Galloway & Steele
[2021] FedCFamC1F 203
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Galloway & Steele [2021] FedCFamC1F 203
File number(s): SYC 6615 of 2007 Judgment of: HARPER J Date of judgment: 17 November 2021 Catchwords: FAMILY LAW – COSTS – Between parties – Where final judgment had been delivered in 2015 – Where father had been granted sole parental responsibility – Where mother filed initiating application in 2020 seeking to relitigate parenting proceedings in 2220 – mother’s application dismissed after threshold application of the principles in Rice & Asplund (1979) FLC 90-725 – Where father now seeks costs of the proceedings – Where mother engaged Queen’s Counsel for the substantive dispute – Mother now self-represented – Father’s financial position stronger than that of the mother – Where the mother was wholly unsuccessful – Where the mother commenced proceedings based on an unreasonable interpretation of the final orders – Where the mother refused to engage in discussions to avoid litigation – Indemnity costs not justified – Order for costs fixed in the amount of $25,000. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Colgate-Palmolive Co v Cussons Pty Limited (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 191 FLR 294; (2005) 33 Fam LR 123; [2005] FamCA 158
Galloway & Steele [2011] FamCA 550
Galloway & Steele [2015] FamCA 1215
Galloway & Steele [2021] FamCA 508
Harris & Dewell (No 2) [2018] FamCAFC 180
Kohan and Kohan (1992) 112 FLR 151; (1992) 16 Fam LR 245; (1993) FLC 92-340
Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178
Medlon & Medlon (No 6) (Indemnity Costs) (2015) 54 Fam LR 1; (2015) FLC 93-664; [2015] FamCAFC 157
Moorcroft & Moorcroft (2020) 60 Fam LR 361; [2020] FamCAFC 83
Munday v Bowman (1997) FLC 92–784; (1997) 22 Fam LR 321
Prantage & Prantage(Costs) [2014] FamCA 850
Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725; (1978) 6 Fam LR 570
Worth and Worth (No 2) [2019] FamCAFC 126
Division: Division 1 First Instance Number of paragraphs: 53 Date of last submission/s: 2 November 2021 Date of hearing: On the papers Place: Sydney Solicitor for the Applicant: Holmes Donnelly & Co Solicitor for the Respondent: Ms Steele in person ORDERS
SYC 6615 of 2007 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GALLOWAY
Applicant
AND: MS STEELE
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
17 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Within 60 days, the Respondent Mother pay the Applicant Father’s costs of and incidental to her Initiating Application filed 26 October 2020, her Application in a Case filed on 10 December 2020, and the father’s application for costs the subject of this judgment, fixed in the amount of $25,000.
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 pseudonyms Galloway & Steele have been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).[1]
REASONS FOR JUDGMENT
HARPER J
INTRODUCTION
[1] Galloway & Steele
The substantive proceedings in this matter concern the parenting dispute between the Applicant Father, Mr Galloway (“the father”) and the Respondent Mother, Ms Steele (“the mother”).
There is one child of the relationship, J, born in 2007 and presently aged 14 years of age (“the child”).
This matter has had an extensive history before the Court. The background of these proceedings is set out in two earlier judgments, by Fowler J at [7]–[74] in Galloway & Steele [2011] FamCA 550 and by Loughnan J in Galloway & Steele [2015] FamCA 1215, delivered on 17 December 2015.
In his judgment, Loughnan J made the final parenting orders (“the final orders”) which are presently in operation. These provided for the father have sole parental responsibility for the child, the child live with the father, the child to spend time with the mother as agreed with the father or as ordered by the court, and importantly, that in the event of any dispute between the parties with regard to implementation of the orders, the parties shall attend, in first instance and prior to commencing court proceedings, a round table conference with the Independent Children’s Lawyer (“ICL”) with a view to discussing and resolving the dispute.
On 26 October 2020, the mother filed an Initiating Application seeking both final and interim orders, including a variation of the final orders.
In orders made 25 November 2020, a senior judicial registrar noted that the threshold application of the principles in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) would need judicial determination.
The matter came before me for the Rice & Asplund threshold hearing on 12 May 2021. The mother sought variation of the final orders. The father sought that the mother’s Initiating Application be dismissed, with costs.
On 21 July 2021, I delivered orders and reasons for judgment: Galloway & Steele [2021] FamCA 508 (“the substantive judgment”). I found that there was no sufficient change of circumstances demonstrated by the mother to provoke relitigation of the parenting orders in relation to the child. The mother’s substantive application was dismissed.
On 18 August 2021, the father filed an Application in a Case seeking the following:
1. That within 14 days from the date of Orders, the Respondent pay the Applicant’s costs of and incidental to the proceedings on an indemnity basis.
2. That in the alternative to Order 1 hereof, but without concession, the Respondent pay the Applicant’s costs of and incidental to the proceedings on a solicitor/client basis as agreed or assessed and pay the same within 14 days of any agreement or assessment.
3. Note for purposes of Order 1 and 2 herein, a schedule of costs claimed shall be produced prior to argument.
4. That this matter be fixed for argument at a date and time convenient to the Court.
5. Such further or other Order as this Honourable Court deems fit.
6. That the Applicant pay the Respondent’s costs of and incidental to this Costs Application on an indemnity basis.
On 23 September 2021 I made orders by consent for the parties to file written submissions and for the father’s cost application to be dealt with on the papers. The father filed his written submissions on 5 October 2021, the mother filed her written submissions on 18 October 2021 and the father filed a reply to the mother’s submissions on 2 November 2021.
The father relies upon the following documents:
(1)Tender bundle dated 5 May 2021;
(2)Application in a Case filed 18 August 2021;
(3)Affidavit of Mr Galloway filed 18 August 2021;
(4)Submissions on Costs Application filed 5 October 2021;
(5)Costs Schedule received by Chambers on 7 October 2021; and
(6)Reply to mother’s submissions filed 2 November 2021.
The mother relies upon the following documents:
(1)Affidavit of Ms Steele filed 5 May 2021;
(2)Affidavit of Ms Steele filed 18 October 2021; and
(3)Submissions on Costs Application filed 18 October 2021.
I note here that the mother was self-represented for the purposes of this costs dispute, although she retained Queen’s Counsel at trial.
THE LAW
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that, subject to subsection (2), “each party to proceedings under this Act shall bear his or her own costs”. Subsections (2) and (2A) are in the following terms:
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it 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.
(2A) 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.
It follows, that while s 117(1) provides, as a starting point, that in family law proceedings each party bears his or her own costs, the Court may make a costs order in favour of a party where there are circumstances justifying such an order.
It is well settled that no one factor in s 117(2A) has priority, nor must more than one factor be satisfied; rather, any one factor may be sufficient; Prantage & Prantage(Costs) [2014] FamCA 850 at [12], Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 191 FLR 294 at [41]. It is a matter of weight that is accorded to each relevant factor in the trial judge’s discretion: Medlon & Medlon (No 6) (Indemnity Costs) (2015) 54 Fam LR 1, per Strickland J.
The Full Court in Moorcroft & Moorcroft (2020) 60 Fam LR 361 upheld that indemnity costs orders are awarded only in exceptional circumstances (Kohan and Kohan (1992) 112 FLR 151; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; D & D (Costs) (No 2) (2010) FLC 93-435.
Both parties rely upon each subsection of s 117(2A) to establish grounds for and against a costs order.
The mother made no claim for costs. Therefore, the first question is whether the father has established any circumstances which justify departing from the position that each party pay their own costs, and the making of a costs order in his favour. The second question is whether, if there are circumstances justifying a costs order, the wife should pay the father’s costs on a higher basis than party/party costs, and in particular on an indemnity basis.
SECTION 117(2A) CONSIDERATIONS
Section 117(2A)(a) – the financial circumstances of each of the parties
The father placed reliance upon the mother having engaged a solicitor and Queen’s Counsel for the Rice & Asplund threshold hearing to emphasise that the mother had funds to engage in the litigation. He also noted that the mother provided evidence of her attendance upon two psychologists who have both provided reports for the Court. From this, the father asks the Court to infer the mother had sufficient financial resources to fund these expert reports.
The father also pointed out that the mother currently makes a child support payment to the father in the sum of $876.75 per month pursuant to the Child Support (Assessment) Act 1989 (Cth). There was no dispute the mother’s child support assessment reduced as of 1 October 2021 to $689.33 per month.
The mother argues that her financial circumstances are dire. She states her current weekly income is $963, with her living expenses often exceeding this amount. She claims a need to borrow from family and friends to assist. In her submissions, she points to a grant of legal aid as evidence of impecuniosity. But, as pointed out below under s 117(2A)(b), this is inaccurate. There was no grant of legal aid for the purposes of her fresh parenting application, but only for a subsequent appeal. Indeed, the mother gave evidence that she has taken out a personal loan of $32,650 for to pay her legal fees in relation to the substantive application to which this costs judgment relates, with weekly repayments of $130.26 per week over the next seven years. Her own evidence is that she has incurred legal fees of $33,934.18. This is some evidence of an ability to service a personal loan.
The mother claimed in her affidavit that the father holds significant assets and receives an income in excess of $300,000 per annum, which has not been accounted for in the child support assessment. The assessment currently indicates that the father’s income is estimated to be $71,421 for the 2020-2021 financial year. The mother relied upon ASIC searches showing the father is the sole director of a number of companies. However, no information was provided to demonstrate the nature of the companies and their relevance to the father’s financial position. She also claimed the father owns several private and commercial properties, a European motor vehicle valued at $93,000, and currently pays approximately $35,000 in school fees per year for the child to attend private school. Therefore, the mother argues that the child support assessment is not reflective of the father’s lifestyle and the child’s educational requirements.
In his reply, the father asserts that the mother’s claim that his income is in excess of $300,000 is unfounded. He also submits that his taxable income for the financial year ending 30 June 2020 was only $69,476.
I do not fully accept the mother’s assertions about the father’s assets and income. However, I accept the father’s financial position may be stronger than that of the mother. There was evidence that she received a grant of legal aid for an appeal (see discussion of s 117(2A)(b) below), from which a degree of financial privation may be inferred.
Section 117(2A)(b) – whether any party is in receipt of legal aid
The mother asserts that she was in receipt of a grant of legal aid during the substantive proceedings, and attached an approval for an application for legal aid from Legal Aid NSW to her affidavit. The father argued that the mother was not in receipt of a grant of legal aid during the preparation for and up to the hearing on 12 May 2021. There was no notice ever received from the mother’s solicitors to the effect that the mother was in receipt of any such grant. The approval letter provided shows that the grant commenced from 31 May 2021, and that Legal Aid NSW would not pay for any work done by her legal representation prior to that date. Therefore, the grant of legal aid did not cover the mother’s application or the Rice & Asplund threshold hearing on 12 May 2021.
Section 117(2A)(c) – the conduct of the parties
The father relied upon the judgments of Fowler J at [20] and Loughnan J at [25], as well as my finding at [26] in the substantive judgment concerning the significance of the repetitious litigation by the mother, and the detrimental impact it has had upon the child.
The mother argues that there was nothing in her conduct in the proceedings to enliven this subsection, and that it was within her entitlement to file an application to seek time with the child. I accept that final parenting orders may always be open to an application for variation.
But somewhat remarkably, in her submissions about costs, the mother alleges the father engaged in fraudulent behaviour in the proceedings before Fowler J which later formed the basis of the final orders made by Loughnan J for the child to live with the father. The mother claims that the father knew that the child did not have Oppositional Defiant Disorder, and used this false evidence knowingly to gain custody of the child. She submitted that the court should not rely on any evidence submitted by the father and sought for the Court to entertain an application to set aside the judgment of Loughnan J on the basis of fraud.
At [98] of the substantive judgment, I held that
The contents of the letter delivered to the father in June 2016 and the mother’s online petition are concerning, not because they contain any allegations about the father that have ever been substantiated, but because they betray the extreme nature of the views held by the mother towards the father, and, to the extent she was responsible for their content, highlight starkly her lack of insight into her own conduct and its possible impact on the child, as found by both Fowler and Loughnan JJ. It seems clear that throughout 2016, the mother harboured extreme and irrational perceptions about the father as a malign and dangerous parent and a disturbing level of anger at the fact he had been granted sole parental care. The evidence regrettably bears out the concern of Fowler J in 2011 that the mother would be unable to change her perception of the father. It also shows a willingness on the part of the mother to enlist supporters to propagate specious allegations about the father, made to various agencies including the police, in an effort to paint herself and the child as victims of the father’s abuse, and to reverse what she fears is a negative perception of her as a parent.
I note that there was no appeal from the orders of Loughnan J. I take no account of the mother’s allegations of fraud for the purposes of this judgment. They appear to lie in the same tradition of unjustified accusations against the father to which I refer at [98] of the substantive judgment. They are not supported by any findings in the substantive judgment.
For his part, the father relied on various emails and letters received between both parties’ legal representatives in the lead up to the threshold hearing. I make reference to these letters in the substantive judgment at [120]. The father had submitted that this was evidence of the mother’s lack of insight. I agreed with the father and found that it “demonstrates also the refusal of the mother to take anything other than an unremitting, indeed obdurate, stance about her right, as she sees it, to spend time with the child.”
Section 117(2A)(d) – whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
The mother appeared to argue that her Initiating Application was necessitated because of the father’s non-compliance with the final orders, particularly Order 5.
At [29]–[31] of the substantive judgment I held:
29. But, as the evidence discussed later in these reasons shows that the mother has been unable to accept that the father was given by the Court control over how any time with the child would be spent by her. To illustrate the point here, for example, in correspondence from the mother’s solicitor to the father’s solicitors dated 26 November 2020, it is asserted: “objectively the current Order that (sic) allows your client to determine [contact with the mother] is not in the child’s best interest”. In other correspondence, the mother’s solicitor seemed to interpret Order 5 as meaning the father was under an obligation to bring about time between her and the child in accordance with her wishes, without any condition such as supervision. Specifically, in correspondence from her solicitors to the father’s solicitors, it is asserted that the father “is required to allow the child…to spend time with our client.”
30. Neither asserted position is correct. Unless changed, the current orders are by definition in the child’s best interests. The father, as the sole parent to whom parental responsibility has been allocated, is given in the first instance the discretion to set the terms of an agreement about the child spending time with the mother. The mother can propose her own terms, but the father is under no obligation to agree.
31. If there is no agreement, Order 5 leaves open the possibility Order 5 to be varied by an application to the Court. It is clear, however, that Loughnan J, in making Order 5, did not invite litigation. He was simply acknowledging that there is always potential for fresh parenting proceedings after final orders are made, because circumstances change. This potential is recognised in a number of authorities discussed later in these reasons. Loughnan J anticipated that the principles in Rice & Asplund may play a role in any future application by the mother. This can be seen in his remarks set out at [25] above.
I concluded at [145]:
In light of the mother’s extreme and irrational views about the father, her focus on the benefit to herself of time with the child, and her ill-founded sense of entitlement to parent the child, I am satisfied it is more probable than not that if the mother’s application was to proceed, there is a real risk the mother will renew and expose the child to her baseless narrative about the father being a malign and dangerous person, while she is the true protective parent, with unceasing pressure on the child to spend more time with her and ultimately align with her.
I do not accept that the proceedings were necessitated by any non-compliance on the part of the father. Rather, the mother commenced proceedings for her own benefit, based on an unreasonable and erroneous interpretation of court orders.
Section 117(2A)(e) – whether any party has been wholly unsuccessful
There is no dispute that the mother was not wholly unsuccessful in the substantive dispute.
Section 117(2A)(f) – whether any party made an offer in writing to settle
The father submits that he provided two offers to settle to the mother. The first offer was dated 24 November 2020, for the dismissal of all applications and the mother to pay $5000 by way of costs. The second offer, dated 20 January 2020, was for an amendment of the final orders to include a reference to the father being permitted to impose such conditions as he deems necessary; for instance, supervision. The father contends that the mother made no offers to settle.
The mother argued that the 20 January 2021 offer did not provide for time between the child and her, only benefitted the father, and was not genuinely made. The mother states that her affidavit provides evidence of attempts to settle, with regular emails to the father seeking for time with the child to be supervised by the father.
At [35] above, I have set out my conclusions concerning the mother’s erroneous understanding of the final orders in the substantive judgment. At [120], I further held that
Ultimately, from late October 2020 to date, there have been 22 pieces of correspondence from the mother’s solicitors with increasing intensity which convey repeated requests from the mother to the father by her solicitors asking him for unsupervised time, and to justify his position, notwithstanding his responses. The father submitted that this was evidence of the fact that the mother has no insight: transcript 12 May 2021, p.26 lines 20-25. I agree. It demonstrates also the refusal of the mother to take anything other than an unremitting, indeed obdurate, stance about her right, as she sees it, to spend time with the child.
At [146], I also held that
It is salient in the circumstances of this case that since December 2015, and despite the constant bogus allegations about the father by the mother in 2016, and her attempts to hold him up to public scrutiny, if not humiliation, he has remained willing to agree to supervised time between the mother and the child, if she took the reasonable step of engaging with his nominated health professionals to help understand her role as a parent and to see beyond herself to the best interests of the child. The mother could have spent time with the child in a structured and supervised way since December 2015. This would have allowed the child to maintain and grow his relationship with the mother in a safe and appropriate manner. If she had properly understood the best interests of the child and that contact with her in the manner proposed by the father would most likely be in his best interests, such contact would probably have been welcomed by the mother. However, she lacks that understanding. She chose no contact, or surreptitious contact at school, over structured supervised time in tandem with therapeutic intervention, as the father proposed.
In my view, the father made attempts to resolve the ongoing dispute with the mother. It is true the mother regularly emailed the father. But unreasonably, and because of her refusal to approach the final orders realistically, she pressed on with her fresh parenting proceedings, despite an obvious pathway to resolution which would likely have seen her spend supervised time with the child.
Section 117(2A)(g) – such other matters the Court considers relevant
The father in his submissions emphasised the extensive litigation history of the matter, the mother’s conduct throughout the prolonged period, and the lack of insight with regard to the persistent litigation and the protracted effect upon the child. He concludes that he should not have to incur substantial legal costs in defending the indefensible.
CONCLUSION ON JUSTIFYING CIRCUMSTANCES
I am satisfied that, in the circumstances, the conduct of the mother, her wholly unsuccessful application and her unreasonable refusal to take a path of resolution proffered by the father justifies a costs order in the father’s favour.
INDEMNITY COSTS
The award of indemnity costs in this Court has regularly been called a significant departure from the normal standard. In Harris & Dewell (No 2) [2018] FamCAFC 180 the Full Court said at [23]–[25]:
23. In Kohan and Kohan [(1993) FLC 92-340 (“Kohan”)], the Full Court held, in applying the principles expounded by Sheppard J in Colgate-Palmolive [Company v Cussons Pty Limited [1993] FCA 536; (1993) 46 FCR 225], that an order for indemnity costs represents a “very great departure from the normal standard”. In the later decision of the Full Court in Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197 (“Prantage”), Thackray and Ryan JJ referred to Kohan and other authorities in the Full Courts of both this Court and the Federal Court of Australia as well as the state appeal courts. Their Honours concluded ([86]) that the “usual rule” continued to apply in respect of awards of costs in this Court notwithstanding the Full Court accepting that the difference between party/party costs and a party’s actual costs has continued to grow significantly.
24. That proposition also derives support from what Callinan J said in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [[2001] HCA 26; [2001] HCA 32; (2001) 179 ALR 406 at [40]]. His Honour said that an order for indemnity costs should “be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers”.
25. The rarity of an order for indemnity costs can also be seen illustrated by the comments of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 2), referred to by their Honours in Prantage (at [102] – [103]). Lindgren J said that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation.
Holden CJ in Munday v Bowman (1997) FLC 92–784 at 84,660 outlines the various factors that could cause the finding of costs on an indemnity basis as per Colgate-Palmolive Co v Cussons Pty Limited (1993) 46 FCR 225:
(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; and
(e)An imprudent refusal of an offer to compromise.
However, the Full Court in Worth and Worth (No 2) [2019] FamCAFC 126 emphasised that the above categories are not closed.
The father submits four grounds justifying the making of a costs order on an indemnity basis. Firstly, he points to the mother’s refusal to accept the offers of settlement. Secondly, the mother’s commencement of the proceedings on the basis of her wrong and unreasonable interpretation of the December 2015 Orders. He relies upon my finding in the substantive judgment at [29]–[30] set out above at [34]. Thirdly, that the mother filed a further interim application on 17 December 2020 following her initiating application on 26 October 2020, seeking that the matter be heard ex parte and for the father to provide for overnight time with the child immediately. This resulted in extra work for the father and his solicitors. Finally, that the mother had legal representation at the Rice & Asplund threshold hearing, including Queen’s Counsel. He argues that were she properly advised, the mother should have been aware that her case had no prospects of success. I broadly accept these submissions.
The mother presented little argument beyond contending this is not a case for an indemnity costs order. The mother submitted that the final orders are still in force, and as a result, the child has been prevented from having a meaningful relationship with her. The mother states that she has incurred significant legal costs “with no end to litigation” despite the threshold judgment.
On balance, I am not satisfied that the father should receive an indemnity costs order. However, the reasons which justify a costs order (above at [20]–[43]) together with the matters set out at [45] above, warrant a costs order at a higher basis than party/party costs at the Court scale.
I note here that the father also claimed costs of this application for costs.
This litigation should be brought to an end. I consider it is in the interests of both parties for the Court to exercise its discretion to fix an amount for costs under r 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The father gave evidence that he incurred $31,056 inclusive of GST on an indemnity basis. To avoid the expense of a further assessment, I will order the mother to pay the father’s costs fixed in the amount of $25,000, inclusive of the father’s application for costs.
CONCLUSION
I will make an order for the mother to pay the father’s costs fixed in the amount of $25,000 within 60 days.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 17 November 2021
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