Darrow and Malden & Ors (No 2)

In *Darrow and Malden & Ors (No 2)*, Rees J of the Family Court of Australia considered an application for costs following the dismissal of proceedings for want of jurisdiction. The applicant sought to have certain matters determined, but the Court found it lacked the necessary jurisdiction under the *Family Law Act 1975* (Cth).

The primary legal issue before the Court was the basis upon which costs should be awarded, particularly whether the indemnity costs sought by the respondents were appropriate. This involved determining whether the proceedings themselves, which were dismissed for lack of jurisdiction, were conducted in a manner that warranted a departure from the usual costs orders. A further issue was the application of the *Civil Procedure Act 2005* (NSW) to the determination of costs, given the proceedings were not brought under the *Family Law Act 1975* (Cth).

Rees J reasoned that the proceedings to determine jurisdiction were not proceedings under the *Family Law Act 1975* (Cth), meaning section 117 of that Act did not apply to the costs. Instead, the Court invoked section 79 of the *Judiciary Act 1903* (Cth) to apply the cost rules of New South Wales, specifically the *Civil Procedure Act 2005* (NSW). The Court found that the proceedings should not have been brought in the Family Court, demonstrating a disregard for established law, and therefore ordered the applicant to pay the second, third, and fourth respondents' costs on an indemnity basis. The first respondent was also awarded indemnity costs, but only from the date jurisdiction was raised. The Court also ordered further submissions regarding the costs, including requiring the applicant's and first respondent's former solicitors to file affidavits and submissions on the question of costs.