Mickler & Majors
[2021] FamCA 377
•9 June 2021
FAMILY COURT OF AUSTRALIA
Mickler & Majors [2021] FamCA 377
File number(s): DGC 1086 of 2014 Judgment of: HANNAM J Date of judgment: 9 June 2021 Catchwords: FAMILY LAW – COSTS – Where the father seeks that the mother pay his costs on an indemnity basis – Where consideration of the applicable principles – Where the parties reached an agreement at mediation – Where the mother withdraw her consent to the agreement – Where the mother’s conduct added to the time and cost of the proceedings – Where the mother refused to accept an offer of settlement – Where circumstances do justify an order for costs – Where costs order made in the father’s favour on a party/party basis. Legislation: Family Law Act 1975 (Cth) s 117
Family law Rules 2004 (Cth) r 19.08
Cases cited: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
D & D (Costs)(No. 2) (2010) FLC 93-435
Hawkins & Roe [2012] FamCAFC 77
Mansfield and Ors & Mansfield and Anor (2019) FLC 93-920
Penfold v Penfold (1980) 144 CLR 311
Wrensted & Eades [2016] FamCAFC 46; (2016) FLC 93-697
Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029
Number of paragraphs: 76 Date of last submission/s: 5 March 2021 Date of hearing: 27 – 29 January 2021 Place: Parramatta Solicitor for the First Applicant: SCB Legal ORDERS
DGC 1086 of 2014 BETWEEN: MR MICKLER
ApplicantAND: MS MAJORS
Respondent
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
9 JUNE 2021
THE COURT ORDERS THAT:
1.That the mother pay the costs of and incidental to these proceedings from 15 June 2020 to 27 January 2021 and costs of and incidental to proceedings on 28 January 2021 and 29 January 2021 on a party/party basis as agreed or assessed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mickler & Majors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
A father who has been engaged in a parenting dispute with his former wife in relation to their only child (“the father”) seeks an order that the child’s mother (“the mother”) pay some of the costs he has incurred in the proceedings. In particular he seeks costs in relation to the period following a mediation in November 2019 until the first day of the final hearing in late January 2021, when the proceedings resolved by agreement, together with his costs thrown away for the two remaining days of the final hearing.
The mother opposes the father’s application for costs, claiming that she is impecunious.
The question for me to determine is whether there are circumstances that justify departing from the usual rule that each party shall bear his or her own costs.
BACKGROUND
The mother was born and raised in a European country and travelled to Australia on a tourist visa in or around June 2011, at which time she met the father. She started living with the father in November 2011.
The parties married in 2012 and their only child was born in 2012.
The parties first separated in 2014 and have essentially been involved in a dispute concerning the parenting arrangements for their daughter, who is now eight (“the child”) since that time.
The father first commenced parenting proceedings in the Federal Circuit Court in 2014 but discontinued those proceedings two months later when he and the mother reached some agreement about matters in relation to the child.
In 2014 and the years that followed the parties separated and reconciled on many occasions, with the mother leaving with the child and returning to her home country during at least three of those separation periods.
Final separation occurred in September 2016 when the mother notified the father by text message that she was travelling to her home country with the child and that he would never see the child again.
In November 2017 the father became aware that the mother and child had returned to Australia and he again filed an Initiating Application, this time in the Family Court, seeking that the child’s name be placed on the Airport Watchlist.
On 18 July 2018 orders were made with the parties’ consent that provided for the child to spend time with the father on a gradually increasing basis, starting at a contact centre under supervision and progressing to unsupervised overnight time. It is not in contention that the father had not spent time with the child from September 2016 until these orders were made.
It is the father’s contention that between August and October 2018 the mother contravened the July 2018 orders on numerous occasions. These breaches included the mother refusing to pay half of the costs of supervised contact as ordered and not making the child available for changeovers at the times specified in the orders. The father filed a Contravention application regarding these breaches in September 2018.
The father’s contravention application was ultimately resolved by way of further orders made on 15 November 2018, again with the consent of the parties, which were along very similar lines to the orders made a few months earlier.
In February 2019 an order was made for the parties to attend at family dispute resolution following the release of the Family Report but this did not occur until November of that year.
When the mediation finally did occur the parties were able to reach an agreement concerning the child’s parenting on all matters other than whether the child’s name was to remain on the Airport Watchlist. It was agreed that the mother was to have sole parental responsibility for the child and that she was to live with her and spend substantial and significant time with the father, including on alternate weekends and half school holidays. The father indicated his consent to orders being made in these terms by signing proposed orders but despite the mother’s initial apparent agreement she did not sign the proposed orders.
Thereafter solicitors engaged by both the mother and father continued to engage in email correspondence in an effort to reach agreement but the mother’s lawyers continually proposed alternate arrangements for the child.
In January and February 2020 the father’s solicitor wrote to the mother’s solicitor encouraging the mother to sign the proposed terms in relation to the non-contentious issues as agreed at the mediation in November 2019 and to allow the order pertaining to international travel to be the sole issue for judicial determination. No response was received to either email.
The mother changed her position substantially in April 2020 and on 14 April her solicitor emailed the father’s solicitor proposing orders that would see the parties hold equal shared parental responsibility for the child, the child live with the father and the child’s name be removed from the Airport Watchlist. The father was agreeable to these orders with the exception of removing the child’s name from the Airport Watchlist.
There was next a court event before me on 15 April 2020 at which it was clear that the dispute required a final hearing. The parties were ordered to file any amended Initiating Application or Response upon which they intended to rely and trial directions were given.
The father filed an Amended Initiating Application on 27 April 2020, seeking orders that he hold sole parental responsibility for the child, that the child live with him and spend substantial and significant time with the mother and that the child’s name remain on the Airport Watchlist. It is asserted by the father that he only amended his proposal at the time due to the mother’s recent significant change in position.
An Amended Response was filed by the mother on 8 May 2020 seeking orders that the parties hold equal shared parental responsibility, that the child live with the father and spend substantial and significant time with her. The mother also sought orders that the child’s name be removed from the Airport Watchlist, and a provision that the child be permitted to travel outside Australia with either parent provided that the other parent is provided with at least 28 days’ written notice by including a copy of the return tickets and a full itinerary.
Curiously, an affidavit was filed by the mother one month after the filing of her Amended Response in which she continued to make allegations of family violence and abuse perpetrated by the father, but she nonetheless sought orders for equal shared parental responsibility and that the child live with the father.
On 17 December 2020 the proceedings were listed before me for case management where it was raised by the ICL that she had been confused about the mother’s position for some time. While the mother confirmed at that court event that she had previously proposed that the child live with the father, it was unclear whether that remained her position.
The mother did not provide a Minute of orders she was seeking to the father or ICL until the morning of the first day of the final hearing.
On the first day of the final hearing on 27 January 2021 orders were made with the consent of the parties, in terms which I understand accord with the agreement reached at the 2019 mediation. The final orders provide that the mother have sole parental responsibility for the child and that the child live with the mother and spend substantial and significant time with the father. At the end of the first day the only issues remaining for judicial determination were those pertaining to the Airport Watchlist and the specific arrangements for handover during the school holidays. The mother was ordered to bring any passport or travel document in her possession for the child to Court the following day when hearing as to the outstanding matters was to take place.
On the morning of the second day of the hearing the mother sent an email to the ICL (but not the other party or the Court) informing that she would not be attending Court on that day and would instead be attending her general practitioner due to mental health issues. The email was admitted as an exhibit and treated as an application by the mother to adjourn the day’s proceedings, which was refused. The father made an application for the remaining matters in dispute to be determined on an undefended basis which was supported by the ICL and on the basis of the mother’s unexplained absence and non-compliance with orders the outstanding issues in dispute were determined in that manner.
On 28 January 2021, I made orders that the child’s name remain on the Airport Watchlist (where it had been placed with the consent of the parties in January 2018) and that the mother surrender all passports and all travel documents in the child’s name to the Registrar of the Court by 4pm. It was noted that the father made an application that a warrant issue for the mother’s arrest if she did not comply with the order with respect to surrendering the child’s passport and for this reason the matter remained listed at 10am the following day. The mother was notified of these orders by the ICL by email at 2.15pm.
At the commencement of proceedings on 29 January 2021 there was no appearance by or on behalf of the mother and the mother had not surrendered the passport to the Registry as ordered. Despite the mother’s failure to surrender the child’s passport, the father’s oral application for a warrant to issue for the mother’s arrest was withdrawn and dismissed.
An oral application was made by the father on the final day of the hearing that his costs with respect to the proceedings on 28 and 29 January 2021 be paid by the mother on an indemnity basis in the sum of $16,500 and that the mother pay his costs with respect to the parenting proceedings on an indemnity basis relating to the period November 2019 to 27 January 2021, in the sum to be identified in the material filed on his behalf. Orders were made for the father to file an affidavit upon which he wished to rely and an outline of written submissions with respect to his two costs applications, and that the mother file any evidence in response and an outline of argument in relation to the question of costs. The father sought that his costs application be dealt with by written submissions.
Judgment was then reserved upon receipt of written submissions by the father. No evidence in response or written submissions were filed by the mother.
THE LAW & DISCUSSION
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 to costs as it considers just.
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
The mother did not provide any submissions in reply to the father’s application for costs, but at various court events contended that she was impecunious. The mother deposes in her Financial Statement filed on 7 May 2020, that the only form of income she receives is government benefits, totalling $587.84 per week. The father’s submits that it would be difficult for the Court to accept that this is the mother’s only form of income when in the same Financial Statement the mother states that $490.00 of her weekly income is spent on rent, leaving only $97 per week to be spent on all other expenses for herself, her daughter from her previous marriage and the child of these proceedings. In support of this argument the father also notes that throughout proceedings the mother has stated that the child participates in numerous extra-curricular activities including piano lessons, singing lessons and swimming lessons but she does not explain how she funds these activities.
The father deposes that in 2012 he funded the purchase of and substantial renovations to an apartment in the mother’s home country which he believed was to be held in the joint names of the parties. Subsequently, the father learnt that the apartment had been purchased in the sole name of the mother and that in 2017 the mother sold the property, making a profit of 59,000 euros. The mother has provided no disclosure in relation to these funds to the father or to the Court.
Despite the mother claiming to be unemployed in her Financial Statement it is apparent that she has been earning some income in a business. In July 2019 the mother disclosed to the family consultant that her older child from her previous marriage would assist her with getting the child to school on the days she was “at work”. Further, in January 2020 the mother informed the father by email that Fridays are her “working days” and subsequent investigations by the father have revealed that the mother has a registered ABN and social media page showcasing her work in her chosen occupation.
Although the father has not provided any information in relation to his financial position in his submissions and affidavit related to this costs application, it can be gleaned from his trial affidavit that he is currently unemployed and living with his parents who provide ongoing financial support. Previously, the father had been working in the finance industry until December 2017. The father has not provided any details of his prospects of future employment.
Although there are some uncertainties in relation to the mother’s true financial position, I consider it likely that she has some capacity to pay a costs order if it were made. Further, even if the Court accepts the mother’s contentions that she is suffering from financial hardship this matter is not determinative as impecuniosity is no bar to the making of an order for costs,[1] particularly where there are circumstances which otherwise justify an order for costs.
Whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party
[1] D & D (Costs) (No. 2) (2010) FLC 93-435.
The mother was in receipt of assistance by way of legal aid during these proceedings but that grant was withdrawn before the matter proceeded to final hearing. The mother has not provided any information regarding the circumstances of the withdrawal of that grant however it is contended by the father that the grant was withdrawn on the recommendation of the family dispute resolution practitioner as it was her view that the mother’s application did not have merit and that her grant of legal aid should be terminated. It is not in my view possible or necessary to determine the reasons for termination of the mother’s grant of legal aid.
On 15 June 2020 a Notice of Address for Service was filed by the mother and from that time she has acted as a self-represented litigant and is solely responsible for her conduct, a matter I consider relevant and weighty in determination of this costs application.
The conduct of the parties to the proceedings in relation to the proceedings
It is the father’s submission that from the commencement of proceedings the mother held unrealistic and unfounded expectations in relation to the child’s parenting arrangements, which can be gleaned from the Response she filed in April 2018. In that Response the mother sought that the orders made in her home country in October 2017 be upheld, which provided for the father to spend only supervised time with the child until she reaches the age of 18. It is contended by the father that this was an unrealistic position for the mother to hold as she had obtained those orders in her home country without his participation in the proceedings and within a context of untested allegations of serious domestic violence perpetrated by him.
Throughout the proceedings the mother made allegations that the father abused her and that the child was exposed to his family violence. She was also generally critical of the father’s parenting skills. Despite these allegations the mother gave her consent to interim orders made in July 2018, only three months after filing her Response, which provided for the child to spend time with the father on a gradually increasing basis. In total, the child’s time with the father was only supervised on three occasions before proceeding to unsupervised time.
I accept the father’s submissions as to the nature of the mother’s proposed orders with respect to the child and the inconsistency in relation to her allegations concerning the father’s conduct and the orders that she agreed to from a fairly early stage in the proceedings until final determination.
A central issue throughout the entirety of the proceedings was whether the child’s name should remain on the Airport Watchlist, where it had been placed by consent in January 2018. The father contends that the mother conducted herself inappropriately in relation to this issue by maintaining her position that the child’s name should be removed from the Airport Watchlist, particularly as she had previously returned to her home country with the child without his consent on numerous occasions.
Notwithstanding that the mother was legally represented at the mediation conducted in November 2019, she was provided an opportunity to seek further legal advice at the conclusion of the mediation in relation to the Airport Watchlist issue. Annexed to the father’s affidavit is an email from the ICL which indicates that the mother seemed likely to agree to the proposed orders if given time to consider appropriate advice. In that email the ICL also raised another option that the Airport Watchlist order be drafted in a manner to allow for the child’s name to be removed from the Watchlist in the future with the written consent of both parties, in order to be more flexible for the mother and to remove the need for future litigation.
At the case management court event in November 2019 it was noted that the parties had attended mediation and were engaged in further discussions with an intention of resolving the dispute on a final basis. At this court event an adjournment was sought for the purpose of allowing those discussions to take place. It is the father’s contention that he provided his consent to this adjournment under the belief that the mother was agreeable to the orders discussed at the mediation and he would not have done so if he was aware that the mother was no longer agreeable to such orders. He contends that her conduct caused significant delays in the proceedings as the matter was not again listed until April 2020.
Despite the mother’s appearance to be agreeable to the need for some form of order that the child’s name remain on the Airport Watchlist, and the ICL’s willingness to further discuss the drafting of the order, no correspondence was sent by the mother to the father or ICL until January 2020. At this time the mother’s solicitor sent an email which stated “although we may think otherwise, please note that these are the orders requested by our client” and attached consent orders as proposed by the mother, which included that the child’s name be removed from the Airport Watchlist. The father contends that the email from the mother’s solicitor indicates that the mother was unwilling to accept appropriate legal advice in relation to this issue.
In early February 2020 the father made an offer in writing to resolve the proceedings. He proposed orders in the form agreed to at the November 2019 mediation, as well as an additional order that he pay to the mother $400 per month in child support, contingent on him re-entering the workforce. The father made clear that if the only order to which the mother did not agree related to the Airport Watchlist, then the balance of the orders should be made by consent leaving the Airport Watchlist as the sole issue for judicial determination. The mother did not respond to this proposal which once again delayed proceedings and caused the father to accrue further legal costs.
In April 2020 the mother’s solicitor sent an email to the father’s solicitor proposing orders that the parents hold equal shared parental responsibility, that the child live with the father and spend substantial and significant time with the mother and that the child’s name be removed from the Airport Watchlist. Until that time, neither party had ever proposed an arrangement along these lines that the child live with the father. The father was agreeable to the mother’s proposal with the exception of the child’s name being removed from the Airport Watchlist, and consequently instructed his solicitor to draft consent orders in those terms. Orders were prepared in accordance with the proposal but were not agreed to by the mother.
At a court event the following day, trial directions were given and each party was ordered to file any amended Application or Response setting out their proposed orders. As a result of receiving the mother’s latest proposal by email, the father filed an Amended Initiating Application seeking orders that the parties hold equal shared parental responsibility for the child, that the child live with him and spend substantial and significant time with the mother and that the child’s name remain on the Airport Watchlist. The father contends that he would not have filed such an amended application if not for the mother’s recent proposal along these lines. The mother also filed an Amended Response seeking orders identical to those proposed by her to the father, except in relation to the Airport Watchlist. In other words the parties had at this stage once again reached agreement about all matters other than the child’s name continuing to remain on the Watchlist.
On the first day of the final hearing the mother once again changed her position, providing the father and ICL a Minute of Order in which she sought sole parental responsibility, that the child live with both parties in an equal time arrangement and that the child’s name be removed from the Airport Watchlist.
I accept the submissions made by the father’s counsel about the mother’s conduct from November 2019 when it is apparent that the parties had reached agreement at mediation about a parenting arrangement along the same lines as the orders made with the parties’ consent on the first day of final hearing. I am satisfied that the mother was attempting to withhold her consent to the entire arrangement as leverage to have the father consent to the removal of the child’s name from the Airport Watchlist and that this conduct caused the proceedings to be unnecessarily delayed for a lengthy period of time, which necessitated incurring greater legal costs.
The father also contends that the mother’s conduct at the final hearing led to him incurring additional costs on the second and third day of that hearing. He contends that if the mother had consented to final orders being made in the terms agreed upon at the November 2019 mediation, with the exception of the Airport Watchlist order, this issue could have been heard and determined on the first day of the final hearing, allowing the following two days to be vacated. Instead, this issue was listed for the second day of the hearing.
At the completion of the first day of the hearing on 27 January 2021, the mother was ordered to bring with her any travel document in her possession for the child to court the following day when the hearing as to the outstanding matters were to take place.
The mother did not attend court on the second day of the hearing and the final matters for determination proceeded on an undefended basis. An order was made on that day, 28 January, for the mother to surrender all passports and all travel documents issued to the child to the Registrar of the Court by 4pm that day. The mother was also put on notice that the father sought that a warrant issue for her arrest if she failed to comply with the order with respect to surrendering the child’s passports.
The proceedings were listed for the following day for consideration of the father’s application that a warrant issue for the arrest of the mother if she failed to comply with the order with respect to the surrender of the passports. This court event would not have been necessary had the mother complied with the order made on the first day of the hearing, to bring the child’s passports with her to Court the following day, or if she complied with the order made the following day, to surrender the child’s passports by 4pm that day.
I consider it a matter of particular significance that the orders made with the consent of the parties on the first day of the final hearing were nearly identical to those agreed to by the parties in November 2019. I consider it weighty that the only matter that required judicial determination was the single matter that had been the subject of the dispute since November 2019, being the question of whether the child’s name should remain on the Airport Watchlist.
I am satisfied, as contended by the father that the mother’s conduct in relation to the proceedings led to delay in the finalisation of proceedings and unnecessary further legal costs.
Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer
The father made an offer in writing in early February 2020 to resolve the proceedings and his proposal at that time reflected the agreement reached at the mediation in November 2019, as well as an additional order that he pay the mother $400 per month in child support contingent on him re-entering the workforce. It was also made clear at the time that if the only order to which the mother did not agree related to the child’s name remaining on the Airport Watchlist, then this could be left as the sole issue for judicial determination.
Subsequently, the father did change his position to that proposed by the mother at the time (that the child live with him rather than the mother and that the parents hold equal shared parental responsibility) but he remained consistent in seeking that the child’s name remain on the Airport Watchlist. In other words, the father has always adopted the position that this order should be made and it formed part of the offer to the mother to settle the proceedings.
I consider it weighty that the February 2020 offer of settlement that orders be made in the same terms as finally agreed to, came almost one year prior to the commencement of final hearing.
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
As outlined above, the mother’s failure to comply with orders made by the Court on 27 January and 28 January necessitated the Court to list the proceedings for a third day on 29 January 2021 to hear an application for her arrest due to non-compliance with orders.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
Some weight is attached to the fact that the father was wholly successful in his application to have the child’s name remain on the Airport Watchlist, notwithstanding that this discrete issue was determined on an undefended basis.
The balance of the parenting orders made with the consent of the parties on the first day of final hearing, are in similar terms as agreed at the November 2019 mediation. By the time of the final hearing both parties had amended their applications significantly and neither party was then seeking orders in the terms as agreed in November 2019. As a result, neither party was wholly successful or unsuccessful in relation to these issues in the proceedings.
CONCLUSION
The High Court in Penfold v Penfold indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs. Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.
In Hawkins & Roe[2] 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.
[2] [2012] FamCAFC 77
However, in Wrensted & Eades[3] the Full Court held that the analysis of costs in parenting proceedings provided in Hawkins & Roe should not be seen as differentiating between the requirements for a costs order to be made in property and parenting matters. The majority said at [103]:
…However if the majority in Hawkins & Rowe, by the use of the words "the occasions on which such an order should be made in a parenting dispute should have some particular features", were intending to indicate that certain features need to be present before a costs order can be made, we respectfully disagree. The wide discretion in s 117(2) of the Act and lack of distinction between categories of family law cases (including the lack of distinction between parenting and property cases) would in our view render such a conclusion plainly erroneous, place a fetter on discretion which does not have a legislative basis and require us to depart from that conclusion.
[3] [2016] FamCAFC 46; (2016) FLC 93-697
In that case the Full Court upheld the trial Judge's decision to award costs to the mother in parenting proceedings where one of the considerations of the trial Judge in awarding costs was that the father did not consider the mother's offer to settle in relation to a discrete issue where the mother's proposal was “reasonable and constructive”[4].
[4] Wrensted & Eades [2014] FCWA 64 at 104
Attaching considerable weight to the mother’s conduct in relation to the proceedings, particularly where she refused a written offer to settle which was reasonable and constructive and in the same terms as the final orders agreed to and as she failed to comply with court orders, I am satisfied that there are circumstances that justify a departure from the usual rule that each party bear their own costs and that a costs order should be made in favour of the father. In my view it is just that any such order date from 15 June 2020 when the mother began acting for herself after her grant of legal aid was withdrawn.
The father is seeking that his costs in relation to parenting proceedings be paid on an indemnity basis in the fixed sum of $60,274,29, together with his costs thrown away for the two remaining days of the final hearing also on an indemnity basis in the fixed sum of $16,500. In the alternative, the father seeks that the mother pay his costs on a party/party basis.
The law in respect of indemnity costs is well settled, and the relevant principles are those set out in the Federal Court case of Colgate-Palmolive Company v Cussons Pty Limited[5] (“Colgate”). In that case 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.
[5] (1993) 46 FCR 225
The Full Court in Mansfield and Ors & Mansfield and Anor[6] 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”.
[6] (2019) FLC 93-920.
While the category of cases in which an award of indemnity costs may be appropriate is not closed[7] the Full Court said in Joyce & Fante[8] 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.
[7] Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029
[8] [2013] FamCAFC 141
In my view, while the mother’s conduct in the proceedings and the other matters referred to justify an order for costs I do not consider that the circumstances are “exceptional”.
Moreover, the father has not complied with Rule 19.08 of the Family Law Rules 2004, which provides that a party applying for an order for costs on an indemnity basis must inform the Court if the party is bound by a costs agreement in relation to those costs, and if so, the terms of the costs agreement. The father has not disclosed the existence or terms of any costs agreement in this application.
The father did not advance any submission in relation to the sum to be awarded in the event that a costs order on an indemnity basis is not made. In these circumstances, and having formed the view that an order that the mother pay the father’s costs from the time she became self-represented on 15 June 2020 is justified (including the father’s costs for the two days of the final hearing), justice will be achieved if an order is made for those costs to be paid on a party/party basis.
For the foregoing reasons, I make the order set out at the forefront of this judgment.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 9 June 2021
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