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…
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- Case
- [2025] FedCFamC1F 385
- Decision Date
CaseChat Overview and Summary
The court considered each of these factors in turn. Both parties were in employment, with the respondent earning significantly more than the applicant. The applicant did not receive legal aid, while the respondent had previously been granted an order under section 102NA of the Act in respect of the substantive proceedings but was not represented for the contempt application. The court found that the respondent's conduct during the contempt application was problematic, consuming substantial court time with unsuccessful objections to the applicant's evidence and filing an affidavit without leave just two days before the hearing, which led to additional costs for the applicant's legal representatives. The respondent's application for contempt, based on the applicant's failure to disclose, was ultimately misguided and unsuccessful, leading to the respondent being wholly unsuccessful in the proceedings.
The court held that the statutory discretion to order costs was broad, and no single factor under section 107(2A) was determinative. Given the respondent's significant income, the unsuccessful nature of the contempt application, and the respondent's conduct which added to the time and expense of preparation, the court ordered the respondent to pay the applicant's costs of and incidental to the contempt application in a quantum of $25,000, to be paid within thirty days of the order.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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.CONSIDERATIONThe 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