Colgate-Palmolive Co v Cussons 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 the pseudonym Joslyne & Carrel has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 13 March 2025, the Court made orders in Part VII and Part VIIIAB proceedings following a contested hearing that took place over a number of days in 2023, 2024 and concluding with evidence and submissions on 29 January 2025. The mother has filed a Notice of Appeal which is yet to be determined.
2. A background to the litigation is recorded in the reasons for judgment in Joslyne & Carrel (No 6) [2025] FedCFamC1F 154.
3. On 10 April 2025, the father filed an Application in a Proceeding seeking an order that the mother pay his costs of the entire proceedings on an indemnity basis. The written submissions alternatively seek relief at scale as assessed. The father's application is opposed.

1. For the purposes of contextualising the application, I observe the following as recorded in my judgment:
   1. The hearing initially commenced on 21 August 2023 but was adjourned part heard to November 2023 following an amendment in the father's case. The hearing did not resume in November 2023 given the mother's hospitalization and was adjourned until March 2024. After three days, the Court made interim orders and adjourned the matter part heard to December 2024. The hearing did not take place in December given the late withdrawal of the mother's counsel and concluded in one day on 29 January 2025 with judgment reserved.

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1. A curious feature of the parenting case was the evolution in the orders each party proposed which resulted in the hearing taking longer than it otherwise should.
2. At the commencement of the hearing on 21 August 2023, the mother sought orders for sole parental responsibility, the child live with her and to spend time with the father once a month for two hours supervised at a contact centre. She also sought orders that would permit her to relocate (should she decide to do so) to an undisclosed location within Australia. The father sought orders for equal shared parental responsibility, for the child to live with the mother and for time with him to increase incrementally to each alternate weekend and half school holidays.
3. On the second day of the hearing, the father sought to amend his application seeking equal shared parental responsibility, orders for the child to live with him and for the child to spend time with the mother (after a moratorium of three months) each alternate weekend and for half school holidays (Exhibit 20). The father's changed position was supported by the ICL. As a consequence of that late amendment, the hearing was adjourned part heard.
4. Interim orders were made for the father to spend day only time supervised by the paternal grandfather.
5. In an updated Family Report prepared in anticipation of the resumption of the part heard hearing in March 2024, the report writer recorded the mother's position to have changed and to now be as follows:
6. In consideration of any planning and/or actions taken to progress a relocation plan, she informed, 'I have looked at cheap land in South Australia and [...] Western Australia', these areas stated to offer lower mortgages and thus less financial pressure.
7. Under such circumstances, her proposal to allow [X] and the father to remain connected, included 'regular facetime to ensure there is an interaction. School holiday time. If he comes for 7 days, then 7 days of supervised contact. Depending on how [X] copes with it', stating that to support this and feel comfortable in such arrangements she would need to see, 'the accusations and false allegations stop, and the paranoia is not there', although presented no clarity as to how this could be measured, particularly at a distance.
8. The part heard hearing resumed on 1 March 2024 with the mother's cross-examination concluding that day at 2.55 pm. On the second day of the hearing and during the father's cross-examination, the mother amended the orders that she sought as to time between the child and the father. She now sought the father have time each alternate weekend supervised by the paternal grandfather for 12 months and thereafter unsupervised as well as time in the school holidays (Exhibit 25). The mother abandoned her application to relocate.
9. No evidence was called in the mother's case explaining this change in position.
10. On 5 March 2024, following the cross-examination of the report writer and before submissions, the mother again amended the orders she sought, seeking the father's time to occur each alternate weekend and for half school holidays. The mother abandoned any requirement for supervision (Exhibit 39). Again, no evidence was called in the mother's case explaining this further change in position.
11. The father and the ICL proposed orders in similar terms, namely that the father have sole parental responsibility, that the child live with the father, and that after a moratorium of six weeks, the children spend time with the mother each alternate weekend and half school holidays.
12. At the conclusion of the March 2024 hearing interim orders for unsupervised time with the father were made in the terms proposed by the mother and the proceedings were adjourned part heard.
13. At the hearing in January 2025 the positions of the parties remained substantially as they had been at the March 2024 hearing.

1. The father filed written submissions supportive of his application. The mother who appeared for herself is a lawyer. She filed a written outline. Neither party made any oral submissions.
2. I have had regard to the matters set out in the Submissions and Case Outline and the documents relied upon in support in so far as they are relevant to the determination of this application.

1. An application for costs is governed by the provisions of s 117 of the Family Law Act 1975 (Cth) ("the Act"), which provides a general rule that each party to the proceedings should bear their own costs.
2. Section 117(2) of the Act reposes in the Court a discretion to make a costs order if the Court determines there are circumstances that justify this and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A) of the Act.
3. In Penfold v Penfold (1980) 144 CLR 311 at 315, the plurality in the High Court determined that to make an order under s 117(2) of the Act, the Court needs to make a finding of "justifying circumstances" as a preliminary prerequisite to the making of an order. Their Honours also observed that a term such as "a clear case" is not necessarily a determiner of whether an order for costs should be made. All that is required or necessary is that there are justifying circumstances.
4. It is well-settled law that no one factor in s 117(2A) is determinative, and the Court may give such weight as it considers relevant to any factor. In Fitzgerald & Fish [2005] FamCA 158; (2005) 33 Fam LR 123 at 130, the Full Court observed:
   1. ... 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.
5. Addressing the matters under s 117(2A) I find as follows.

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

1. The parties' respective financial positions are set out in the reasons for judgment.
2. The father submits that:
   1. The Respondent is a lawyer in the employ of her own business. The Respondent is and has the potential to work at a capacity of full-time employment.
   2. The Applicant is in receipt of a government benefit by way of a disability pension. The Applicant has limited financial resources and has since the commencement of the proceedings.
   3. As per [255] and [256] of the Reasons, the Applicant's 'income', for want of a better word, was tied up in the Former relationship property which is to be sold - by way of lump sum deposits from his Total and Permanent Disability payment and early payment of his superannuation.
   4. Flowing from the Reasons, the Respondent is set to receive a property settlement in the amount of $104,468.60 cash payment from the sale of the former matrimonial property, if the property is sold at $660,000.
3. The mother submits:
   1. The mother asserts that financial statements filed, the balance sheet filed and disclosure indicate that the pool in this case was modest to small. The father is unemployed and the mother worked on a self employed basis whilst caring for children and bearing all financial burdens for the child of the relationship in addition to two other children, one of which had additional needs. The mother was diagnosed with [an illness] during proceedings requiring [surgery] and requiring ongoing monitoring and procedures for the rest of her life impacting her ability to work.

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10. That there is an inability to meet a costs order.

1. I am satisfied that each of the parties will have a modest sum of money available to them following the sale of their home. That said, impecuniosity is not a bar to the making of a costs order (Nada & Nettle (Costs) [2014] FamCAFC 207; (2014) FLC 93-612).
2. Unmeritorious litigation is no less unmeritorious because it is pursued by a person who is impecunious (Northern Territory v Sangare [2019] HCA 19; (2019) 265 CLR 164 at [27]).

(b) Whether any party was in receipt of legal aid

1. Each of the parties were funded for the final hearing through Queensland Legal Aid pursuant to s 102NA Cross Examination Scheme. This, however, needs to be distinguished from a grant of aid.
2. In Legal Aid ACT v Westwell [2021] FamCAFC 50; (2021) FLC 94-013, the Full Court observed as follows:
   1. We are therefore satisfied on balance, on a textual analysis of s 117, the reference to "legal aid" in s 117(4) does not include a reference to the provision of funding of a lawyer under s 102NA where that funding is from a legal aid body.
   2. Further, it would be a bizarre outcome if a person who receives legal assistance by way of the provision of a lawyer under the Scheme brings with it an immunity against the costs of the Independent Children's Lawyer to the alleged perpetrator of family violence, but the other party, the alleged victim, remains liable to pay them. Such an outcome is not consistent with the Act as a whole, with its many provisions dealing with family violence or s 102NA itself. The section, intended for the benefit of the witness party, would then be operating against them. Such an outcome would be intolerable.
   3. We are thus of the view that the provision of legal assistance in the form of a lawyer to the mother for the purpose of cross-examination pursuant to the Scheme does not render her immune from an order that she pay the Independent Children's Lawyer's costs.
3. The mother is thus not immune from an order on that basis. Each of the parties have otherwise been privately funded.

1. What is relevant is conduct of a party which in some way or other leads to an increase in costs by the other party. Such factors may include uncooperative behaviour, obstruction, prolonging litigation or the bringing of unreasonable or unmeritorious applications.
2. I am satisfied that there are aspects of the mother's conduct of the proceedings that prolonged the proceedings by the bringing of unmeritorious and /or unreasonable applications. Such applications are apposite in the consideration as to whether a costs order should be made.
3. In that respect, I note the following matters arising from my judgment where I recorded as follows:
   1. On 16 August 2022, the mother filed an Application in a Proceeding seeking various orders including to suspend the father's time pursuant to the December 2021 orders. Despite seeking such an order, at the hearing of that application on 25 October 2022 the mother consented to orders providing as follows:
      1. That the child spend supervised time with the Father for two (2) hours per fortnight at the [P Contact Centre] located at [Suburb GG], commencing on Tuesday 8 November 2022 at 11.30AM, and each alternate Tuesday thereafter or at such other time as can be accommodated by the centre.
   2. The mother provides no explanation for this complete about face. The filing of an application to suspend time and to then agree to orders for time could be viewed as little more than an attempt to thwart a relationship and the bringing of a meritless application. The mother agreed in cross-examination that she made no proposal for the father to spend time with the child between 12 August 2022 and 8 November 2022 despite the existence of an order. I am not satisfied that there was any basis for a refusal to facilitate time or for the filing of the application suspending his time.

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1. On 30 October 2023 the mother filed an Application in a Proceeding seeking to reduce the father's time with the child, the discharge of the paternal grandfather as a supervisor, the discharge of the report writer, and for another report writer to be appointed. That application was heard by Justice Rees, and her Honour dismissed the mother's application for discharge of the report writer and varied the father's time with the child, but not in the manner sought by the mother.

2. I am satisfied consistent with the mothers conduct throughout the proceedings that this was but a further attempt to frustrate and delay the resumption of a normal child and parent relationship.

...

1. On 17 January 2024 the mother filed an Application in a Proceeding seeking the "father attend upon a Forensic Psychiatrist for the purpose of a full Psycho-Sexual Assessment" and for the father's time to be suspended pending that assessment. The application was informed in part by what the mother's counsel submitted at the hearing of the application to be a possibility that the father was sexually excited when the child sat on his lap.
2. That application if granted would have led to yet another adjournment. I am satisfied that this was but another attempt by the mother to frustrate the child's relationship with the father by the bringing of an unmeritorious application.
3. In my reasons for judgement in Joslyne & Carrel (No 4) [2024] FedCFamC1F 25 delivered 31 January 2024 I observed in dismissing the mother's application as follows;
   1. There is no evidence that the father was sexually excited. All that counsel for the mother submits is that there is a possibility that he was sexually excited. Counsel for the mother also relies upon assertions by the mother referred to in pages 31, 34, and 35 of her tender bundle to support the conclusion that the father poses an unacceptable risk.

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1. The resolution to the issues I have to determine are in part informed by the relief that the mother seeks. The mother seeks the appointment of a forensic psychiatrist to assess the father. The mother does not nominate a psychiatrist and consequently there is no evidence as to who could do a report or when they could do a report. The mother seeks an order that Legal Aid Queensland meet the costs, and where they cannot, the father meet the costs.

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1. No submissions were made by the mother's counsel in conformity of the Rules. It is not apparent to me why there is a necessity for a forensic psychiatrist to prepare a "full Psycho Sexual assessment" of the father. There is no evidence, nor was a submission made by the mother's counsel, as to why such an assessment, if ordered, will assist in resolving the issues I have to determine, nor any submission made as to a lacuna in the existing expert evidence. No submission was made as to why such an application was not made at an earlier point in time to me. If it arises only as a consequence of the events referred to in the mother's affidavit, then again, no submission is made as to why those events provide a proper basis for the particular proposed further expert evidence. There is no evidence that, even if such an assessment were ordered, it would be available in time for the hearing.

2. There is no evidence as to what the cost of such an assessment would be. I am informed by the ICL that it is most unlikely that Legal Aid would fund the assessment and that, either way, it would take a long time to obtain approval. No submission was put by the mother's counsel as to why there should be a departure from the Rules that provide that the costs be shared equally. In those circumstances, I am unable to determine that even if such an assessment were ordered, the parties could afford it.

CONCLUSION

1. The mother bears the onus to establish the requisite elements for the making of the orders she seeks. For the above reasons I am not satisfied that the appointment of another expert is necessary to resolve the current issues in the proceedings. In those circumstances I decline to make orders 2, 3, and 4 of the mother's application. Order 5 is curiously, but I presume deliberately, framed given the mother is a [legal] practitioner. Order 5 only sought suspension of the father's time pending the outcome of the assessment by a forensic psychiatrist. As no assessment is to be ordered there is no foundation, on the basis of the mother's relief, for the making of order 5.

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1. On 1 November 2024, the mother filed an Application in a Proceeding. That application sought the issue of subpoena to her former partner and his son, for them to be granted leave to appear by telephone to give evidence, a discharge of the injunction preventing the mother bringing the child into contact with her former partner and that the Court consider that the final hearing proceeds on an undefended basis.

2. That application was listed for hearing on 7 November 2024 and was dismissed. Why the mother thought the Court would proceed to hear the matter on an undefended basis remains a mystery.

3. It was a totally unmeritorious application that only sought to increase the father and the ICL's costs and potentially frustrate the proper determination of the matter.

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1. On 23 January 2024 again just prior to the hearing the mother's solicitor sought leave to withdraw by way of letter again based on the absence of a transcript and the withdrawal of counsel. The matter was urgently relisted on 24 January 2024 wherein the solicitor sought leave to withdraw. Upon being advised that the Court had earlier that day released a transcript of the March hearing to the parties, the mother's solicitor did not press for leave to withdraw.

(d) Whether the proceedings were necessitated by the failure of a party to comply with a previous order

1. While the father's counsel makes submission directly attributable to this subsection, the subsection speaks of the proceedings as opposed to applications brought within the proceedings.

(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. The term "wholly unsuccessful" refers to a situation in which proceedings as a whole have been unsuccessful, rather than necessarily an application or a form of relief (Bant & Clayton (Costs) [2016] FamCAFC 35; (2016) 56 Fam LR 31).
2. No party was wholly unsuccessful.

(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

1. Neither party took the Court to any offer of settlement.

(g) Any other matter the court considers relevant

95 Overarching purpose of family law practice and procedure provisions

(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

Note 1: See also paragraphs 5(a) and (b).

Note 2: The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.

(2) Without limiting subsection (1), the overarching purpose includes the following objectives:

(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);

(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c) the efficient disposal of the Court's overall caseload;

(d) the disposal of all proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4) The family law practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:

(a) the Rules of Court;

(b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).

1. The overarching purpose is reinforced by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") and the Federal Circuit and Family Court of Australia Central Practice Direction - Family Law Case Management, 1 May 2024, especially the core principles including that parties must conduct the proceedings (including negotiations for settlement of the dispute) in a way that is consistent with the overarching purpose.

1. I am not satisfied that there is a basis for the mother to pay the fathers costs for the entirety of the proceedings. In that respect I note that an adjournment of the first hearing arose in circumstances where the father amended the final relief he sought in a substantial way.
2. However, the mother brought a number of applications which I am satisfied were unmeritorious, unreasonable and inconsistent with the overarching purpose of family law litigation. A party who brings such unmeritorious or unreasonable applications puts the other party to significant cost and inconvenience. These applications were by any view contrary to the overarching purpose of family law litigation, and I am satisfied that the bringing of those applications is a circumstance justifying the making of an order for costs.
3. The father seeks an order that there be a payment of his costs on an indemnity basis.
4. The authorities make plain that an order for indemnity costs is not one that is lightly made, and there should be circumstances of an exceptional kind that warrant orders for costs on an indemnity basis (Kohan and Kohan [1992] FamCA 116; (1993) FLC 92-340). Justice Sheppard in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 119 CLR 118 identified various guidelines as to the circumstances in which a court might entertain an order for indemnity costs. The category of cases in which a court may make an indemnity costs order are not closed and are not limited to those identified by Sheppard J (Yunghanns & Ors v Yunghanns & Ors and Yunghanns [2000] FamCA 681; (2000) FLC 93-029 at 87,471).
5. Ordinarily, the bringing of unmeritorious applications or application would be a matter for the consideration of an indemnity costs order. However, in the circumstances of this matter given the very modest pool of assets, whilst I am satisfied that an order should be made for costs, I am not satisfied that the circumstances warrant an order for indemnity costs.
6. I am satisfied for the reasons given that an order should be made on a party and party basis.
7. There is no evidence before me that would enable me to fix a sum notwithstanding the desirability of doing so. Thus, the matter will have to be resolved by agreement or assessment.
8. For the above reasons, I propose to make an order that the mother pay the father's costs of the applications of 16 August 2022, 30 October 2023, 17 January 2024, 1 November 2024 and the appearance on 23 January 2025 on a party and party basis as well as the costs of this application.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.