Bass and Bass (No 2)

The Family Court of Australia considered an application by the mother for costs orders in parenting proceedings. The mother sought costs on an indemnity basis in relation to the principal proceedings and also sought costs for a separate application by the father for a stay of proceedings pending appeal, which had been dismissed. The Court was asked to certify for Counsel in the matter.

The legal issues before the Court were whether to grant costs on an indemnity basis for the principal proceedings, and whether to award costs for the dismissed stay application. The Court was required to consider the provisions of section 117 of the *Family Law Act 1975* (Cth), including the financial circumstances of the parties, their conduct in the proceedings, whether the proceedings were necessitated by a failure to comply with previous orders, and whether any party was wholly unsuccessful.

The Court reasoned that while the father was wholly unsuccessful and his conduct had prolonged the proceedings and created new issues, an order for indemnity costs was not warranted. The Court noted that costs are compensatory, not punitive, and that the father, despite his unreasonable conduct, had a right to be heard and was pursuing his perception of his child's best interests. The Court found it just that the father contribute to the mother's costs, but determined that the quantum should be assessed by an assessor if not agreed. The application for costs of the stay application was dismissed as that application had been partially successful.

The Court ordered that the father pay 65 per cent of the mother’s costs and disbursements in the principal proceedings, as agreed or assessed. The Court also certified for Counsel in the proceedings. The application for costs of the father’s stay application was dismissed.