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Booysen & Ferreira [2022] FedCFamC2F  1248  (14 September 2022)

Last Updated: 29 March 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Booysen & Ferreira  [2022] FedCFamC2F 1248 

File number(s):	SYC 7307 of 2021
Judgment of:	JUDGE KEMP
Date of judgment:	14 September 2022
Catchwords:	FAMILY LAW – costs associated with a review application – where costs had been previously ordered – consideration of financial circumstances – where offers were made but not accepted – where neither party was wholly unsuccessful – costs ordered in a fixed sum
Legislation:	Family Law Act 1975 (Cth) ss 117 Federal Circuit and Family Court of Australia Act 2021 ss 214 & 223 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 sch 3, rr 12.03, 12.08 & 14.05 Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 sch 1, r 4.01
Cases cited:	Bolinger v Ivy [2008] FamCA 274 Braithwaite & Braithwaite [2007] FamCA 468 Brown & Brown [1998] FamCA 115 Browne & Green [2002] FamCA 791 Colgate-Palmolive Co v Cussons Pty Ltd (1993) ALR 248 Collins & Collins (1985) FLC 91-603; [1985] FamCA 15 In the Marriage of Murray [1990] FamCA 112 JEL & DDF (No 2) [2001] FamCA 907; (2001) FLC 93-083 JJT & Ors, Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44 Kohan & Kohan [1992] FamCA 116; (1993) FLC 92-340 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Munday v Bowman (1997) FLC 92-784 Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311 Prantage v Prantage [2013] FamCAFC 105 Robinson & Higginbotham (1991) FLC 92-209 Rouse & Rouse [1981] FamCA 57; (1981) FLC 91-073 Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681; (2000) FLC 93-029
Division:	Division 2 Family Law
Number of paragraphs:	56
Date of last submission/s:	22 April 2022
Date of hearing:	In Chambers
Place:	Sydney
Solicitor for the Applicant:	In Person
Counsel for the Respondent:	Ms McCarthy
Solicitor for the Respondent:	Petkovic & Todd

ORDERS

THE COURT ORDERS THAT:

1. The father pay the mother’s costs associated with the father’s Application for Review filed on 27 December 2021 in the assessed sum of $3,871.25.
2. The costs the subject of order 1, above, be paid within 90 days of todays’ date.
3. All outstanding applications are, otherwise, dismissed.
4. The matter is, otherwise, removed from the active pending cases list.

THE COURT NOTES THAT:

1. Pursuant to order 1 of the orders made by Senior Judicial Registrar made on 10 December 2021, the Application filed on 15 November 2021 remains permanently stayed.

REASONS FOR JUDGMENT

JUDGE KEMP

INTRODUCTION

1. On 27 December 2021, the applicant father (“the father”) filed an Application for Review (“the Review application”) with respect to order 2 of the orders and notations made by a Senior Judicial Registrar on 10 December 2021 (“the subject orders”). The subject orders were to the following effect:
   • (1) Pursuant to Rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”), the Application filed on 15 November 2021 is permanently stayed.
   • (2) The father is to pay the costs of the respondent mother (“the mother”) associated with the Application – Contravention filed on 15 November 2021 (“the father’s Contravention application”) as agreed or as assessed.

Notations:

• (3) The mother sought a stay of the contravention proceedings in circumstances where the father filed identical proceedings in Western Australia on 12 November 2021 (“the Western Australia proceedings”).
• (4) The mother has filed a response in the Western Australia proceedings. Those proceedings are listed for hearing on 20 December 2021.

2. On 31 March 2022, when the Review application came before the Court, the Court delivered its decision Ex Tempore and made orders (“the March 2022 orders”) to the following effect:
   • (1) Order 2 of the subject orders is, hereby, discharged.
   • (2) The father is to pay the mother’s costs of the Court event on 10 December 2021 in the sum of $5,861.60, as assessed, within 3 months of today’s date.
   • (3) The mother is to file and serve any written submissions as to costs with respect to today (limited to 3 pages), within 14 days of today’s date.
   • (4) The father is to file and serve any written submissions in response (limited to 3 pages), within 14 days after compliance with order 3, above.
   • (5) The Court’s determination of costs for today are reserved.
   • (6) The Review application is, otherwise, dismissed.
3. Subsequent to the making of the March 2022 orders, the Court provided for its reasons to be published, with publication occurring on 19 May 2022 and a copy of the same provided to the parties on that date (“the Court’s judgment”). The Court repeats the Court’s judgment as if fully set out herein.
4. The Court’s decision with respect to the costs associated with the Review application was, therefore, reserved following compliance with the timetable referred to in paragraph 2, above. The mother’s written submissions were received on 14 April 2022 and the father’s written submissions were, subsequently, received on 22 April 2022. The Court’s decision was, therefore, reserved, as and from 22 April 2022, although the Court notes that it has had regard to the Court’s judgment which was not published until 19 May 2022.
5. The Court’s determination with respect to the present costs application is based only on a study of the documents before it, including affidavits read and the written submissions of the parties and any legal representatives. Neither party has sought to adduce oral evidence or to cross-examine the other and, accordingly, there is no provision for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.

PROPOSALS

6. The parties competing proposals are to the following effect:

   (a) The mother sought that the father pay 60% of her costs associated with the Review application within 90 days of the date of these orders.

   (b) The father sought that the mother’s application for costs be dismissed.

THE LAW

7. The notation contained in s.214 of the Federal Circuit and Family Court of Australia Act 2021 (“the FCFCOA Act”) refers to the Court’s power to make a costs order in family law proceedings pursuant to s.117 of the Family Law Act 1975 (Cth) (“the Act”). Pursuant to s.223 of the FCFCOA Act, the rules of Court may make provision for costs orders. Chapter 12 of the Rules sets out the relevant Rules in relation to costs, including security for costs, costs disclosure obligations, the management of legal costs, orders for costs, calculation for costs, specific costs matters and claiming and disputing costs. Relevantly, pursuant to Rule 12.08 of the Rules, legal costs are to be fair, reasonable and proportionate in the circumstances of the proceedings.
8. Pursuant to Rule 12.03 of the Rules, a costs application may be made at any stage during a proceeding and may be applied for on an indemnity basis.
9. Pursuant to Rule 4.01 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (“the Division 2 Rules”), the Court may, in applying Chapter 12, apply the scale of costs in Schedule 3 to the Rules or the scale of costs in Schedule 1 to the Division 2 Rules.
10. In relation to costs, s.117 of the Act states:

(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(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.

(3) To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children's lawyer for a child has been appointed, if:

(a) a party to the proceedings has received legal aid in respect of the proceedings; or

(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;

the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.

(4A) If:

(a) under section 91B, an officer intervenes in proceedings; and

(b) the officer acts in good faith in relation to the proceedings;

the court must not, because of the intervention, make an order under subsection (2) of this section against the officer, or against an entity (including the Commonwealth or a State or Territory) by or on behalf of whom the officer was engaged or employed.

(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.

11. Section 117 of the Act was considered by the High Court of Australia in Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311, where it was said:

“Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions, which imposes any additional or special onus on an applicant for an order for costs”.

12. In Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, the High Court of Australia stated as follows:

"...in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings".

13. Section 117 of the Act provides for a discretionary power in the Court. The Court must examine each of the factors, set out in the section, in turn, in relation to justifying a costs order. A costs order can be made on the basis of one or a combination of those factors (see Brown & Brown [1998] FamCA 115). The discretion to award costs is a broad discretion (see for example Collins & Collins (1985) FLC 91-603; [1985] FamCA 15).
14. The issue of costs was outlined in JJT & Ors, Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44 at paragraph 98 as follows:

“Indeed, the list of matters set out in sub-s (2A) to which the Family Court is directed to have regard in making orders under s 117(2) indicates clearly that the subject-matter of the orders to be made under s 117(2) is the costs which a person may be ordered to pay another as indemnity for that other's liability for professional fees and out of pocket expenses reasonably incurred in the litigation, that is, "costs" as that expression is ordinarily understood in the law.”

APPLICATION OF THE LAW

Section 117(2A)(a) The financial circumstances of the party

15. The father submitted that his financial circumstances were severe since he ceased his employment in Europe in or around mid-2021 to relocate to Sydney. He maintained that he had no source of income and was unable to work in Australia.
16. The father, further, submitted that he has exhausted his life savings following 5 years of legal proceedings initiated by the mother in both the Family and Criminal Courts in the jurisdictions of the United Kingdom, Country B and Country C. In that regard, he submitted that he has had to hire lawyers in 3 different countries for the purpose of past proceedings. In that regard, the Court refers to paragraphs [6] and [7] of the Court’s judgment, as follows:

[6] In terms of his affidavit material, the father provides in his affidavit of 27 December 2021, a chronology of facts from July 2021 to December 2021 so as to provide the Court with some clarity, he says, in relation to the background of the parties’ parenting dispute. The parties appear to have had a long history of disputation and the father refers to “battles” in [Country C], [Country B] and the United Kingdom.

[7] The Court notes that there are in existence orders made in the High Court (in the United Kingdom “the UK”) by Justice of the District Registry, Family Law Division made on 13 July 2021. Those orders permitted the mother to leave the United Kingdom with the child and to travel to Australia. There was a requirement, in accordance with those orders, for registration of those orders with the Family Court of Australia, as then named, and as referred to by that Court in those orders.”

17. The father maintained that he has, currently, re-partnered and his wife, being a New Zealand national, has applied for social welfare as a financial resource from which he may be assisted. It is noted that the father, currently, has a child, D, aged, approximately, 9 months, with his current partner.
18. The father submitted that he is in the process of obtaining a personal loan for the purpose of meeting the payment of $5,861.60 in accordance with the March 2022 orders, as referred to in paragraph 2, above. The father submitted that he has sought an extension of the time to pay that amount from the mother’s legal representative in consideration of his financial circumstances.
19. The Court is of the opinion that the father’s financial circumstances as asserted by him weigh against a costs order or in reduction of a substantial costs sum.

Section 117(2A)(b) If any party in receipt of legal aid

20. The parties submitted, and the Court accepts, that this factor is not applicable. However, the father submitted that he has appeared self-represented and has received some Legal Aid advice by telephone, however, he has been unable to obtain Legal Aid due to his status as a “foreigner who recently arrived in Australia”.

Section 117(2A)(c) The conduct of the parties in relation to the proceedings

21. Relevantly, under s.117(2A)(c) of the Act, the Court must consider the conduct of the parties to the proceedings in relation to the proceedings and, without limiting the generality of the foregoing, their conduct in relation to pleadings, particulars, discovery, inspection, answered questions, admissions of facts, production of documents and similar matters.
22. The mother submitted that the costs of responding to the father’s Review application was increased as a result of her need to respond to his further affidavit, which consisted of 63 pages and was filed on 25 March 2022. She maintained that she also incurred the costs of the hearing of the Review application, which took a whole day, including the time for the Court to provide its decision.
23. The father submitted that the legal proceedings were, entirely, unnecessary and maintained that the mother could have discussed her intentions to relocate with the child and the parties could have come to an agreement prior to the initiation of any proceedings. Further, he submitted that he had relied on free Legal Aid telephone advice with respect to the father’s Contravention application. In that regard, the Court refers to paragraph [15] of the Court’s judgment as follows:

[15] The Court is satisfied that, at that point in time, the father was well aware that an application for costs would be made if he did not, otherwise, provide immediate confirmation as a consent to the stay of the, then, filed Contravention Application in this Court. In terms of the mother’s affidavit filed on 9 March 2021, she has relevantly attached the affidavit of the proceedings on 10 December 2021, attaching the transcript of the proceedings on that date. The Court asked Ms McCarthy to identify in that transcript what the father’s position was in terms of the permanent stay application noting that the Registrar responded to the substantial factual background stating:

I am not interested in what happened in 2018. I do not want to hear a background. I do not want to hear a background story about it. Why are you filing 2 sets of proceedings in different Courts? You cannot run them both

24. The Court accepts that it had concluded that the father would have been fully aware that an application for costs would be made if he did not provide immediate confirmation as to his consent to the stay of the father’s Contravention application, then, filed in this Court.
25. The father, further, submitted that his Review application was legitimate and fair, noting that the March 2022 orders, ultimately, discharged order 2 of the subject orders. In that regard, the Court refers to paragraph [23] of the Court’s judgment which found that the learned Senior Judicial Registrar had not, adequately, provided reasons for her decision to order costs in the form that she did. Notwithstanding that position, however, costs in the sum of $5,861.60 were, ultimately, ordered against the father as assessed by the Court when it heard the Review application.
26. The Court is of the opinion that the mother was reasonable in terms of her need to respond to the father’s further affidavit material and accepts that she incurred costs which could have been avoided if the father had not taken the course that he did. This weighs in favour of a costs order for the benefit of the mother.

Section 117(2A)(d) Proceedings necessitated by the failure of a party to comply with previous orders

27. The parties made no submissions with respect to this factor and the Court accepts that this factor is not applicable.

Section 117(2A)(e) Whether any party wholly unsuccessful in the proceedings

28. The mother submitted that the father was wholly unsuccessful with respect to both the father’s Contravention application and the Review application. The father disputed that assertion and maintained that the father’s Contravention application had been listed before the Family Court of Western Australia on 28 April 2022. The Court notes, however, that that application was filed distinct from the father’s Contravention application filed in this Court.
29. The father, further, maintained that he was successful in the Review application, as evidenced in the discharge of order 2 of the subject orders. The Court accepts the father’s submission, in that regard and some weight is attached to that in his favour.
30. The Court accepts that in circumstances where parties pursue unsuccessful issues, the Court is entitled to make an order for costs against them (See Rouse & Rouse [1981] FamCA 57; (1981) FLC 91-073).
31. However, the Court also accepts that it is not the intention of the Act to award costs against a party on each and every occasion that a party is wholly unsuccessful.

Section 117(2A)(f) Any offers in writing

32. The mother submitted that she had made repeated offers to settle the costs matter prior to the making of the March 2022 orders, including the following:

    (a) On 29 March 2022, an open offer was made which sought that the father pay 70% of the mother’s costs; and

    (b) On 31 March 2022, when the matter was stood down for negotiations, an offer was made which sought that the father pay 60% of the mother’s costs.

The father did not accept those offers.

33. The mother’s Memorandum as to Costs as at 29 March 2022, prepared for the hearing on 31 March 2022 set out her costs and disbursements, as referred to in paragraph 49, below as follows:

    (a) Costs and disbursements up to and including hearing of 10 December 2021 rendered by and paid to Petkovic & Todd Solicitors, totalling $8,475.60;

    (b) Unbilled work in progress for the Review application, totalling $9,035.25; and

    (c) The costs for the hearing of the Review application, totalling $3,900.00.

34. The total of the costs and disbursements, as set out in paragraph 33, above, was in the order of some $21,410.85, exclusive of GST and $23,551.93, inclusive of GST. These appear to have been calculated on a solicitor-client basis, if not an indemnity basis.
35. It is unclear what the offers, as set out in paragraph 32, above, related to in terms of the mother’s actual costs. If those offers related to the figures set out in paragraph 33, above, then, it would appear, that the costs sought would be as follows:

    (a) In terms of the offer made on 29 March 2022: $12,257.60 (exclusive of GST); and

    (b) In terms of the offer made on 31 March 2022: $12,846.41 (exclusive of GST).

36. A written offer of settlement is “highly relevant” to the question of costs. Such offers provide litigants with an incentive to settle and thereby avoid or reduce the costs of litigation (see Robinson & Higginbotham (1991) FLC 92-209).
37. As Justice Nygh stated in In the Marriage of Murray [1990] FamCA 112, a party cannot reject or ignore a reasonable offer seriously made except at his or her peril as to costs:

“If one considers the issue as a matter of policy, that is, on the basis of what the Parliament's objective and purpose was in enacting the legislation, it is clear that the Parliament wished to encourage settlements thereby reducing the cost of litigation to the parties and to the community. That must mean that a party cannot reject or ignore a reasonable offer seriously made except at his or her peril as to costs. At the same time a party cannot sit tight and postpone a decision as to acceptance until a matter is at the door of the court. By that time an offer which might have been acceptable to the offeror because of savings in time and preparation costs, may have become unattractive. In this case the offer was left open for a reasonable period, was clear and capable of acceptance which would have saved the parties considerable costs....”

38. In Browne & Green [2002] FamCA 791, the Full Court of the Family Court of Australia (Kay, Coleman and Warnick JJ) said:

“Whilst s 117(2A) does not provide any direct guidance to where weight should be given in any one particular case, it is very important for the Court to give proper consideration to written offers of settlement that have been made. ...The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it a proper consideration, is something to which very significant weight indeed ought normally be given.”

39. The Court accepts that it is important for it to give proper consideration to offers of settlement which have been made. These offers enable parties to avoid unnecessary litigation by indicating to the other party an appropriate basis upon which litigation can be settled. The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to enable proper consideration to be given to it is something to which “very significant weight” ought to normally be given (see Browne & Green [2002] FamCA 791).
40. The Court is of the opinion that:

    (a) The terms of the mother’s offer were, substantially, on a “take it or leave it basis”. That is, the father should pay somewhere between 60% and 70% of the total costs she had incurred. There was no other position adopted, namely, for example if the Review application was not pressed she would seek no costs.

    (b) The father’s position was that he felt he had something to argue for on the Review application and his financial position was such that he did not wish to accept the wife’s offers or, it would appear, promote a counter offer in respect of the payment of any of her costs.

    (c) The mother’s offers did not promote the calculation of costs on any application of the Schedules to the Rules or the Division 2 Rules.

41. The Court is of the view that the father should have considered, seriously, the financial exposure to the mother’s costs in meeting the Review application brought by him in circumstances where he was self-represented and had been reliant only on legal assistance provided by way of telephone calls from Legal Aid.

Section 117(2A)(g) Such matters as the Court considers relevant

42. The parties made no submissions with respect to this factor and the Court accepts that this factor is not applicable.

INDEMNITY COSTS

43. In Munday v Bowman (1997) FLC 92-784, Holden CJ. of the Western Australian Family Court noted:

“...some of the circumstances which have been thought to warrant the exercise of the discretion to award costs on an indemnity basis. Some examples which may be of relevance to the present case are as follows:

1. Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts: see Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397.
2. Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud: see Fountain Selected Meats (Sales) Pty Ltd.
3. Evidence of particular misconduct causing loss of time to the court and to other parties: see Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (French J, Fed C of A, 3 May 1991, unreported).
4. The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions: see Ragatta Developments Pty Ltd v Westpac Banking Corporation (Davies J, Fed C of A, 5 March 1993, unreported).
5. An imprudent refusal of an offer to compromise.”

44. In the matter of Kohan & Kohan [1992] FamCA 116; (1993) FLC 92-340, the Full Court of the Family Court of Australia (Strauss, Lindenmayer and Bulley JJ) held:

“[In terms of] The power to order costs on an indemnity basis...
...that in an appropriate case, the Court has a discretion to order costs on an indemnity basis and that such costs may be ordered where they have been incurred under a costs agreement which departs from the usual scale of costs. However, it is fundamental to the exercise of that discretion in the Family Court that the Judge should not only understand that such an order is a very great departure from the normal standard, but also that the Judge should know what the terms of the agreement are, to what extent it exceeds the parameters set by the scale and what its likely impact will be on the financial position of each of the parties.
This impact is a relevant matter to which the trial Judge should have had regard, when considering the financial circumstances of each of the parties to the proceedings under sec 117(2A)(a), or perhaps even more as a relevant matter under paragraph (g). The degree to which a costs agreement departs from the established norm and the actual financial significance of such a departure may itself be a reason for not ordering costs on an indemnity basis.
[In terms of] The proper exercise of the discretion
The intent of sec 117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the Court may make such order as the Court considers just. As we have pointed out, the Court may depart from the scale of costs prescribed under the rules... The Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind...
Indemnity costs orders are still an exception in this and other jurisdictions... Insofar as an unaccepted offer of compromise which exceeds a judgment may justify an order for costs, the general practice in this jurisdiction so far has been to order no more than costs on a party and party basis. Even in cases where there has been dishonest concealment of assets or income... no more than party and party costs have been awarded.
When considering what is just in this case, one must bear in mind that a party who enters into a costs agreement should be warned and must anticipate in this jurisdiction that each party might well have to bear his or her own costs, and that even if an order for party and party costs is made, the difference between party and party costs and costs payable under a costs agreement may consume all, or a substantial part, of the property order. In this particular case the wife changed her solicitors in August 1990. It must then have been apparent to her, or at least to her new solicitors that this might become drawn out litigation and that a rate of costs which amounted to three times the scale, exposed the wife to great risks. If she was willing to assume these risks, it does not seem just to saddle the husband with them.

45. However, the Full Court of the Family Court of Australia in Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681; (2000) FLC 93-029 (Lindenmayer, Holden & Mullane JJ) stated:

“All that is required is that the Court asked to exercise the discretion be satisfied that some “particular facts and circumstances of the case in question warrant the making of an order for the payment of costs other than on a party and party basis”: per Shepherd J in Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 at 223”.

46. In JEL & DDF (No 2) (2001) FLC 93-083, the Full Court of the Family Court of Australia (Kay, Holden & Guest JJ) stated:

“...the category of cases in which it would be appropriate to make an order for indemnity costs does not appear to be fully defined.”

The Court held that the failure to accept an offer to compromise was, without more, insufficient to justify the making of a costs order on an indemnity basis. They stated:

“In our opinion, the failure to accept an offer which in retrospect, perhaps should have been accepted is without more, insufficient to justify the making of a costs order on an indemnity basis. The rejection of the offer must be at the very least imprudent. We express no opinion as to when the rejection of an offer may be so classified...”

47. The Full Court has made plain that access to justice considerations play a significant part in the continuance of this doctrine even as costs at scale depart ever more from the costs charged by lawyers. In Prantage v Prantage [2013] FamCAFC 105, the Full Court of the Family Court of Australia, comprising of their Honours Thackray, Ryan & Murphy JJ, concluded:

“94. We recognise that the Rules now expressly refer to orders for costs on an indemnity basis. We recognise also that the rules in this Court are not precisely the same as those in other courts; however, there is nothing in the Rules which indicates that the fundamental principle applied in other jurisdictions should not also be applied in this jurisdiction. Indeed rule 19.18 makes clear that the "default" position is that costs are awarded on a party/party basis.

95. As we have pointed out, the "usual rule" relating to the basis upon which costs are ordered in this jurisdiction is well entrenched. We consider it would be most unsettling if we purported to depart from the existing practice. Furthermore, we would not consider it desirable to do so ... "
96. In particular, we respectfully agree with Cooper and Merkel JJ that there are "two seemingly irreconcilable objectives" at stake. Placing great emphasis on the importance of one objective, namely "relieving a successful litigant from the burden of costs which that litigant should not have been required to incur" will inevitably lead to insufficient emphasis being placed on the importance of the other objective of "protecting access to justice by only exposing an unsuccessful litigant in the usual course to an order for scale costs on a party and party basis”.

48. The Court is of the opinion that there is nothing to suggest that the mother’s costs should be paid on an indemnity basis. Indeed, there is no evidence as to what that indemnity might be and, on the authority of cases such as Colgate-Palmolive Co v Cussons Pty Ltd (1993) ALR 248,there can be no suggestion of an indemnity basis for any costs here.
49. The mother’s costs were particularised (although no invoices were attached), as follows:

COSTS IN A FIXED SUM

50. The mother submitted that the award of 60% of her total costs with respect to the father’s Review application was consistent with the March 2022 orders, as referred to in paragraph 2, above, which awarded the mother 60% of the costs incurred with respect to the father’s Contravention application which, the Court notes, relates to the figure of $8,475.60 in the above schedule, plus GST, being calculated at $5,861.60 (noting that the mother deposed to having incurred costs, at that stage, in the sum of $9,310.06).
51. The Court accepts that the mother’s costs can be fixed in a specific sum. This is supported by the decision of the Full Court of the Family Court of Australia in Braithwaite & Braithwaite [2007] FamCA 468, (Kay, Warnick and Boland JJ ) where it was said:

“We accept the practicality of the submission that, in an appropriate case, a judicial officer should make an order in sum certain, rather than put the parties to the expense and stress of further proceedings to assess costs.”

and in Bolinger v Ivy [2008] FamCA 274, where the judge stated:

“There is much to be said for fixing costs. The process of assessment of costs is in itself time consuming and expensive. There is also of course, the possibility of a later review”. The wife submitted that in Independent Children’s Lawyer SS and Anor [2009] FamCA 519 it was said “I have the power to order specific amounts of costs”.

52. The Court notes that the mother’s costs, in terms of the Review application, totalled some $12,935.25, being the sum of $9,035.25 plus $3,900.00 (exclusive of GST), as referred to in the above schedule. Applying 60% to this total figure would amount to the sum of $7,761.15. This sum would be $1,899.55 greater than the costs awarded pursuant to the March 2022 orders. The Court is of the view that, in light of the father’s financial circumstances and the matters set out in paragraph 29, above, those costs would not, in all of the circumstances of the case, be just.
53. Accordingly, the Court proposes to apply Schedule 1 of the Division 2 Rules. This Schedule was designed to effect the remit of the Court to deal with matters as efficiently as possible in the exercise of its judicial power. The Court applies that Schedule as follows:

The Court accepts that the disbursement item was reasonably incurred.

CONCLUSION

54. On that basis, the father will be ordered to pay the mother’s costs in the assessed sum of $3,871.25, as referred to in paragraph 53, above. The Court is of the view that, having considered the parties submissions and the matters referred to above and given them the weight referred to, this amount is appropriate, proper, fair, reasonable, proportionate and just in all of the circumstances of this matter.
55. The Court is also of the view that each of the parties had reasonably arguable positions with respect to their written costs submissions and that there should, therefore, be no order as to costs with respect to their preparation of those submissions.

Time to pay

56. The mother proposed that the father be afforded a timeframe of 90 days to pay any costs ordered, being consistent with the costs order made with respect to the March 2022 orders, as referred to in paragraph 2, above. The Court accepts that position.

Associate:

Dated: 14 September 2022