Haykal and Krawiec (No 4)

In *Haykal and Krawiec (No 4)*, the Family Court of Australia considered an application by the mother for an order that the father pay her costs on an indemnity basis. This application arose following final parenting orders made in the Federal Magistrates Court, after which the father sought alternate parenting orders. The mother contended that the matters agitated by the father before the Family Court were substantially the same as those previously determined and that his conduct bordered on vexatious.

The central legal issue before the Court was whether the circumstances justified an order for costs pursuant to section 117 of the *Family Law Act 1975* (Cth), and specifically, whether those costs should be awarded on an indemnity basis. The Court was required to consider the father's conduct throughout the proceedings, including the numerous applications, affidavits, and subpoenas he had filed, in light of the statutory factors outlined in section 117(2A) of the Act and relevant case law concerning indemnity costs.

The Court reasoned that an award of indemnity costs could be justified by circumstances such as the making of allegations that ought not to have been made or the undue prolongation of a case by groundless contentions, as per *Colgate-Palmolive Co & Anor v Cussons Pty Ltd*. It noted that the categories for such an award were not closed and that the Court needed to be satisfied that particular facts and circumstances warranted costs other than on a party-party basis. The Court found that the father had been wholly unsuccessful in his application, which sought to re-agitate issues already determined by the Federal Magistrate. The father's conduct, including the filing of numerous documents and attempts to re-open previously decided matters with little apparent change in circumstances, was considered to border on vexatious. The Court also noted the father's failure to engage with expert reports and previous judicial findings.

Consequently, the Court ordered that the father pay the mother's costs on an indemnity basis. These costs were to be assessed in accordance with the mother's costs agreement, to be agreed between the parties within 14 days or otherwise assessed. The order also stipulated payment timelines and provided for the payment of costs of assessment and interest if applicable. Furthermore, the Court certified that it was reasonable for the mother to have engaged senior counsel.