Hayes & Hayes (No. 2)

In *Hayes & Hayes (No. 2)*, the Applicant Mother sought indemnity costs against the Respondent Father following parenting proceedings. The dispute concerned the mother's application for costs, with the father seeking dismissal of her application. The matter was heard by Harper J in the Family Court of Australia.

The primary legal issues before the court were whether exceptional circumstances existed to justify an order for indemnity or solicitor and client costs, and if so, on what basis and to what extent. The court was required to consider the conduct of the parties, including allegations of misleading statements and failure to disclose important evidence by the father, as well as the rejection of settlement offers and delays caused by the father's non-compliance with document production regarding his mental health.

Harper J applied section 117 of the *Family Law Act 1975* (Cth), which establishes that the usual starting point is for each party to bear their own costs, but allows for orders for costs if justifying circumstances are present. The court considered the factors outlined in section 117(2A), including the parties' conduct in relation to pleadings, discovery, and the production of documents, as well as the reasonableness of settlement offers. The court found that the father's misleading evidence, failure to disclose, and unreasonable rejection of settlement offers constituted exceptional circumstances justifying an order for indemnity costs.

The court ordered that the Respondent Father pay the Applicant Mother's costs of the parenting proceedings on an indemnity basis from 3 June 2020. Additionally, both parents were ordered to contribute $9,280 each towards the costs of the Independent Children’s Lawyer.