Liske and Ainscomb (No 2)

In Liske & Ainscomb (No. 2) [2012] FamCA 952, the Family Court of Australia considered an application by Ms Liske (the mother) for an order that Mr Ainscomb (the father) pay her legal costs incurred in parenting proceedings. The dispute arose when the father surreptitiously removed the parties' three-month-old baby from the mother's care and refused to return her, despite the child being breastfed and not being at risk. The mother sought urgent orders, including a recovery order, to have the baby returned.

The court was required to determine whether the circumstances of the case justified making a costs order in favour of the mother, and if so, on what basis. This involved considering the factors outlined in section 117(2A) of the Family Law Act 1975 (Cth), which include the parties' financial circumstances, whether any party has been wholly unsuccessful, and any other relevant matters the court considers appropriate. The mother argued that the father's actions, his opposition to returning the child, their relative financial positions, and her proposals at court justified a departure from the general rule that each party bears their own costs. The father contended that his actions were motivated by genuine concerns for the child's safety due to the mother's mental health history, and that the mother was not wholly successful as an order for supervision of the child's time with her was initially made.

Justice Ryan found that justifying circumstances existed for making a costs order. The court noted that the father was wholly unsuccessful in his opposition to the mother's application, and that the initial order for supervision was made in circumstances where serious allegations were raised by the father, but later conceded to be unnecessary. The court also considered the parties' financial positions, with the father being in a significantly better financial position than the mother, who was the full-time carer of the child and not in paid employment. Crucially, the court found that the father's egregious act of taking the baby without consent, betraying the mother's trust, was a highly relevant factor under s 117(2A)(g). Balancing these factors, the court determined that the mother should be awarded costs.

The court ordered that the father pay the mother's costs on an indemnity basis up to and including the first court appearance on 23 July 2012, which related to the application for the child's return. Thereafter, costs were to be paid on a party/party basis up to and including the final judgment on 31 July 2012, and for the mother's application for costs. The father was ordered to pay these costs as agreed or within twenty-eight days of assessment. The court also certified for counsel.