FAMILY LAW CASE NOTES
Family Law Case Notes CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK PROPERTY – SYSTEMATIC AND CONTINUING BREACHES OF PROPERTY ORDERS WARRANTED IMPRISONMENT FOR THREE YEARS AND TEN MONTHS
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n Campbell & Louis (Sentencing) [2021] FCWA 64 (15 April, 2021) Moncrieff J considered the sentence of a de facto husband who had contravened injunctions on 14 occasions. The Court said (from [16]): “The respondent’s regard for the orders … has been limited only to his attempts at obfuscation by the use of descriptors for transactions that … suggested that his actions were not undertaken in disobedience of the orders. (…) [18] He has utilised for his own benefit funds from the superannuation fund. He has utilised for his own benefit … the property of his mother … in breach of an injunction … (…) [20] He has utilised his undoubted skill as an accountant and auditor … with a seemingly complete disregard for the impact [of] his actions … [21] He has shown no remorse and seeks to excuse his conduct … [22] … [T]he charges individually are not of significance but they form part of a collective pattern of behaviour, the focus of which can only have been to remove from the asset pool property …” The Court concluded (from [54]): “These are serious prolonged and sustained breaches of orders … Whilst I agree that imprisonment should be viewed as a last resort, I hold the view that
it is the only appropriate penalty in the circumstances … [55] … I am satisfied that an immediate custodial sentence should be imposed … [56] In other words a total served term of imprisonment of three years and 10 months … [57] … [T]he key to an early release rests in the hands of the respondent who may apply to be released upon the purging of his contempt and upon demonstrating that he has complied with all previous orders … requiring the production of accounts or information… Further, that he disclose the location of funds withdrawn … or account for their expenditure …” The Court also ordered costs fixed at $62,707.
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 s 117(4) should be given the same meaning as in s 117(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 s 117(4) does not include a reference to the provision of funding of a lawyer under s 102NA 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 s 102NA itself. … ” July 2021 THE BULLETIN
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