbourne has provided an exemption on other grounds.
8. This brings us to regulation 2.04(1) of the Family Law (Fees) Regulation, which I will read out. Under the heading Persons Exempt From Paying Fee - General:
   • (1) A person is exempt from paying a fee mentioned in schedule 1 other than a 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.
9. It should be noted that the exemption referring to items 1 and 2 in schedule 1 is not relevant because it deals with divorce matters. Here, the order appointing the ICL made on 20 November 2012 was in standard terms. I will read them out.
   • Pursuant to section 68L(2) of the Family Law Act 1975, the children - [X], born [in] 2006; [Z], born [in] 2010; and [Y], born [in] 2008 (the children) be separately represented and it is requested that Victoria Legal Aid arrange the separate representation.
10. It should be noted that it is only in the rarest of cases that the Court orders that the ICL be funded privately and that the ICL is funded privately. I take judicial notice of the following facts which would, I believe, be universally agreed by all my family law colleagues in Victoria. First, the ICL is funded by a grant of Legal Aid. Second, in this particular case, Victoria Legal Aid ("VLA") is, in fact, the ICL. In other words, an employee of Legal Aid is the ICL. Third, VLA will not reimburse and/or pay the $50 subpoena fee. Fourth, in cases where VLA appoints an external ICL, the fees earned by the external ICL are not munificent and involve a substantial pro bono component in any event.
11. Although this case involves in-house VLA staff, as I understand it, I am well aware, as are my colleagues, that this issue is confronting and causing difficulty to my colleagues on an almost daily basis, and I propose to rule more generally. That is to say, I rule not only in the circumstances of this case where there is a VLA-employee as the ICL, but also in circumstances where there is an externally-appointed law firm.
12. In my view, whether a person has been granted Legal Aid within the meaning of regulation 2.04(1) is a question of fact in each case that arises. Nonetheless, bearing in mind that the exemption from fee liability in regulation 2.04(1) is automatic and not discretionary, unlike regulation 2.05 which deals with hardship applications, it is clear in my view that ICLs, whether in-house or external, have been "granted legal aid", those being the words of the regulation, unless the Court expressly orders the parties to fund the ICL.
13. VLA is paying for the ICL in each instance, and as a matter of ordinary English and commonsense, that means, in my view, that the ICL must be taken to be granted Legal Aid. It is for those reasons that I made the order on 20 February 2013. These reasons will be transcribed and forwarded to the parties as soon as practicable.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Burchardt FM