A recent appeal case in the family courts looked at the question of whether a cost-free lawyer provided to someone under the Family Violence and Cross Examination of Parties Scheme (FVCEPS) amounts to the same thing as receiving Legal Aid, for the purposes of deciding whether a costs order should be made. Under our laws, if a court is making a costs order, it needs to take into account whether the party receives Legal Aid. While parties granted Legal Aid are not usually expected to cover all their legal costs, they may still have to contribute. The question asked in this matter was, is FV cross-examination scheme “Legal Aid” for costs purposes?
Is FV cross-examination scheme “Legal Aid”?
In this case, a mother wanted to argue that her use of the FVCEPS service was the same as receiving Legal Aid. However, the appeal judges overturned the original court decision that had ruled in her favour and her matter will be remitted for rehearing on the costs issue. Here’s a quick summary of why the appeal judges said the FVCEPS service lawyer was not officially Legal Aid and therefore not a consideration when making an order for costs.
The FVCEPS scheme provides protection for parties in certain cases, to prevent the examining party from directly cross-examining the witness in cases where there is an allegation of family violence against the examining party. If certain criteria are established, the cross-examination will then have to be conducted by a legal practitioner acting for the party wishing to cross-examine.
As part of the scheme, there is a fund used to provide such legal representation if people are unable to obtain private legal representation.
In the matter Legal Aid ACT & Westwell (a court-ordered pseudonym), a primary judge had refused to make an order for costs against a mother in favour of an Independent Children’s Lawyer. The primary judge concluded that because the mother had been provided with a lawyer under the FVCEPS scheme, she had for the purposes of the legislation “received legal aid in respect of the proceedings”.
The appeal judges discussed use of the phrase “legal aid” in legislation and how the legislation referred to a formal grant of legal aid by way of grant, not “some less formal, more casual form of assistance”. They concluded there was a difference between legal assistance, such as through the FVCEPS scheme, and a grant of legal aid, even though the FVCEPS fund is administered by the Legal Aid Office of the state in which proceedings have taken place.
Otherwise, they noted, it would be hard to justify not giving the phrase “legal aid” an even wider interpretation to include “any legal assistance at all including pro bono assistance or the attendance of a ‘McKenzie’ friend”. That’s clearly not the purpose of the legislation, otherwise every self-represented litigant would ensure they took along a McKenzie friend and thereby made themselves immune to a costs orders.
For another thing, to get a lawyer through the FVCEPS scheme fund doesn’t involve means testing nor are the merits of a case assessed. This is different to the formal granting of Legal Aid funding via a recognised Legal Aid agency, which is justified by financial disadvantage.
The FVBSP scheme is designed purely for the protection of the witness party, and providing legal assistance to an examining party merely enables this. The appeal judges point out that it would be obviously “bizarre” and “intolerable” if an examining party who received the benefit of provision of a lawyer through the Scheme, would also have immunity for costs, while the alleged victim would stay liable to pay them.
The key takeaway?
Parties who are receiving the provision of a cost-free lawyer because they are an examining party taking part in the FVCEPS Scheme, must not mistakenly think that this means they are actually receiving a form of Legal Aid and that this might offer some protection against costs in a family law matter.
You can read the full judgment here.
Do you need help with a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
