Cosio & Cosio (No 6)

Case [2025] FedCFamC1A 149

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Cosio & Cosio (No 6) [2025] FedCFamC1A 149

Appeal from: Cosio & Cosio (No 4) [2025] FedCFamC2F 258
Appeal number(s): NAA 143 of 2025
File number(s): SYC 6131 of 2019
Judgment of: WILLIAMS J
Date of judgment: 25 August 2025
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Catchwords:  FAMILY LAW – APPEAL – Appeal from costs order – where the primary judge ordered the appellant to be liable for the respondent’s costs of the substantive property proceedings – leave to appeal not required – Application in an Appeal to adduce further evidence partly allowed –– where the appellant alleges the primary judge fell into error in application of s 117(2) and considerations under s 117(2A) of the Family Law Act 1975 (Cth) –– no error established – Appeal dismissed
Legislation:

Family Law Act 1975 (Cth); Part VIII; ss.117(2), 117(2A), 114UB(2), 114UB(2A)

Federal Circuit and Family Court of Australia Act 2021 (Cth); ss.28, 35

Uniform Civil Procedure Rules 2005 (NSW); rr 20.26, 31.16

Federal Court andFederal Circuit and Family Court Regulations 2022 (Cth); r 4.02
Cases cited:

Braithwaite & Braithwaite [2007] FamCA 468

Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 248

CDJ v VAJ(No 1) (1998) 197 CLR 172

Cosio & Cosio [2022] FedCFamC1A 187

Cosio & Cosio (No 3) [2024] FedCFamC2F 260

Cosio and Cosio (No 4) [2024] Fed CFamC1A 149 

Cosio and Cosio (No 5) [2024] FedCFamC1A 205

Diamond & Diamond (2024) FLC 94-223; [2024] FedCFam1A 201

Edwards and Noble (1971) 125 CLR 296

House v The King (1936) 55 CLR 499 at 504–505

Licul v Corney (1976) 180 CLR 213 at 225

In the marriage of Kohan & Kohan (1993) FLC 92-340

Jandson Pty Ltd v Edmonds [2022] NSWCA 61

Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391

Menno & Lourens (No 2) (2025) FLC 94-256; [2025] FedCFam1A 100

Oshlack v Richmond River Council (1998) 193 CLR 72

Re F: Litigants in Person Guidelines (2001) FLC 93-072

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550

Stanford v Stanford (2012) 247 CLR 108

Vertzayias v King & Ors [2011] NSWCA 215

Warbick and Warbick (No 2) (2021) FLC 94-030; [2021] FamCAFC 101
Number of paragraphs: 83
Date of last submission/s: 15 July 2025
Date of hearing: 15 July 2025
Place: Melbourne
Counsel for the Appellant: Self-Represented Litigant
Solicitor for the Appellant: Self-Represented Litigant
Solicitor for the Respondent: Marsdens Law Group
Counsel for the Respondent: Mr Reeve, Solicitor-Advocate

ORDERS

NAA 143 of 2025
SYC 6131 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR COSIO

Appellant
AND:

MS COSIO

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

25 AUGUST 2025

THE COURT ORDERS THAT:

1.The appellant is granted leave to rely on the documents in his additional appeal bundle at pages 79, 80, 82, 83, 136, 145, 157 – 165, 224 – 227 and Annexure A to his affidavit filed 1 July 2025.

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Details
AGLC
Cosio & Cosio (No 6) [2025] FedCFamC1A 149
Case
[2025] FedCFamC1A 149
Decision Date

CaseChat Overview and Summary

The appeal concerns a decision by the Federal Circuit and Family Court of Australia, Division 2, regarding the costs of property settlement proceedings between the parties. The primary judge had ordered the appellant to pay the respondent’s costs of the substantive property proceedings, which the appellant now contests. The central legal issue is whether the primary judge erred in applying sections 117(2) and 117(2A) of the Family Law Act 1975 (Cth). The appellant argues that the primary judge did not correctly apply these sections in determining the costs order.

The court examined the application of sections 117(2) and 117(2A) of the Family Law Act, which provide for the court to make orders for costs in property proceedings. The court found that the primary judge had correctly applied the relevant statutory provisions and had considered the appropriate factors in making the costs order. The court concluded that no error had been established in the primary judge’s decision, and thus dismissed the appeal. The court also considered the appellant’s application to adduce further evidence but partly allowed it, limiting the scope of new evidence that could be presented.

The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the appeal, fixed at $11,484, within 60 days of the order. The leave to rely on certain additional documents was granted, while the application to adduce further evidence was dismissed in part. This decision reinforces the principle that the court will closely scrutinize the application of statutory provisions in family law property proceedings, ensuring that the orders made are fair and just.

Orders

Orders of the court

NAA 143 of 2025

SYC 6131 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR COSIO

Appellant

AND:

MS COSIO

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

25 AUGUST 2025

THE COURT ORDERS THAT:

1. The appellant is granted leave to rely on the documents in his additional appeal bundle at pages 79, 80, 82, 83, 136, 145, 157 – 165, 224 – 227 and Annexure A to his affidavit filed 1 July 2025.

2. The Application in an Appeal filed 1 July 2025 is otherwise dismissed.

3. The appeal is dismissed.

4. The appellant pay the respondent’s costs of the appeal fixed at $11,484 within 60 days of this order.

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.

Background

Background to the litigation

For the reasons that follow the appeal will be dismissed. BACKGROUND In December 1990 the parties met on an online text forum. The appellant was living in Australia, and the respondent was living in the United States of America (USA). They met in person in August 1991 when the respondent moved to Australia and thereafter commenced cohabitation. They married in 1992, separated in November 2017 and obtained a divorce in 2019. The parties have two children, the elder born in 1997 and the younger in 2002. At the time of cohabitation, the appellant was employed in the computer industry. He subsequently practised as a professional until he became self-employed in 2017. He continues to be self-employed. The respondent was employed until February 1997 prior to the birth of their first child and did not return to employment until December 2008, sometime after the birth of their second child. During their relationship the parties lived in rented accommodation until October 2007, when the appellant purchased in his name a property situated in Suburb B. The Suburb B property was funded by the proceeds of sale of shares and options from the appellant’s employment and the balance by way of a mortgage. After the breakdown of the relationship the respondent commenced property settlement proceedings. The parties were unable to resolve the property dispute, and the matter proceeded to a final hearing (“the first trial”). On 2 August 2022 a judge of the FCFCOA (Division 2) made final orders. The appellant successfully appealed the orders (“the first appeal”) and the matter was remitted for hearing by another judge of Division 2 (Cosio & Cosio [2022] FedCFamC1A 187). The remitter was heard by the primary judge (“the second trial”) who made final orders on 29 February 2024 disposing of the parties’ property applications (“the substantive property orders”) (Cosio & Cosio (No 3) [2024] FedCFamC2F 260). On 27 March 2024 the respondent filed an Application in a Proceeding (“the costs application”) seeking the appellant pay her costs of the second trial on an indemnity basis, or in the alternative, her costs in accordance with the relevant scale. On 5 April 2024, the appellant filed a Response seeking dismissal of the cost application and that the respondent pay his costs of the first trial on an indemnity basis, or alternatively for the costs to be assessed On 28 March 2024 the appellant filed a Notice of Appeal, appealing the substantive property orders arising from the second trial (“the second appeal”). On 29 April 2024 the primary judge made a consent order which adjourned the parties’ costs applications pending the outcome of the second appeal. Procedural orders were also made by consent, including an order that the costs applications be heard and determined in chambers. The second appeal was dismissed (Cosio and Cosio (No 4) [2024] FedCFamC1A 149). Thereafter, the appellant subsequently unsuccessfully applied to the High Court of Australia for special leave to appeal.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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