Zegna and Zegna - [2020] FamCA 192

FAMILY COURT OF AUSTRALIA

ZEGNA & ZEGNA

[2020] FamCA 192

FAMILY LAW – COSTS – Between parties – costs claim made by the mother against the father in respect of a parenting application – where the father has contravened orders made by court in Spain – Spain a signatory to the Hague Convention – parenting application was filed by the father in circumstances where this Court had already determined it was not the proper forum to hear parenting applications between the parties – where the father failed to comply with s 60I of the Family Law Act1975 (Cth) – where the conduct of the father justified the making of a costs order – where costs order was made on a solicitor and client basis.

Family Law Act 1975 (Cth) ss 60I, 69ZK, 111B, 111CB, 111CD, 117
Family Law Rules 2004 (Cth) rr 2.02, 10.11, 19.08, 19.37

Bant & Clayton (Costs) (2016) Fam LR 31
Brown v Brown (1998) FLC 92-822
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Duckworth & Jamison [2014] Fam CA 308
D & D (Costs) (No. 2) (2010) FLC 93-435
Elliott & Zova [2009] FamCA 49
Elmi & Munro (2019) FLC 93-912
Kohan and Kohan (1993) FLC 92-340
Limousin v Limousin (costs) (2007) 38 Fam LR 478
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) and TRF and LKL [2005] FamCA 158
Penfold v Penfold (1980) 144 CLR 311
Prantage & Prantage (2013) FLC 93-544
Prantage & Prantage (Costs) [2014] FamCA 850
Sfakianakis and Sfakianakis (2019) 59 Fam LR 419
Stoian & Fiening (Costs) [2014] FamCA 944
Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507
Zegna v Zegna (2015) 55 Fam LR 134; [2015] FamCA 340

APPLICANT:

Mr Zegna

RESPONDENT:

Ms Zegna

FILE NUMBER:

SYC

3648

2011

DATE DELIVERED:

3 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

Written Submissions

DATE OF LAST SUBMISSION:

7 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Zegna

SOLICITOR FOR THE APPLICANT:

Burke & Mead Lawyers

SOLICITOR ADVOCATE FOR THE

RESPONDENT:

Mr Wahab

SOLICITOR FOR THE RESPONDENT UNTIL 6 JANUARY 2020:

York Law

SOLICITOR FOR THE RESPONDENT FROM 24 JANUARY 2020 ONWARDS:

Barkus Doolan

Orders

That within 28 from the date of these Orders the father pay the mother’s costs of and incidental to the parenting orders sought in the father’s Third Amended Initiating Application filed on 2 August 2018 on a solicitor and client basis, with such costs to be fixed in the sum of $6,975.25.

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 Zegna & Zegna 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 SYDNEY

FILE NUMBER: SYC 3648 of 2011

Mr Zegna

Applicant

And

Ms Zegna

Respondent

REASONS FOR JUDGMENT

Introduction

This judgment relates to a costs application made by the mother, Ms Zegna (“the mother”), with respect to the substantive parenting aspect of these proceedings, between her and the father, Mr Zegna (“the father”).
In addition to parenting issues, the substantive proceedings relate to a property dispute between the mother and the father, with the paternal grandparents, and L Pty Ltd as interveners in that aspect of the proceedings. The property aspect of the proceedings are ongoing, however, this judgment does not deal with any costs in respect of the property proceedings.
The parenting aspect of the proceedings were commenced by the father on 2 August 2018, and on 5 November 2019 the father filed a Notice of Discontinuance in respect of the parenting application. The parenting dispute related to the children, B, born … 2002 and C born … 2004 (together “the children”). The children presently reside with the father in Australia.
On 5 November 2019, the Court made orders granting leave for the parenting application to be discontinued, whilst reserving the question of costs. On that occasion orders were made for a timetable for the parties to file and serve written submissions in respect of the discontinued parenting application, with the mother to file her submissions by 29 November 2019, the father to respond by 20 December 2019, and the mother to file any written submissions in reply by 10 January 2020.
It is important to note here that the mother’s legal representatives at the time, being York Law, filed written submissions on her behalf on 29 November 2019, however, they ceased representation for the mother on 6 January 2020 by filing a Notice of Ceasing to Act. This occurred just four days prior to the requirement for the mother to file any written submissions in reply to the father’s written submissions, which were filed on 20 December 2019.
Consequently, when the matter was listed before me for mention on 30 January 2020, the Court extended the time for which the mother could reply to the father’s written submissions to 7 February 2020. On 7 February 2020, the mother’s new legal representatives, Barkus Doolan, notified the Court that they would not be filing any written submission in reply on behalf of the mother. Subsequently, judgment in respect of the mother’s application for costs was reserved on that date.

Background

In June 2011 the parties agreed on a number of final parenting orders. Importantly, they agreed on an order for the children to relocate to Spain with the mother. These orders were made by a Registrar after the parties filed an Application for Consent Orders. From July 2011, the mother and the children resided in Spain.
Almost three years later, on 21 March 2014, the father commenced parenting proceedings in the Federal Circuit Court of Australia seeking orders that, inter alia, the children return to Australia. The mother filed a Response on 16 June 2014 seeking that the Consent Orders made by the Family Court in June 2011 be affirmed, that the father pay the wife’s costs and, in addition, the mother sought property orders.
The matter was subsequently transferred to the Family Court of Australia on 19 June 2014. The father’s then extant parenting application was heard by the Honourable Justice Watts on 17 February 2015. At that time the children were habitually resident in Spain. Importantly, the 1996 Hague Child Protection Convention (“the Child Protection Convention”) was in force in Spain and had force in Australia by virtue of Division 4 Part XIIIAA of the Act.
Section 111CD(1) of the Act provided that this Court could only exercise jurisdiction to make the parenting orders sought by the father in limited circumstances. For the purposes of the determination of Watts J, the relevant circumstances were those described in s 111CD(1)(c)(v) of the Act, and s 111CD(3)(c). The circumstances described in s 111CD(1)(c)(v) were “the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage”. Section 111CD(3)(c)) provided, in short, the Court could make orders only if jurisdiction to make the orders is accepted by the parents
On 11 May 2015 Watts J delivered a judgment in Zegna v Zegna (2015) 55 Fam LR 134 (“Zegna”) which, relevantly and in summary, decided three significant issues. First s 111CD(1)(c)(v) of the Act provides an exception allowing the Court to exercise jurisdiction only where the Court is dealing with the end of a married couple’s relationship during applications for divorce or annulment or proceedings seeking a declaration about the validity of a marriage, a divorce or an annulment. Watts J declined to follow the decision of Tree J in Duckworth & Jamison [2014] FamCA 308 and held this did not extend to permitting the Court to exercise jurisdiction in circumstances where parenting proceedings are recommenced, or where the parties are engaging in litigation in respect of financial matters: at eg [64]-[65]. Secondly, the earlier consent final parenting orders of June 2011, without more, did not amount to an acceptance, within s 111CD(3)(c), of jurisdiction by the mother for the hearing of a new application for enforcement orders or different parenting orders in the Court that made the consent order: at [74]; nor did any other factor present constitute acceptance: at [75] to [79]. Thirdly, Australia was not the appropriate forum to hear the father’s parenting application, nor was it in the best interests of the children for this Court to exercise jurisdiction in respect of the parenting dispute. Consequently, orders were made for the father’s parenting application to be dismissed. The property dispute continued in this Court. There was no appeal from the decision of Watts J.
On 14 October 2015, Watts J made a costs order that “the husband pay to the wife 50 percent of the cost of the parenting proceedings on a party/party basis as agreed or assessed provided these costs not be payable until orders are made under s 79 of the Act”. Pursuant to rule 19.37 of the Family Law Rules 2004 (Cth) (“the rules”) Registrar Ryan made an order that the amount payable by the father to the mother pursuant to His Honour Justice Watt’s order is $37, 225.22.
In 2016 the father commenced proceedings in Spain seeking orders that the children live with him in Australia. On 21 June 2016, the Court of First Instance no 8 (“the Spanish Court”) made orders for the children to continue living in Spain with the mother, and spend time with the father in Spain.
On 13 December 2017 orders were made by consent in the Spanish Court for the children to travel to Australia on 13 December 2017, and return to Spain on 3 January 2018. The purpose of this was for the children to attend the father’s wedding in Australia.
The children travelled to Australia in late 2017. They did not return to Spain on 3 January 2018. The father retained them in Australia. As a result, in 2018, the mother commenced proceedings in Spain in respect of the children being retained in Australia, and according to the parties, those proceedings are currently ongoing.
The father then commenced further parenting proceedings in this Court by filing a Further Amended Initiating Application (No. 3) on 2 August 2018 (“Third Application”). In this Application, the father sought fresh final parenting orders in respect of parental responsibility, that the children live with the father and that the children be placed on the airport watch list. The mother did not respond to this Application. At the time the father filed the Third Application the children had been resident in Australia since the father had kept them here in defiance of the orders made by the Spanish Court. As at 2 August 2018, the children appear to have been retained in Australia for about 8 months.
The matter was listed before me on 18 April 2019 for a First Day Less Adversarial Trial. It was on this occasion that the legal representatives for the mother indicated that the Third Application did not comply with s 60I of the Family Law Act 1975 (“the Act”). As such, the mother submitted that the application was not properly constituted, and additionally, the application should not proceed as there were ongoing parenting proceedings in Spain.
On 13 August 2019, the Court made an order requiring the “mother to file and serve an Application in a Case seeking the striking out of the parenting orders sought by the Father by no later than close of registry filing on 30 August 2019.”
After some delay, the mother subsequently filed an Application in a Case to strike out the father’s parenting Application on 30 August 2019, which was sealed on 10 September 2019. On 9 September 2019, the Registrar made directions for the father to respond to the mother’s Application in a Case by 11 October 2019.
The father did not file a Response to the mother’s Application in a Case. Instead, on 5 November 2019, he filed a Notice of Discontinuance in respect his parenting application, and on that date, the Court granted the father’s application to discontinue the parenting proceedings, articulated in the Further Amended Initiating Application (No. 3).

Orders sought as to costs

In her written submissions, the mother seeks the following orders:
1.That within fourteen days from the date of these Orders, the Husband and the Wife’s costs of and incidental to the Parenting Orders sought in the Husband’s Third Amended Initiating Application filed on 8 August 2018 [sic] on an indemnity basis being indemnity costs referrable to the costs and disbursements paid by the Applicant to her lawyers, York Law Family Law Specialists being an amount fixed in the sum of $7,130.25.
2.That in the alternate to Order 1 hereof, that without concession, within fourteen days from the date of these Orders the Husband pay the Wife’s costs of and incidental to the Parenting Orders sought in the Husband’s Third Amended Initiating Application filed on 8 August 2018 [sic] on an indemnity basis as agreed or assessed and pay the same within fourteen days of any agreement or assessment.
3.That in the alternate to Orders 1 and 2 hereof, that without concession, within fourteen days from the date of these Orders the Husband pay the Wife’s costs of and incidental to the Parenting Orders sought in the Husband’s Third Amended Initiating Application filed on 8 August 2018 [sic] on a solicitor/client basis, with such costs to be fixed in the sum of $6,975.25
4.That in the alternate to Orders 1, 2 and 3 hereof, but without concession, within fourteen days from the date of these Orders, the Husband pay the Wife’s costs of and incidental in relation to the Parenting Orders sought in the Husband’s Third Amended Initiating Application filed 8 August 2018 [sic] on a solicitor/client basis as agreed or assessed and pay the same within fourteen days of any agreement or assessment.
5.That in the alternate to Orders 1, 2, 3 and 4 hereof, that without concession, the Husband pay the Wife’s costs of an [sic] incidental to the Parenting Orders sought in the Husband’s Third Amended Initiating Application filed on 8 August 2018 on a party/party basis with such costs to be fixed in the sum of $6,485.25
6.That in the alternate to Orders 1, 2, 3, 4, and 5 hereof, that without concession, the husband pay the Wife’s costs of an [sic] incidental to the in relation to the [sic] Parenting Orders sought in the Husband’s Third Amended Initiating Application filed on 8 August 2018 [sic] on a party/party basis with such costs as agreed or assessed and pay the sae within fourteen days of any agreement or assessment.
The father sought an order that the mother’s costs application be dismissed.

The Law

The starting position in this jurisdiction is that all parties bear his or her own costs: s 117(1) of the Act. Section 117(2) of the Act gives the Court discretion to make a costs order in the appropriate circumstances and the Court is guided by s 117(2A) of the Act to determine whether a costs order is warranted in any given case. Section 117(2A) is set out as follows:
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) 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;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) 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; and
(g) such other matters as the court considers relevant.
The majority of the High Court in Penfold v Penfold (1980) 144 CLR 311 made clear that although s 117(1) of the Act expresses a general rule, it will yield to subsection (2) in a particular case if the Court is satisfied that there are circumstances justifying an order that one party pay part or all of another party’s costs.
The Rules make general and specific provision for applications for costs. Rule 19.08(1) provides that party may apply for an order that another person pay costs. Rule 10.11(4) of the Rules provides that if a party discontinues a case another party may apply for costs within 28 days after the Notice of Discontinuance is filed. Whatever else may be said about Rule 10.11(4), it is an express recognition that a discontinuing party may be subject to an application for costs.
The first question is whether the mother, who has applied for a costs order, has established circumstances justifying an order for costs which displaces the position articulated in s 117(1) of the Act. It is not necessary to establish extraordinary or exceptional circumstances, however there must be circumstances which, at the absolute discretion of the Court, justify a costs order: Stoian & Fiening (Costs) [2014] FamCA 944 at [19]
If so, the question then becomes what costs order should be made, having regard to the matters set out in s 117(2A) of the Act and any other matters the Court deems relevant.
It is well-settled that no one factor has priority under s 117(2A), nor must more than one factor to be satisfied, any one factor may be sufficient: Prantage & Prantage (Costs) [2014] FamCA 850 at [12]; PBF as Child Representative for AF (Legal Aid Commission of Tasmania) and TRF and LKL [2005] FamCA 158 at [41]. There may be a dominant or outstanding feature that makes an order for costs appropriate: Brown v Brown (1998) FLC 92-822 per Kay J at [17]. Thus although any one factor may be sufficient, no one factor is essential.
The mother structured her arguments about costs by reference to the matters in s 117(2A) of the Act. It is convenient to adopt a similar approach in these reasons.

Discussion

Section 117(2A)(a) the financial circumstances of each of the parties to the proceedings;

In his submissions, the father did not provide great detail of his financial situation. The father made no submissions about his financial position, and he did not rely on any Affidavit material. However, the father submitted that the children live with him and spend no time with the mother, and that he contributes solely for their expenses whilst receiving no child support from the mother.
For her part the mother submitted that her financial position, compared to the father, was starkly inferior. She pointed to her income between July 2017 and June 2019 working part-time as a translator where she earned approximately $1,054.51 per month. She was then unemployed between 28 June 2019 and October 2019. Since October 2019, she resumed employment part-time as an educator and earns a gross income of approximately $1,460 every month.
The mother further submitted that up until the time the children were residing with her in Spain December 2017, she paid for all their expenses and did not receive child support. However, I note here that in the mother’s Affidavit sworn on 30 August 2018, she gave evidence that in December 2017 the paternal grandfather made an offer of EUR100,000 to the mother on the condition that the mother allow the children to travel to Australia for the father’s wedding, and after initially rejecting this offer, the mother accepted this payment.

In respect of the father’s finances, the mother submitted that he currently resides in a building rent free owned by a partnership between the parties, the father’s parents and sister. The mother further submitted that between 25 February 2017 and 15 May 2019 the father received a sum of $242,505 from M Pty Ltd, being approximately $8,981.66 every month.
I also accept that the mother works part-time and has had to pay the costs for litigation in respect of the children in two different jurisdictions.
The evidence of both parties about their financial positions is not particularly clear. However, on the evidence presently before me, I generally accept that the father’s financial position is probably stronger than the mother’s position. In coming to this conclusion I do not overlook the contentions of the father that the mother has significant financial resources in Spain. However, the evidence does not permit me to form any clear view about the accuracy of these contentions. It should be remembered that the financial burden of the children has fallen on the father because he chose to retain the children in Australia from early 2018, in breach of the orders made the Spanish Court.

Section 117(2A)(b) 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;

Neither party is in receipt of Legal Aid.

Section 117 (2A)(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

Conduct has some importance to the question of costs in this matter. Here I emphasise that the parties, and more importantly, the children, have been subject to unresolved litigation, involving numerous applications in Spain and Australia, for approximately nine years.
In Bant & Clayton (Costs) (2016) Fam LR 31 the Full Court held the fact of discontinuance itself was conduct which s 117(2A)(c) which justified an order for costs.
However, the circumstances of each case are different. There are other aspects of conduct here which should also be taken into account.
Firstly the father disregarded the Consent Orders made by the Spanish Court when he retained the children in Australia in direct contravention of those orders.
Secondly, the filing of the Further Amended Initiating Application (No.3) was impugned by a number of factors. It was filed in circumstances where this Court had already made a ruling in Zegna that it lacked jurisdiction to make further parenting orders and Australia was not the proper forum to hear any parenting application because of proceedings in Spain. I accept the submissions of the mother that filing the Further Amended Initiating Application (No.3) constituted an attempt to “forum shop”.
Thirdly, the Further Amended Initiating Application (No.3) had little prospect of success, as the mother submitted, both because the decision in Zegna was final and binding between the parties unless overturned on appeal, and no appeal was ever filed, and the father failed to comply with s 60I of the Act before filing the Third Application. Some further explanation should be given in respect of both reasons.
The judgment of Watts J in Zegna made findings about jurisdictional facts, establishing this Court did not have jurisdiction to make the parenting orders sought by the father in his then extant parenting application, which preceded the Further Amended Initiating Application (No.3). I accept that is well settled that the doctrines of res judicata and issue estoppel do not operate in relation to decision made in parenting proceedings under Part VII of the Act: Elmi & Munro (2019) FLC 93-912 at [27] to [29]. Fresh parenting orders can be made, pursuant to s 65D, subject to the application of the principles in Rice and Asplund (1979) FLC 90-725. However, the decision of Watts J was not made under Part VII. It was made under Division 4 of Part XIIIAA of the Act, which has effect despite the rest of the Act, (except sections 69ZK and 111B and the regulations made for the purposes of section 111B): s 111CB(1). Moreover, even though he made some assessment of the best interests of the children, substantively Watts J dealt with the question of jurisdiction and the appropriateness of this Court as a forum.
In my view there was no reason preventing issue estoppels, binding upon the parties including the father, arising from his decision in accordance with ordinary principles. In Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507 by French CJ, Bell, Gageler and Keane JJ at 517-518, made clear issue estoppel operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The jurisdictional facts decided in Zegna fell into the category of “ultimate” issues of fact necessary for Watts J to reach his final determination. It had been said that res judicata, issue estoppel and abuse of process are all informed by the policy considerations of finality and fairness: Spalla v St George Motor Finance Ltd (ACN 007 656 555)(No 6) [2004] FCA 1699, French J (as he then was) said at [67].
Despite the finality of the decision in Zegna, the father filed his Further Amended Initiating Application (No.3). It is true that by the time the father filed the Further Amended Initiating Application (No.3), the children had been retained by him in Australia. Whether or not this may have changed the habitual residence of the children and therefore changed one of the jurisdictional facts upon which the decision of Watts J was based, is not a question upon which I express any view, except to note the children were only in Australia because the father acted in contravention of the orders of the Spanish Court, and s 111CD(1)(b) would prima facie be applicable. It deals with a situation where children are present in Australia and habitually resident in a Convention country. This appears to have been the situation when the father filed his Further Amended Initiating Application (No.3). If so, the reasoning of Watts J in Zegna would have otherwise have continued to govern the position between the parties.
Secondly, the mother submitted there was no compliance by the father with ss 60I(7) and (8) of the Act prior to filing the Further Amended Initiating Application (No. 3). This seemed to be undisputed. As the mother also pointed out, in the Further Amended Initiating Application (No. 3) itself the father made a number of untrue statements, such as the certification in Part E, Question 47. I also accept the Further Amended Initiating Application was filed in breach of Rule 2.02 of the Rules. As the background facts set out earlier in these reasons show, the father was not a stranger to parenting proceedings. I infer that he was aware of the requirements of s 60I of the Act.
The mother submitted that she was put to further expense because the father did not consent to her request for an extension of time for the filing of her Application in a Case. The consequence of this being that the matter had to be dealt with by a Registrar on 9 September 2020. I do not accept this submission. The matter was already listed before a Registrar on 9 September 2020 for the property aspect of the proceedings.
The father submits that the mother never responded to his Further Amended Initiating Application (No. 3). Additionally, the father criticises the mother for filing an Affidavit which contained evidence that was “irrelevant” to the question of jurisdiction in support of her Application to strike out the father’s parenting application. I do not accept these arguments.
In my view any one of the aspects of the father’s conduct considered under this head provides, and certainly in combination they provide, a basis for an order for costs against the father.

Section 117(2A)(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

Again, I reiterate here, that the parenting aspects of these proceedings have been protracted, largely due to the father’s non-compliance with the orders made by the Spanish Courts. The father’s lack of adherence to the Rules also forced the mother to file an application to strike out the parenting proceedings.

Section 117(2A)(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

The mother referred to the decision of the Full Court in Bant (supra) and submitted that the question of whether the father had been wholly unsuccessful did not arise. Although in Bant the Full Court held the fact of discontinuance itself was conduct which justified an order for costs within s 117(2A)(c), it also held that s 117(2A)(e) is designed for cases where an application is heard and determined and the applicant is wholly unsuccessful; thus in circumstances of a discontinuance this paragraph does not provide a circumstance justifying an order for costs.
I note in passing that in the earlier decision of Elliott & Zova [2009] FamCA 49 at [52] O’Reilly J expressed a somewhat different view about discontinuance and lack of success. Her Honour considered that an application discontinued “nonetheless is wholly unsuccessful, because it is at an end without any successful result for the applicant” despite no hearing on the merits. There is some force in this view. However, no party referred to Zova nor was it referred to the Full Court in Bant. To the extent Zova is inconsistent with Bant I am bound to follow Bant.

Section 117(2A)(f) 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 submits that he made an offer of settlement to the mother dated 9 October 2019 in an attempt to settle the parenting dispute between them, and that he did not receive a response to this offer. In his written submissions, he says that the letter is “attached hereto and marked with the letter “A”. No such letter is attached to the father’s submission on the Court portal, and therefore, I cannot give this consideration any weight.

Indemnity Costs

The mother’s primary position is that she seeks an order for costs on an indemnity basis, and in the alternate, she seeks an order for solicitor and client costs, and again in the alternate, party and party costs.
It is a well-established principle that a departure from costs on a party and party basis is exceptional: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248. The Full Court has gone even further to state that costs on an indemnity basis are exceedingly more rare in this jurisdiction as compared to jurisdictions where the usual rule is that a successful party receives an order for costs (Prantage & Prantage (2013) FLC 93-544 at 152).
Whilst costs on an indemnity basis are exceptional, particularly more so because of the operation of s 117(1) of the Act, they are not impossible, however, the context in which it operates in the Family Law context needs to be appreciated (Kohan and Kohan (1993) FLC 92-340 at 79,614; Limousin v Limousin (costs) (2007) 38 Fam LR 478; D & D (Costs) (No. 2) (2010) FLC 93-435. As was outlined in the Full Court in Prantage & Prantage (supra):
The comments by this Court in Kohan that indemnity costs are “a very great departure” from the “normal standard” should be seen in that context. That, it should be observed, is not a fetter on this Court’s discretion to award costs or indemnity costs if justice so requires (see Oshlack v Richmond River Council (1998) 193 CLR 72, at 134 (particularly subpar [3]). Per Kirby J). Rather it recognises that an order for indemnity costs, has a particular context in this jurisdiction.
Additionally, the Court has discretion to make an order for costs that are neither on a party and party basis or an indemnity basis. As stated by the Full Court in Sfakianakis and Sfakianakis (2019) 59 Fam LR 419 at 420:
It is, however, a mistake to think that if a costs order is made, that order can only be on a party and party basis or on an indemnity basis. The words “such order as to costs … as the court considers just” permit the Court to fashion an order that is apt to the circumstances. One such well-known example is assessment on a trustee basis, which is more generous than party and party costs, but falls short of an indemnity. Orders for a partial indemnity or for a particular period are obvious possibilities. The Court may also fix costs in a particular sum, taking account of all relevant circumstances; that type of order too is neither one for party and party costs nor an indemnity costs order.
The mother submitted that the father’s conduct coupled with his discontinuation of his parenting application justified an order for indemnity costs in the mother’s favour. There is some force in this argument, especially in light of the father’s forum shopping, his breach of the orders of the Spanish Court, and his commencement of proceedings in the face of a binding earlier judgment of this Court which had little prospect of success, followed by a discontinuance. Whilst the father’s conduct does justify an award for costs, I do not accept that his conduct was extraordinary in a manner to justify the award of indemnity costs.

CONCLUSION

The father’s conduct does however support an award of costs on a scale higher than party and party costs.
The amount claimed by the mother, on any basis, is in the scheme of things relatively modest. It is appropriate to award costs in a quantified lump sum to avoid the need for any more time and expense to be wasted on the issue.
Accordingly, I will order the father to pay the other’s costs on a solicitor and client basis, with such costs to be fixed in the sum of $6,975.25.

I certify that the preceding Sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 3 April 2020.

Associate:

Date: 3 April 2020