JAROS & CALDEN (No.2)

In the matter of JAROS & CALDEN (No.2), Judge Heffernan of the Federal Circuit Court of Australia considered an application for costs made by the mother against the father. The dispute arose from the father's alleged withholding of the children contrary to court orders and his making of allegations that were not reasonably capable of belief, which compelled the mother to make an application for recovery. The father was wholly unsuccessful in opposing the mother's recovery application and subsequently opposed the mother's application for indemnity costs.

The central legal issue before the court was whether exceptional circumstances existed to warrant an order for indemnity costs in favour of the mother. This required the court to assess the conduct of the father in the proceedings, particularly in relation to his withholding of the children and the nature of the allegations he advanced.

Judge Heffernan reasoned that the father's conduct in withholding the children contrary to court orders and his pursuit of unsubstantiated allegations constituted exceptional circumstances justifying an award of indemnity costs. The court applied the principles governing costs in family law proceedings, recognising that while costs are not usually awarded as of course, they may be ordered on an indemnity basis where a party's conduct has been unreasonable or vexatious, thereby causing the other party to incur costs that were unnecessary. The court found that the father's actions had directly led to the mother incurring significant legal expenses in seeking the recovery of the children.

Consequently, the court ordered that the father pay the mother's costs for the Application in a Case filed 26 March 2019 on an indemnity basis in the amount of $7,083.00. The father was also ordered to pay the mother's costs on the costs application itself on a party/party basis, including an advocacy loading. All other extant applications were dismissed.