Fermikis & Fermikis (No 2)
[2025] FedCFamC1F 58
•11 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fermikis & Fermikis (No 2) [2025] FedCFamC1F 58
File number(s): CAC 223 of 2023 Judgment of: CARTER J Date of judgment: 11 February 2025 Catchwords: FAMILY LAW - CONTRAVENTION – Sanctions – Whether the mother should be sanctioned under subdivision E or subdivision F of Division 13A Part VII of the Family Law Act 1975 (Cth) – Where each of the four counts are sanctioned under subdivision F because they occurred while the mother was already serving bonds in relation to proven contraventions in earlier proceedings – Where the mother is to attend a serious of appointments with a counsellor as a condition of four further bonds – Where the mother is to pay the father’s costs of the contravention proceedings on a party-party basis to be assessed – Where the mother is to pay the father compensation for his expenses. Legislation: Family Law Act 1975 (Cth) ss 67, 70, 117
Family Law Amendment Act 2023 (Cth)
Cases cited: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
D & D (Costs) (No. 2) (2010) FLC 93-435
Kohan v Kohan (1993) FLC 92-340
Limousin & Limousin (Costs) (2007) 38 Fam LR 478
McClintock & Levier (2009) FLC 93-401
Munday v Bowman (1997) FLC 92-784
Yunghanns v Yunghanns (2000) FLC 93-029
Division: Division 1 First Instance Number of paragraphs: 47 Date of hearing: 29 January 2025 Place: Melbourne Counsel for the Applicant: Mr Whitfield Solicitor for the Applicant: Robinson + McGuinness Family Law Counsel for the Respondent: Mr Strong Solicitor for the Respondent: Legal Aid Victoria ORDERS
CAC 223 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FERMIKIS
Applicant
AND: MS FERMIKIS
Respondent
ORDER MADE BY:
CARTER J
DATE OF ORDER:
11 FEBRUARY 2025
THE COURT ORDERS THAT:
1.By no later than 4.00 pm on 25 February 2025 the mother shall enter into the following bonds:
(a)in respect of the contravention that occurred on 11 December 2022, for a period of six months on the conditions that:
(i)the mother comply with all current and future parenting orders; and
(ii)the mother attend upon her counsellor for a minimum of six occasions, for parenting education, at the mother’s expense.
(b)in respect of the contravention that occurred on 27 December 2022 for a period of six months on the conditions that:
(i)the mother comply with all current and future parenting orders; and
(ii)the mother attend upon her counsellor for a minimum of six occasions, for parenting education, at the mother’s expense.
(c)in respect of the contravention that occurred on 28 December 2022 for a period of six months on the conditions that:
(i)the mother comply with all current and future parenting orders; and
(ii)the mother attend upon her counsellor for a minimum of six occasions, for parenting education, at the mother’s expense.
(d)in respect of the contravention that occurred on 16 January 2023 for a period of six months on the conditions that:
(i)the mother comply with all current and future parenting orders; and
(ii)the mother attend upon her counsellor for a minimum of six occasions, for parenting education, at the mother’s expense.
with such bonds to be served concurrently and NOTING THAT a total of six counselling appointments are required.
2.Prior to the mother’s first appointment with her counsellor pursuant to the bonds she provide the counsellor with:
(a)a copy of the reasons for judgment of Gill J dated 30 September 2021;
(b)a copy of the reasons for judgment of Carter J dated 19 December 2024; and
(c)a copy of these reasons for judgment.
3.The mother make an appointment to attend the Brisbane Registry of the Federal Circuit and Family Court of Australia during Court hours no later than 25 February 2025 to enter into the bonds pursuant to Order 1 herein, with the mother to make such appointment by contacting the Registry by email.
4.The father has liberty to apply in the event the mother fails to enter the bonds pursuant to Order 1 herein.
5.The mother pay the father the sum of $1,155.81 by way of compensation pursuant to section 70NFB(2)(f) of the Family Law Act 1975 (Cth).
6.The application by the father that the mother pay indemnity costs is dismissed.
7.The mother pay the father’s costs of these contravention proceedings incurred prior to the grant of aid pursuant to the cross examination scheme as agreed and failing agreement, as assessed.
8.For the purposes of the payments pursuant to Orders 5 and 7 herein the monies payable by the mother to the father are to be secured against the mother’s interest in the proceeds of sale of the property located at K Street, Suburb L, and currently held on trust by TT Solicitors for the parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
On 19 December 2024 I delivered reasons in which I found that the mother had contravened the orders of 2 December 2022 and those of 30 September 2021 on four separate occasions. The matter was adjourned for further hearing as to submissions as to the appropriate sanctions.
There was some dispute as to whether I should have regard to the reasons for judgment of Senior Judicial Registrar Evans who made orders on 2 December 2024 suspending Orders 3 to 7 of the orders made 30 September 2021. Those are the orders pursuant to which the children are to spend time with the father. Counsel for the mother also proposed that I have regard to the information provided by the child protection and the police pursuant to s 67ZBE of the Family Law Act 1975 (Cth) (“the Act”) in October and November 2024.
I do not regard those reasons or documents as relevant to the question of sanction in relation to contraventions that occurred in late 2022/early 2023.
WHICH SUBDIVISION?
As observed in my earlier judgment, the provisions of the Family Law Amendment Act 2023 (Cth) (“the Amendment Act”) are not applicable as the contraventions occurred between December 2022 and January 2023.
Part VII Division 13A of the unamended Act sets out two regimes for sanctions where the Court has found a party to have contravened an order without reasonable excuse. Subdivision E deals with less serious contraventions. These are set out to be matters in which the respondent has not previously been sanctioned for contravening an order, or in circumstances where the Court determines that it is more appropriate to deal with the matter under this subdivision.
Subdivision F deals with more serious contraventions. This subsection is enlivened if the respondent has previously been found to have contravened an order without reasonable excuse and a sanction has been imposed. If that is the case, the Court has a discretion to determine whether to deal with the matter under subdivision F or E.
However, the Court cannot make orders under subdivision E in the event the respondent has behaved in a way that shows a serious disregard for his or her obligations under the primary order.
Clearly in this matter the mother has been previously found to have contravened orders without reasonable excuse. She was required to enter into three separate bonds, with surety by way of sanction. She entered those bonds on 7 December 2022.
Regrettably, this did not secure her compliance with the orders.
It was the contention of the father that the mother’s non-compliance showed a serious disregard for the orders and accordingly subdivision E does not apply. It was further argued that in circumstances where the mother has already entered into three bonds with surety that the only appropriate sanction is that of imprisonment, with a period to be served and the balance to be suspended. The father also sought his costs on an indemnity basis and reimbursement for his travel costs thrown away.
It was the contention of the mother that she had not shown a serious disregard for the orders. Rather she had brought the children to the point of changeover – which had not been the case in relation to the earlier contraventions. It was asserted the appropriate sanction was for her to attend a post-separation parenting program, as a therapeutic and educative approach was more likely to secure compliance in the future.
I am satisfied that this is not a matter more appropriately dealt with under subdivision E and instead is more appropriately dealt with under subdivision F for the following reasons:
(a)the mother has already been found to have breached the primary orders without reasonable excuse;
(b)on 2 December 2022 Gill J required the mother to enter into three separate bonds following her contraventions of the orders on 19 and 20 February 2022, 19 and 20 March 2022 and 24 April 2022. The mother did enter into those bonds. It was a condition of each of those bonds that she comply with the orders of this Court;
(c)the orders of his Honour made on 2 December 2022 included an order varying the primary orders so that the children would spend time with the father on 10 and 11 December;
(d)those orders also included compensatory time – providing for the children to spend five consecutive daytime visits with their father, commencing on 27 December 2022;
(e)the contraventions proved occurred on 11 December 2022, 27 December 2022, 28 December 2022 and 16 January 2023. The first of those contraventions occurred less than two weeks after the matter had been heard and determined by Gill J – and just four days after the mother had entered into the bonds. There was no evidence that anything substantial occurred after the making of the orders on 2 December 2022 that could in any way justify or explain the breach of the orders;
(f)the mother inappropriately involved the children in the ongoing parental conflict at the changeover location; and
(g)all four contraventions proved occurred when the mother was already serving bonds with the condition that she comply with orders of this Court.
SANCTIONS
Counsel for the father asserted the appropriate sanction would be:
(a)to impose a sentence of imprisonment on the mother – partially to be served immediately, and partially to be suspended;
(b)to make an order that the mother pay the father’s costs on an indemnity basis; and
(c)to make an order that the mother pay the father the sum of $1,306.77 by way of compensation for expenses lost as a result of the mother’s contravention.
As to incarceration, I reject that as being disproportionate, and moreover, a heavy-handed way in which to secure compliance.
Bond
Rather, I am of the view that it is appropriate in relation to each of the contraventions that the mother be required to enter into bonds pursuant to s 70NFE(4) of the Act for six months with the following conditions:
(a)that the mother be of good behaviour for the duration of the bond, which shall include compliance with all existing and future orders made between the parties under the Act; and
(b)the mother forthwith attend upon her counsellor for a minimum of six occasions, at the mother’s expense, with the mother to first provide the counsellor with:
(i)a copy of the reasons for judgment of Gill J dated 30 September 2021;
(ii)a copy of the reasons for judgment of Carter J dated 19 December 2024; and
(iii)a copy of these reasons.
These will be without security or surety.
In my view this is appropriate in relation to each count as:
(a)each of the counts involved the mother failing to make reasonable attempts to comply with the order substantially by taking insufficient steps to positively encourage the children to attend;
(b)in relation to count 2, the mother did not ensure Z’s attendance at the changeover location;
(c)in relation to count 3, the mother actively undermined the changeover, made complaints about the father in front of the children and placed the children in the centre of the dispute by asking them again in front of their father, whether they wanted to go with him;
(d)in relation to count 4, again the mother placed the children in the centre of the parental dispute by asking them if they wanted to leave with their father on several occasions. She made no attempt to positively encourage them to leave; and
(e)in relation to count 5, again the mother actively undermined the changeover. She mischaracterised the father’s comments as ‘threats’ – in front of the children and again asked the children whether they wish to go with their father. She also referred to the father “threatening” her with jail in front of the children.
The mother appeared to have no insight into how her behaviour and comments could impact on and influence the children. It is hoped that focussed counselling will assist her to modify her behaviour, develop strategies that will ensure compliance and better support the children to spend time with their father if and when time is reinstated.
The bonds will be for six months which will give the mother ample time to attend upon her counsellor for six sessions for parenting education.
The bonds will be served concurrently – and accordingly the mother is required to attend upon her counsellor for a total of six sessions within that six month period, not six sessions per bond. As indicated, the counsellor must first have the reasons of this Court so that the counsellor can understand the purpose of the mother’s appointments.
As is required, before imposing a condition under this subsection I have considered seeking the advice of a family consultant as to the services that would be appropriate for the mother’s needs. I do not regard that as necessary in circumstances where the mother has already engaged with a counsellor who can be provided with the judgments of Gill J and myself.
I see no utility in placing the mother in jail at this time for a number of reasons. First, she is the children’s primary care giver. The current orders for the children to spend time with their father are suspended and accordingly they would need to be cared for by a non-parent during any period of incarceration. There is also a real risk that any such order would be counterproductive in terms of the children’s relationships with their father. It would be extremely distressing and confusing for them – and would likely impact on the children’s willingness to spend time with him if they formed the view that their father had been instrumental in their mother’s detention.
Secondly, the emphasis of contravention proceedings and the imposition of sanctions is to enforce compliance with orders – with the thrust of Division 13A being on coercive rather than punitive dispositions. This was discussed by the Full Court in separate judgments in the matter of McClintock & Levier (2009) FLC 93-401. In that judgment Justice Finn J remarked at [50] and [51]:
The words “punish” or “punishment” are not found in Div 13A other than in s 70NFH, which is concerned with the operation of other laws which may apply to the act or omission which constitutes a contravention for the purposes of Div 13A, and in particular with ensuring that a person is not “punished” twice in respect of the same act or omission.
I accept that the use of the concept of “punishment” in s 112AP and the virtual absence of that concept from Div 13A is a sufficiently important distinction between the two sets of provisions such that it must have some significance.
Justice Coleman observed at [156]–[158]:
In my view, given the coercive nature of proceedings under Div 13A, it cannot be assumed, in the absence of a clear basis for doing so, that broader considerations such as ensuring that an offender was “adequately punished for the offence in a way that is just and appropriate”, preventing crime by deterring the offender and other people from committing the same or similar offences, and protecting the community from the offender, are relevant to the exercise of such discretion.
As noted earlier, learned Counsel for the father sought by reference to the decision of the High Court in Witham (above) to argue that, whether punishment was imposed for coercive or punitive reasons, it remained “punishment”. It was thus submitted that there is no basis for suggesting that the sentencing principles in the exercise of discretion in coercive and punitive proceedings differed. I do not accept that such a conclusion follows from or can be read into the decision of the High Court in Witham (above). As Brennan, Deane, Toohey and Gaudron JJ said in Witham (at CLR 549–50 ; at ALR 420) the case turned on the standard of proof which was applicable. It does not in my view follow that because the outcome of coercive and punitive proceedings may be the same in terms of the “punishment” determined, that the outcomes are necessarily reached by reference to the same principles, or in pursuance of the same objectives.
Whilst I accept that the learned Federal Magistrate was entitled to have regard to relevant sentencing principles or guidelines, I am unable to accept that his Honour was entitled to have regard to ensuring that the mother was “adequately punished” (our emphasis) in a way that was “just and appropriate”, to prevent “other people from committing the same or similar” breaches, to “protect the community” from the mother, or, other than for the purposes of procuring compliance of the court’s orders, “to denounce the conduct” of the mother.
Justice Cronin J set out at [230]–[237]:
In my view, there is a distinction between the coercive and punitive provisions of the Act.
It is helpful to compare Div 13A of Pts VII-XIIIA and XIIIB. Section 70NAA(1) deals with the power of a court to make orders to enforce compliance with orders affecting children. Part XIIIA specifically refers to “sanctions” and importantly, empowers a court in exercising its “additional sentencing alternative” to apply State or Territory laws with respect to certain sentences. Whilst there are certain similarities of language between ss 70NFC and s 112AG(5), the distinction is clear between the coercive nature of the orders in Div 13A and the punitive orders in Pt XIIIA.
Similarly, the language of Pt XIIIB relating to contempt of court could not be a more stark way of contrasting the intention of the Legislature. Section 112AP(2) empowers a court to punish a person for contempt. There is no reference to punishment in Div 13A.
The focus of a court therefore in dealing with a contravention application under Division 13A must be in making orders which will enforce future compliance with its orders.
For a court to decide to punish a party who has been found to have contravened an order for the purposes of making other like-minded persons comply with orders relevant to them, in other words, to make an example of them, would be an error of law.
Counsel for the mother was critical of [the judge] for his reference to the ACT sentencing legislation but it will be seen from his Honour’s reasons that he was simply seeking some guidance as to what relevant factors should be applied to determine what is an appropriate way to encourage compliance with court orders. Without any other legislative guide in Div 13A, I see no reason why a court cannot inform itself by any number of considerations in the exercise of its discretion providing those considerations are set out clearly and the court’s focus is on the individual party rather than on general deterrence or policy.
The very concept of tailoring an order to ensure compliance by that party may have the effect of dissuading other like-minded persons from behaving in similar ways but that cannot be the deliberate purpose of the court dealing with the application. The provision is intended to have that party comply with their particular orders relating to their children not to orders generally. Section 70NAA refers to “the powers that a court...has to make orders to enforce compliance with orders under this Act affecting children”. In my view that should not be read generally but rather, specifically to the particular parties because if Subdiv F applies and a court determines to vary the existing parenting orders under s 70NBA(1) regard must be had to the best interests of the child as the paramount consideration: see s 70NBA(2). Section 70NFB(1) relating to the making of an order for costs against a party has similar directions about the consideration of the welfare of the child.
All of the provisions of Div 13A therefore focus on the parties and the court’s obligation to endeavour to make its orders work if they have been contravened.
I do not wish the mother to feel emboldened by my determination at this stage to require her to enter into further bonds rather than imprisonment as was agitated for by the father. I appreciate that the bonds previously entered into by the mother – with surety – did not assist in compliance. It seems unlikely that further financial penalties – such as a fine – will be of much utility in this regard. What needs to shift is the mother’s attitude and understanding of her influence on the children, and on what she can do to promote the children’s relationship with their father and assist them to transfer into the father’s care if orders for time are reinstated.
If education fails to assist, the mother will be aware that different sanctions may be imposed upon further breaches.
Make up time
Sensibly in circumstances where the operative orders are suspended, and there are substantial parenting applications on foot to be heard in the Brisbane Registry of this Court, counsel for the father did not seek any orders:
(a)by way of variation of the orders for the children’s time with their father; or
(b)by way of makeup time.
Compensation
The father sought an order pursuant to s 70NFB(2)(f) of the Act that he be compensated for the expenses he incurred travelling from City V to Town R on each of the occasions the orders were contravened. I am satisfied it is appropriate to make an order for compensation. There was no dispute that the expenses incurred were reasonable. They were as follows:
(a)In relation to the contravention of 11 December 2022 the father asserted his expenses were as follows:
8 December 2022
Charge Electric Vehicle
$2.13
9 December 2022
Accommodation QLD
$119.00
9 December 2022
Toll
$25.20
9 December 2022
Charge Electric Vehicle
$14.85
9 December 2022
Charge Electric Vehicle
$9.79
9 December 2022
Charge Electric Vehicle
$10.53
11 December 2022
Charge Electric Vehicle
$5.55
11 December 2022
Charge Electric Vehicle
$11.86
12 December 2022
Charge Electric Vehicle
$34.68
12 December 2022
Charge Electric Vehicle
$14.46
12 December 2022
Charge Electric Vehicle
$20.27
12 December 2022
Charge Electric Vehicle
$7.06
12 December 2022
Charge Electric Vehicle
$16.46
15 December 2022
Toll
$10.08
(b)In relation to the contraventions on 27 and 28 December 2022 the father asserted his expenses were as follows:
25 December 2022
Charge Electric Vehicle
$12.36
25 December 2022
Charge Electric Vehicle
$28.79
25 December 2022
Charge Electric Vehicle
$28.71
25 December 2022
Charge Electric Vehicle
$13.59
26 December 2022
Toll
$10.08
26 December 2022
Charge Electric Vehicle
$4.41
28 December 2022
Toll
$10.08
28 December 2022
Charge Electric Vehicle
$12.45
28 December 2022
Charge Electric Vehicle
$27.44
28 December 2022
Charge Electric Vehicle
$26.93
28 December 2022
Charge Electric Vehicle
$12.52
29 December 2022
Charge Electric Vehicle
$20.25
(c)In relation to the contravention of 16 January 2023 the father asserted his expenses were as follows:
14 January 2023
Accommodation NSW
$175.00
15 January 2023
Accommodation
$165.00
15 January 2023
Toll
$10.08
16 January 2023
Accommodation NSW
$167.00
16 January 2023
Toll
$20.16
19 January 2023
Accommodation QLD
$260.00
The total compensation sought is $1,306.77. The expenses were reasonably incurred as a result of the mother’s contravention of the orders which resulted in:
(a)Z not spending time with the father on 11 December 2022, and
(b)none of the children spending time with their father on 27 or 28 December 2022 or on 16 January 2023.
In the circumstances I am of the view that the father should be compensated for half of his expenses in relation to the 11 December 2022 contravention, (being $150.96) as the boys did spend time with him on 10 and 11 December 2022. He should also be compensated for the entire expenses for the remaining counts (being $207.61 and $797.24 respectively).
Accordingly the father is to be compensated a total $1,155.81.
Costs
The father sought an order pursuant to s 70NFB(2)(g) of the Act that the mother pay all his costs of this contravention proceeding. It was submitted that the reference in the subsection to “all the costs” refers to indemnity costs. Section 70NFB(1) of the Act requires that the Court must make an order pursuant to s 70NFB(2)(g) unless the Court is satisfied that it would not be in the best interests of the child to make that order.
If orders were made on an indemnity basis the father’s estimation is that would be a total of $23,622.42 being the costs he incurred instructing solicitors on a private basis up until he received a grant of aid pursuant to the cross-examination scheme. It was asserted a further $17,314 had been invoiced to legal aid pursuant to the scheme. I am not clear on what basis I could make an order requiring the mother to repay a grant of aid pursuant to that scheme.
The mother is not engaged in paid employment and is the children’s primary carer. The father’s time with the children is currently suspended. I do not know what child support is being paid by the father towards the support of the children. However, it seems most likely that an order for the mother to pay all the father’s costs as sought by him would impact on the children, and on the mother’s capacity to appropriately meet their needs. I understand there is approximately $50,000 held on trust by TT Solicitors for the parties. Those monies are the remainder of the proceeds of sale of a matrimonial property. These are obviously modest funds remaining for division between the parties.
In all these circumstances I am satisfied that it would not be in the best interests of the children to make an order that the mother pay the whole of the father’s costs.
Under s 70NFB(2)(h) of the Act the Court is empowered alternatively to make an order that the person who committed the contravention pay some of the costs of the other party. As this would not be a costs order made under s 70NFB(1) of the Act, it seems that I must consider the matters set out in s 117 of the Act.
Pursuant to s 117(1) and (2) of the Act, each party will bear their own costs, unless there are circumstances that justify the Court departing from that general rule. In considering what order, if any should be made as to costs, the Court is to take into account the matters set out at s 117(2A) of the Act. In relation to those consideration in so far as they are relevant I say as follows:
(a)I had little evidence as to the parties’ financial circumstances. The mother is not in paid employment. She has the care for the parties’ four children. She lives with her parents. According to the father’s material he works in the transport industry. I do not know his income;
(b)the conduct of the parties as litigants has generally been reasonable. Whilst there have been delays in the matter being heard those delays were as a result of funding issues, no Court time and ill health. Whilst the father may well be suspicious of the mother’s assertion that she has been too unwell to participate at times, she has provided some medical evidence to support her claims. However, I also note that the contraventions occurred very shortly after orders were made by Gill J and in circumstances where the mother had entered into bonds;
(c)the proceedings arose entirely as a result of the mother failure to comply with orders;
(d)the father was almost wholly successful in that four of the five asserted counts were proven. One count was not established – which was in part because of the way in which it was pleaded; and
(e)I am not aware of any offers made to settle the matter.
Taking all these matters into account I am satisfied that there are circumstances that justify making an order for costs against the mother.
I am not persuaded that there is a basis to make an order for the funds provided for the father’s legal costs pursuant to the cross-examination scheme to be reimbursed.
In relation to the legal fees incurred by the father on a private basis, it will only be in exceptional circumstances that a costs order will depart from the general rule that costs – if awarded at all – will be on a party/party basis (Kohan v Kohan (1993) FLC 92-340; D & D (Costs) (No. 2) (2010) FLC 93-435; Limousin & Limousin (Costs) (2007) 38 Fam LR 478). That means I must be satisfied that there is something special or unusual in the matter that might justify the awarding of indemnity costs before determining to exercise my discretion to do so.
In Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, Sheppard J provided some examples of circumstances that might justify the awarding of indemnity costs, and Holden CJ in Munday v Bowman (1997) FLC 92-784, at 84,660, drew from his Honour’s decision these examples:
(a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts…
(b) Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud…
(c) Evidence of particular misconduct causing loss of time to the court and to other parties…
(d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions…
(e) An imprudent refusal of an offer to compromise.
The categories of circumstances which enliven the discretion to award indemnity costs are not closed: see e.g. Yunghanns v Yunghanns (2000) FLC 93-029. However, the case law makes it clear that making an order for indemnity costs represents a very significant departure from the usual standard.
Although the matter does come close, I am not persuaded indemnity costs should be awarded. I did not form the impression the mother – whilst misguided – was motivated by an ulterior motive. She did not act fraudulently. She did not cause loss of time to the Court as a result of poor behaviour as a litigant. The case was not prolonged by groundless contentions made by her. There was no evidence of offers made to compromise.
In the event indemnity costs were not ordered, the father sought that the mother pay his costs on a party/party basis as assessed. I am mindful that taxation takes time. I further take into account that the costs order is to be compensatory and not penal. However, both parties sought an order for taxation and neither party made submissions as to what might be an appropriate amount to fix.
I note further there are some matters that make it difficult to logically, fairly and reasonably assess the costs – as the father was in part privately paying, appeared on his own behalf on 19 October and thereafter was in receipt of a grant of aid. The father had not prepared any submissions as to costs other than on an indemnity basis.
In the circumstances whilst I have the power to fix costs, I am not confident I could appropriately make a determination in that regard with the information provided to me. Regrettably I must make an order that the costs either be agreed or assessed – on a party/party basis and only in relation to the period when the father was privately paying for his representation.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 11 February 2025
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