Colgate Palmolive Co and Another v Cusson Pty Ltd

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By his Outline of Case dated 8 October 2025 at proposed orders 34-37 the father seeks costs from the mother. By orders of 28 October 2025 the parties were directed to file affidavit material and submissions relating to the costs application to then be determined on the papers.
2. In summary the father seeks that the mother meet, when presented, the invoice from the previously appointed single expert handwriting expert in total, the father's costs from 4 February 2025 to 9 October 2025 on an indemnity basis fixed in the sum of $140,000, or alternatively on an indemnity basis as agreed or as assessed, or in the further alternative, at scale as agreed or as assessed.
3. The mother seeks that each party bear their own costs.
4. The key issue behind this application is the admittedly false evidence presented by the mother in the proceedings to date.

1. Before commencing proceedings in this court, the parties had previously been involved in parenting proceedings in Country E and Country C.
2. In January 2023 consent orders were made in City B, Country E, for the child to live with the mother in Australia and spend time with the father. Before the mother was able to relocate with the child, the father retained the child in Country C from March 2023 to September 2023. The mother commenced Hague proceedings in Country C seeking the child be returned to Australia.
3. In September 2023, the mother arrived in Country C and spent time with the child but did not return him to the father's care. In accordance with orders from the Country C Court the mother returned to Australia with the child.
4. The City B orders were registered in this Court in July 2024.
5. The father commenced proceedings on 14 November 2024, saying the mother was withholding the child from him and seeking a reinstatement of time together. The father noted in his initial affidavit that shortly before commencing proceedings he had received correspondence from the mother's lawyers claiming that the father had written death threats and sent them to the mother's home.
6. In her initial affidavit filed 17 February 2025, the mother alleged that she had received six death threats in the form of letters written by the father and sent to her home address in Australia.[1] She said that she had handed all bar one of the letters into the Australian Federal Police (the "AFP") for further investigation and produced the remaining letter to the Court.[2] The father denied writing or sending any such threat and sought the appointment of a single expert, Dr K, being a handwriting expert, to examine the letter.
7. The matter was listed for interim hearing on 12 March 2025. At the hearing the father raised concerns that the mother had forged several documents, being foreign court orders, a report of the child's purported treating psychiatrist, and the death threat that was provided to the Court. On 21 July 2025 orders were made requiring the parties to take steps to progress the appointment of Dr K.
8. On 18 September 2025 the mother filed an affidavit that was read by the Independent Children's Lawyer (the "ICL") and the father's lawyers. Three hours later the mother caused the affidavit to be removed from the court file. On the same day the ICL sought a relisting of the matter, and the matter was relisted for 19 September for urgent consideration. At the hearing the ICL informed the Court that the affidavit contained admissions by the mother regarding the doctoring and self-authoring of several documents before the Court.
9. Exhibit F1 is the affidavit of the mother from 18 September 2025 and contains several admissions as to fabricating and altering material, including the purported death threat. On 26 September orders were made requiring the ICL to write to Dr K and request that he pause his current work and issue an invoice for work performed to date.

(a) Case Outline filed 8 October 2025;

(b) Financial Statement filed 2 October 2025; and

(c) Written Submissions filed 3 November 2025.

(a) Affidavit of Ms Z filed 3 November 2025;

(b) Financial Statement filed 3 October 2025; and

(c) Written Submissions filed 3 November 2025.

1. In a manner similar to the operation of the now replaced s 117 of the Family Law Act 1975 (Cth) ("the Act"), s 114UB governs applications for costs. Section 114UB(1) provides a starting position that each party bears their own costs, subject to circumstances justifying otherwise.
2. In Kohan & Kohan [1992] FamCA 116; (1993) FLC 92-340, the Full Court discussed the operation of the now replaced s 117 of the Act, and observed that:

The intent of s 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.

1. In Penfold v Penfold (1980) 144 CLR 311 the High Court considered that whilst justifying circumstances must be determined to enable a costs order to be made, no "additional or special onus" is placed upon applicants in their pursuit of costs.
2. The precondition to making an order for costs is the finding that there are circumstances justifying the making of an order for costs. Once these are found, the default position yields to the Court's discretion to award costs as it considers just.
3. The relevant considerations to assess the circumstances are set out at s 114UB(3) of the Act and are as follows:

In considering what costs order (if any) should be made, the court must have regard to the following:

(a) the financial circumstances of each party to the proceedings;

(b) whether any party to the proceedings is receiving legal assistance by way of legal aid in respect of the proceedings and, if so, the terms of the grant of the assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting paragraphs (a) and (b), 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, and in relation to their duty of disclosure under subsection 71B(1), 90RI(1) or 90YJA(1);

(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.

1. In Hawkins & Roe [2012] FamCAFC 77 May and Ainslie-Wallace JJ observed at [18] that:

The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) [1995] FamCA 80; (1995) FLC 92-625 the Full Court of this Court held 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". That is not to say that one single matter may not ultimately be determinative.

1. Those considerations emphasised by the parties were as to the financial circumstances of the parties and the manner of conduct of the proceedings. In considering the conduct issues in this case it is important to bear in mind that the function of a costs award is not the punishment of the litigant, but rather to compensate.
2. Section 114UB(5) provides that the court may order costs in a specific amount, or assessed on a particular basis, such as party-party, solicitor-client or indemnity, or calculated in a particular manner, and for part of the proceedings.

1. Here the father seeks costs be awarded in a manner other than party-party costs, and primarily seeks costs on a full indemnity basis in a fixed sum.
2. Chief Justice Holden in Munday v Bowman (1997) FLC 92-784, drawing from Sheppard J in Colgate Palmolive Co and Another v Cusson Pty Ltd [1993] FCA 536; (1993) 46 FCR 225, set out examples of exceptional circumstances that justify an order for indemnity costs at 84,660 as follows:

(a) 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).

(b) Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud (see Fountain Selected Meats (Sales) Pty. Ltd. (supra)).

(c) 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 (unreported, Federal Court, 3 May 1991)).

(d) 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 (unreported, Federal Court, 5 March 1993)).

(e) An imprudent refusal of an offer to compromise.

1. In his financial statement filed 2 October 2025, the father, who resides in Country L, deposes to a weekly income of $41, weekly expenditure of $987, and savings of $48,043. It is unclear how the father's claimed expenses are met in the context of his described income. His income is derived from benefits from the Country L government and work as a software provider. He anticipates an income of about $100,000 per annum once he completes the training that he is currently undertaking to obtain further qualifications. He appears to have practical support from his family.
2. In her financial statement filed 3 October 2025, the mother deposes to a weekly income of $1,393, weekly expenditure of $2,216, and savings of $2,500. The mother works part-time at a university. The mother's new partner receives a weekly income of $2,278. It is unclear how, in the context of her marriage and asserted expenses, the mother's finances actually function.
3. At present the father's finances appear, by virtue of his savings, to be in a better state than the mother's finances. However, it may be anticipated that, in order to participate in the hearing and assessment for this matter, the father is and will be incurring significant non-legal expenses to travel from Country L to Australia.
4. Both parties may be assessed to have limited financial means.
5. The mother is currently self-represented, having previously been represented by the Legal Aid Office (ACT) and then the Women's Legal Centre. Although the Women's Legal Centre has not charged the mother for work performed, she holds responsibility for disbursements paid for on her behalf, being half the cost of a single expert report in relation to her mental health, conducted by Dr Y, in the amount of $4,950, and barrister's fees totalling $5,808.
6. The father is now self-represented. He describes that he has exhausted his capacity to fund legal representation.
7. The period that the father seeks his costs is from 4 February 2025 (when the mother was to file her first affidavit) until 9 October 2025, being the interim hearing taking place following the mother's disclosure as to her perjury.
8. The mother filed her first affidavit on 17 February 2025 in which she falsely asserted that the father had sent written threats to her. From this point the proceedings were distorted by the conduct of the mother in her presentation of false evidence. This caused the interim determination to take into account that false evidence, necessitating, on its disclosure, the revisiting of the interim orders to take into account the falseness of those allegations.
9. Although a number of the steps undertaken were necessary even absent the false allegations, such as giving directions for the preparation of the matter for trial, and the determination that the Foreign Measures determined by the Country B Court and registered in Australia be suspended, the orders made in relation to the child required revisitation because of the falsehoods.
10. The falsehoods impacted the proceedings both by distorting the proceedings and their outcomes, causing unnecessary steps to be taken, such as the appointment of Dr K and the processes that surrounded that, and rendered necessary further steps to deal with the falsehoods following their discovery.
11. The legal costs incurred by the father are identified by annexures TA22 and TA23 of his affidavit filed 2 October 2025 where he provides copies of his cost agreements and a schedule of costs. He has incurred total costs for the period of 6 February to 9 October 2025 of $184,714.68, but identifies his costs referrable to his application of $152,517.24. He seeks a fixed sum of $140,000.
12. The solicitor's rates are in excess of double, or, depending on the solicitor, triple the scale rate. Senior Counsel's fee agreement sets a rate slightly above the maximum allowable for Senior Counsel by the scale set at Schedule 3 of the Rules.
13. As to the work undertaken, the steps taken appear generally proportionate to the issues raised in the proceedings including the falsehoods.
14. To the extent to which Dr K was appointed, and undertook work in fulfillment of that appointment, these were matters caused solely by the mother's false assertions as to the father sending a death threat. The parties did not adduce any evidence as to the fees incurred in relation to Dr K, in circumstances where he has not yet sent an invoice.

1. In the circumstances, the conduct of the proceedings by the mother warrants an order for costs, despite her limited financial means.
2. The making of false allegations prior to the father's filing of his application, the making of those allegations by affidavit filed on 17 February 2025, and the maintaining of such until the mother filed her affidavit admitting the falsehoods, formed an egregious example of conduct of proceedings, and caused unnecessary costs to be incurred by virtue of that conduct.
3. The period identified by the father is the period of impact of those allegations, in the sense that it is the period within which the allegations were made, discovered, and required interim correction. Acknowledging that not all of the steps during this period are wasted, nonetheless costs should be awarded for the period from the filing of the false affidavit on 17 February 2025 until the interim resolution on 9 October 2025.
4. The making of serious and false allegations against the father, accompanied by the loss of time and effort for the court and for the father, are sufficient to bring the sort of exceptionality that warrants an indemnity order. The conduct falls into a number of the categories described by Holden CJ in Munday v Bowman (1997) FLC 92-784, including the deliberate making of false allegations, conduct that caused a waste of time and the making of groundless contentions. The mother's conduct forms extreme examples of such.
5. However, whilst the father has incurred costs markedly above scale, it is the scale that marks out the starting point for the reasonableness of the quantum of costs. In this instance, indemnity costs at scale marks out an appropriate and proportionate quantum of costs. For that purpose, I accept that it was appropriate to engage Senior Counsel due to the complexity and seriousness of the issues engaged.
6. However, in the circumstances identified above the mother should meet the whole of any costs incurred in respect of Dr K.

1. Orders will be made that the mother meet the whole of Dr K's costs, and the father's costs for the period of 17 February to 9 October 2025, on an indemnity basis, to be assessed at scale, as agreed or as assessed. That costs assessment is to allow for the use of Senior Counsel as reasonable.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

[1] Mother's affidavit filed 17 February 2025, paragraph 32.

[2] Mother's affidavit filed 17 February 2025, paragraph 32.