Johns and Johns (No. 2)

[2020] FamCA 472

FAMILY COURT OF AUSTRALIA

JOHNS & JOHNS (NO. 2) [2020] FamCA 472

FAMILY LAW – COSTS – Where the father seeks an order that the mother pay his costs in relation to her application to re-open parenting proceedings on an indemnity basis – Where the mother seeks that the father’s costs application be dismissed – Where the mother was wholly unsuccessful in her application to re-open proceedings on Rice v Asplund principles – Where there are circumstances that justify an order for costs on a party/party basis – Costs order made in favour of the father.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.08

Colgate-Palmolive Company v Cussons Pty Limited  (1993) 46 FCR 225 Hawkins & Roe [2012] FamCAFC 77 Joyce & Fante [2013] FamCAFC 141 Mansfield and Ors & Mansfield and Anor (2019) FLC 93-920 Penfold v Penfold (1980) 144 CLR 311 PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 Yunghanns & Ors & Yunghanns & Ors & Yunghanns  (2000) FLC 93-029
APPLICANT:	Ms Johns

RESPONDENT: Mr Johns

FILE NUMBER: SYC 6836 of 2010

DATE DELIVERED: 10 June 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 26 February 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self Represented

SOLICITOR FOR THE RESPONDENT: Mr Othen

Orders

1. That the applicant mother pay the respondent father’s costs of and incidental to these proceedings as agreed or assessed.

2. That the applicant mother’s application that the father pay her costs is dismissed.

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 Johns & Johns 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).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 6836 of 2010

Ms Johns

Applicant

And

Mr Johns

Respondent

REASONS FOR JUDGMENT

Introduction

1. This judgment concerns  applications for costs made by both parties in relation to an application made by the mother seeking to re-visit the parenting arrangements of their only child, a daughter now aged 12 (“the child”). 

2. By way of Initiating Application filed in December 2018, the mother urged the Court to find that since final parenting orders were made in December 2012 there had been a significant change in the child’s circumstances to warrant a fresh consideration of the child’s parenting arrangements. She ultimately sought orders that would see a significant change to the child’s current equal shared care arrangement, and other parenting orders relating to parental responsibility and the child’s name.

3. The father opposed the mother’s application and sought orders that it be dismissed and that she pay his costs.

4. On 24 January 2020 I delivered judgment in which I dismissed the mother’s application on the basis that it was not in the child’s best interests for the question of her parenting arrangements to be reconsidered by the Court. [1]

   [1] See Rice v Asplund [1978] FamCA 84; (1979) FLC 90-725.

5. Along with an order dismissing the mother’s application to re-open proceedings, I made directions in relation to filing evidence and submissions with respect to the father’s costs application which was to be dealt with in chambers upon receipt of same. The mother had not at that stage made application for her costs to be paid by the father, but it became apparent in the material filed that she was seeking such an order.

6. The question for me to consider is whether there are circumstances that justify departing from the usual rule that each party bear their own costs, and if so, whether these circumstances are exceptional to justify that a costs order be made as against the mother, on an indemnity basis.

Background

1. Following the breakdown of their three and half year marriage in 2010, the parties were in dispute in the Federal Magistrates Court (as it was then known) as to the parenting of their only child who was then only three years old.

2. Throughout the earlier proceedings the mother contended that the child was at risk in the father’s care on the basis that he had sexually abused the child and that the child was also sexually harmed by the father’s son from a previous relationship who primarily lived in the father’s household. The mother’s allegations came about as a result of disclosures said to have been made by the child. Although these allegations were not substantiated by various investigations conducted by the Joint Investigation Response Team (JIRT)[2], the mother continued to press this case until just before the final hearing. Other allegations made by the mother against the father included incidents of domestic violence said to have been perpetrated by him and that he drank alcohol to excess which compromised his parenting capacity.  

   [2] The Joint Investigation and Response Team was made up of officers from Community Services and police and investigated complaints of sexual abuse and serious physical abuse of children.

3. The father denied all allegations made by the mother and maintained he did not pose a risk of harm to the child in any way.  

4. In determining the matter,[3] the trial judge made observations about the mother’s credit and found much of her evidence to be uncorroborated by objective evidence and to that end, unreliable. The trial judge also accepted the opinions of the expert appointed in the proceedings, including evidence concerning the mother’s “heightened” and “unresolved anxiety” about the child’s safety in the father’s care, to find that the father did not pose a risk of harm to the child and that the most suitable arrangement for the child was an equal shared care arrangement.

   [3]Johns & Johns [2012] FamCA 1060.

5. The parenting dispute resolved by way of final orders made on 12 December 2012 (“the 2012 orders”) which provided that the parties hold equal shared parental responsibility for the child and that the child live with each parent in a week about arrangement and spend time with each parent for half of all school holidays.

6. The parenting regime under the 2012 orders continued for the ensuing six years.

7. On 19 December 2018 the mother made an application in this Court seeking that the 2012 orders be revisited and that orders be implemented providing that she hold sole parental responsibility for the child, that the child live with her and spend time with the father upon the child’s request or the father’s written request. She also sought an order for the “restoration of the child’s name to her true birth name” but that the child be at liberty to refer to herself by the name she chooses.

8. The general tenor of the mother’s evidence in support of her December 2018 application was that the child was complaining to her again about the father’s conduct, including that the father had exposed the child to family violence and had neglected the child. The mother also claimed that the father failed to involve her properly in the exercise of their joint parental responsibility.

9. In response, the father sought orders that the mother’s application be dismissed and that she pay his costs. Although he conceded that some difficulties had arisen from time to time as a result of the parties’ differing parenting styles, it was his case that the 2012 orders were being adhered to and any differences between the parties in the past have been managed by them to ensure a stable living environment for the child.

10. The mother amended her application to re-open proceedings a further three times, the last being in accordance with orders made on 15 April 2019 at which court event I directed her to set out in full the orders she sought in the event that the proceedings were reopened. In her Further Amended Initiating Application filed 13 May 2019, the mother ultimately sought orders that she hold sole parental responsibility for the child, that the child live with her and spend time with the father each alternate weekend, one weeknight of the alternate week and half of each school holiday period. She also sought an order to change the child’s name.

11. On 9 September 2019 a hearing was conducted on the question of whether there had been a significant change in the child’s circumstances (as was contended by the mother) such that it would be in the child’s best interests for the Court to revisit her parenting arrangements.

12. On 24 January 2020 I dismissed the mother’s application to reopen the proceedings and the following extracts from my Reasons for Judgment[4] (“the January 2020 Judgment”) indicate the matters to which I attached considerable weight in finding that it was not in the child’s best interests for her parenting arrangements to be reconsidered:

    [4]Johns & Johns [2020] FamCA 31.

    [65]…Once again the matters of complaint made by the mother do not reach the level of an allegation of unacceptable risk in the father’s home and may in my view be more appropriately described as a difference of opinion in relation to day to day parenting practices.

    …

    [71]…I attach weight to the fact that many of the mother’s allegations rely upon reports about the father’s conduct that she maintains have been given to her by the child and are otherwise not supported by other evidence.

    [72] Unfortunately the tenor of the mother’s affidavit evidence appears to indicate that she continues to display many of the features that caused the expert to have concern about her care of the child.  These matters include the mother’s unresolved anxiety about the child’s safety in the father’s care, her inability to contain and process her own unpleasant feelings about such matters, a continuation of her inability to reflect upon her own contribution to the difficulties in communication between herself and the father, her propensity to perceive the father as “making trouble” when they have a disagreement about parenting style and the mother’s capacity to create a drama and escalate difficult situations. Each of these matters may affect the reliability of the mother’s evidence and more significantly her perception of risk said to be posed by the father.

    [73] Further, even on the mother’s own case, none of the alleged shortcomings in the father’s parenting capacity or his behaviour raise the suggestion that he poses an unacceptable risk of harm for the child or indeed raise any risk of harm if the father’s evidence is preferred over that of the mother’s.

    [74] Although the parties had agreed in the previous proceedings that the child should ultimately spend at least equal time in each parent’s care the mother had been seeking a much slower transition to that end point. It is clear from Her Honour’s Reasons for Judgment that she accepted the evidence of the expert that it was appropriate for an equal time regime to be implemented immediately and on this basis such orders were made. As the expert had changed her opinion and recommended an immediate implementation of an equal care regime due to concerning features of the mother’s behaviours and patterns of thinking and it appears that none of those behaviours or thinking have changed, it is in my view highly unlikely that the change to the parenting arrangements as proposed by the mother would be found to be in the child’s best interests.

    …

    [77] The father does not seek any change in the child’s parenting arrangements and in particular does not propose that he become the child’s primary carer. In my view it is likely that his position would be accepted by a court if there were to be further litigation. In particular I am of the view on the evidence available that a court would find, as he contends, that although there have been some difficulties over the years having regard to the different attitudes and parenting styles of the parties, in general the orders governing the child’s parenting arrangement have worked well and are consistent with the best interests of the child.

    …

    [81] … [I]n my view it is highly unlikely that the general structure of the child’s parenting arrangement would be changed even if revisited. So far as some of the other less significant and additional orders sought by the mother are concerned, I attach weight to the paucity of evidence adduced as to the change in the child’s circumstances. Further given the undisputed evidence of the mental health difficulties experienced by the child, I am easily satisfied that the potential detriment to the child from further litigation outweighs any possible minor changes to the parenting arrangements that may be made if the proceedings were to be reopened.

13. In this application, the father seeks that his costs of and incidental to the mother’s application to re-open the proceedings be paid by the mother in the sum of $11,715.

14. The mother seeks that the father’s costs application be dismissed and that he pay her costs in the sum of $8,993.26 or such other specific sum as the Court sees fit. She relies on her Financial Statement and affidavit dated 24 February 2020.

The Law And Discussion

1. Section 117 of the Family Law Act 1975 (“the Act”) provides that each party to proceedings under the Act shall bear his or her own costs, but that section is subject to subsection (2) which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make an order costs as it considers just.

2. The father seeks that the mother pay his costs on an indemnity basis. In the alternative, he seeks that she pay his costs as assessed on the “ordinary” basis, although no sum is specified.

3. The mother filed written submissions and an affidavit  as directed in which she sought that the father pay her costs in the sum of $8,9993.36 or “such other specific sum as the Court sees fit”. She also sought in the alternative that the father pay her costs as assessed on the “ordinary” basis but did not provide an alternative sum. Of significance, it is unclear how the mother arrives at this claimed sum, given that she is self-represented. Although she deposes to incurring various expenses in the course of preparing her case for hearing, it is apparent that the mother misconceives the nature of legal costs as she claims for example monies lost when she says she was required to take unpaid leave from her employment to prepare her case.

4. Section 117(2A) sets out matters to which the Court is to have regard in considering what order, if any, should be made under subsection (2). The matters relevant in this case are considered below.

The financial position of each of the parties to the proceedings

1. The mother contends that she “cannot afford” a costs order against her and that any such order would “severely impact” her ability to care for the child. In her affidavit dated 24 February 2020, she deposes to being made redundant in June 2019 and not receiving a redundancy payment due to the size of the business in which she was employed. Since being made redundant, the mother claims she has not been able to secure employment and that she is currently in receipt of Centrelink payments which do not fully cover her rental obligations and living expenses.

2. According to the mother’s Financial Statement dated 24 February 2020, she has a total average weekly income of $438.30, comprising income received from government benefits and child support paid by the father. She deposes that her total personal expenditure each week is $607.61 which consists of rent, car insurance, utility bills and credit card payments. She also claims that the expenses paid by her for the benefit of the child total $15,292.04, being the combined value of annual fees paid for the child’s schooling and extra-curricular activities such as dance lessons.

3. The mother also deposes that she owns little property being a motor vehicle with a value of $3,000, household contents estimated at $5,000, $1,500 in personal effects and less than $150 of funds in the bank. Her Financial Statement also indicates that she has a superannuation entitlement of $50,699.86. Otherwise, the mother deposes to liabilities of $205,563.74, which largely consist of a personal loan, unpaid legal fees and credit card debt.

4. The father does not provide a Financial Statement in his application nor does he submit affidavit evidence as to his financial circumstances.

5. In the mother’s affidavit, under the heading “[The father] and [the father’s new wife]’s financial position”, the mother details her understanding of the father’s financial capacity along with that of his partner. According to a Child Support Assessment dated September 2019 which the mother annexes to her affidavit, the father is deemed to have annual earnings of about $91,423. The mother deposes with reference to a website that the father is in gainful employment as a self-employed business man. She also submits that the father owns several motor vehicles, along with a motorbike and a yacht which she claims the father has deposed to in his previous affidavits.

6. While the father in his written submissions states that “any disparity in [the] financial circumstances of the parties is of very limited relevance to the exercise of discretion”, he does submit that the mother had noted in the substantive proceedings that she was “financially in a position to support the child living with her full time”, and that there is otherwise no evidence to suggest that she cannot afford to pay the amount claimed.

7. Despite the uncertainties associated with the father’s current assets and financial resources, I accept (placing weight in particular on the father’s deemed income and earning capacity) that he is in a superior financial position to that of the mother.

8. So far as the father’s application for his costs to be paid by the mother is concerned, I attach some weight to the relative financial positions of the parties. This matter is not determinative however as impecuniosity is no bar to the making of an order for costs,[5] particularly where there are circumstances which otherwise justify an order for costs.

   [5]D & D (Costs) (No. 2) (2010) FLC 93-435.

9. So far as the mother’s application that the father pay her costs is concerned, I am satisfied that he is in a financial position to bear those costs if ordered to pay them.

The conduct of the parties to the proceedings in relation to the proceedings

Whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. The father contends generally that the mother’s application to re-open proceedings unreasonably re-agitated issues “long ago laid to rest” by the trial judge. He also contends that 80% of his costs in preparation for the hearing “was in the form of wasted costs to accommodate the mother’s changes in case”. He claims that in failing to address her legal and evidentiary burden in earlier iterations of her applications and affidavits the mother prolonged the proceedings.

2. The procedural history of this matter indicates that the mother took steps to revisit the parenting arrangements for the child a few weeks prior to filing her Application in December 2018. In particular she filed an Application in a Case seeking a “review” of a Registrar’s decision as to the filing of the family dispute resolution certificate that is mandatory when initiating proceedings. Her affidavit filed in support raised issues relating to the co-parenting relationship between the parties which she said had become “untenable” for her, and also raised other matters relating to the parties’ exercise of parental responsibility and the “emotional abuse” the child allegedly suffers as a result of her current name.

1. On 4 December 2018 as the Registrar did not consider it urgent, the mother’s Application was listed for call-over on 17 January 2019.

2. The mother’s Application in a Case and affidavit filed in support was then formally withdrawn on 19 December 2018, and on the same day the mother filed her Initiating Application seeking orders that appear to reflect the complaints she had made against the father in the earlier material.

3. In her Initiating Application filed on 19 December 2018 the mother also sought an interim order that an urgent hearing be conducted to consider the child living primarily with her and for the father to be restricted to supervised time with the child for the child’s “safety and wellbeing”.

4. On 20 December 2018 after reviewing the mother’s application the Registrar refused to list the mother’s interim application on short notice.

5. In his Response to Initiating Application filed on 25 January 2019 the father urged that the orders sought by the mother relating to parental responsibility and the regime of time to be spent with him be dealt with on Rice v Asplund principles. He also noted that the order sought by the mother relating to changes to the child’s name was “an abuse of process”.

6. A few days later on 29 January, the mother amended her application seeking an order that the judgment accompanying the 2012 orders “be set aside to make do justice, as the judgment was issued by mistake, created based on misguided and fraudulent evidence” (sic). She asserted in a later affidavit that the trial judge was “extensively critical” of her evidence but that due to her limited financial capacity at the time she did not appeal the 2012 orders.

7. On the same day the matter went before a Registrar who directed the mother to file a consolidated affidavit and strongly advised her to seek legal advice prior to doing so.

8. In accordance with these orders made by the Registrar the mother filed a consolidated affidavit on 8 February 2019, deposing again to various instances of the father’s limited parenting capacity and poor attitude towards his parental obligations. Curiously however, on the same day the mother again amended her application seeking orders that the child spend time with the father each alternate weekend with a mid-week dinner on the off-week, and no longer than 10 days during school holidays. It also appears that she continued to press her application that the child reside with her on an interim basis for the “safety and wellbeing of the child”, despite the Registrar refusing to deal with an interim order in the same terms on short notice in late 2018.

9. On 15 April 2019 I directed the mother to file an amended application setting out in full the orders she proposed the Court make in the event that the proceedings were reopened. I also directed her to provide a single affidavit directed only to the issue of the change in the child’s circumstances since the 2012 orders, noting that any evidence which does not comply with this direction will be struck out. On this occasion the mother was again advised “in the strongest terms” to formally seek legal advice in relation to her application.

10. Subsequently on 13 May 2019 the mother filed an amended application in which she sought orders that the child live with her and spend substantial and significant time with the father and that she hold sole parental responsibility. Her affidavit filed in support appears to ventilate similar matters addressed in earlier proceedings in 2012 suggesting that the child is at risk in the father’s household on the basis of physical abuse, neglect and emotional abuse surrounding her “true birth name”.

11. Relevantly, the mother’s allegations against the father were raised in circumstances where the trial judge had accepted expert opinion that:

    … there is no evidence to suggest that the father has the boundary, impulse, control, mentalisation and empathy failures which would allow him to sexually or emotionally abuse [the child] or to be grossly neglectful of her welfare.

12. Further, as can be seen from that 2012 judgment, the trial judge’s main concern for the child was the mother’s anxiety and mistrust of the father becoming uncontained and thereby leading to significant damage to the child’s development.

13. In the January 2020 Judgment I noted that the tenor of the mother’s affidavit evidence in these proceedings indicated that she continued to display “many of the features that caused the expert to have concern about her care of the child”. These matters included the following which, when coupled with the nature of her orders sought, cast doubt on whether she was reasonable in bringing her application:

    [72]…the mother’s unresolved anxiety about the child’s safety in the father’s care, her inability to contain and process her own unpleasant feelings about such matters, a continuation of her inability to reflect upon her own contribution to the difficulties in communication between herself and the father, her propensity to perceive the father as “making trouble” when they have a disagreement about parenting style and the mother’s capacity to create a drama and escalate difficult situations.

14. Throughout her application the mother maintained that the father would often dismiss her attempts to communicate with him regarding “necessary co-parenting matters” as “harassment” and that their co-parenting relationship has primarily consisted of her “submitting to [the father]’s directions in order for there to be peace”.

15. Against this background, the mother contends in this application that the father’s conduct in declining her repeated requests to participate in co-parent counselling and mediation caused her to pursue her application at significant expense to her.

16. The father maintained in response that despite his attempts to “minimise conflict” between the parties following separation, the mother continued to unreasonably contact him on a daily basis “trying to organise [the child]’s time whilst in [his] care, making demands around parenting or baiting [him] into arguments”. He claims that notwithstanding her disruptive behaviour, he has never refused to allow her to contact him but has asked that she reserve communication for “emergencies or arrangements that relate directly to hand-overs”. On the mother’s evidence, some of her repeated texts were necessitated “to negotiate co-parenting matters, mostly regarding organisation of [the child]’s dance performances”.

17. It is also the mother’s case that counsel for the father failed to “help dissolve the situation”. She deposes that in the months preceding her application she had made available to the father’s counsel email communication between the parties in which she urged that the parties negotiate their parenting issues outside the Court. The father’s counsel did not respond to these emails but later replied to a follow up email sent from the mother, advising her to exclude him from communication between the parties as at the time such correspondence took place, the father had not retained him as counsel and emails were sent to him by the mother on the basis that he had represented the father in the earlier proceedings. The mother insists that counsel’s failure to facilitate and encourage the parties to negotiate a settlement outside the Court is against family law practice guidelines, and that had he and the father been responsive to her mediation requests and other requests to discuss the matter outside of court her expense “would have been avoided”.

18. Importantly, in her written submissions the mother noted that the discussions she urged to have with the father (and counsel) concerned “major long term issues” of the child. In her application to re-visit the parenting orders, it became apparent that these “issues” related to various complaints about the father’s conduct said to have been made by the child, as well as the parties’ exercise of joint parental responsibility.

19. Although at first blush it appears the father may have been obstructive or inflexible towards discussions relating to the child, for reasons given in the January 2020 Judgment[6] I am of the view that many of the issues with which the mother was concerned are simply differences between the parties concerning day to day parenting attitudes and parenting style, or are otherwise of no consequence.

    [6]Johns & Johns [2020] FamCA 31.

20. In the course of the hearing I also made observations about the unreliability of the mother’s evidence upon which she based her contentions. In particular, I formed the view that much of her evidence was uncorroborated and that it appeared that she continued to unreasonably press a case with little merit. Accordingly, the mother was wholly unsuccessful in her application to re-open the parenting proceedings as none of the matters raised by her amounted to a significant change in the child’s circumstances that would justify revisiting the parenting orders.

21. Attaching weight to the father’s contentions about the mother’s conduct, combined with the fact that she was wholly unsuccessful in her application, I accept the father’s submission that the mother’s application unreasonably re-agitated issues long ago laid to rest by the trial judge.

22. As far as the mother’s application is concerned, I reject her contentions about the father’s conduct and again note that she was wholly unsuccessful in her application which is a weighty matter against an order that the father pay her costs.

Whether any party to the proceedings is in receipt of assistance by way of legal aid

1. Neither of the parties was assisted in the proceedings by way of legal aid

Whether any party has made an offer to settle in writing and the terms of that offer

1. Neither party made an offer in writing to the other party to settle the proceedings, although the mother deposes to attempting to contact the father in March 2019 in order to organise a meeting to “talk through things amicably outside of court” which the father refused to attend.

Such other matters as the court considers relevant

1. The earlier parenting dispute was resolved by final orders made in 2012. In the ensuing six years, although the mother makes various allegations about the father’s conduct including towards the child (upon which she essentially bases her case to reconsider final orders), no contravention application was ever filed by her.

2. The father was in my view justified in retaining counsel in order to defend his legal interests given the effect of the orders sought by the mother was a complete reversal of the final orders made in 2012, and most concerns the mother raised in her application appeared to traverse matters already resolved in the earlier proceedings.

3. In Hawkins & Roe[7] the majority of the Full Court said at [147]:

   Whilst the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self-interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.

   [7] [2012] FamCAFC 77.

4. As discussed, the mother’s application to reopen proceedings was entirely unmeritorious. None of the alleged shortcomings in the father’s parenting capacity or behaviour raised the suggestion that he posed an unacceptable risk of harm to the child to justify a reconsideration of the child’s parenting arrangements. There are instead matters, including the mother’s unresolved anxiety about the child’s safety in the father’s care and her propensity to view the father as “making trouble”, that significantly affect her perception of risk said to be posed by him and which are likely to have influenced her to agitate that an equal shared care arrangement and shared parental responsibility is not suitable for the child despite strong expert evidence to the contrary.

Conclusion

1. Attaching weight to the foregoing matters for the reasons given, I am of the view that a costs order should be made in favour of the father, noting that there is nothing to prevent any one factor being the sole determinant for an order for costs. [8]

   [8] PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123.

2. Rule 19.18(1) of the Family Law Rules 2004 (Cth) (“the Rules”) states that the court may order that a party is entitled to costs:

   (a)of a specific amount;

   (b)as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);

   (c)to be calculated in accordance with the method stated in the order; or

   (d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

3. The law in respect of indemnity costs is well settled, with the relevant principles set out in the Federal Court case of Colgate-Palmolive Company v Cussons Pty Limited[9] (“Colgate”). Sheppard J provides examples where the exercise of discretion to award indemnity costs is warranted, including:

   a)false and irrelevant allegations of fraud;

   b)misconduct that causes a loss of time to the Court and other parties;

   c)where the proceedings were commenced or continued for an ulterior motive;

   d)the undue prolongation of a case; or

   e)wilful disregard of known facts and clearly established law.   

   [9] (1993) 46 FCR 225.

4. The Full Court in Mansfield and Ors & Mansfield and Anor[10] has recognised these principles as well-established law with respect to applications for indemnity costs, stating at [8] that “numerous decisions of the Full Court have endorsed the principles stated in Colgate concerning the approach to indemnity costs”.

   [10] (2019) FLC 93-920.

5. While the category of cases in which an award of indemnity costs may be appropriate is not closed[11] the Full Court has stated in Joyce & Fante[12] at [11]:

   … In short, it is beyond doubt that in order to justify an award of indemnity costs, it must be demonstrated there are exceptional circumstances such that the usual order of party-party costs should be departed from.

   [11] Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029.

   [12] [2013] FamCAFC 141.

6. The fathers asserts that the total amount of legal fees paid by him is in the order of $11,715 and annexes invoices received from counsel in support. He submits that this sum is proportionate to the issues in dispute and is “relatively modest compared with rates usually charged” in similar cases. He also deposes that by “undertaking much of the preparation work himself” he saved significant legal costs that could have been incurred.

7. Attaching considerable weight to the fact that the mother was wholly unsuccessful in proving that there had been a significant change in the child’s circumstances to justify the Court revisiting the child’s parenting arrangements at a full hearing, I am satisfied that there are circumstances that justify a departure from the usual rule that each party bear their own costs. These circumstances include the circumstances in which the mother brought her application (as outlined in the January 2020 Judgment) and the fact that the mother was unreasonable in her orders sought which would have clearly unsettled the child’s parenting arrangements that has continued for the last seven years.

8. Although the category of cases in which an award of indemnity costs may be appropriate is not closed, I am not satisfied that the circumstances outlined above are “exceptional” to warrant a costs order made on an indemnity basis. Rather, they amount to justifiable circumstances which make an award of party/party costs appropriate.[13]

   [13] See Penfold v Penfold (1980) 144 CLR 311.

9. In the absence of submissions as to a sum to be awarded in the event a costs order on an indemnity basis is not made, I am of the view that the only alternative position that is just and reasonable in the circumstances is that the mother pay the father’s costs as agreed or assessed.

10. For the foregoing reasons I make the orders as set out at the forefront of these Reasons.

I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hann delivered on 10 June 2020.

Associate: 

Date:  10 June 2020