Durand and Pitt and Anor

In the Family Court of Australia, Ms Pitt (the Applicant) and Mr Durand (the First Respondent) were involved in proceedings concerning the future living arrangements of two children. Mr B (the Second Respondent) was joined to the proceedings and subsequently made subject to applications for costs by Mr Durand and the Independent Children’s Lawyer. The substantive dispute concerned the care of the children following the death of their mother, with Mr B acting as the Executor and Trustee of the deceased’s estate.

The Court was required to determine whether to make orders for costs against the Second Respondent, Mr B, and if so, on what basis. Specifically, the Court considered whether Mr B's conduct warranted an order for costs in favour of Mr Durand and the Independent Children’s Lawyer, and whether such costs should be awarded on an indemnity basis. The Court also had to consider the relevant provisions of the *Family Law Act 1975* (Cth), including section 117, and the factors outlined in section 117(2A) when determining the costs application.

Collier J found that Mr B's conduct had unduly prolonged the proceedings. Mr B was wholly unsuccessful in the substantive proceedings and had failed to comply with numerous court orders and directions regarding the filing of material and submissions in response to the costs applications. The Court noted that Mr B had, despite his protestations, acted in a manner that sought to take over the conduct of significant parts of the case on behalf of the Applicant Grandmother. Applying the principles from *Penfold v Penfold* and considering the conduct of the parties under s 117(2A)(c) of the *Family Law Act*, the Court determined that an order for costs against Mr B was justified.

The Court ordered that Mr B pay Mr Durand’s costs on an indemnity basis, with specific proportions allocated to the preparation of the matter concerning Mr B, and to certain hearing days. Mr B was also ordered to pay the Independent Children’s Lawyer’s costs in the sum of $1,144.00. These costs were to be paid within a timeframe agreed by the parties, or failing agreement, within six months of assessment for Mr Durand's costs and twelve months from the date of judgment for the Independent Children’s Lawyer's costs.