Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd

The case of Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd involves an application for costs made by the mother, Ms Alcott, against the father, Mr Clancy, in family law proceedings concerning their child, X. The father had brought a contravention application against the mother alleging she had breached the orders of 14 September 2020 which granted the mother sole parental responsibility and specified the visitation arrangements for X. The application was dismissed by the court on 31 May 2021, and the father's subsequent appeal to the Full Court was dismissed on 6 August 2021. The mother applied for indemnity costs of $19,980, citing her poor financial circumstances, while the father opposed any costs order.

The legal issue before the court was whether the mother was entitled to indemnity costs, given the father's wholly unsuccessful contravention application. The court considered whether the father's case was "doomed to fail" and if he should have known that he had no chance of success. The court also considered the financial circumstances of both parents and the fact that the orders had been varied by consent.

The court found that the father's case was indeed doomed to fail as it was clear that the mother had complied with the orders, and the father had technically acquiesced to a change in the orders. The court noted that the father's reasons for bringing the application were understandable, but from a legal perspective, it would have been extremely unfair for him to bring contravention proceedings based on a varied order. The court also noted that the mother's financial circumstances were poor and that she had incurred significant legal expenses as a result of the proceedings. However, the court considered that indemnity costs were not appropriate in this case as the orders had ultimately been varied by consent, and litigation would have occurred regardless of whether a contravention application or an application to vary the orders had been brought. Therefore, the court ordered that the father pay the mother's costs fixed in the sum of $6,491.69.