Hutcheson & Meli - [2016] FamCAFC 258

FAMILY COURT OF AUSTRALIA

HUTCHESON & MELI

[2016] FamCAFC 258

FAMILY LAW – APPEAL – CHILDREN – INTERNATIONAL RELOCATION – Where orders were made permitting the mother to relocate the child’s residence to the United Kingdom – Where the trial judge found that the mother would suffer serious psychological detriment if she were required to remain in Australia – Where the father asserts that there was no evidentiary basis for the trial judge’s findings – Where the trial judge was stating the conclusion of her evaluation of the evidence – Where the evaluation of evidence and the weight attributed to it is a matter for the trial judge –Where decisions in children’s matters will invariably involve a measure of prediction about the future – Where it was open for the trial judge to reach such a conclusion – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where the father conceded that if the appeal failed he could not argue against the mother’s application for costs – Costs ordered.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where there was an application for dismissal of the appeal and an application for extension of time before the Court – Where orders on the applications were made on the hearing of the appeal and costs of the applications were reserved – Where both applications resulted from the father’s solicitor’s default in failing to file the summary of argument in accordance with the procedural orders – Where the summary of argument was not filed until the morning of the appeal despite numerous communications from the Appeals Registrar about the issue – Where it is appropriate that an order for costs be made personally against the father’s solicitor – Whether an order for indemnity costs is warranted – Where costs on an indemnity basis are awarded only in exceptional cases – Where the solicitor’s default is not such as to warrant a departure from the usual rule that costs are ordered on a party/party basis – Costs ordered against the father’s solicitor personally.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) rr 19.10, 22.45

Cassidy v Murray (1995) FLC 92-633
CDJ v VAJ (1998) 197 CLR 172
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Kohan and Kohan (1993) FLC 92-340
Limousin v Limousin (Costs) (2007) 38 Fam LR 478
Yunghanns v Yunghanns (2000) FLC 93-029

APPELLANT:

Mr Hutcheson

RESPONDENT:

Ms Meli

FILE NUMBER:

ADC

2177

2014

APPEAL NUMBER:

SOA

2016

DATE DELIVERED:

7 December 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Adelaide

JUDGMENT OF:

Thackray, Strickland & Ainslie-Wallace JJ

HEARING DATE:

10 October 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

25 May 2016

LOWER COURT MNC:

[2016] FamCA 400

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Tredrea

SOLICITOR FOR THE APPELLANT:

DBH Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bartfeld QC with Ms Lewis

SOLICITOR FOR THE RESPONDENT:

Clelands Lawyers

Orders

The appeal against the orders of Dawe J made on 25 May 2016 be dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal, such costs to be agreed or assessed.
The solicitor for the appellant father pay the respondent mother’s costs of and incidental to the applications in an appeal seeking dismissal of the appeal and extension of time, such costs to be agreed or assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hutcheson & Meli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 48 of 2016
File Number: ADC 2177 of 2014

Mr Hutcheson

Appellant

and

Ms Meli
Respondent

REASONS FOR JUDGMENT

Mr Hutcheson (“the father”) appeals against orders made by Dawe J on 25 May 2016 concerning B (“the child”), the child of the father and Ms Meli (“the mother”). The child was born in 2011. Her Honour ordered that the mother have sole parental responsibility of the child and gave her liberty to relocate the child’s residence to the United Kingdom after 17 August 2016. Before the child left Australia, her Honour provided for time to be spent between the child and the father, and also made orders which facilitated time to be spent between the child and the father once the child moved to the United Kingdom.
The father was born in Australia and lives in Adelaide. The mother, whilst having been born in Asia, has lived an international life. After leaving school the mother worked for many years in the United Kingdom before moving to Asia in order to be closer to her family. In 2010 she moved to live in another country in Southeast Asia. The mother and the father met in that country, where they had a short relationship which resulted in the mother becoming pregnant. They decided to continue the relationship and, in April 2011, the mother moved to live in Adelaide. The parties married in April 2011 and separated in 2013.
There was no dispute before the trial judge that the mother had been the child’s primary carer since birth and it was not suggested that that should change. After separation, while the father spent some time with the child, it could not be described as extensive. The father made no criticism of the mother’s parenting of the child.
At the conclusion of the hearing before the trial judge, and before the determination of the issues, orders were made which provided for the child to spend one day each weekend with the father, building up to spending each alternate weekend with the father.
The principal issue before the trial judge was the mother’s application that she be permitted to move the child’s residence to the United Kingdom. The father opposed the relocation to the extent that he argued that any such move should be delayed until no earlier than 2020. The mother sought orders that would take effect almost immediately.
Overarching the proceedings before her Honour was the mother’s unhappiness at living in Australia and the consequential effect of those circumstances on her psychological health.
There was no dispute that the mother was and had, probably, always been unhappy living in Australia. As the relationship with the father deteriorated, the mother alleged that the father threatened her. To a degree, the father agreed that he had made threats of violence, but denied he had physically assaulted the mother. As a result of the breakdown of the relationship with the father, the mother said that she lost contact with friends she had made in Adelaide as they had been friends of the father. She said that the father, his family and his new partner had mocked and bullied her at times of handing over the child.
The trial judge said:
128. I accept the evidence of the mother and her witnesses concerning the mother’s genuine anxiety and depression about remaining in Australia and the benefits to the child if the mother is permitted to live in [the United Kingdom] close to her family.
129.I am satisfied that the evidence does establish that the mother has a basis to be concerned about the ongoing difficult relationship with the father. The evidence clearly establishes that the mother will suffer emotionally and psychologically if not permitted to live in [the United Kingdom] near her family.
Turning to a consideration of the benefit to the child in having a meaningful relationship with both of her parents, her Honour said:
138. I am satisfied that there is, and will be, a benefit to the child of having a meaningful relationship with both the mother and the father. It is necessary however to give greater weight to the need to protect the child from any psychological harm which she might suffer from being subjected to the mother’s psychological distress at being required to remain in Adelaide.
Her Honour then said:
141. I am satisfied that the expert evidence from the mother’s psychologist and the family consultant establishes that the mother may suffer serious psychological detriment if she were required to remain living in Adelaide until 2020. The evidence indicates that this distress may reduce the mother’s high level of care of the child who will remain in the primary care of the mother.
Her Honour thus concluded that it was in the best interests of the child for the mother to be permitted to relocate the child’s residence to the United Kingdom after 17 August 2016.

The appeal

Although the Notice of Appeal asserted 21 grounds of challenge to her Honour’s orders, counsel for the father distilled the issue on appeal to an assertion that there was no evidentiary basis for the trial judge’s findings at [129], [138] and [141] (set out above), and thus her Honour’s conclusion that it was in the child’s best interest to relocate her residence to the United Kingdom was without foundation.

The evidence

As the appeal turns on the evidentiary foundation of the trial judge’s findings concerning the mother’s emotional and psychological health, we propose first to set out what we perceive to be the more salient parts of the evidence touching on that topic.

The mother’s evidence

There was no issue that the mother had been extremely unhappy living in Adelaide. She said that she had lost confidence and had become very sad and unhappy. Further, she said:
527. I have hated living in Adelaide. I feel isolated and desperately alone. I cry after [the child] has gone to sleep most nights. I miss my family. I miss my friends. I miss my international lifestyle. I miss everything about who I used to be. I love being a mother, and even though I try and ensure that [the child] gets the best of me, I know she doesn’t. I didn’t anticipate I would be an overweight, directionless mother to our daughter. Before coming to Australia, I was excited about building my own business in Asia surrounded by my long term friends who had children and some who didn’t, where I could visit my family frequently. I am completely lost. I have relied on the prospect, the hope, that I would be permitted me [sic] to leave Australia with [the child].
…
533.I cry myself to sleep most nights but then have to put on a happy face for [the child] and also so that I do not become ill and I don’t want her to be affected. I fear being so stressed will cause me to become very ill. If I am ill, there is no one to care for me. I have always had to care for myself while also caring for [the child].
(Mother’s affidavit filed 12 January 2016, page 85 – 86)

The expert evidence

The mother sought assistance from a psychologist, Ms Q. Ms Q was asked by the mother’s lawyers to provide a report on the consultations, her view as to the impact on the mother of a prolonged or permanent stay in Adelaide, and the impact on the mother of relocating to the United Kingdom. Ms Q, replied in her report noting that the purpose of her consultations with the mother was for personal therapy and that the questions asked had not all been specifically explored in their sessions together, as follows:
5. The impact upon [the mother] as to a prolonged or permanent stay in Adelaide
While this was not a particular focus of my enquiry, [the mother] repeatedly spoke of her sense of isolation from her family and friends which resulted in her sense of “losing herself”. She appears to have few social contacts in Adelaide as her key relationships were her estranged ex husband and his family. Additionally she feels harassed and abused by them and [the father’s] new partner to the extent that she is frightened to visit local shops and amenities for fear of encountering them.
6. The impact upon [the mother] as to a relocation to the United Kingdom
This too has not been an issue that has been actively explored. However I am aware that [the mother] has close friends in Europe and would have better access to her mother who has been ill and returned to [Europe] and to her father who has been very supportive. She has also spoken of her plans to settle [the child] in school in the UK and then open a business which draws on skills of both her parents and recaptures a part of her identity that has been unavailable to her in recent years. She wept when she spoke of her fear that she may be prevented [from] returning to the U.K.
(Annexure CS2 to the affidavit of Ms Q filed 1 December 2015)
Ms Q was not required for cross examination and her report was admitted into evidence.
It is clear from her report that Ms Q’s consultations with the mother were to assist the mother to stay “strong and focussed” and to regain a sense of self.
A psychologist, Ms Z, prepared a court ordered family report which included comments on the mother’s psychological state. Ms Z administered psychometric tests to the mother, namely the Depression Anxiety Stress Scales and the Beck Depression Inventory. The results indicated moderate levels of anxiety and depression. Ms Z said:
[The mother] reported feeling that her self-esteem and self-confidence have been eroded since moving to Australia, and that with the continuing restriction upon her capacity to travel with [the child] to be with her family, this worsens. [The mother] also completed the Detection of Overall Risk Screen, indicating that she has felt anxious and fearful, and depressed within the last six months, and also has held concerns regarding [the father’s] coping in the last six months, particularly with regard to seeming angry or irritated. [The mother] also noted multiple concerns regarding her safety, including having been threatened, being controlled, and followed or watched.
(Family Report dated 4 March 2015, page 9)
Ms Z considered the parties’ competing proposals; first outlining the father’s proposal that the child remain in Adelaide until 2020, then considering the mother’s proposal that she be allowed to relocate to the United Kingdom with the child immediately. Ms Z then identified a third “proposal of compromise” whereby the mother relocate with the child after a period of 12 months, during which time the father spend an increasing amount of time with the child to deepen his relationship with her. Evaluating the proposals Ms Z then said:
The latter two are considered preferable given that [the mother] has been the single stable adult figure for [the child], that [the father] agreed to [the mother] travelling for 11 months with [the child] previously, that there was not a relationship in place prior to [the mother] falling pregnant, the mental health risk to [the mother] of ongoing social isolation…
(Family Report dated 4 March 2015, page 14)
Counsel for the father asked Ms Z about the prospect that the mother’s family might visit her frequently in Australia. Ms Z responded:
…But, to me, this is not her home. It’s not where she resides. Her networks – her avenues in life – are larger than simply her father and sister, who I assume also have their own lives to lead and had not anticipated spending this much time here in Adelaide. That might be moving off from what you were asking me, but it doesn’t shift my concerns about her being here and, you know, the possible impact upon her wellbeing here.
…
I have concerns for the mother being – for her wellbeing – being forced to continue to reside in a city – in a country that she does not want to be in and had no intentions of ever being in, necessarily, prior to finding out she was pregnant, and those concerns will remain whether or not her father and her sister are able to visit.
(Transcript 9 February 2016, page 684 line 9 – 14, 19 – 23)
She was asked what her precise concerns were and replied:
Well, she struck me, at the time that I saw her, of being depressed – of being anxious. She spoke in a matter [sic] that indicated cognitive patterns of depressed thinking. She had a very – a sense of feeling hopeless about being forced to stay here and what that would mean for her. She voiced it in terms of the end of her independent working life. So even with support from her father and her sister which she was immensely grateful for, it’s still a very difficult situation for her to remain here and would remain so, I assume.
(Transcript 9 February 2016, page 684 line 26 – 32)
Having read the report of Ms Q, Ms Z said that it did not alter her conclusion that the mother would remain at risk of mental difficulties if she stayed in Australia.
Ms Z was asked whether the father’s proposal that the mother and child be permitted to travel together overseas on two occasions per year, for 28 days each, would cause her to “feel more optimistic about the mother’s mental condition”. She said:
I imagine it would be a period for her of treading water somewhat. I don’t know what – what weight the court will place upon that in its final decision, but I assume if she is required to stay here until 2020 that it will be a matter of her waiting and holding until such time as she could leave, and it would be up to her to find whatever means she can to – to cope with that as best she can.
(Transcript 9 February 2016, page 686 line 35 – 39)
Ms Z agreed that the terms “depressed” and “anxious” were used by her in a clinical sense and reflected her assessment of the mother’s mental health. She further agreed that the mother’s unhappiness was chronic.
Taken to the mother’s evidence about how she felt, Ms Z agreed that the mother’s statements evinced chronic stress, profound distress and extreme unhappiness.
The following proposition was then put to her:
I suggest that it’s common sense that long-term unhappiness by a parent is likely to impinge in a negative way upon the happiness and best interests of a child of that household?
(Transcript 9 February 2016, page 708 line 33 – 35)
Ms Z agreed, then elaborated, saying:
Where a mother suffers from chronic depression, particularly where there’s a daughter, a young daughter, the child is at elevated risk of experiencing depression and anxiety. A child who is experiencing anxiety and depression as early as primary school is more likely to have it in high school, more likely to have it as an adult. The sorts of things that are almost invisible to most people in seeing are the thinking styles that a child can learn from their parent, their attributional style. Where a parent tends to think things are global, permanent, negative, internal, those are very high-risk ways of thinking and don’t help to build resilience in a child. So where you have a parent saying – even feeling that a situation is going to be forever, that there is no hope, it will never change, that people hate them just because of them and there’s nothing they can do to shift it, that the circumstances are beyond their control, there’s nothing they can do about it – that’s the sort of thinking that over time a child can learn themselves and that place [sic] them at risk from the cognitive perspective of depression in particular.
(Transcript 9 February 2016, page 708 line 42 – 47, page 709 line 1 – 8)
Ms Z further linked the mother’s reported physical ailments, in particular stomach related problems, with stress. She further agreed that such problems were consistent with people suffering from clinical levels of depression.

Discussion

As counsel for the father properly conceded, if there was evidence on which her Honour’s findings could be supported, the appeal falls away.
At [141] her Honour found that, based on the evidence of “the experts”, the mother “may suffer serious psychological detriment if she were required to remain living in Adelaide until 2020”. Her Honour further found that the associated distress “may reduce the mother’s high level of care of the child”.

Counsel for the father argued that the experts did not find that the mother may suffer “serious psychological detriment”, and thus the evidence of the experts was insufficient to support the trial judge’s conclusion.
We accept that neither of the expert witnesses said, in so many words, that the mother might suffer “serious psychological detriment” if she had to continue living in Adelaide. However, we do not consider that the trial judge, at [141], was purporting to recite the precise terms of the experts’ evidence, but rather was stating in lay terms the conclusion she thought could be drawn from their evidence. We see no error in her Honour arriving at that conclusion.
The evaluation of evidence and the weight attributed to it is a matter exquisitely within the realm of the trial judge, and one that will not be disturbed lightly on appeal. In circumstances where both experts referred to the mother’s anxiety and concerns as to her wellbeing were she forced to remain in Adelaide in the long-term, as well as the mother’s own evidence as to her emotional wellbeing and the evidence of her family, it is abundantly clear that it was open to her Honour to reach the conclusion she did.
Counsel for the father further argued that regardless of the level of anxiety and depression the mother was experiencing, there was no evidence that the child had suffered as a result of the difficulties that the mother was then facing.
We note here that although there was no evidence at that time of the child suffering as a consequence of the emotional difficulties the mother was facing, it did not preclude the trial judge from considering that this may occur in the future. This is particularly so when there was no dispute that the mother would remain the primary carer for the child. The evidence before her Honour required the trial judge to make a judgment on whether in the future the mother’s emotional distress might impact on her level of care for the child.
There was evidence before her Honour of the potential impact on the child resulting from her mother’s distress. Her Honour observed at [125] that Ms Z said that the child’s primary attachment was to the mother, and further recorded Ms Z’s evidence:
126. Ms [Z] agreed that the mother’s unhappiness about being required to remain in Australia was a factor and that common sense indicated that long-term unhappiness would impact upon the care of the child. She again repeated that it was necessary to consider both the mother’s ability to deal with her distress emotionally if required to remain in Australia against the benefit to the child of having more regular contact with the father.
Her Honour concluded:
127. Generally her evidence supported the need to maintain a relationship between the child and the father, but also supported the mother’s case that the child would benefit from the mother having reduced anxiety and increased family support if allowed to live near her family in [the United Kingdom].
Decisions in children’s matters will inevitably involve a measure of prediction about the future. As the plurality of the High Court in CDJ v VAJ (1998) 197 CLR 172 said of applications for parenting orders at [151], “[s]uch applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof”.
It is to be understood that the predictive nature of these orders must, perforce, be guided by the past (see CDJ v VAJ (supra)). It is also to be observed that her Honour had before her a factual history, much of which was uncontentious, which informed her conclusions about the child’s best interests. While it is true that there was no evidence that the mother’s emotional difficulties had affected her parenting of the child, the totality of the evidence provided an ample basis for her Honour’s finding.
The appeal will thus be dismissed.

Costs of the appeal

Counsel for the father properly conceded that if the appeal failed, he could not argue against the mother’s application for costs.
Costs on appeals are governed by s 117 of the Family Law Act 1975 (Cth). In this case, the appeal has been wholly unsuccessful, and that provides a circumstance which justifies an order that the father pay the mother’s costs of and incidental to the appeal (ss 117(2) and 117(2A)).

Costs of the Applications in an Appeal

There were two Applications in an Appeal before the Court. Orders were made dealing with these on the day of the hearing, including that the costs in relation to the applications be reserved.
In one application the mother sought that the appeal be dismissed due to the father’s failure to file a summary of argument in compliance with r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”). Seemingly in response to this application, the father sought an extension of time to file his summary of argument in the other application.
The circumstances in which the applications were made were as follows.
Orders were made by the Appeals Registrar on 2 August 2016 requiring the father to file the appeal books by 7 September 2016 and his summary of argument and list of authorities by no later than 15 September 2016. It was also noted that the appeal would be listed for hearing in the Full Court sittings of the week of 10 October 2016.
On 2 September 2016 the Registrar advised both parties by email that the matter was listed for hearing on 10 October 2016, and confirmed the filing dates for the summaries of argument in the same.
On 7 September 2016 the solicitor for the father emailed the Registrar identifying an issue with the provision of transcript and seeking a brief extension of time in which to file the appeal books. On 13 September 2016 the Registrar allowed such an extension until 15 September 2016, and extended the times within which the summaries of argument were to be filed to 19 September 2016 for the father and 3 October 2016 for the mother.
On 15 September 2016 the father filed the appeal books. The Registrar then contacted the solicitor for the father to address some issues that arose with the appeal books. In this email the Registrar confirmed that the appeal remained listed before the Full Court on 10 October 2016, and reminded the father to file his summary of argument and list of authorities by close of business on 19 September 2016.
On 21 September 2016 the Registrar emailed the parties’ solicitors and noted that no summary of argument had been filed by the father and that if one was not filed the Full Court may consider dismissal of the appeal pursuant to r 22.45 of the Rules. The Registrar also drew attention to the necessity to make an application to seek relief from the effect of non-compliance.
On 22 September 2016 the solicitor for the mother replied to the Registrar’s email requesting that consideration be given to dismissing the appeal or adjourning the appeal hearing. The Registrar replied on the same day noting that the appeal could not be administratively dismissed nor removed from the Court’s list and that an application could be made seeking same.
The mother filed her summary of argument on 4 October 2016, 3 October 2016 being a public holiday, without the benefit of the father’s summary of argument.
The solicitor for the father did not contact the Registrar or the solicitor for the mother in response to the emails of 21 and 22 September 2016. The Registrar made several attempts to call the solicitor but received no response until 5 October 2016. In this phone call the solicitor for the father informed the Registrar that counsel had been busy and had sent the solicitor an uncompleted summary of argument. The solicitor indicated that he would attempt to finish the summary and file it within the next day or two, notwithstanding the fact that it was only three business days before the appeal was to be heard.
After that phone call, on 5 October 2016, the Registrar again emailed the solicitor for the father to confirm that as no summary of argument had been filed the Full Court would consider dismissing the appeal on its own motion at the hearing on 10 October 2016, pursuant to r 22.45.
On 7 October 2016 the mother filed an Application in an Appeal and supporting affidavit seeking dismissal of the appeal pursuant to r 22.45.
On that same day the father’s solicitor telephoned the Registrar and advised that he may have a summary of argument ready to be filed by Monday morning (10 October 2016), and that he had briefed other counsel who was not available on Monday but was free on Wednesday. The Registrar responded that the appeal remained listed before the Full Court on Monday 10 October 2016, as did the mother’s application for dismissal. The Registrar subsequently confirmed that advice by email.
Later that day, that being the last business day before the appeal was listed to be heard, the father filed an Application in an Appeal seeking an extension of time to file the summary of argument.
The father’s summary of argument, which was apparently prepared by the father’s new counsel over the weekend, was filed on the morning of the appeal, and counsel for the mother appropriately conceded that since this action had been taken, albeit significantly out of time, the application for dismissal would not be pressed as the interests of justice required the Court to proceed. Likewise, counsel for the mother did not resist the application for the extension of time sought by the father. However, the mother sought costs for both applications and argued that the circumstances of the matter warranted an order for indemnity costs. We raised the issue of whether it ought not be the father’s solicitor who should pay the costs if costs were ordered, however counsel for the mother said he was not instructed to seek such an order.
Orders were made in relation to the Applications in an Appeal and the father’s solicitor was directed to file any submissions on the issue of costs by 14 October 2016. Such submissions were filed on 13 October 2016.
The written submissions drew attention to the decision of this Court in Cassidy v Murray (1995) FLC 92-633 where at 82,364 – 82,365 the Court set out principles applicable to making a costs order against a solicitor. Reference was also made to r 19.10, which provides that a person may apply for a costs order against a lawyer for a reason including “undue delay or default by the lawyer”.
In the written submissions it was conceded “that the default in this matter could be regarded as ‘undue … default by the lawyer’ … and in the nature of a ‘default … of a serious nature … sufficient to justify an order’”.
What is clear from the above history is that the father should not be burdened with the costs associated with his solicitor’s failure to comply with court orders. Nothing put to us suggested that the father himself had been in any way at fault on the delay in filing the summary of argument. In our view, this is a matter where it is appropriate to order costs against the solicitor personally.
We turn then to a consideration as to whether an order for indemnity costs is warranted in this case. The solicitor submitted that this was not a case of misconduct or negligence in the pursuit of litigation which had no proper basis, and thus any costs order made as against the solicitor should be compensatory.
Costs on an indemnity basis are awarded only in exceptional cases (Kohan and Kohan (1993) FLC 92-340 at 79,614; Limousin v Limousin (Costs) (2007) 38 Fam LR 478). In Yunghanns v Yunghanns (2000) FLC 93-029, the Full Court noted that the circumstances that might give rise to an indemnity order are not closed. The Court said at 87,471:
…it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such an order is sought. All that is required is that the Court asked to exercise the discretion be satisfied that some “particular facts and circumstances of the case in question warrant the making of an order for the payment of costs other than on a party and party basis”.
(See also Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233 – 234).
The solicitor’s default is not such as to warrant a departure from the usual rule that costs are awarded on a party/party basis.
There will however be an order that the father’s solicitor pay the mother’s costs of and incidental to the bringing of both Applications in an Appeal.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Ainslie-Wallace JJ) delivered on 7 December 2016.

Associate:

Date: 7 December 2016