Russell and West (No.2)

In the Family Court of Australia, Mr Russell (the applicant father) sought various orders against Ms West (the respondent mother), including costs on an indemnity basis and contributions towards the costs of a parenting supervisor and experts. The application also sought an order allowing the father to inspect subpoenaed documents. The mother appeared unrepresented and without having filed any material, requesting an adjournment.

The court was required to determine whether to grant the adjournment and, in relation to costs, whether to depart from the general principle that parties bear their own costs under section 117 of the Family Law Act 1975 (Cth). Specifically, the court needed to consider if there were circumstances justifying an order for the mother to pay the father's costs, and if so, the appropriate amount and method of payment.

Justice Cronin reasoned that an adjournment was necessary to allow the mother to file her response and any supporting affidavit material, as her position on the disputed facts needed to be clarified. Regarding costs, the court found that the mother had not been ready to proceed despite having had time to prepare, and had not assisted the court or the father by filing the required material. The court considered the factors outlined in section 117(2A) of the Act, including the parties' financial resources (given pending property proceedings) and their conduct in relation to procedural matters. The court concluded that there were justifiable circumstances to depart from the usual costs rule.

The court ordered that the application be adjourned to a later date, with directions for the mother to file and serve her response and affidavit material. The mother was ordered to pay the father's costs fixed at $2420, to be paid from her entitlement in the property proceedings. The court certified that it was reasonable to engage counsel for the father's attendance.