Donaghey v Donaghey (Costs)

In *Donaghey v Donaghey (Costs)*, the proceedings concerned an application by the father for costs against the mother. The dispute arose from the mother's contravention of parenting orders by withholding the parties' child and secreting their whereabouts. The father had subsequently sought orders for the recovery and location of the child, including leave to issue subpoenas. The child was located several months later. The father sought an order that the mother pay his costs of the proceedings since the contravention on an indemnity basis. The mother resisted this application and sought costs against the father, or alternatively, that the court bear the costs of both parties.

The primary legal issue before Murphy J was whether an order for costs should be made against the mother, and if so, whether such an order should be on an indemnity basis. This required consideration of the factors outlined in section 117(2A) of the *Family Law Act 1975* (Cth), particularly whether there were "exceptional circumstances" to warrant indemnity costs.

Murphy J reasoned that the mother's conduct, specifically her flagrant contravention of the parenting orders and her secretion of her and the child's whereabouts, necessitated the proceedings instituted by the father. These actions were found to constitute "exceptional circumstances" warranting an order for costs on an indemnity basis. Consequently, the mother was ordered to pay the father's costs and expenses on an indemnity basis for various applications filed by him, including the costs of his legal advisers and expenses incurred with a private investigator.