Walters and Walters

In *Walters & Walters* [2011] FamCA 342, the Family Court of Australia considered an application by the mother for costs against the father. The parties were parents of a child, B, born in 1994, and had engaged in litigation concerning parenting orders. Consent orders were made on 22 January 2009, which discharged previous orders, stipulated that the child live with the mother and that she have sole parental responsibility. The consent orders also included provisions for the father to receive school reports and be notified of hospitalisations, and importantly, that the father could not make further applications regarding the child without leave. The mother subsequently sought costs of $32,425.19.

The court was required to determine whether to grant the mother's application for costs, having regard to the factors outlined in section 117(2A) of the *Family Law Act 1975* (Cth). These factors included the financial circumstances of the parties, the conduct of the parties in relation to the proceedings, whether the proceedings were necessitated by failure to comply with previous orders, whether any party was wholly unsuccessful, and whether any party made a settlement offer. The court also considered section 117(3), which allows for orders regarding the costs of an Independent Children's Lawyer.

Justice Stevenson dismissed the mother's application for costs. The court found that while the father had sufficient funds to meet a costs order, and neither party was in receipt of legal aid, the conduct of the parties did not warrant an order in the mother's favour. The court noted that the allegations against the father were untested and he had not been charged with any criminal offence. Furthermore, the father had been denied objective information about the child's medical and mental condition prior to filing his application, making it reasonable for him to seek court intervention. The father's decision to withdraw his application for time with the child was considered reasonable, as it followed receipt of an expert report that identified complex dynamics beyond the untested allegations. The court also observed that the consent orders provided the father with information he had previously been denied, and that the mother could have facilitated settlement without further court appearances. The father was not considered wholly unsuccessful, as the consent orders included provisions for him to receive information about the child.