Almeras & Velez (No 3)
[2025] FedCFamC2F 922
•4 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Almeras & Velez (No 3) [2025] FedCFamC2F 922
File number(s): WOC 192 of 2024 Judgment of: JUDGE TURNBULL Date of judgment: 4 July 2025 Catchwords: FAMILY LAW — COSTS — Whether costs should be ordered, and if so, on an indemnity basis – Where the Respondent filed but later abandoned contravention applications after a number of hearing days Legislation: Family Law Act 1975 (Cth) – section 117 Cases cited: Almeras & Velez (No 2) [2024] FedCFamC2F 1117
D & D (Costs) (No. 2) (2010) FLC 93-435
Ebner & Pappas and Anor [2015] FamCAFC 39
Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish [2005] FamCA 158
Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878 at 25 and Beach Petroleum NL v Johnson (1995) 57 FCR 119
Penfold v Penfold (1980) 144 CLR 311
Division: Division 2 Family Law Number of paragraphs: 36 Date of hearing: 5 May 2025 Place: Hobart Solicitor for the Applicant: Ms An Solicitor for the Applicant: Charis Law Pty Ltd Respondent: No Appearance ORDERS
WOC 192 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS VELEZ
Applicant
AND: MR ALMERAS
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
4 JULY 2025
THE COURT ORDERS THAT:
1.Within sixty (60) days of the date of this Order, Mr Almeras pay Ms Velez’s costs of and incidental to his Applications — Contravention filed by 15 March 2024 and 3 May 2024, with such costs to paid in the total sum of $21,207.40 (including GST).
2.Mr Almeras is to make payment of costs set out in Order 1 directly to the Applicant’s solicitors, ‘Charis Law Pty Ltd’, … into the Charis Law Practice Trust Account, BSB …, Account Number …51.
3.Save for the Application for Final Orders filed by Ms Velez filed 6 June 2024, all extant applications, relating to any Contravention, including the Application – Contravention filed 3 May 2024, are otherwise dismissed.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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).
REASONS FOR JUDGMENT
TURNBULL J
OVERVIEW
This is an application for costs arising out of unsuccessful contravention proceedings filed by Mr Almeras on 3 May 2024. The Applicant for costs — Ms Velez — is the respondent to the Contravention proceedings, but in these Reasons, will be referred to as ‘the Applicant’ and Mr Almeras will be referred to as the ‘Respondent’.
BACKGROUND
The parties commenced a relationship in 2015, were married in 2016, separated in April 2017, and were divorced in mid-2022. There is one child of the relationship, X (‘X’), born in 2016.
Final consent orders regarding parenting arrangements for X were made on 9 May 2023.
On 15 March 2024 the Respondent filed an Application — Contravention alleging four breaches of the parenting orders. On 3 May 2024 he filed a second Application — Contravention, alleging six breaches.
The hearing commenced on 15 May 2024 with the Applicant successfully obtaining leave for the Respondent’s 17-year-old daughter to give evidence in the proceedings.
The hearing recommenced on 7 August 2024, at which time the Respondent withdrew one of the counts contained in his Application filed in May 2024, and consented to the dismissal of his Application filed in March 2024. The hearing continued on 9 August and 27 September 2024, before adjourning to the new year.
On 21 March 2025, the Respondent’s lawyers filed a Notice of Ceasing to Act. The proceedings concluded on 7 April 2025 when the Respondent’s Application was dismissed due to his non-appearance and for want of prosecution. On that date, the Applicant also made an oral application for costs and the Court directed both parties to file submissions and Financial Statements.
The Applicant complied with the directions on 5 May 2025. The Respondent filed an updated Financial Statement on 6 June 2025 but did not file a submission.
It should be noted that shortly prior to the Respondent filing his applications for contravention, he had filed an application to try and stop the Applicant from taking X to Country D for a holiday. That application was finalised by consent on 20 March 2024, with the Respondent agreeing that X could leave Australia for that purpose. The Respondent then sought his costs but was ordered to pay the Applicant’s costs of that failed argument.
On 6 June 2024, the Applicant filed an Initiating Application to vary the terms of the 2023 parenting orders. That Application remains unresolved before this Court.
EVIDENCE
The Applicant relied upon:
·Affidavit of Ms Velez sworn & filed 10 April 2024 (‘Applicant’s Affidavit”);
·Decision of Almeras & Velez (No 2) [2024] FedCFamC2F 1117;
·Mother’s Tender Bundle (‘MTB’);
·Mother’s Quantum of Costs Bundle (‘QCB’); and
·Financial Statement of Ms Velez sworn and filed 5 May 2025.
I am satisfied that the Respondent was served with all the documents relied upon by the Applicant.[1]
[1] Affidavit of Sun-Jae An filed 9 May 2025.
The Respondent presumably relied on his Financial Statement filed 6 June 2024.
THE LAW
Section 117[2] of the Family Law Act 1975 (Cth), dealt with costs at the time the hearing commenced:
[2] Section 117 has now been replaced by section 114UB.
(1) Subject to subsection (2), subsection 102QAB(6) and sections 117AA and 117AC, each party to proceedings under this Act must bear the party’s own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) 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.
In Penfold v Penfold (1980) 144 CLR 311 at 315, the High Court determined that to make an order under s 117(2), the Court needed to make a finding of ‘justifying circumstances’ as a preliminary prerequisite to the making of an order, rather than ‘a clear case’. When considering section 117(2A), no one factor is determinative, and the Court may give such weight as it considers relevant to any factor.[3]
[3] Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish [2005] FamCA 158.
The Financial Circumstances of Each of the Parties to the Proceedings
Both parties filed Financial Statements.
The Applicant’s Financial Statement revealed that her income is made up of government benefits, save for $33 per week she receives in child support. That income is exhausted by her expenses. She owns little property and has an outstanding debt of $40,000 for legal fees.
The Respondent’s Financial Statement revealed that he earns $600 per week that is exceeded by his expenses. He also holds little property.
Both parties’ financial circumstances make it clear that they could ill afford the cost of the Contravention proceedings. That said, even impecuniosity is no bar to the making of a costs order.[4]
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
[4] D & D (Costs) (No. 2) (2010) FLC 93-435
Neither party received Legal Aid, and the Applicant had to borrow money to meet her legal fees.[5]
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
[5] Applicant’s Written Submissions 5 May 2025 [11(f)].
Neither party alleged that the other had been neglectful in providing discovery or otherwise acting in a way that unnecessarily prolonged the litigation. The Applicant holds the view that the litigation was unnecessary — an issue I will explore later.
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
The Respondent alleged that the Applicant had breached the 9 May 2023 orders. Ultimately, he did not prosecute his case by failing to appear at the resumption of the hearing in April 2025, leading to his application being dismissed.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The Respondent was wholly unsuccessful with his applications and a significant amount of court time and complex legal work had been undertaken by the time the proceedings were dismissed for want of prosecution.
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
The Applicant’s solicitor advocate, Ms An, dealt with this heading comprehensively in her Written Submissions, which I accept and extract here:
13. The Mother deposed in her Affidavit sworn and filed 10 April 2024 that leading up to 1 March 2024, when [X] was to spend time with the Father under the final parenting orders, she became concerned for the safety and wellbeing of [X] in the Father’s care for the following reasons:
a. On 4 February 2024 she received a text message from the Father’s teenage daughter, [Y] (“Y”), attaching a video recording of the Father talking to [X] in the car on 2 February 2024, denigrating the Mother, discussing the court proceedings, that he thought of killing himself because of the court proceedings. She learned from [Y] that it was [X] who made the video recording and requested that [Y] send it to the Mother.
b. In early February 2024, [Y] disclosed to the Mother incidents of family violence perpetrated by the Father against [Y] and also sent video recordings to the Mother depicting some of the incidents of such family violence.
14. On 22 February 2024, the Mother sent a text message to the Father raising her concerns with the Father, communicating that she will not be facilitating time between [X] and the Father unless it is supervised, and that she has “watched your videos and they are quite shocking”.
15. The Father was on notice from 22 February 2024 of the Mother’s concerns and the reasons she would not be facilitating time between [X] and the Father.
16. That same day, on 22 February 2024, the Father filed his Initiating Application to prevent her from travelling to [Country D] with [X] on the basis that the Mother had not strictly complied with the requirements for notice under the final parenting orders. This was not served on the Mother until 28 February 2024.
17. On 28 February 2024, upon being served with the Father’s Initiating Application documents, the Mother instructed her lawyer to write to the Father’s lawyers to provide some of the video recordings and indicating that she intended to rely upon those videos that were taken by [Y] late 2023 in support of an application for the final parenting orders to be varied [MTB p5].
18. On 1 March 2024, the Mother filed her Response documents to the Father’s Initiating Application.
19. On 4 March 2024, the Mother’s Response documents were served on the Father’s lawyers by email, including her Affidavit sworn 1 March 2024. In the email effecting service, links were provided to 9 video recordings referred to in the Mother’s 1 March 2024 affidavit and notice was given that the Mother would be attending the offices of the Father’s lawyers as well as the Wollongong Registry to physically drop off a USB drive containing the same video files [“MTB p7].
20. The Father being on notice of the Mother’s concerns since 22 February 2024, the Father’s lawyers became on notice of the Mother’s concerns since 28 February 2024 with greater details of those concerns deposed in her 1 March 2024 served on the Father’s lawyers on 4 March 2024.
21. Despite these concerns being made known to the Father in detail with the videos being provided in three separate ways – on 28 February 2024 by email, on 4 March 2024 by email and on 4 March 2024 by way of a USB drive being delivered to the office of the Father’s lawyers – the Father filed his Application – Contravention on 4 March 2024.
22. From 11 March 2024, the Mother made numerous without prejudice offers (with the exception of the 27 November 2024 offer, being an open offer) to resolve the issues in dispute through lawyers:
a. On 11 March 2024, the Mother caused a Notice of intention to commence proceedings to be sent to the Father and proposed supervised time. In that letter, the Mother’s lawyer wrote, “It is particularly concerning that your client lacks insight into his conduct and the impact it has on his older children and [X]. Rather than considering the safety and wellbeing of the children, especially [X], he is more concerned to deny allegations that are supported by strong video evidence” [MTB p12, emphasis added].
b. On 13 March 2024, the Mother caused a further Notice of intention to commence proceedings to be sent to the Father, again proposing interim arrangements for supervised time. In that letter, the Mother’s lawyer wrote:
In our letter dated 11 March 2024 letter we directed you to the circumstances of matters deposed by our client in her affidavit sworn and filed 1 March 2024 (“our client’s affidavit”). We now refer specifically to paragraphs 22 subparagraphs (a), (c)-(f). The circumstances described evidence child abuse and risk of child abuse, as defined in section 4 of the Family Law Act 1975. We urge you to review our client’s affidavit more carefully and also to review the video footage provided to you, all of which we will be relying upon in court if proceedings are required to be commenced. [MTB pp36-37, emphasis added].
c. On 26 March 2024 (after the Father’s Contravention was served upon the Mother on 15 March 2024), the Mother caused her lawyer to write to the Father’s lawyers, to explain the Mother’s reasonable excuse for contravening the final parenting orders, urging the Father to discontinue his Contravention Application at risk of seeking indemnity costs against him, and proposing interim arrangements for supervised time [MTB pp55-56].
d. On 27 June 2024, after His Honour Judge Turnbull made orders on 11 June 2024 permitting [Y], being a child, to swear an affidavit and to be called as a witness in the proceedings, the Mother again urged the Father to discontinue the contravention proceedings at risk of indemnity costs against him and proposed interim arrangements for supervised time [MTB pp109-110].
e. On 17 July 2024, ahead of the hearing of the Father’s Contravention Application listed for 7 August 2024, the Mother again urged the Father to discontinue proceedings, her lawyer writing to the Father’s lawyer [MTB p114]:
We have placed you on notice since at least our letter of 26 March 2024 that your client’s contravention application is ill-conceived and should be discontinued. We again urge you to counsel your client to discontinue his application and place you on notice of our intention to seek costs against your client on an indemnity basis, as relevant, if the matter proceeds to hearing on 7 August 2024.
In the context of the Mother’s Initiating Application having been filed on 6 June 2024, the Mother again proposed interim supervised time arrangements, her lawyer writing:
Both of our clients have expended considerable time and financial resources since proceedings were commenced by your client on 22 February 2024…
It cannot be in the best interests of [X] for parties to continue to be engaged in protracted and acrimonious proceedings [emphasis added]
f. On 14 November 2024, in response to the Father’s open offer of 30 September 2024, the Mother made a counter-offer, agreeing for the Contravention Application to be withdrawn and dismissed with parties to bear their own costs but adding that the parties agree that the Mother did not contravene the final parenting orders on 30 June 2023 and that she had a reasonable excuse for the contraventions of 24 December 2023, 1, 15 and 29 March 2024 [MTB p131].
g. On 27 November 2024, the Mother caused her lawyer to make an open offer as follows [MTB pp164-165]:
•That parties agree that the Mother did not contravene the final parenting orders on 30 June 2023 and that she had a reasonable excuse for the contraventions of 24 December 2023, 1, 15 and 29 March 2024
•That the final parenting orders be suspended pending further Orders
•The Father pay to the Mother 50% of her costs in relation to the Contravention Application, estimated to be in the vicinity of $10,000
h. On 12 December 2024, the Mother made a final offer to resolve the Contravention Application as follows [MTB pp174-175]:
•That parties agree that the Mother did not contravene the final parenting orders on 30 June 2023 and that she had a reasonable excuse for the contraventions of 24 December 2023, 1, 15 and 29 March 2024
•That the final parenting orders be suspended pending further Orders
•That each party bear their own costs.
23. The Mother made significant effort to bring her concerns to the Father, facilitate interim supervised time arrangements and even abandon her claim for costs.
24. On the contrary, the Father persisted in his Contravention Application, denying that the Mother had a reasonable excuse for the contraventions, denying that there was a significant change of circumstances warranting a reconsideration of the final parenting orders and threatening costs against the Mother. The Father’s lawyers wrote the following to the Mother’s lawyer:
a. On 12 March 2024 [MTB pp33-34]:
The making of a Final ADVO for the protection of [Y], does not create an unacceptable risk of harm to [X] to warrant your client’s contravention and ongoing contravention of the Orders.
b. On 14 March 2024 [MTB p51]:
We are of the view that your client’s intended proceedings are vexatious and frivolous…
…Our client’s offer of settlement is for your client to follow the Final parenting orders
c. On 25 March 2024 [MTB p54]:
We reiterate that your client does not have a reasonable excuse in acting in contravention of the Orders. We put your client on notice that our client will be seeking make up time with [X], in addition to an Order for your client to pay his legal costs and disbursements on an indemnity basis
d. On 28 June 2024 [MTB p112]:
Our client maintains that your client does not have a reasonable excuse to contravene the Final Parenting Orders made on 9 May 2023
e. On 24 June 2024, for the first time the Father makes an offer to finalise the matter – he makes an offer that all outstanding applications be withdrawn and dismissed with parties to bear their own costs. But in deafness to the concerns of the Mother for the safety and wellbeing of [X], the offer is contingent on parties forthwith complying with the final parenting orders [MTB p116].
f. On 30 September 2024, after His Honour Judge Turnbull made Orders on 9 August 2024 admitting 7 video recordings made by [Y] into evidence11 and after the first day of the hearing proper of the Father’s Contravention Application on 27 September 2024, after months of rejecting the Mother’s urgings for the proceedings to be discontinued, the Father makes an open offer for the Contravention proceedings to be withdrawn and dismissed with parties to bear their own costs [MTB p130]
g. In response to the Mother’s counter-offer of 14 November 2024, essentially accepting the Father’s offer contingent upon an agreement that the Mother did not contravene the final parenting orders on 30 June 2023 and had a reasonable excuse on the other 4 occasions, the Father rejected the Mother’s counter-offer on 21 November 2024 [MTB p159].
h. In response to the Mother’s open offer of 27 November 2024, the Father rejected that offer on 5 December 2024 [MTB p172].
i. There was no response to the Mother’s final offer of 12 December 2024.
25. By the time of the Father’s open offer of 30 September 2024, the bulk of the Mother’s costs in relation to the Contravention Application had been incurred and there was little commercial advantage to be gained from consenting to the finalisation of the matter without a finding and without costs.
26. Despite being on notice since at least 28 February 2024 that the Mother would be relying upon the video recordings of [Y] with those videos grounding much of the Mother’s concerns for the safety and wellbeing of [X] in the Father’s care, the Father persisted in his Contravention Application, raising every objection possible to the Mother’s case – objection to her subpoenas, objection to [Y] as a child witness giving evidence, objection to the video recordings being admitted into evidence – causing the Mother to incur significant expenses.
27. In the context of historical violence against the Mother by the Father, the Mother perceives the Father’s conduct as systems abuse – using the legal system to perpetuate his intimidation, harassment and attempted control over her.
28. The Father persisted still and did not, in fact, withdraw his Contravention Application. The hearing, being adjourned to 7 April 2025, would come after a determination of the threshold s65DAAA hearing that was listed to 6 March 2025 on 3 December 2024.
29. It was only after 6 March 2025 when the court made the finding that there had, in fact, been a significant change of circumstances giving rise to a reconsideration of the final parenting orders, that the Father abandoned all proceedings, with his lawyers filing a Notice of ceasing to act on 21 March 2025 and the Father informing the Mother on 1 April 2025, “I’m done with all kinds of courts… I told my lawyer to notice your lawyer that I’m done” [MTB p183].
30. It is submitted that the Contravention Application was filed on 4 March 2024 (sealed on 15 March 2024) and continued in circumstances where, if properly advised, he should have known that he had no chance of success.
31. Not only so, from the outset, the Mother urged the Father to discontinue proceedings and proposed supervised time arrangements, which were all rejected. It was not until 2 September 2024 that Orders were made for [X] to spend supervised time with the Father by Judicial Registrar Banks in chambers with consent of parties – some 6 months after the Mother first proposed supervised time.
32. Despite the Father’s open offer on 30 September 2024 coming at a time when the Mother had already incurred the bulk of her costs in relation to the Contravention Application, the Mother made both an open offer (on 27 November 2024 seeking 50% of her costs) and then a without prejudice offer (on 12 December 2024 seeking parties bear their own costs) – both of which were rejected.[6]
(Original emphasis)
[6] Applicant’s Written Submissions 5 May 2025 [12]-[32].
The Respondent had every right to address the Applicant’s non-compliance with the 2023 Order in some fashion. The Applicant did not apply to set aside or vary that order until June 2024 — action probably motivated by the Respondent’s applications. However, as far back as March 2024, he was aware of the Applicant’s concerns regarding his care of X and was provided with several videos containing information corroborating those concerns. The Respondent, therefore, took a risk when he filed his Contravention applications, given the nature of the information he had received from the Applicant concerning X’s experiences in his care. He was on notice as to indemnity costs in March 2024.
The Applicant’s counteroffer made 14 November 2024, after the hearing trial had commenced, gave the Respondent further opportunity to exact himself from the proceedings without a costs order. The same offer was made in December 2024. He could have accepted one of those offers.
That said, he also made offers to settle the proceedings, particularly that made on 30 September 2024. The Applicant had already incurred significant costs by that time, but was prepared to settle if the Respondent agreed to suspend the May 2023 orders and confirm that she did not contravene the orders. That proposal was rejected.
There is little doubt that the Respondent had plenty of opportunity to discontinue his application before, and even after, significant costs had been incurred.
Such other matters as the court considers relevant
These were complex proceedings, requiring determinations as to whether a child should be permitted to give evidence and whether several recordings should be received into evidence. As each of those decisions went against the Respondent, he should have seriously considered the many offers had been made to end the proceedings.
Conclusion
Having regard to all the matters mentioned, I find that it is just for the Respondent to pay the Applicant’s costs.
INDEMNITY COSTS
The Full Court in Ebner & Pappas and Anor [2015] FamCAFC 39 at [27][28] stated:
27. In Carpenter & Carpenter [2014] FamCAFC 100 May, Thackray and Strickland JJ said at [132]:
The relevant authorities tell us that the usual approach of calculating costs on a party/party basis should only be departed from where there are exceptional circumstances (Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248, at 256; Kohan & Kohan [1992] FamCA 116; (1993) FLC 92-340, at 79,614; Yunghanns v Yunghanns [2000] FamCA 681; (2000) FLC 93-029, and D & D (Costs) (No 2) at [25]-[29]). There have been attempts to provide examples of circumstances that would warrant the awarding of indemnity costs (e.g. Colgate-Palmolive Co v Cussons Pty Ltd; Munday v Bowman (1997) FLC 92-784) but it is accepted that the categories of such circumstances are not closed (Yunghanns, at [31]).
28. In Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248 Sheppard J said at 257:
... it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud ...; evidence of particular misconduct that causes loss of time to the court and to other parties...; the fact that the proceedings were commenced or continued for some ulterior motive... or in wilful disregard of known facts or clearly established law...; the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions...; an imprudent refusal of an offer to compromise...; and an award of costs on an indemnity basis against a contemnor... The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
Having regard to all the matters set out earlier in these Reasons, I am not satisfied that this case warrants an award of indemnity costs. Even though the Respondent was on notice as to the evidence against him and the problems with his applications, he was seeking to address the Applicant’s non-compliance with an order of this Court. The true state of his case was not known until the preliminary applications relating to receiving evidence from a child and the videos were determined. If that evidence had been excluded, his case would have been improved. A proportion of the time, effort and cost associated with this case was focused on those arguments.
Somewhat unusually, this ruling could result in the Respondent having to pay a higher amount of costs, because the Applicant was prepared to provide a 50% discount to the indemnity costs she sought:
39.The Mother’s Account Statement current as at 2 May 2025 highlights fees and disbursements in connection with the Contravention Application [QCB pp15-19]. Despite the terms of the Costs Agreement dated 5 April 2024, some time around 7 April 2024 when the first Tax Invoice was issued, Charis Law verbally agreed to discount the fees charged to the Mother by 50% having regard to her difficult financial circumstances and need to borrow funds to secure her legal representation [QCB p20].
40. Applying a 50% discount in this way, the total fees charged to the Mother and paid by her to 2 May 2025 is $19,507.40 [QCB p28]. This does not include fees incurred in relation to the present Costs Application, which will be capped at $2,200.
41. Accordingly, costs sought on an indemnity basis is $21,707.40 and Orders are sought for this amount to be paid into the trust account of Charis Law Pty Ltd (Charis Law Practice Trust Account BSB […] Account Number […51]) within 28 days of the Order.
42. In the alternative, if the scale of costs in Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 [QCB pp29-31] are to be applied, costs to 2 May 2024 have been calculated to be $24,441.11 [QCB p32]. An additional amount of $2,093.62 (Item 3, [QCB p29]) would be required for the costs of this present Costs Application.
43. Accordingly, costs sought in accordance with the scale of costs is $26,534.73 and Orders are sought for this amount to be paid into the trust account of Charis Law Pty Ltd (Charis Law Practice Trust Account BSB […] Account Number […51]) within 28 days of the Order.[7]
(Emphasis added)
[7] Applicant’s Written Submissions 5 May 2025 [39]-[43].
WHAT QUANTUM OF COSTS SHOULD BE ORDERED?
To avoid the costs of assessment,[8] rule12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), allows me to fix costs.
[8] Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878 at 25 and Beach Petroleum NL v Johnson (1995) 57 FCR 119 at 120.
Helpfully, Ms An provided a table setting out the basis for costs incurred pursuant to her costs agreement, and, alternatively, pursuant to the scale of costs in Schedule 1.[9]
[9] Quantum of Costs Bundle 5 May 2025, 29-33.
Having inspected and considered her table of costs, with reference to Schedule 1, I am satisfied that the sum of $26,534.73 (including GST) is an accurate and reasonable sum for the Respondent to pay towards the Applicant’s costs, under that schedule. That said, to require that amount be paid would result in him paying more than the Applicant ultimately incurred. As such, a just outcome is achieved if he pays the sum of $21,707.40 (including GST). Given his income, I will allow the Respondent sixty (60) days to pay the amount ordered. I will so order.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 4 July 2025
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