England and Harrisson (No. 3)

In *England and Harrisson (No. 3)*, Altobelli J considered an application by the father for costs arising from interim proceedings in a parenting dispute. The substantive proceedings involved allegations of family violence by both parties concerning their two-and-a-half-year-old child. The specific issue that led to the costs application was the mother's filing of an affidavit from the father's former wife, which the father sought to have struck out.

The court was required to determine whether the father should be awarded costs in relation to the mother's application to adduce the affidavit evidence, which was ultimately struck out by the court. The father argued that the mother's actions were not child-focused and were intended to cause him emotional harm. The court also considered the general principles governing costs in family law proceedings, particularly section 117 of the *Family Law Act 1975* (Cth), which allows for costs orders where circumstances justify it, and the presumption that parties bear their own costs.

Altobelli J found that the father's submission regarding the mother's intent was not accepted and that the circumstances did not warrant costs being awarded on an indemnity basis. The judge reasoned that it was not appropriate to make a costs order against the mother at that interlocutory stage. The court concluded that the question of whether the mother should pay the father's costs related to the affidavit and its interim hearing should be reserved for determination by the trial judge at the conclusion of the substantive proceedings. This approach would allow the trial judge to assess the merits of the mother's case, including her family violence claims, and the reasonableness of her actions in filing the affidavit within the context of the totality of the evidence.