Apostolou and Gough (Costs)

This matter concerned an application for indemnity costs by the father, Mr Apostolou, against the mother, Ms Gough. The costs application arose from earlier proceedings in the Family Court of Australia where the mother's application to vary existing parenting orders was dismissed. The father sought indemnity costs, while the mother opposed the application.

The court was required to determine whether there were circumstances justifying an order for costs against the mother, and if so, what order would be just, considering the provisions of section 117(2A) of the *Family Law Act 1975* (Cth) and Rule 19.08 of the *Family Law Rules 2004* (Cth). Key considerations included the financial circumstances of both parties, the conduct of the parties, any failure to comply with previous orders, whether a party had been wholly unsuccessful, and whether a party had made an offer to settle.

Justice Cleary found that the mother was wholly unsuccessful in her application to vary the parenting orders. The court noted that the father had made more than one offer to settle the proceedings, including an offer to discontinue the application with no orders as to costs, and a subsequent offer to discount his outstanding legal fees. The mother's failure to respond to these offers or make a counter-offer was considered a justifying circumstance for making a costs order. While the father sought indemnity costs, the court decided to significantly reduce the total amount payable due to the mother's financial circumstances and the potential adverse impact on her ability to travel with the children, and consequently, the impact on the children themselves.

Consequently, the court ordered that the mother pay the father the sum of $6,000 by way of costs within 42 days.