Cannon & Moore (No 4)
[2025] FedCFamC2F 779
•11 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cannon & Moore (No 4) [2025] FedCFamC2F 779
File number(s): MLC 3357 of 2024 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 11 June 2025 Catchwords: FAMILY LAW – COSTS – father wholly unsuccessful in his application for further interim parenting orders, made after the matter was listed for a compliance and readiness hearing – father wholly unsuccessful in his application to discharge the appointment of the single expert family report writer and for an updated report to be prepared by an alternate expert – applications for costs made and written submissions filed prior to the commencement of Part XIVC of the Act relating to costs, introduced by the Family Law Amendment Act 2024 (Cth), but determination not made until after the commencement of those changes – parties invited to make submissions in respect of legislative change – mother and independent children’s lawyer submit Part XIVC applies to determination of the costs applications but with no substantive impact on the determination – the father submits the provisions of the former section 117 continue to apply – Part XIVC applied but with no impact on determination – order for father to pay mother’s costs at scale – no order made in respect of the costs of the independent children’s lawyer, which were not quantified or the subject of submissions Legislation: Family Law Act 1975 (Cth) ss 114UB, 114UC, 117
Family Law Amendment Act 2024 (Cth) section 2, section 15 of Schedule 4,
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) r 2.02, Schedule 1
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.08, 10.03, 12.13, 12.17
Cases cited: De Roma & De Roma (2013) 49 Fam LR 226; [2013] FamCA 566
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123
Gahen & Gahen (No 2) [2013] FamCA 936
Haward & Haward (2023) FLC 94-147; [2023] FedCFamC1A 99
Hawkins & Roe (2012) 47 Fam LR 526; [2012] FamCAFC 77
Marvel & Marvel (2010) 240 FLR 367; [2010] FamCAFC 101
Medlon & Medlon (No. 6) (Indemnity Costs) FLC 93–664; [2015] FamCAFC 157
Nardini & Legal Aid NSW [2019] FamCA 340
Pascoe & Larsen (No 2) [2022] FedCFamC1A 126
Penfold v Penfold (1980) 114 CLR 311
Wrenstead & Eades (2016) FLC 93–697; [2016] FamCAFC 46
Division: Division 2 Family Law Number of paragraphs: 75 Date of last submission/s: 17 June 2025 Date of hearing: In chambers, on the papers; supplementary hearing 17 June 2025 Place: Melbourne Representative for the applicant: Mr Cannon (self-represented) Solicitor for the respondent: Ms Collier, Johnston Family Lawyers Independent children’s lawyer: Ms Clark, Clark Family Lawyers ORDERS
MLC 3357 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CANNON
Applicant
AND: MS MOORE
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
11 JUNE 2025
THE COURT ORDERS THAT:
1.The applicant (“father”) pay to the respondent (“mother”), within 30 days from the date of these orders, costs relating to his Application in a Proceeding filed on 7 March 2025 (as amended on 14 April 2025) (“father’s application”) and costs in respect of the mother’s written costs submissions, fixed in the amount of $8,320.14.
2.The oral application made by the independent children’s lawyer for costs relating to the father’s application be dismissed.
3.The administrative hearing on 20 June 2025 be vacated.
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
JUDGE A. HUMPHREYS:
INTRODUCTION
Before me are applications for costs made by the respondent mother and the independent children’s lawyer (“costs applications”). Those applications relate to the applicant father’s Application in a Proceeding filed on 7 March 2025, as amended on 14 April 2025 (“the father’s application”), following an interim defended hearing on 24 April 2024.
The father is the applicant in the substantive proceedings between the parties, which relate to the parties’ two children, who were aged 7 and 4 at the time of the interim hearing. The mother is the respondent. I will refer to the parties as the mother and father throughout my reasons for ease of reference, without intending any disrespect to them.
In his application, the father sought (in summary) an urgent hearing and further interim parenting orders varying the interim arrangements put in place by orders made on 7 August 2024 (“August 2024 orders”). Those orders were made by Judge Glass following a contested interim hearing on 5 August 2024 (“August hearing”). The father described the interim parenting orders he sought as a “moderate relaxation” of conditions governing the children’s time spent with him. However, the changes he sought were significant, including the removal of a requirement for professional supervision. He sought the children’s time with him be extended, to time during the day twice a week, and that he be permitted to attend the children’s school, extracurricular and sporting activities. He also sought orders providing for an alternate single expert to be engaged to prepare an updated family report, raising concerns about the family report dated 25 June 2024 (“the family report”) undertaken by an agreed single expert psychologist pursuant to earlier court orders.
The August 2024 orders were made in the context of very serious allegations made by the mother of family violence perpetrated by the father against her during the parties' relationship, including in the presence of the children, and an allegation of child abuse (shaking) perpetrated by the father against X.
It was not disputed the interim parenting arrangements implemented by the August 2024 orders have generally proceeded well and without significant incident. The matter was approaching a final hearing, and a compliance and readiness hearing was to take place on 13 March 2025. On 6 March 2025, the father filed a certificate of readiness, certifying that (save for outstanding expert reports) there was no impediment to the matter being set down for a final hearing. The following day, on 7 March 2025, he filed his application for interim parenting orders, seeking an urgent interim hearing. His application resulted in the compliance and readiness hearing being adjourned to 12 June 2025, meaning no final hearing date has yet been set.
In her Response to an Application a Proceeding, filed on 8 April 2025 (“mother’s response”) the mother sought the father’s application be dismissed, and he pay her costs of and incidental to his application.
I heard and determined the interim parenting application on 24 April 2025 and delivered oral reasons on the next sitting day, being 28 April 2025, explaining my decision to dismiss the father’s application. In short, I found there had not been a significant change in circumstances in relation to the children since the August 2024 orders were made, to warrant the making of further interim parenting orders pending a final hearing. I considered a cautious approach should continue to be taken to the children’s care arrangements and their safety should be prioritised pending a testing of the evidence at a final hearing and findings in respect of the mother’s allegations of family violence and child abuse. I was not persuaded the single expert psychologist appointed to prepare a family report in this matter should be discharged. I made orders providing for the preparation of an updated family report by that expert, including a formal family violence risk assessment as agreed by the parties. I made orders as to the manner in which the single expert was to be instructed and for the parties to equally share the fee of the single expert. I refused the mother’s application (made by way of a minute of proposed orders tendered on the morning of the hearing) for the father to meet the whole of the single expert’s additional fee for undertaking a specific family violence risk assessment in conjunction with an updated family report.
After delivering my reasons orally, I invited the parties to make submissions in relation to the mother’s costs application so it could also be finalised that day. However, the father sought an opportunity to file written submissions on the issue of costs. As the father is self-represented, I granted his request on the basis I would also consider an application in respect of the costs of the written submissions. The parties agreed to me determining that application in chambers “on the papers”, without the need for a further hearing.
Both parties rely on written submissions filed in accordance with the orders I made on that day – the mother on 12 May 2025 and the father on 26 May 2025. The father also tendered correspondence exchanged with the mother’s lawyers.[1] The independent children’s lawyer did not take up the opportunity to file written submissions.
[1] I mark that bundle of correspondence Exhibit F-3.
By way of her written submissions, the mother seeks an order for costs against the father fixed in the sum of $10,000, payable within 30 days. She contends a costs order is justified, including because the father’s application for interim and interlocutory orders was wholly unsuccessful and because of the manner in which he has conducted the proceeding.
The independent children’s lawyer made an oral application for costs at the conclusion of the hearing but did not quantify the costs sought and did not file written submissions as directed.
The father opposes the costs applications, submitting there are no circumstances present justifying a departure from the general requirement for each party to pay their own costs in family law proceedings, as provided in section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) as applied at the time of the interim parenting hearing and when the parties’ submissions were filed. He relies on his status as a self-represented litigant to excuse aspects of his conduct in the proceeding.
ISSUES
Accordingly, the issues requiring determination are:
(a)Are there circumstances justifying an order requiring the father to pay the costs of the mother in relation to the father’s application and her written costs submissions?
(b)If so, should mother’s costs be fixed in the amount of $10,000 (characterised by her as “more than scale but less than indemnity”) or at scale?
(c)Are there circumstances justifying an order requiring the father to pay the costs of the independent children’s lawyer in relation to the father’s application?
(d)If so, how should those costs be fixed in the absence of submissions by the independent children’s lawyer?
BACKGROUND
The background to the application the subject of the costs applications before me is further detailed in my reasons delivered on 28 April 2024 (“April reasons”) which are to be settled from the transcript and provided to the parties.[2] These reasons should be read in conjunction with the April reasons.
RELEVANT LEGAL PRINCIPLES
[2] Noting there has been a delay in publication of the settled reasons owing to transcript delays.
Legislative and regulatory changes
Significant amendments to the Act made by the Family Law Amendment Act 2024(Cth) (“Amendment Act”), commenced operation on 10 June 2025, after I had considered the parties’ written submissions “on the papers” but before my decision was listed for judgment, on 11 June 2025. Those amendments included the repeal of section 117 and related provisions in the Act and the introduction of a new Part XIVC of the Act relating to costs, including section 114UB and related provisions governing the making of costs orders.
On the morning of 11 June 2025, I vacated the listing for judgment delivery and instead listed the matter for mention, for submission as to the impact of these legislative and related regulatory changes on my decision.
Those provisions of the Amendment Act relating to costs orders are found in Schedule 4, Part 1, Division 1 (amendments), Division 2 (consequential amendments) and Division 3 (transitional provisions).
A table in section 2 of the Amendment Act provides that these three divisions of Schedule 4 Part 1 commence on 10 June 2025.
The transitional provisions, in section 15 of Part 4 of the Amendment Act applying to these provisions, provide as follows:
15 Application of amendments relating to costs
The amendments of the Family Law Act 1975 made by Divisions 1 and 2 of this Part apply in relation to the following proceedings:
(a) proceedings instituted on or after the day this Division commences;
(b)proceedings instituted before, and not finally determined before, the day this Division commences, other than proceedings in respect of which a final hearing has commenced before that day.
The costs applications before me were made in respect of an interlocutory application in proceedings instituted before and not finally determined before 10 June 2025. A final hearing had not commenced before 10 June 2025.
Accordingly, I was of the view the costs provisions in the new Part XIVC apply to the determination of the costs applications. At the mention hearing on 17 June 2025, the solicitor for the mother and the independent children’s lawyer shared that view. The father, who appeared on his own behalf, submitted the provisions of section 117 should apply to my determination given costs submissions had been filed on that basis but he did not elaborate on that submission by reference to the provisions of the Amendment Act or legal principle.
The provisions of section 114UB of the Act (as amended) are not significantly different to the provisions of the former section 117. Some provisions of the Rules are now incorporated in the Act.[3] There is also now a provision expressly providing that (subject to the consideration to be taken into account when the court makes a costs order), the court may make a costs order in favour of or against a party to the proceedings regardless of the degree to which the party has been successful in the proceedings.[4] The solicitor for the mother and the independent children’s lawyer each advocated that these and other amendments made by the Amendment Act do not have any impact on the determination of the costs applications before me. The father was invited to make submissions in respect of any asserted changes to the required approach to be taken to the costs applications under the amended provisions if I found they apply but he did not seek to do so.
[3] For example, in sub-sections 114UB(4) and (5).
[4] Sub-section 114UB(7).
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) and Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) (“Division 2 Rules”) were also amended with effect from 10 June 2025. There was no substantive change to those provisions in the Rules relating to costs save to notes referring to the new provisions of the Act as amended. Item 1 of Schedule 1 to the Division 2 Rules expressly provides that the substituted schedule, updating the scale of costs provided in the Division 2 Rules applies only to work done on or services performed after 10 June 2025. Accordingly, I did not consider the amendments to the Rules or the Division 2 Rules impact my costs determination. I shared this view with the parties and invited submissions. The solicitor for the mother took the same view and confirmed her client continued to rely on the calculations in her written submissions. Neither the independent children’s lawyer nor the father advocated otherwise.
Application of those provisions
I have made my determination applying the provisions of Part XIVC of the Act, but note I would have come to the same conclusion applying the former provisions of section 117 of the Act.
Rule 12.13(3)(a) of the Rules provides an application for costs may be made at any stage of a proceeding. This is now also expressly provided in section 114UB(4) of the Act.
The general principle as expressed in section 114UB(1) of the Act (in like terms to the former section 117) is that each party is to bear their own costs of family law proceedings. However, the court retains a discretion pursuant to section 114UB(2) to make such order as to costs as it considers just, if there are circumstances that justify doing so, having regard to the matters prescribed by subsection 114B(3) of the Act. With some changes not relevant to the current application, this reflects the situation pursuant to the former subsections 117(1) and 117(2A).
Given there has been no substantive change to these provisions, the following common law principles continue to apply. No one of the factors formerly found in section 117(2A) and now found in subsection 114UB(3) prevails over any of the other factors. It is a matter of the weight that is accorded to each of the relevant factors in the discretion of the judge in the circumstances of the matter.[5] However, there is “nothing to prevent any factor being the sole foundation for an order for costs”.[6] Whilst the former subsection 117(2) and now section 114UB(2) requires a finding of justifying circumstances for the making of a costs order, beyond this there is no additional or special onus on an applicant who seeks an order for costs.[7]
[5] Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93–664 at [24].
[6] Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 at [41].
[7] Penfold v Penfold (1980) 114 CLR 311 at [13].
In relation to costs in parenting matters, in Hawkins & Roe the majority of the Full Court observed:[8]
In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.
[8] (2012) 47 Fam LR 526 at [14].
In that case, the Full Court provided examples of circumstances which may justify an order for costs in a parenting case as follows:[9]
Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.
[9] at [147].
However, the Full Court in Wrenstead & Eades expressed a firm view that these or other particular features are not required in a parenting case before a costs order can be made, given the wide discretion in the former section 117(2) of the Act and the lack of distinction between categories of family law cases, including between parenting and property cases.[10] The same applies in respect of section 114UB(2).
[10] (2016) FLC 93–697 at [103]; approving the dissenting judgment of Thackray J in Hawkins & Roe (2012) 47 Fam LR 526.
CONSIDERATION
I have been assisted by the written submissions filed by both parties in respect of the previous statutory provisions which correspond with the new statutory provisions and have considered all submissions although they may not be referenced in these reasons. I have considered each of the matters in section 114UB(3) of the Act as they apply to this matter.
The financial circumstances of each of the parties
Both parties work in paid employment. The mother’s written submissions record she earns $112,372 per annum from “all sources of income”. When read with the father’s written submissions, this appears to include child support paid by him. The father’s written submissions record he earns a “base salary” of $230,000 per annum, from October 2025, and pays child support of more than $40,500 per annum.
Final property orders were made by consent on 11 October 2024. The parties were each to receive a substantial sum of money pursuant to those orders following the sale of their former family home. Neither made submissions in respect of the application of those monies.
The mother is meeting private legal costs. The father is currently unrepresented. He says he has outstanding legal costs in excess of $40,000.
The father is currently meeting the cost of professional supervision for the children to spend time with him pursuant to the August 2024 orders. His written submissions record that he pays between $480 and $660 for each three-hour session. He otherwise identified rental and loan expenses (relating to the purchase of a motor vehicle) among his significant expenses.
The orders made on 28 April 2025 provide for the parties to share the cost of the updated family report, including a family violence risk assessment (the total fee being $10,500).
Having considered these matters in particular and the balance of the parties’ submissions in respect of their financial circumstances, I do not find either party’s financial circumstances justify or preclude the making of a costs order. Even if the father is under financial pressure, impecuniosity is not a basis for refusing to make a costs order.[11]
[11] Davis & Peterson (2023) FLC 94-130 at [75].
Receipt of assistance by way of legal aid by any party
Neither party is in receipt of assistance by way of legal aid.
Conduct of the parties in relation to the proceedings
Sub-section 114UB(3)(c) refers to conduct “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”. That is, conduct of the parties in the litigation. I note the inclusion of consideration of conduct in relation to the statutory duty of disclosure relates to property and financial proceedings commenced after 10 June 2025 and therefore not this matter.
The mother asks me to take into account the father’s conduct in filing his application only a day after filing a certificate of readiness on 6 March 2025, certifying that (save for outstanding expert reports) the matter was ready to proceed to final hearing, ahead of a compliance and readiness hearing listed for 13 March 2025. As mentioned earlier in my reasons, as a result of the father’s application, the compliance and readiness hearing was vacated administratively and was re-listed for 12 June 2025.
The father made the following submission in respect of his conduct:
I submit that it is my ignorance as a self-represented litigant that led to these minor procedural errors, and the correspondence demonstrates this. I have sought at every step to engage with the process honourably and without wasting the Court’s valuable time or resources.
I submit that through her extensive knowledge of Family Law procedure, the mother’s solicitor has sought to use this in a disingenuous manner in an attempt to cast me in a negative light before the Court.
I do not accept that the father has made “minor procedural errors” as he submitted. Rather, he made a decision to initiate a further round of interim parenting litigation when the matter was close to being fixed for trial and he sought to have an alternate single expert appointed rather than avail himself of other avenues to address his concerns about the family report.
Whilst I do not find the father has conducted the matter in a manner “wilfully obstructive of the expeditious determination of the proceedings” as was the case of the conduct in Pascoe & Larsen (No 2)[12] referenced by the father, I nevertheless find the father’s conduct in the litigation weighs in favour of an order for costs.
[12] [2022] FedCFamC1A 126 at [14].
I accept the mother’s submission that the father, who holds a law degree, is a sophisticated litigant. This was demonstrated by the way in which he ably represented himself at the interim hearing on 24 April 2025. The father knew the matter was soon to be listed for a final hearing. In that knowledge, he effectively took a chance that he may be able to advance his position ahead of the final hearing by way of a further application for parenting orders. He did so in the knowledge he was not incurring legal costs and the mother was.
I do not accept the father’s submission that, as a self-represented litigant, he was not aware his application could not be dealt with at the compliance and readiness hearing. The orders and directions made on 12 February 2025 made clear the compliance and readiness hearing was for the purpose of the matter being fixed for final hearing and addressing procedural matters in that context. The Central Practice Direction: Family Law Case Management also makes this clear.
The mother identifies as a matter relevant to the father’s conduct in the proceedings, two previous costs orders made against him on 23 September 2024 (in appeal proceedings NAA227/2024) and on 7 October 2024 by Judge Glass (in respect of the August 2024 hearing). I do not take the father’s conduct giving rise to those costs orders into account, save that I infer from those orders the father was well aware of the principles relating to costs in this court and the risk of a costs order if he was unsuccessful in his application. I have otherwise confined my consideration of the father’s conduct in the litigation, to his conduct in respect of this particular application.
Whilst not raised by the parties in their written submissions, I note the father filed an affidavit of 24 pages in support of his application, excluding annexures. This well exceeded the page limit of 10 pages applying to affidavits to be filed for interim hearings in Division 2.[13] The mother also filed a lengthy affidavit, running to 29 pages, excluding annexures. I accept the submission made by her counsel at the interim hearing, that the length of her affidavit was necessitated by the length of the father’s affidavit, much of which related to events pre-dating the August 2024 orders. This contributed to the costs of the mother’s preparation for the hearing before me. Time was then wasted at court when I directed both parties to select 10 pages of their affidavits to rely upon and ultimately granted each of them leave to rely on 15 pages.
[13] Item 7 of table 2.1 in rule 2.02 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) (“Division 2 Rules”), modifying rule 5.08(2) of the Rules.
Whether any party has been wholly unsuccessful in the proceedings
The father was wholly unsuccessful in his application. I found his application for further parenting orders was without merit, not being persuaded he had established a change in circumstances to warrant the August 2024 orders being revisited. I was not persuaded the family report was “manifestly deficient” as claimed by the father and that the defects asserted by him in the preparation of the family report rendered it and any further family report prepared by the single expert “practically useless” so as to justify the discharge of the single expert’s appointment.
The father submits he was successful in obtaining orders to provide for a more rigorous updated family report, which addressed the gravamen of his case seeking to appoint an alternate expert. However, that was not his application.
He also submits he was successful in resisting the mother’s application that he bear the entire cost of the updated family report, which is true, but the context of that determination is important.
The orders I ultimately made in respect of the preparation of an updated family report by the previously appointed single expert arose from a minute of proposed orders sought by the mother, tendered on the morning of the interim hearing. By that minute, she sought an order providing for an updated family report to be prepared by the existing single expert, incorporating a targeted family violence risk assessment. The family report writer had referenced this type of assessment in response to questions asked of her by the father’s former solicitors in respect of the family report. The mother sought an order providing for the cost of the family report to be shared by the parties and for cost of the separate family violence risk assessment to be met by the father.
The parties ultimately agreed to an updated report being prepared, including a specific family violence risk assessment. The issues to be determined then became which expert should prepare the updated report, on what terms, and who should meet the cost of the family violence risk assessment.
Those issues may have been resolved by agreement had it not been for the father’s application to seek an alternate expert be engaged. If not, they could have been dealt with at the compliance and readiness hearing or a procedural hearing conducted by a registrar. These issues did not require a hearing before a judge, warranting the extensive material that was filed by the parties, the engagement of counsel and a hearing that took most of the day requiring judgment to be delivered on the following sitting date.
As noted earlier in my reasons, subsection 114UB(7) now expressly provides the court may make a costs order in favour of, or against, a party to the proceedings regardless of the degree to which the party has been successful in the proceedings. This is a statutory reflection of an existing legal principle.
Whether an offer has been made in writing to settle the proceedings
The mother’s solicitors wrote to the father on 21 March 2025 proposing the father agree to the previously appointed single expert preparing an updated family report at the earliest opportunity, anticipating the updated report should be available shortly after the compliance and readiness hearing listed for 12 June 2025 and the matter could be listed for final hearing on the earliest possible date. The letter proposed the father discontinue his application, in which case the mother would not seek costs against him. This offer was made in the context of rule 10.03 of the Rules which provides that if a party discontinues an application, another party may apply for costs. In the alternative, the letter proposed the father’s application be adjourned to a date to be fixed after the updated family report is available. The letter put the father on notice the mother may present the letter to the court in support of an application for costs against the father if he proceeded with his application, on a full indemnity basis.[14]
[14] Exhibit F-3.
The offer is relevant to the costs application, in that the father was offered the opportunity to discontinue his application without the risk of a costs order. Had there then been a dispute in relation to the terms on which the single expert was re-engaged that could not be resolved by agreement, that dispute could have been determined at the compliance and readiness hearing or by a judicial registrar.
The balance of correspondence tendered by the father indicated the father seeking to advance parenting matters along the lines of his application which has been unsuccessful.
Such other matters as the court considers relevant
The father submits it is relevant his application was for interim parenting orders, requiring the court to take a conservative approach until the evidence can be tested, evaluated and weighed at a final hearing. The father correctly identified this approach, citing Marvel & Marvel.[15]
[15] (2010) 240 FLR 367.
Contrary to the father’s submission, I find this is a matter that weighs in favour of (rather than against) a costs order being made. The father was aware of the principles applying to the determination of interim parenting matters, including from the reasons of Judge Glass delivered on 7 August 2024. He nevertheless made his further application notwithstanding the allegations of family violence and child abuse remain unresolved and the matter was approaching a final hearing where those allegations can be tested.
The father submits his lack of success at the interim hearing is not necessarily indicative of the strength of his case or of its prospects of eventual success. That is true but I am dealing with an application for costs in relation to the father’s interim application and that application was unsuccessful.
DETERMINATION
Mother’s costs relating to the father’s application
Having regard to all of the above matters, I find there are circumstances justifying an order for costs in favour of the mother.
Mother’s costs of preparing written submissions
As already mentioned, I offered the parties the opportunity to have the costs applications determined on the day I delivered my reasons in respect of the father’s application, inviting them to make oral submissions on that issue. The mother and the independent children’s lawyer wished to take up that opportunity. The father advocated for an opportunity file written submissions in response to the costs applications. He submitted this had been the approach taken by Judge Glass and he had therefore expected he would be again provided a like opportunity. He did so notwithstanding he had been on notice of the mother’s costs application since service of her response and he was familiar with the principles applying to costs from the determination of previous costs applications in the proceeding. He pressed for this opportunity even after it was drawn to his attention that would result in increased costs for the mother and the independent children’s lawyer and that I would consider those costs too when making my decision in relation to the costs applications.
I take into account the matters already canvassed in my reasons when considering this aspect of the mother’s application for costs. In particular, I take into account the father has professional qualifications and he has demonstrated his competence in making submissions on his own behalf. He was familiar with the principles applying to costs from the previous costs applications in this proceeding. He was on notice the mother would incur further costs by the preparation of written submissions.
In these circumstances, I find an order for costs is justified in respect of the mother’s costs of preparing her written costs submissions.
Costs of the independent children’s lawyer
Subsection 114UC(1) provides the court may make a costs order, whether by interlocutory order or otherwise, to the effect that each party bears the costs of the independent children’s lawyer in such proportion as the court considers just. When considering such an order, subsection 114UC(4) requires the court to disregard the fact that the independent children’s lawyer is funded under a legal aid scheme. These provisions reflect the approach pursuant to the former sections 117(3) and 117(5).
However, the independent children’s lawyer did not file written submissions in support of her oral costs application as directed and has not particularised the costs sought in respect of the legal aid funding of the independent children’s lawyer. I will therefore dismiss the oral application of the independent children’s lawyer for costs.
CALCULATION OF COSTS
Part 12.6 of the Rules provides for the calculation of costs if a costs order is made. In particular, rule 12.17(1) and now also subsection 114UB(6) of the Act provides the court may order that a party is entitled to costs:
(a)Of a specific amount; or
(b)As assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or
(c)To be calculated in accordance with the method stated in the order; or
(d)For part of the proceeding, or part of an amount, assessed in accordance with the scale of costs provided in the Rules.
In considering on what basis costs should be ordered, I have considered the provisions of rules 12.17(3) and 12.08.
Mother’s costs
The mother did not ultimately seek an order for indemnity costs as foreshadowed in her lawyer’s correspondence and that was appropriate in the absence of exceptional circumstances. She instead sought costs be fixed in a specific amount as permitted by rule 12.17(1)(a), in the amount of $10,000, which was described as “more than scale but less than indemnity”. The mother’s written submissions recorded her actual costs and disbursements in the total amount of $27,348.50, as charged pursuant to a costs agreement with her lawyers and including counsel’s fees of $3,440. Her costs pursuant to the scale in Schedule 1 of the Division 2 Rules (“the Division 2 scale”) were calculated in the total amount of $7,272.26.
In support of the mother’s position, it was submitted:
the amount sought by her is reasonable given the importance, complexity, or difficulty of the issues, is commensurate with the rates ordinarily payable to lawyers in comparable proceedings and is otherwise reasonable and proportionate.
I am not persuaded the circumstances of this matter justify an order for costs other than at scale.
The costs sought by the mother pursuant to the Division 2 scale are set out in the table at paragraph 6 of her written submissions. I accept the items claimed by the mother save for one. The mother seeks an amount for costs pursuant to item 3 of the Division 2 scale (opposing an application for interlocutory orders, including an interim hearing) in the amount of $2,093.62. I find item 2 more accurately reflects the father’s application, being an application that includes interim orders, other than procedural orders, which provides for costs in the amount of $3,141.50. This reflects the greater amount of work required to oppose an application for interim parenting orders compared to an application that relates solely to procedural interlocutory orders. I find the amount claimed for preparing the mother’s written costs submissions, being two hours of work undertaken by a solicitor at the rate provided by the Division 2 scale, is reasonable.
Accordingly, I will make an order for costs fixed in the amount of $8,320.14 calculated as follows:
Item Amount Interim Defended Hearing Opposing application that includes interim orders (other than procedural orders) up to completion of the first court date 2 $3,141.50 Daily hearing fee (for a full day hearing) 13(c) $2,512.56 Advocacy loading (50% of the daily hearing fee) 14 $1,256.28 Judgment Delivery Attendance at hearing to take judgment and explain orders 10 $342.19 Daily hearing fee for a short mention (to take judgment) 13 $342.19 Advocacy loading (50% of the daily hearing fee for a short mention) 14 $171.10 Costs Submissions Drafting, conferences and chamber work (not otherwise covered by other items in the table) – Solicitor @ $277.16 per hour x 2 hours 15 $554.32 Total $8,320.14
The mother seeks her costs be paid within 30 days. The father did not make submissions in respect of the time for payment and I find that time reasonable.
CONCLUSION
For the reasons outlined, I make the orders set out at the commencement of these reasons.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys. Associate:
Dated: 17 June 2025
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