FAMILY COURT OF AUSTRALIA

Oakes & Sheffield	[2013] FamCA 1001	

FAMILY LAW – COSTS – Application by mother for costs of substantive proceedings and costs of costs application – Order that father pay the mother’s costs of counsel at the substantive proceedings on 4, 6, 7 and 8 February 2013 – Mother’s application for costs of costs application dismissed.	

Family Law Act 1975 (Cth) ss 117 and 117(2A)	

Pencious & Searle (formerly Pencious) [2013] FamCA 754
Prantage & Prantage [2013] Fam CAFC 105	

APPLICANT:	Ms Oakes 	

RESPONDENT:	Mr Sheffield	

FILE NUMBER:	HBC	97		of	2007	

DATE DELIVERED:	18 December 2013	

PLACE DELIVERED:	Hobart	

PLACE HEARD:	Hobart	

JUDGMENT OF:	Benjamin J	

HEARING DATE:	28 November 2013	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Mason on direct brief	

SOLICITOR FOR THE APPLICANT:		

COUNSEL FOR THE RESPONDENT:	Mr T FitzGerald	

SOLICiTOR FOR THE RESPONDENT:	FitzGerald & Browne	

Orders
1.	That the father, Mr Sheffield, pay the costs of the mother, Ms Oakes in respect of the attendance of her counsel at the hearing of the substantive proceedings on 4, 6, 7 and 8 February 2013.  Such costs to be determined by agreement between the parties, or if the parties are unable to agree, as determined under the Family Law Rules 2004 and such costs are to be assessed on a party and party basis.
2.	All other costs applications, including that of the costs of the costs application, are dismissed.
3.	That the consent injunctive order made on 14 May 2012, and as extended or varied subsequent to that time requiring the retention of the sum of $30,000 in the trust account of FitzGerald and Browne, is discharged as and from fourteen (14) days from the date of this order.
4.	All extant applications are otherwise dismissed.
IT IS CERTIFIED
5.	Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym & Oakes& Sheffield has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Family Court of Australia at hobart	

FILE NUMBER: HBC 97 of 2007

Ms Oakes
	
Applicant

And

Mr Sheffield
	
Respondent

REASONS FOR JUDGMENT
INTRODUCTION
1.	Mr Sheffield (‘the father’) and Ms Oakes (‘the mother’) have been arguing over parenting arrangements for their children for many years.  On 26 March 2013, after a hearing which commenced in March 2012 and where the evidence concluded in February 2013, orders were made including an order that a child of the parties, S, live with the mother and various other orders.  Arising from that determination was an application for costs by the mother.   
2.	The mother filed an application in a case on 22 February 2013, and at the commencement of the costs hearing her counsel said that the costs applications fell into a number of areas:-
(a)	the mother sought the costs of the parenting proceeding as and from 23 August 2011; 
(b)	that such costs ought to be determined on an indemnity basis under that;
(c)	that the Court should assess those costs and make a lump sum order; and
(d)	that lump sum order or part of it should be set off against the moneys held in the trust account of the father’s solicitors with FitzGerald & Browne.
a)	It was submitted by counsel for the mother that if the indemnity cost application was successful, that there ought to be an order that the father pay the mother’s costs of the cost application on an indemnity basis.  In the event that the Court made a party/party cost order, then counsel for the mother said the costs orders should be that the costs of the costs application should be paid on a party/party basis.  Finally, that if the costs application was unsuccessful then each party should pay their own costs on the costs application.  Counsel for the father agreed that if the mother’s costs application was dismissed, then there ought not to be an order for costs.  
3.	The mother relied upon her affidavit filed 17 June 2013 together with her financial statement filed 22 August 2012.  
4.	In addition, counsel for the mother tendered in evidence a letter forwarded to FitzGerald & Browne dated 30 October 2013 from the mother requesting the details of some liabilities (Exhibit M2) and the response from FitzGerald & Browne dated 18 November 2013.  
5.	The father relied upon his affidavit filed 3 October 2013 and an affidavit of Mr R filed 30 September 2013.  The father also relied upon his statement of financial circumstances filed 4 October 2012.  In relation to that statement of financial circumstances the father gave oral evidence that since that time his child support liability for S has been increased to $43.80 per week.  In addition he has been ordered to pay a lump sum child support of $2,280 for orthodontic braces at a rate of $190 per month.  
6.	It was an agreed fact that the father owed child support for S to the mother of about $6000 and, it was agreed by counsel that that was a protected debt being due to the Child Support Agency.  
THE BACKGROUND
7.	The background to these proceedings is set out in the reasons delivered by this Court on 26 March 2013 which was:-
21.	The father is aged 48.  He has been in a relationship with Ms C since at least early 2003.  There is one child of that relationship, J who is aged about nine. B had been living with the father since mid-2009 and has had no effective or meaningful relationship with the mother or S.
22.	The mother is aged 46. S primarily lives with her and has not spent any meaningful time with the father since July 2011. 
23.	Proceedings commenced in early 2004 when recovery orders were made on the motion of the mother.  An Independent Children’s Lawyer was appointed.  A report was obtained from a clinical psychologist and a psychiatrist. With the constancy of litigation, the funding by the Legal Aid Commission for an Independent Children’s lawyer was exhausted years ago. 
24.	Evidence was obtained from Dr G (a specialist in the field of autism and who was a therapeutic provider for S) in relation to whether S was autistic. The father refuses to accept the diagnosis of autism, and this has been an area of conflict between the parents.  In July 2005 the proceedings were transferred from the Federal Magistrates Court to the Family Court.  An unsuccessful application was made by the father in 2006 to dismiss the then Independent Children’s Lawyer.  The father was ordered to pay the Independent Children’s Lawyer’s costs.
25.	The proceedings were listed for trial in September 2006 and at the commencement or during that final hearing consent (final parenting) orders were made by Bennett J. Her Honour directed that the father meets with Dr G to enable the father to be informed about S’s diagnosis.   
26.	In April 2007 there was a contravention application by the father, part of that was in dismissed and in part established.  The mother entered into a bond to comply with orders and some compensatory time was put in place.
27.	In 2009, B decided to live with the father and commenced to do so. He continues to live in the father’s household. 
28.	In March 2010 there were further contravention proceedings and the mother was found to have contravened orders.  She was required to enter into a bond and was ordered to pay the father’s legal costs.  
29.	In April 2010 the father filed proceedings in the Federal Magistrates Court and a family report was ordered.  Eventually reports were prepared by family consultants in 2010 and 2011.  
30.	In 2011 the mother was found to have further breached orders. 
31.	In July 2011 S declined to spend time with the father and has not spent any meaningful time with him subsequently.
32.	In October 2011 the proceedings in the Federal Magistrates Court were transferred to the Family Court.  These proceedings were then listed for final hearing before me in March 2012.  On the first day of that hearing the father gave evidence of what he said was a disclosure by B (in his presence) of the alleged 2003 sexual abuse of him by the mother.  In March 2012 I was informed that the alleged disclosure was the subject of police investigations.  These proceedings were adjourned pending the outcome of the police investigation.
33.	These proceedings were subsequently listed for finalisation of the hearing in February 2013.
34.	The Family Consultant, Ms D, said in her report dated 2 May 2011:-
46.	[B] and [S] are two young men who have been severely disadvantaged by the relentless acrimony between their two parents over many years. 
…
50.	This is not a family where children have simply been ‘alienated’ from one [and] other by the other parent, even though the boys have been exposed to very negative views that each parent holds about the other.  The boys have had a physical and psychological opportunity to develop independent relationships with both parents.  Both children live primarily with their mother.  Any problems in the current relationship with [B] are not resolved by his ‘alignment’ with the father or due to the father’s persistent negative views of her.  Similarly, the boys have always had regular time with their father and [B’s] independent relationship with him has resulted in [B’s] choice to live at the father’s home.  Both boys had the opportunity to develop sound positive relationship with their father based on their interaction.  [B] stated that [S] has been the favourite at the father’s home.  Yet the relationship between [S] and the father is not a warm or rewarding one.  Indeed it was seen at recent additional time pursued by [the father] due to the contraventions by the mother, has been detrimental to his relationship with [S].  Time spent with a particular parent needs to be of benefit and preferably enjoyable for children or a successful or long-lasting or close relationship with the parent [sic] and child will fail to develop.   Unfortunately this appears now to be the case with [S] and his father.
35.	For the reasons set out below I accept the evidence of Ms D and it, in essence, summarises the terrible situation which these young adults find themselves.  Despite almost a decade of litigation the parties continue to ventilate their personal acrimony through the Court and without regard to the ongoing and continuing detriment to their children.
36.	The father’s failure to accept B’s request not to pursue an examination of his (B’s) personal counselling is but one of many examples of this form of behaviour.

8.	Those substantive proceedings related to the child S who was born in 1997 and who, when the matter first came to the Court in March 2012 was aged almost 15, and when the proceedings were finally determined in 2013 he was a few weeks short of his sixteenth birthday.  S had determined to live with his mother and not spend time with his father or his brother B.  
9.	Significant evidence was provided in relation to his state of mind.  The father persisted with his application for parenting orders in his favour with regard to S.  This arose on a number of factors including an allegation by the father that the mother had sexually abused him [the father] some 15 or 20 years before this hearing, and that the mother had sexually abused the parties’ two children in the early 2000’s.  I made scathing comments about the father’s application in that respect given the history of which I have set out in those reasons.  Further, the father asserted that S did not suffer from a diagnosed condition, notwithstanding evidence given before a putative trial in about 2004 or 2005 by a highly qualified medical practitioner and in circumstances where the father had some evidence from his own expert as to that condition. 
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
10.	As to the relevant legal principles to be applied, I note that they were set out by me in Pencious & Searle (formerly Pencious) [2013] FamCA in paragraphs 9 through to 11:-
9.	The general rule in relation to costs is that each party to the proceedings should bear his or her own costs of the proceedings.  This general rule is subject to s 117(2), s 117AA, and s 118 of the Act.  A court may make such orders as to costs, whether by way of interlocutory order or otherwise, as the Court considers just.  The Court is required not only to consider whether there are circumstances to justify the making of costs orders, having regard to s 117(2A) which sets out an inclusive list of the matters the Court should have regard to.  The determination of legal costs is a matter of judicial discretion.
10.	I repeat the comments that I said in Woodley & Time and Anor [2008] FamCA 162 where I said:-
30.	In Brown v Brown (1998) FLC 92-882, Kay J said at pp 85,346 to 85,347:
The obligation under s 117(2A) is that the court shall have regard to the various matters set out thereunder. This is in contrast to the previous provisions under which costs orders were made, namely, under the Family Law Regulations and in particular reg 173 which required that the court may in making an order take into account various matters. The movement from a discretionary consideration to a mandatory consideration is a matter in my view of some substance.
31.	In the absence of their being circumstances that justify the court making an order for costs, then s 117(1) provides that each party will bear his or her own costs of the proceedings under the act. 
32.	The interpretation to be applied to s117 and the inter relationship of s 117(1) and s 117(2) was considered by the High Court in Penfold v Penfold (1980) FLC 98-800.  In this case Stephen, Mason Aickin and Wilson JJ, said at 75,053-75,054:
It is an accurate description of sec. 117(1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to sec. 117(2). As subsec, (1) is expressed to be subject to subsec. (2), the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

Subsection (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. Consequently…we do not agree with the suggestion…that an order can only be made under sec. 117(2) in a ‘clear case.

Subsection (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when the costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised.

Moreover, the transcript shows that it was only after the respondent’s financial position had been investigated at the hearing that, in answer to questions put by the judge in cross-examination, he admitted that he could afford to pay the increased maintenance which was ultimately ordered. The respondent had filed a Form 19… (which) presented a picture of the respondent as an insolvent, a man whose liabilities exceeded his assets. It made no mention of the very valuable assets which he owned and in which he had an interest... (at 75,054).

Consequently, there was ample material from which the judge could find that there were circumstances justifying the making of an order for costs. The facts that the appellant failed in relation to the trust and the matrimonial home, and that the vacation judge dismissed the interlocutory application, though matters which are of relevance, are not of sufficient strength to deny the conclusion that there were circumstances justifying the making of the order.” 

33.	The case of Penfolds was discussed by Justice Wilson in the High Court decision of Mallet v Mallet (1984) FLC 91-507 (with whom Gibbs CJ, Mason, Dean and Dawson JJ agreed at pp 79,123-79,124). Penfolds case also made it clear that s 117(2A) “requires a finding justifying circumstances as an essential preliminary to the making of an order”. It is clear that the court has a wide discretion and that beyond this there is no “additional or special onus” on the applicant for costs which requires the court to make a preliminary finding that special or exceptional circumstances exist before making an order for costs. 
34.	By virtue of s 117(2A), in considering what order (if any) should be made under s 117(2), I am required to have regard to the matters set out in s117(2A) (a)-(g) in so far as they are relevant.  The factors set out in the subparagraphs do not comprise of a closed list of factors, because s117(2A)(g) includes “such other matters as the court thinks relevant”.   I need to consider each of the various factors, subject to their relevance, however, in PBF (as Child Representative for AF (Legal Aid Commission of Tasmania) v TRF and LKL (2005) FamCA 118 the Full Court held at paragraph 41:
…Nowhere in subsection 2(A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection 2(A).  As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
35.	In the matter of I and I (No 2) FLC 92-625, the Full Court at p 82,277 said:
that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs. 
36.	In this case Nicholson CJ, Ellis and Baker JJ declined to follow the approach adopted in the decision of McDonald and Mc Donald (1994) FLC 92-508 in relation to the question of costs. In that earlier case his Mushin J had said at p 81,271;   
In the first instance it is important to note that the principal proceedings concerned questions of custody. As between parties in the strict sense of that word, it is rare for an order for costs to be made in such proceedings. Circumstances such as a totally unmeritorious case on one side, an attempt to vary a custody order which does not even establish a prima facie case, the withholding of evidence, the giving of false evidence and like matters are common bases for such an order. However, where no factor of this type exists, there would usually need to be a very significant disparity in financial circumstances between the parties before a costs order was made.
37.	The Full Court in I and I (No 2) above, declined to follow this approach and held at p 82,277; 
With respect... we see nothing in the provisions of s 117 to justify the approach to the question of costs in custody or any other proceedings suggested by him. The matters to which he referred are matters which, in an appropriate case, would be taken into account in determining whether the circumstances justified the making of an order for costs in a particular case. However, whether such matters exist or not, the other relevant matters referred to in s 117(2A) must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs. The financial circumstances of the parties are but one of those matters and those circumstances must be taken into account whether or not there is a very significant disparity in financial circumstances between the parties.
11.	I have had regard to s 117 of the Family Law Act 1975 (Cth) (“the Act”) and in particular the provisions of s 117(2A) which says:-
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.

11.	The mother relied upon her affidavit and her financial statement, filed August 2012.  In that statement, it’s clear that the mother’s income is by way of government benefits and child support, albeit the child support is significantly in arrears.  In terms of property owned by the mother, there is no substantial property other than her furniture and furnishings.  The mother has significant debts in terms of the legal costs she has incurred in these proceedings.
12.	In the first paragraph of the mother’s affidavit filed 17 June 2013, she adopted the material contained in her affidavit filed 22 March 2013.  That affidavit was primarily for security, in terms of the retaining of the $30,000 held in the trust account of the husband’s then solicitors.  The end result of that application was that, by consent, the monies were obtained.  That earlier affidavit sets out the mother’s views of the history of the proceedings, most of which I dealt with in the reasons I delivered in March of 2013.  In that material, the mother asserts that the father has not made full and frank disclosure, and that the debt, which is one of the primary liabilities of the father, to Mr R was not a real debt.
13.	The mother provided evidence of the father buying a motorbike for the parties’ son, B, and the father living in a home which is owned by a company which is apparently an alter ego of Mr R.  In her affidavit the mother sets out why an order for security for costs ought to be made, and as I noted, that order was made by consent, without the need of findings.  
14.	In her primary affidavit, that is, the one filed 17 June 2013, the mother sets out the rate of fees that she paid to her direct brief counsel, both in the Family Court and in the Federal Magistrates Court (as it then was).  The mother says that on 14 February 2012, she sent an offer of compromise set out in paragraph 8 of her affidavit.  Similarly, offers were made in paragraph 9 and 10 of her applications.  It is not in issue that those offers were made.  
15.	The mother then sets out the history of the application and responses in the proceedings and the commencement of the trial from 9 March 2012.  When the matter first started at that time, the father claimed that B had made a disclosure to the police.  I have dealt with that in the reasons I delivered in March 2013, and I repeat the adverse comments I made about the father in relation to that disclosure at that time.  The effect of that disclosure was to cause the hearing of the proceedings to be delayed almost to here.
16.	The mother then sets out her evidence in relation to the various factors to which I am obliged to have regard.  This is a matter where the costs application is to be treated in accordance with that set out earlier on in these Reasons.  I am obliged to have regard to the relevant factors under s 117(2A) of the Family Law Act 1975 (Cth).  
Section 117(2A)(a) the financial circumstances of the parties to the proceedings
17.	As to the financial circumstances of each party, it is clear that the mother is impecunious.  She has a debt to the father being a previous costs order, totalling about $6,047, which costs have not been paid and upon which interest is accruing.
18.	The mother has the costs outstanding to her direct brief barrister as set out in paragraphs 4, 5, 6 and 7 of her affidavit.  Annexure B to her affidavit shows a balance due of some $53,641.50.  In annexure C to the affidavit, the mother claims her own witness expenses, which she purports to amount to some $11,712.08, which would seem to me she would have trouble in respect of significant parts of those amounts.  Namely, her own expenses in attending the trial have some difficulty.  However, that would have been a matter for a taxing officer.
19.	The financial circumstances of the father are disastrous, to say the least.  The father suffered an injury some 20 years ago and commenced proceedings.  He lost those proceedings in the Supreme Court of Tasmania, and the subsequent appeal was unsuccessful.  He claiMs Dhat he cannot work, and claiMs Dhat he owes considerable amounts of money.  The first of those liabilities is a debt in excess of $200,000 to the alter ego of his employer, Mr R.  Both the father and Mr R assert that there was a series of loans totalling in excess of $200,000.  The father gave particulars of those in the letter in exchange of correspondence Exhibits N1 and N2.
20.	The mother has significant reservations about the voracity of that liability.  Mr R filed an affidavit on 30 September 2013 and was cross-examined in relation to those liabilities.  There was no cogent evidence in opposition to the assertion of the liability and the interest rate attaching to it.  It is clear that the husband owes Mr R about $200,000 plus interest, which would be likely to exceed $150,000.  This money was loaned by Mr R through his alter egos in the hope of the father’s success in the litigation.
21.	The mother asserts that the home in which the father and his present wife reside is, in fact, a property owned by them.  The mother has grave suspicions about that property.  The only evidence I have before me in respect of that is the evidence of the father that the property was sold to U Pty Ltd, a company owned by Mr R, and that transfer was some years ago.  The father and his current wife rent the property from its owner.  Mr R asserts that the property is owned by his alter ego, and that he will eventually sell the property.  Mr R asserts that he receives rent of about $250 per week from the father and his present wife. Suspicion is not evidence 
22.	The mother’s case in relation to the property raises various issues in relation to the home the father sold in 2007 to the company controlled or owned by Mr R.  This is set out in paragraph 51 to 55 of the mother’s affidavit.  There has been, apparently, some criticism of the father for not adducing evidence from Mr R.  In this case, Mr R gave evidence and was cross-examined.  The only evidence before me of any cogent nature is that the property is owned by Mr R’ alter ego, and that the father pays rent for the property.  Accordingly, I cannot regard the property as other than a rental property occupied by the father.  
23.	The other issue raised by the mother in paragraphs 46 through to 50 of her affidavit, was in relation to a number of cars which she asserted was owned by the father.  There was some cross-examination of the father that a number of cars sold by the parties’ son B was registered in the name of V Pty Ltd, which the father denied.  There was no cross-examination of Mr R in that regard, as to the ownership of the car, and the father was clear that B had bought and sold many cars, and none were registered in that company name.
24.	The mother asserted in paragraph 49 of her affidavit that she had made enquiries of the Tasmanian Government in relation to cars owned by that company, although no documents were produced and I am, in the circumstances, not satisfied that there were cars owned by the father.  The only evidence I have is that there were cars sold by the son.  There are two cars which are owned by one of Mr R’ companies, the large and the small car.  The father asserted that he was instructed by Mr R to sell those cars.  The father sold one earlier this year, and accounted to Mr R for the proceeds of sale, and the other car he could not sell.  He said Mr R was content for him to use the car from time to time, whilst it was in Australia, provided the father met the day to day expenses.  That evidence was supported by Mr R, who said he still wished that the car was sold.
25.	There are debts due by the father in relation to the Supreme Court proceedings, and they are, to say the least, substantial.  Counsel for the father asserted, and the evidence shows, that the father owes the firm of solicitors, Firths, about $291,000, and with the $200,000 of other debts the father owes, about $751,000.  He has a liability to Aurora Energy for electricity at the property of $6,700 and there is some documentary evidence supporting that.  He has child support liabilities of about $6,000, being arrears, and liabilities to pay about $120 to $130 per month child support, plus the $190 per month for braces.  In addition, the father is required to pay $342 per fortnight in relation to the Aurora Energy debt.  The only asset of any significance of the father’s is the $30,000 in his solicitor’s trust account, and the debt due to him by the mother of about $6,047 in legal costs.  The father is in receipt of a pension.
26.	Accordingly, the financial circumstances of both parties are fraught.  In relation to this, the mother also raises issues of the father’s earning capacity, particularly in relation to evidence in the Supreme Court proceedings.  There was no clear evidence as to what, if any, further earning capacity the father had.    

Section 117(2A)(b) Whether any party to the proceedings was in receipt of assistance by way of legal aid, and if so the terms of the grant of assistance to that party;
27.	In these proceedings, neither of the parties was 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 pleading, particulars, discovery, inspections, directions to answer questions, admissions of fact, production of documents, and similar matters;  
28.	The mother sets out in paragraphs 60 through to 67 of her affidavit, her concerns about the father, although some of those related to the proceedings in the Supreme Court.  Given the history of this matter, the constant conflict, and the poor and adversarial behaviour of both parties, there could be some basis for the father to pursue the proceedings in relation to his then, almost 15 year old, son up to March 2012.  Accordingly, I do not have regard to his behaviour prior to that time.  
29.	What I am concerned about, and I refer to the submissions made on behalf of the mother in respect of the reasons, is the father’s continuation of these proceedings with regard to S, through to a hearing in February 2013.  At that stage, S was approaching his 16th birthday, and had for a number of years refused to see the father.  The father would not accept that the child did not wish to see him, despite the child’s significant attempts to run away from him some years before, and the constant evidence of the family consultants.  Despite this, the father continued with those proceedings, and ran a hearing for some four days in February 2013.  
30.	The father was represented in 2012, but was not represented in 2013.  The chances of the father’s success in these proceedings, in the significant part of the proceedings were, to say the least, remote.  In fact, bearing in mind the age of S, and the nature of the case run by the father, it was, to all intents and purposes, doomed to fail.  Counsel for the father asserted that there were some items of success, namely, in relation to S attending school.  I do not agree with that submission.  
31.	The orders made by the Court were that S attends the school which he wanted to attend.  There was also an argument in relation to the mother’s application for an order restraining the father from making complaints or allegations about sexual abuse, and the Court declined to make that order.  That was a peripheral issue, which was, not unexpectedly, dismissed.  However, the father was, on any analysis of the proceedings, wholly unsuccessful in terms of those proceedings.  
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;
32.	The materials set out in the mother’s affidavit do not provide evidence upon which this claim can be based.  The father did comply with court orders, but, as I said earlier, he pursued a claim which he ought not to have done so, and which, in the circumstances, was a waste of the resources of the parties, such as they were.  
Section 117(2A)(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
33.	I accept that the father was wholly unsuccessful in the proceedings, and I refer to the comments that I have made elsewhere in these reasons.
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; and  
34.	In the mother’s affidavit, she set out the offers that were made, and there was no challenge to that, and I accept that those offers were made.  It was open to the father to accept the offers, and not pursue the proceedings.  As such, that is a factor in this determination.  
Section 117(2A)(g) Such other matters as the court considers relevant 
35.	The mother sets out in paragraphs 78 to 82 of her affidavit a repeat of some of the material which ought to have been dealt with elsewhere.  
36.	In terms of the general application for costs, I am not satisfied, in this children’s case, and bearing in mind the comments I have made earlier, that there ought to be an order for costs, whether on an indemnity basis or on a party-party basis, up to the date of the commencement of the 2 February 2013 hearings.  I am satisfied, exercising that broad discretion, that the father should pay the mother’s costs of her barrister arguing the case in February 2013, for the reasons that have been set out earlier.  
37.	I have had regard to the financial circumstances of the parties, but I have also had regard to the approach adopted by the father in this proceeding which was, as I said earlier, doomed to fail, and in the light of the offers, and in the light of the impecuniosity of both parties. 
38.	The fact that the father is impecunious does not itself prevent the Court making the costs orders, although it is a factor which the Court ought to take into account.  Given the evidence before the Court and the matters to which I have alluded to, I will be making an order that the father pay the mother’s costs of counsel at the proceedings on 4, 6, 7 and 8 February 2013.    
39.	It was argued before me that any costs should be ordered on an indemnity basis.  I am conscious of the comments made by the Full Court in Prantage & Prantage [2013] Family CAFC 105, particularly in paragraphs 152 & 153, where the Murphy J of the Full Court says:-
152. Section 117(1) is important in that respect.  Indemnity costs are confined to “an exceedingly rare situation” (Callinan J quoted by Thackray and Ryan JJ at [42]) in jurisdictions where “the usual rule” is that a successful party receives an order for costs (i.e. “costs follow the event”).  They might, then, be seen to be more so in this jurisdiction where the “usual rule” is that “each party ... shall bear his or her own costs” (section 117(1)). 
153. 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 it (see Oshlack v Richmond River Council [1993] HCA 11; (1998) 193 CLR 72, at 134 (particularly subparagraph [3]), per Kirby J).  Rather, it recognises that an order for indemnity costs has a particular context in this jurisdiction.
40.	In the circumstances of this proceeding I am not satisfied that an indemnity costs order ought to be made. 
41.	A consent order was made in May 2012, which has been varied over time, restraining the dispersal of the $30,000 held in the trust account for the father.  It seems not an issue that this money is held as security for the costs of the father’s solicitors, and in that respect, I note paragraph 77 of the mother’s affidavit.  In this case, the father’s financial situation is beyond parlous.  There are various creditors who have not had the opportunity to be heard in relation to the mother’s application to set the costs off against this sum of money, which in fact gives it a priority.  The firm of solicitors, FitzGerald & Browne, may have some submissions which they seek to make (and perhaps in the circumstances where they could not be seen as arguing that, whilst also acting for the father in these proceedings, it may well be that Mr R may have a claim, as may Firths) and it would be inappropriate of this Court, in the absence of their knowledge of the application, the whereabouts of this fund, to give the wife such a priority.
42.	It could also be seen as a priority, in directing that the father set off the mother’s debt to him in relation to the previous costs orders.  As such, I intend to discharge that injunction as and from 14 days after the dates of these orders, and dismiss all other applications.  
43.	Having regard to the circumstances set out above, I am not satisfied that it’s an appropriate exercise of my jurisdiction to order that the father pay the mother’s costs of the costs application, notwithstanding that she has been partly successful.   
I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 18 December 2013.

Associate:	

Date:		18 December 2013