A costs award of $763 was made against the Applicant Mother in a recent Toowoomba decision. An exception was found to the usual ‘no costs’ rule in Protection Order matters.

On 7 December 2015, the Applicant Mother filed two Applications for Protection Orders pursuant to the Domestic and Family Violence Protection Act 2012 (the Act) on behalf of her two daughters, aged 12 and 8 at the time. The daughters were named as the Aggrieved in each Application.

The Respondents were the current partner of the children’s Father and the paternal grandmother. Allegations were made by the Applicant Mother of constant harassment and manipulation by text and Skype messaging.

There had been significant family law litigation between the Mother and Father in respect of the two daughters. The Father also had a current domestic violence order naming him as the Aggrieved and the Mother as the Respondent.

The Applicant Mother filed and served the Applications on 16 December 2015. The matters were listed for hearing. At Court, the Applicant Mother sought advice from the duty lawyer. Based on that advice, she informed the Court that she wished to withdraw her Applications.

The duty lawyer advised the Applicant Mother that pursuant to Section 22 (1) of the Act, a child can be named as an Aggrieved in an Application for a Domestic Violence Order only if certain criteria is met. Section 22(2) provides that:

“. . . a child can only be named as the Aggrieved . . . if an intimate personal relationship or an informal care relationship exists between the child and the other party named in the application. . .”

Both the daughters were under the age of 18 and met the definition of a ‘child’. The Application must fail though as:

• The daughters were not in an intimate personal relationship with the Respondents as defined by Section 14 of the Act; and
• Neither was in an informal care relationship as defined by Section 20.

The Respondents sought that the Application be dismissed and that an order for costs be made against the Applicant Mother.

The Respondents submitted that whilst parties must, as a general rule, bear their own costs, the proceedings in this case were frivolous or vexatious, so as to warrant an order for costs.

Whether a costs order should be made

Section 157 of the Act provides the source of power to award costs. The Court can fix the amount of costs or order they be assessed by a costs assessor.

Section 157(2) provides that a Court may award costs against a party who makes an Application that the Court hears and decides to dismiss on the grounds that the Application is malicious, deliberately false, frivolous or vexatious.

The Judge considered whether the Mother’s Applications were frivolous or vexatious.

The Applications were withdrawn at a very early stage – the first Court mention. Even if a matter is frivolous or vexatious, there is still an overriding discretion whether or not to award costs.

The Judge held that the Applications were vexatious on the ground that irrespective of the Mother’s motives they are “untenable” and “utterly hopeless” because of Section 22. Section 22 of the Act precluded the two children being named as the Aggrieved.

This does not however mean that the Respondents were automatically entitled to the costs order sought.

Residual discretion to award costs

Should the Court exercise its discretion to make a costs order?

The Respondents submitted that the Applications were brought “in wilful disregard of clearly established law” and that the Mother did not withdraw the Applications until the last minute on the Court date, when the Respondents and their solicitors were already in attendance.

The Respondents had briefed a barrister which the Judge viewed as being excessive. The Judge queried whether the Respondents’ solicitors had warned the Applicant that they would be seeking an order for costs against her. They had not, providing reasons including limited time frame, history of conflict and current hostility towards the parties.

The Judge held even though the time frame was tight, the solicitors should have put the Mother on notice that they would agitate pursuant to Section 22 to have the Applications dismissed and seek costs if they had to attend Court.

The Applicant was not legally represented. Once advised by the duty lawyer on 16 December 2015, she sought to withdraw the Applications forthwith.

The Court considered the competing factors in respect to the issue of costs. The quantum of costs was considered with regard to the failure of the Applicant to properly consider commencing these proceedings naming her children as the Aggrieved and in the context of bitter Family Court litigation.

The Judge considered the applicable scale of costs. He considered the briefing of Counsel to be excessive.

Counsel attended Court for seven hours. The Judge allowed the rate applicable to a solicitor being a maximum of $1,526. The legislation provides that a Court may direct that costs be reduced. Accordingly, the Judge made an order of $763 being half of the costs awardable under the legislation.