Stubbs & Stubbs (No 2)
[2025] FedCFamC1F 385
•12 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stubbs & Stubbs (No 2) [2025] FedCFamC1F 385
File number: MLC 7164 of 2023 Judgment of: MCGUIRE J Date of judgment: 12 June 2025 Catchwords: FAMILY LAW - COSTS – Where the husband filed an application for contempt – where the applicant was wholly unsuccessful on consideration of costs on an indemnity basis – costs awarded on judicial discretion pursuant to Rule 12.17 on a specific amount Legislation: Family Law Act 1975 (Cth) ss 112AP, 102NA and 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.08
Cases cited: Colgate-Palmolive v Cussons Pty Ltd (1992) 46 FCR 225 Division: Division 1 First Instance Number of paragraphs: 37 Date of last submission: 28 May 2025 Date of hearing: 28 May 2025 Place: Submissions on papers: delivered Melbourne Counsel for the Applicant: Mr Schmidt Solicitor for the Applicant: Lander & Rogers Solicitor for the Respondent: In person ORDERS
MLC 7164 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS STUBBS
Applicant
AND: MR STUBBS
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
12 JUNE 2025
THE COURT ORDERS THAT:
1.That the husband pay the wife’s costs of and incidental to the husband's Contempt Application filed 25 November 2024 and dismissed by Order of 25 February 2025 in a quantum of $25,000 such to be paid within thirty (30) days of the date of this of these orders.
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 Stubbs & Stubbs has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J:
APPLICATION
There are substantive property and parenting matters between the parties.
On 25 November 2020 the husband brought an application that the wife be dealt with for contempt pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”). The application raised sixteen separate accounts of alleged contempt.
Where the husband's application was ultimately dismissed by an Order of 25 November 2024, the wife in an Application in a Proceeding filed 27 March 2025 seeks costs in the following alternatives:
(i)within 30 days from the date of these Orders, the husband pay the wife's costs of and incidental to the proceedings, including disbursements, with respect to the husband's application–contempt filed 25 November 2024 (the proceedings) on an indemnity basis, in the amount of $44,967.20 (inclusive of GST);
(ii)that in the alternative to order (i), within 30 days of the date of these Orders, the husband by the wife's (sic) of and incidental to the proceedings, including disbursements, pursuant to the scale of costs set out in Schedule 3 to the Federal Circuit and family Court of Australia (Family Law) Rules 2021, in the amount of $59,904.24 (inclusive of GST); and
(iii)that in the alternative to order (i) and (ii), within 30 days from the date of these orders, the husband pay the wife's costs in such other amount as this Honourable Court deems appropriate.
The husband opposes the application but in his written submission seeks an order for costs against the wife, such to be thrown away, should the wife be unsuccessful in this costs application.
Each of the parties was required to file written submissions in respect of the costs application. They did so. The husband unnecessarily also filed an affidavit and financial statement.
The wife is represented by solicitors and was so represented, including by Counsel, at the contempt hearing.
The husband appears to have the advantage of a lawyer appointed in the substantive proceedings by way of s 102NA of the Act. He represented himself on his contempt application.
THE CONTEMPT APPLICATION
The husband's application proceeded over two days being 5 and 6 February 2025. Copious material was filed and relied upon. Whilst sixteen separate counts of alleged contempt were set out in the application, following lengthy argument as to objections taken by Counsel for the wife, the husband prosecuted only twelve of the original sixteen counts. The matter was ultimately finalised by way of successful no case submissions argued by Counsel for the wife in respect of the remaining counts prosecuted.
RELEVANT LAW - COSTS
Matters of costs are provided for at s 117 of the Act where s 117(1) provides a general principle that each party to proceedings in this jurisdiction shall bear his or her own costs.
That general principle is subject, however, at s 117(2) to a discretion being enlivened in the court to make an award for costs if there be justifying circumstances. It is well-established that the term 'justifying circumstances' is not to be read as synonymous with 'extraordinary circumstances'. In determining whether there are justifying circumstances and whether there be an award for costs the court is mandated to reference and consider the factors set out at s 107(2A).
Within the above statutory contexts, the discretion for the court in deciding whether there are circumstances justifying a costs order is a broad one and where no single factor under s 107(2A) is determinative or prevails over any other factor.
CONSIDERATION
The financial circumstances of each of the parties to the proceedings
Each of the parties is in employment, with the husband's income being at least $150,000 per annum. The most recent evidence as to the wife's income at $106,000 per year but where she says commitments to the children have further reduced her work capacity and hence her income.
Where impecuniosity is not a bar to a costs order and where each of the parties has income potential, I am generally satisfied that the husband has the capacity to meet the orders sought by the wife.
Whether either party is in receipt of assistance by way of Legal Aid
The wife does not receive legal aid. The husband has the advantage of an order under s 102NA of the Act in respect of the substantive proceedings but was not represented on his contempt application.
The conduct of the parties in the proceedings in relation to the proceedings
The husband complains that the basis of his contempt application rested with failure to disclose by the wife and indeed that she made some limited admissions as to non-disclosure or late disclosure. Nevertheless, the costs application before me relates specifically to the husband's contempt application and my reasons on that application show that prosecuting an application for contempt against the wife was misguided even where arguing issues of disclosure.
The wife argues that the husband sought to rely on affidavit material replete with inadmissible or objectionable content. It is true that significant time at the hearing was dedicated to dealing with the objections to the husband's affidavit where such argument by Counsel for the wife was substantially successful. I accept the submission of Counsel for the wife that 'more than half of the court time dedicated to the contempt hearing was consumed by objections to the husband's evidence’ …
Secondly, the wife argues that the husband attempted to rely on a further and late filed affidavit being filed without leave and just two days prior to the hearing causing the wife's legal representatives to incur further costs in considering that affidavit which ultimately was not read given that the husband was denied leave to rely upon on it.
I generally accept the submission of Counsel for the wife that the husband's conduct of the proceedings therefore added to the time and expense of preparation often unnecessarily so. I accept that the husband was self- represented in these proceedings but, in my view, this does not give him any special status such to mitigate this consideration under s 117(2A) and I therefore place some weight on this factor.
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous court orders
The husband argues that the proceedings were necessitated by the wife's failure to make disclosure. Relevantly, however, his course of pursuit of this argument was ultimately misguided and unsuccessful.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The husband was the applicant in this application. He chose to pursue his remedy through s 112AP – Contempt Proceedings. His application was ultimately wholly unsuccessful. Consequently, weight is attributed to this factor.
Whether either party to the proceedings has made an offer in writing to the other party
The wife's unchallenged submissions disclose correspondence to the husband on 23 January 2025 alerting him to the difficulties in his application and inviting him to withdraw the contempt application. The invitation was not taken up. The letter put the husband on notice that the wife would be seeking indemnity costs should he prosecute the application and be unsuccessful.
Any other relevant matter
It may be that the husband has lodged an appeal against the dismissal of his contempt application. I am not apprised of the currency of that appeal. In any event, I do not consider it relevant to the discrete costs application now before me.
On consideration of the matter generally and the factors under s 117(2A) I am persuaded that there are justifying circumstances such that the wife should have her costs of and incidental to the application. I place some considerable weight on the fact that the application was wholly unsuccessful and further that the reasons supporting the dismissal of the husband's contempt application show it to be misguided. Again, I am mindful of the fact that the husband was unrepresented but he prosecuted the application in the face of the letter from the wife's solicitors of 23 January 2025 alerting him to the likely lack of success. I also place weight on the conduct of the proceedings which were substantially lengthened by reason of the inadmissibility of much of the husband's affidavit material together with the application itself which ultimately suffered against the no-case submissions of counsel for the wife.
As is usual in such matters, but always taking into account the factors at subsection 2(2A), the rhetorical question is why the wife should be encumbered with substantial legal costs following an application which was ultimately wholly unsuccessful?
I am satisfied, therefore, that there are justifying circumstances and that there will be an order for costs in favour of the wife.
INDEMNITY COSTS
The wife details and argues her costs on two bases being firstly for indemnity costs, and alternatively, costs at scale. Most unusually the wife's scale costs which I assume to be drawn and calculated on the solicitor/client basis, substantially outweigh her costs claimed on an indemnity basis. The wife’s Counsel explains, and I accept, that this odd occurrence comes about by reason of the copious material filed by the husband and his argument as to every point of admissibility which, also unusually, incurred two days of court time for the hearing. Rule 12.08(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides:
(1)the legal costs incurred in a proceeding must be:
(a)fairly, reasonably and proportionately incurred; and
(b)fair, reasonable and proportionate in amounts;
in the circumstances of the proceedings.
Rule 12.13(4) provides that a party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement or costs agreements in relation to those costs and, if so, the terms of the costs agreement or the cost agreements.
The wife's submissions disclose a costs agreement between the wife and her solicitors and a copy of that agreement is annexed to the solicitor's affidavit.
The wife's material shows that costs incurred of and incidental to the contempt application and pursuant to the costs agreement amount to $44,967.20. Again, and oddly, her costs drawn at scale, presumably solicitor/client, amount to $59,904.24.
The Rules provide otherwise, and left in the alternative by the wife's submissions, for the court pursuant to Rule 12.17 to make a costs order in favour of a party of a specific amount such to be calculated as reasonable by the court itself.
An order for costs on an indemnity basis would usually require some special or unusual feature to justify the court in departing from the ordinary practice[1]. Matters such as making unfounded allegations of fraud or pursuing the prosecution of an argument in the face of proper advice being given exposing no reasonable prospects of success or, thirdly, an imprudent rejection of an offer of settlement or compromise.
[1] Colgate-Palmolive v Cussons Pty Ltd [1993] 46 FCR 225 per Sheppard J
In this matter, not only was the husband wholly unsuccessful, he prosecuted his case in face of a letter alerting him to this likely result and containing an offer to settle. That is, should the husband have attained proper legal advice then it is unlikely that he would have pursued his complaint by way of an application for contempt pursuant to s 112AP.
Nevertheless, where despite the husband's questionable use of s 112AP of the Act, his complaints generally reference the wife's failure to make disclosure and I accept his submission that some admissions were ultimately conceded in this respect and there is some likelihood at least that the use of the tool of a contravention application might have been more efficient and successful for the husband.
It follows, therefore, that on balance I am not ultimately persuaded the this is a matter that attracts an order for indemnity costs.
I am left with the conundrum, however, that the calculation of the wife's costs as to scale are greater than those sought on an indemnity basis and again assuming that the calculation at scale is on a solicitor/client rather than a party/party basis. In this matter, therefore, I think it proper to utilise Rule 12.17 of the Rules to make an order for a specific amount. I note that the proceedings continued unusually over two days given the discrete nature of the application. I note the inordinate amount of time spent on objections to the husband's affidavit which again were almost wholly successful. I also take into account the late filing of further affidavit material by the husband without leave of the Court and where ultimately he was not given leave to rely on that material but where the wife's legal representatives were obliged to consider and take instructions on that material in the event that leave were granted.
This is a matter where it was proper for the wife to be represented by relatively Senior Counsel and by instructing solicitors at Court. In all the circumstances, therefore, I am of the view that a costs order in a quantum of $25,000 is proper taking into account the above matters.
I will allow the husband thirty days in which to make payment.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 12 June 2025
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