Franco & Daley (No 3)
[2024] FedCFamC1F 122
•6 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Franco & Daley (No 3) [2024] FedCFamC1F 122
File number(s): MLC 9994 of 2020 Judgment of: MCNAB J Date of judgment: 6 March 2024 Catchwords: FAMILY LAW – PROCEDURAL - COSTS - Where the second respondent father seeks indemnity costs against the first respondent mother – where the applicant grandmother seeks costs against the first respondent mother on a party/party basis for part of the proceeding and indemnity costs for the trial – where the first respondent mother opposes any cost order – where the first respondent mother brought numerous applications before the Court accompanied by prolix and argumentative affidavit evidence – where the first respondent mother was aware that her conduct was unreasonable by reason of previous orders – where the first respondent mother was put on notice in relation to costs orders – where the conduct of the mother has caused extraordinary costs to be incurred - where impecuniosity is not a reason for not ordering costs in appropriate circumstances - fixing costs in a lump sum -where costs are fixed as a percentage of solicitor client costs. Legislation: Family Law Act 1975 (Cth) ss 117, 121
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 10.14(b), Division 12.4.1 rr 12.13, 12.17
Cases cited: Franco & Daley [2023] FedCFamC1F 960
Hadid v Lenfest Communications Inc [2000] FCA 628
Hitch & Hitch [2012] FamCAFC 124
Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23 (unreported delivered 7 February 2007)
Kohan & Kohan [1992] FamCA 116; (1993) FLC 92–340
Prantage & Prantage (2013) FLC 93–544; [2013] FamCAFC 105
Stasiuk & Guild [2021] FamCAFC 62
Division: Division 1 First Instance Number of paragraphs: 39 Date of last submission/s: 29 February 2024 Date of hearing: Heard in Chambers on the papers Place: Melbourne Solicitor for the Applicant: Pearsons Lawyers Pty Ltd Solicitor for the First Respondent: Litigant in Person Solicitor for the Second Respondent: Blackwood Family Lawyers Solicitor for the ICL: Bowlen Dunstan And Associates Pty ORDERS
MLC 9994 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FRANCO
Applicant
AND: MS DALEY
First Respondent
MR DALEY
Second Respondent
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
6 MARCH 2024
THE COURT ORDERS THAT:
Pursuant to the powers under r 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) that the mother pay:
(a)The sum of $273,594.11 being 70% costs in respect of the father’s legal costs and
(b)The sum of $171,848.15 being 60% of the grandmother’s costs.
The payment of the costs referred to in paragraph 1 herein shall be in satisfaction of the costs order as follows:
(a)The sum of $4,500 being the sum of costs ordered to be paid by order made on 1 August 2022 (as amended 11 August 2022) by a Senior Judicial Registrar in favour of the grandmother for costs.
(b)The sum of $3,500 being the sum of costs ordered to be paid by order made on 1 August 2022 (as amended 11 August 2022) by the Senior Judicial Registrar in favour of the father for costs in the amounts of $3,500 and
(c)The sum of $1,964 being the sum of costs ordered in favour of the father by a Senior Judicial Registrar on 5 October 2021.
Such costs outlined in Order 1 to be deducted from the sum ordered to be paid to the mother pursuant to final orders made on 8 December 2023.
The payment of the costs referred to in paragraph 1 herein be in full satisfaction of all costs orders up to the date of the delivery of Judgement on 8 December 2023 that have been previously made which are not specifically referred to in these orders or where costs have been reserved.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Franco & Daley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McNab J
BACKGROUND
This parenting and property proceeding was listed for final hearing on 31 July 2023 and ran until 2 August 2023 part-heard. The hearing resumed from 10 – 11 August 2023. The proceeding commenced when the maternal grandmother (“the grandmother”) filed an Initiating Application on 15 September 2020 for the children X and Y to live with her in circumstances where the children were living with her and had spent extended periods of time with her throughout their lives. At the final hearing, the father was in agreement with the grandmother that the children should live with the grandmother, but the mother sought a change of residence and for the children to live with her. The final hearing also dealt with property matters between the father and mother.
Orders were made on 8 December 2023 for the children to live with the grandmother. The grandmother and father were granted equal shared parental responsibility for the children aged 12 years and 14 years and the mother was granted supervised visits with the children for a period of three years. The grandmother and father were at liberty to organise for the father to spend time with the children as agreed between them insofar as it did not conflict with the orders of 8 December 2023.
Subsequent to the trial, the mother filed an Application in a Proceeding on 6 September 2023 which dealt with many matters already canvassed at trial and which was dismissed. A Contravention Application filed by the mother was listed for hearing on 16 February 2024 and, on that date, she informed the Court during the mention that she wished to withdraw the application. An Application in a Proceeding filed by the mother on 5 January 2024 seeking, amongst other things, a stay of the orders of 8 December 2023 was heard and dismissed on 23 January 2024.
These reasons relate to an application for costs by the applicant grandmother (“the grandmother”) and the second respondent father (“the father”) against the first respondent mother (“the mother”) following delivery of judgment and final orders on 8 December 2023 (Franco & Daley [2023] FedCFamC1F 960). The grandmother and father were permitted to file separate submissions regarding costs and the mother was permitted to file a response, with the submissions and response to be determined on the papers. These reasons should be read in conjunction with the Reasons for Judgment delivered on 8 December 2023 and Final Orders made on 8 December 2023.
The father and grandmother each filed submissions and evidence in support of this application. The mother did not file submissions but did assert that she made submissions in an affidavit that she emailed to Chambers on 20 January 2024 which has not yet been filed. She submits in this affidavit she should not be responsible for the legal fees of other parties, and she further submits there has been a miscarriage of justice at trial for which she has made an appeal.[1] She then goes on to argue matters not relevant to costs submissions. The mother submits she may reserve her right to costs until the account ledger from the other parties is presented and she is provided with a lawyer to represent her so as she can continue with her appeal to the trial.[2] The mother states she cannot address the grandmother’s “costs notice as documents were never produced by her counsel in which she should be permitted to assign charges to another party”.[3] She further submits “I reserve my right to future costs against the parties and adjustment to my application when I am able to access adequate legal support”.[4] The mother does not address the costs submissions of the father or the grandmother. The affidavit does not constitute a submission as ordered and the Court did not permit the affidavit to be filed as it was filed out of time and is irrelevant.
[1]Mother’s affidavit in reply emailed to Chambers 20 January 2024 (“MAR”) [6].
[2]MAR at [17 a.].
[3]MAR at [40].
[4]MAR at [121].
THE RELEVANT LAW
The rule of general law costs is that parties bear their own costs of proceedings and in family law matters this rule is set out in s 117(1) of the Family Law Act 1975 (Cth) (“the Act”). This section is subject to s 117(2) of the Act which notes:
If, in proceedings under this Act, the court is of the opinion that there are circumstances that justified in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(Emphasis added)
Matters which the Court must have regard to when determining whether costs are considered just are set out in s 117(2A) of the Act:
In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
In relation to the weight and consideration to be given to each matter, May and Ainslie-Wallace JJ noted in Hitch & Hitch [2012] FamCAFC 124 commencing at [53]:
53. In Penfold and Penfold (1980) 144 CLR 311, the High Court described the application and purpose of this section. It was said at 315:
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117(2) in "a clear case".
54.As a discretionary decision, the weight to be given to a particular consideration under s 117(2A) is a matter for the judge. However, in I and I (No 2) (1995) FLC 92-625 it was held that the relevant matters in s 117(2A) ‘must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs’.
55.That is not to say that one single matter may not ultimately be determinative, as was confirmed in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123 at paragraph 41:
… A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
The Court can make an order for indemnity costs where it is just to do so. The leading authority regarding indemnity costs is Kohan & Kohan [1992] FamCA 116; (1993) FLC 92–340, recently affirmed in Stasiuk & Guild [2021] FamCAFC 62. Indemnity costs are restricted to ‘an exceedingly rare situation’. Murphy J noted in Prantage & Prantage (2013) FLC 93–544; [2013] FamCAFC 105 at [152]:
Section 117(1) is important in that respect. Indemnity costs are confined to ‘an exceedingly rare situation’ (Callinan J quoted by Thackray and Ryan JJ at [42]) in jurisdictions where the ‘usual rule’ is that a successful party receives an order for costs (i.e. 'costs follow the event’). They might, then, be seen to be more so in this jurisdiction where the usual rule is that each party shall bear his own costs (s117(1)). The comments by this Court in Kohan that indemnity costs are ‘a very great departure’ from the ‘normal standard’ should be seen in that context. …
CONSIDERATION
This is a matter where the father seeks indemnity costs against the mother and in the alternative costs according to scale. The father states his total indemnity costs are $390,848.74 with disbursements in the amount of $112,649[5] so his solicitor/client costs are $278,199.74.
[5]Father’s Affidavit sworn 29 February 2024 at [3] – [12].
The grandmother seeks costs calculated on the basis of 50% that she receives 50% of the solicitor/client costs related to pretrial preparation and 100% of the trial costs. Based on solicitor/client costs the grandmother’s costs are $199,548.20[6] with disbursements in the amount of $86,865.39.[7] Costs plus disbursements is $286,413.59.[8] Both parties seek costs to be fixed for orders previously made reserving costs and for costs to be enforced for orders already made.
[6]Grandmother’s Cost Submission emailed 22 December 2023 at [55].
[7]Grandmother’s Disbursement Totals emailed 27 February 2024.
[8]Grandmother’s Cost Submission emailed 22 December 2023 at [55] and Grandmother’s Disbursement Totals emailed 27 February 2024.
The Court can make any costs order it sees as just subject to consideration of the relevant factors under s 117(2A) of the Act.
The mother has made 11 Applications in a Proceeding and one Contravention Application prior to the Final Orders, and the sheer number of applications has increased the costs of the father and grandmother. Applications for unsupervised time were unsuccessful on five separate occasions and as a result the volume of unsuccessful applications a Senior Judicial Registrar made orders that any application needed to be sent to his Chambers prior to filing. The mother has been on notice that the father and grandmother will be seeking costs but has not modified her behaviour throughout the proceedings.
The numerous applications made by the mother have been accompanied by prolix and argumentative affidavit evidence. She is aware that her conduct was unreasonable by reason of the orders of the Senior Judicial Registrar as he then was, made on 28 October 2022, which provided that any application in these proceedings be sent to the chambers of the Senior Judicial Registrar for consideration of whether such an application is reasonably appropriate for filing. That order had no discernible effect on her.
The mother has raised numerous and serious allegations against both the grandmother and the father. She has accused the father of impropriety in the way that he conducts himself in his employment and has otherwise raised baseless allegations of fraud against him. There is no evidence that the father has failed to make proper disclosure or has otherwise caused unnecessary legal costs to be expended.
There have been aspects of the mother’s conduct throughout this proceeding which have caused the father and the grandmother to incur fees which far exceed the quantum of fees that might have been incurred had she acted reasonably and not put the parties to the expense of responding to applications that had limited merit, voluminous and argumentative emails and prolix affidavits.
The mother’s conduct during the final trial was not such as to be described as exceptional such as to warrant an order for indemnity costs for that part of the proceeding. The mother was represented for much of the final hearing and that proceeded without undue interruption. When the mother represented herself for the final two days of the hearing, the matter proceeded reasonably efficiently, and her cross-examination of the father was not excessively long. She was working to put her views forward and did so in her own style which is highly argumentative. However, she did not appear to try to unnecessarily drag out the hearing or use the hearing as a means of abusing the father and grandmother which would constitute exceptional circumstances.
Turning to the matters referred to in s 117(2A) of the Act, as to the financial circumstances of the parties, I accept that both the mother and grandmother have limited financial means (whether the mother is employed or not and whatever the causes of her current lack of employment are) and the father is presently in reasonable well remunerated employment.
The mother’s income at the commencement of the trial was stated to be $71,000[9] and the father’s 2023 income $337,116. However, much of the father’s taxable income will have been spent on legal fees or to meet the cost of borrowing to meet those fees and a large part of those fees have been unnecessarily incurred. The mother may now be impecunious because of the financial consequences of the way she has conducted these proceedings, but I do note that impecuniosity is not a reason for not ordering costs in appropriate circumstances.
[9]Franco & Daley [2023] FedCFamC1F 960 at [177] – [179] (“Franco”).
The grandmother’s financial circumstances are as follows:
(a)she is elderly and is not entitled to Government Benefits and is solely reliant on a modest income of approximately $23,000 from rent, dividends and managed funds;[10]
(b)she is entitled to receive child support from the mother, but the mother is currently in arrears in excess of $9,764.88 as at 3 November 2023.[11]
(c)the grandmother has been financially responsible for the mother’s two children’s daily care since at least 2012 (for Y) and from 2016 (for X) to the present time, with the exclusion of a period between January 2018 and September 2019 when the children lived with the mother in City N.[12]
[10]GSC at [21 g.].
[11]GSC at [21 h.].
[12]GSC at [21. i.].
The grandmother has limited financial resources and the costs incurred have had a significant impact on her. The mother has continued her approach in the knowledge of these matters and her own impecuniosity is as a result of her own actions and her choice to spend money that could have been available for distribution between her and the father on legal fees generated largely by her own unreasonable conduct.
The mother has conducted herself in the course of these proceedings in a manner that has increased costs. The mother has made allegations of fraud against the father which could have impacted on his employment which lacked a proper basis and required the father’s response as follows:
(a)He has improperly spent government funds whilst working in City S.
(b)He has faced fraud allegations in relation to his employment.
(c)He has not declared income to the Australian Taxation Office.[13]
[13]FCS at [12].
I cannot discern that the father and/or grandmother have acted so as to increase costs. They have had to be responsive to the mother. In considering this application, I do not take into account the mother’s conduct following the final hearing or the fact that intervention order applications have been issued in the Magistrates’ Court.
The mother has not complied with Court orders including:
(a)failure to comply with Court orders dated 8 September 2021 and 14 December 2020 requiring her to provide financial disclosure including bank statements and payslips, resulting in the need to subpoena records which was then objected to;[14]
(b)orders for valuations and allowing access to the City N property, which resulted in further expense to the father who had to instruct his solicitor in such matters;[15]
(c)failure to comply with Court orders to send no more than two emails a week, which was breached on multiple occasions;[16]
(d)breach of orders to prevent the encumbering of the real properties of the parties;[17]
(e)failure to comply with orders to attend mediation;[18]
(f)subpoena applications that were a fishing exercise or an abuse of process.[19]
[14]FCS at [34] - [35] and citing father’s trial affidavit sworn on 19 January 2023 and filed on 20 January 2023 at [376 (a) – (d). Court Book page 1246.
[15]FCS at [37] – [43].
[16]Submission examples Mr Daley's Trial Affidavit at paragraph 174: On 10 June 2021… Ms AM sent an email to the parties stating ‘There has been an extraordinary number of emails in this matter, over 100 emails in May alone.’
[17]FSC at [46] – [47].
[18]FSC at [48] – [53].
[19]FSC at [54] – [55].
The mother has been unsuccessful in all of the interlocutory applications that she has made and has been wholly unsuccessful in obtaining the final orders that she contended for.
The father has made written offers in relation to the resolution of interim applications which were clear and reasonable, and which have not been accepted. The following offers were made in the course of proceedings which were not accepted:
(a)a Calderbank offer made on 20 November 2020, and he states this offer was more favourable for both superannuation and non-superannuation assets;
(b)an offer of settlement on 19 March 2021 prior to the Interim Hearing on 25 March 2021 which the father states was the same as the order ultimately made, following the expense of three hearings;
(c)an offer of settlement on 11 July 2023 prior to the interim hearing on 11 July 2023 by way of litigation funding which the father states was more favourable than that of the orders made;
(d)an offer of settlement prior to the interim hearings on 26 July 2021, 8 September 2021, 21 December 2021 and 28 October 2022 and the father states each of these put the mother on notice that her application was unlikely to proceed and, should she not withdraw, the father would seek costs from the mother on an indemnity basis.[20]
[20]FCS at [3].
The letter of offer dated 20 November 2020 from the solicitors for the father contained an offer to resolve property proceedings with each of the father and mother receiving 50% of the non‑superannuation property pool and there being an equalisation of superannuation accrued through the course of the marriage. That is an offer that would have left the mother far better off had she accepted it, than what she has achieved at trial after each party has incurred very substantial legal fees. The mother was on notice of the costs consequences of failing to accept the offer by the clear terms of that offer.
In dealing with this matter, I do think that the mother should pay a percentage of the solicitor/client costs incurred by each of the father and the grandmother. That percentage is to reflect the fact that for much of this proceeding the mother has behaved unreasonably in bringing unnecessary and unsuccessful applications. She did cause the adjournment of the final hearing fixed in 2022 which caused costs to be thrown away and she has engaged in conduct in her dealings with the legal representatives and in the operation of the orders which have caused costs to be unnecessarily incurred. In that regard, I refer to her refusal to cooperate in the implementation of orders to have the property in City N valued as an example. Others include failure to make full financial disclosure noting that the mother has provided no updated bank statements since March 2021, and encumbering properties in breach of Court orders by consenting to her then lawyer to encumber the City N property with a caveat supported by a charge over the property. Costs were incurred to discharge the caveat. The cost orders I make take into account that the mother was unsuccessful in the proceedings and has failed to accept multiple reasonable offers to settle the proceedings in relation to financial matters.
When considered cumulatively, the conduct of the mother has caused the father and the grandmother to incur what are extraordinary costs and that conduct constitutes exceptional circumstances.
Having regard to those matters I order that the mother pay the costs of 70% of the solicitor/client costs incurred by the father and in relation to the grandmother, I order that the mother pay 60% of the solicitor/client costs paid by the grandmother.
Fixing Costs
Rule 12.17(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) permit the court to fix the costs in the event that a party is successful in obtaining an order for costs. In making such an order 12.17(3) provides:
(3) In making an order under subrule (1), the court may consider the following:
(a) the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c) the rates ordinarily payable to lawyers in comparable proceedings;
(d) whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate;
(e) the time properly spent on the proceeding, or in complying with pre‑action procedures;
(f) whether expenses (paid or payable) are fair and reasonable and proportionate.
In Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23 (unreported delivered 7 February 2007) Einstein J provided guidance in relation to the matters to be considered when making such an order at [9]:
9.For present purposes it seems convenient to commence with the recitation of the principles which inform the exercise of the discretion;
i.the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119 , Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as ‘the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation’ (All ER page 265)];
ii.the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16];
iii.the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp, (2002) 54 NS2LR 738, per Giles JA at para [22]; [following (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith [2005] FCA 228, (2005 215 ALR 788; [2005] FCA 228; BC200500963 at para [199];
iv.a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at para [22];
v.the gross sum ‘can only be fixed broadly having regard to the information before the Court’: Beach Petroleum at 124;
The application of the rule will necessarily require “a much broader brush than would be applied on a taxation of costs”: Hadid v Lenfest Communications Inc [2000] FCA 628 at [35].
Fixing costs, where that approach is possible, is consistent with the overarching purpose of the Rules to purpose to dispose of a costs application as quickly, inexpensively and efficiently as possible. The Court requested that the grandmother and father by provide further specific information about costs agreements that they has entered into with reference to Rule 12.13 and to provide detail in relation to claimed disbursements. In relation to quantum: the affidavit of Ms AL filed 4 July 2023; the affidavit of the father sworn 29 February 2024; the Costs Notices served by the father and the grandmother; the parties’ costs submissions and details of the retainers between the father and grandmother and their respective solicitors; provide sufficient information to make a determination of the quantum of costs.
I have had regard to the costs principles set out in Division 12.4.1 of the rules and consider that the costs incurred by the legal representatives for the father and grandmother are fair and reasonable. The fees claimed by counsel are reasonable both in terms of the quantum of the daily brief fees and the time spent in preparation for trial. The volume of documentation produced in applications filed by the mother was significant and the issues involved were difficult and made more difficult by the mother throughout the proceedings. The costs incurred by solicitors in responding the mother are reasonable. I will not make orders as sought by the father and grandmother, because I do not consider that the mother’s conduct at the trial was such as to be exceptional.
I fix the total quantum of the costs of the father to be paid by the mother at $273,594.11 (70% of $390,848.74 at [10] above) and I fix the total quantum of the costs of the grandmother to be paid by the mother at $171,848.15 (60% of $286,413.59 noted at [11]).
I fix those percentages having regard to the extra costs incurred by each party due to the extraordinary costs incurred by each. The figure of 60% of solicitor client costs in respect of the grandmother equates to the extra costs incurred by her both in relation to interlocutory proceedings and in preparing for trial.
Parties have had the benefit of interim costs orders which have not been paid as following:
(a)Order 8 made on 1 August 2022 (as amended 11 August 2022) by a Senior Judicial Registrar that the applicant mother pay the costs of the grandmother in the sum of $4,500;
(b)Order 9 made on 1 August 2021 (as amended 11 August 2022) by Senior Judicial Registrar that the mother pay the costs of the father in the sum of $3,500.
(c)Order 3 made by Sa enior Judicial Registrar on 5 October 2021 that the mother pay the respondent father’s costs fixed at $1,964.00 within 60 days.
I order that the payment of the costs ordered by reason of these orders will be in satisfaction of the costs orders referred to in [38] and where costs have been reserved.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 6 March 2024
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