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Children – father fails in application for indemnity costs…

…where the mother’s mental health difficulties were central to her conduct during the litigation

In Earle [2022] FedCFamC1F 16 (21 January 2022), Hannam J heard a father’s application for indemnity costs after parenting proceedings culminated in orders for the parties’ two children to live with the father, with supervised maternal time.

A single expert concluded that the mother exhibited symptoms of schizophrenia ([11]).

After considering s117(2)(A) (Family Law Act 1975 (Cth)) factors, Hannam J said (from [47]):

“It is the father’s contention … that the mother conducted the proceedings in a manner that caused him to incur significant and unnecessary expense.

(…)

[61] …  I accept the father’s submission that the mother’s conduct … generally contributed to delay and difficulty in reaching a conclusion to the proceedings, which may well have resulted in costs being thrown away. However … this conduct must be viewed in the context of the mother’s mental health difficulties and the impact these difficulties had on her overall functioning. …

[62] The father further argues that a costs order should be made against the mother given she was wholly unsuccessful … [T]he father attaches considerable weight to the mother continuing to press for final orders … contrary to the opinions and recommendations of the court-appointed expert and the final orders ultimately made …

(…)

[67] … However, this must be balanced together with all of the other relevant factors including … the mother’s mental health difficulties …

(…)

[77] … I accepted at the final hearing that the mother’s mental health difficulties … had been evolving over time. …

[78] … I accepted the opinion of the expert that the mother did not have any insight into her psychotic symptoms or the effect that they were having on her functioning. I also accepted that the mother’s observed disorganised and unusual behaviour had been present to some extent throughout the entirety of the proceedings. In circumstances where these features of the mother’s functioning and behaviour are central to the father’s contentions about her conduct, I do not consider it just to attach significant weight to this matter … ”

The court concluded that each party bear their own costs, with the mother to reimburse the father for her share of the expert’s costs.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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