FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Whitehead & Whitehead [2025] FedCFamC2F 1027
File number(s): NCC 2868 of 2022 Judgment of: JUDGE SUTHERS Date of judgment: 28 July 2025 Catchwords: FAMILY LAW – Costs application – where final property and parenting orders were made by consent – conduct contrary to overarching purpose – whether there were exceptional circumstances to warrant an order for indemnity costs against the respondent husband as sought by the applicant wife – where the respondent’s conduct has been poor – just to make a costs order – special costs order made against the respondent husband Legislation: Family Law Act 1975 (Cth) ss 95, 96, 105, 117 & 117C
Family Law (Fees) Regulations 2022 reg 2.08 & Schedule 1
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Chapter 12
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Schedule 1
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 17.1
Cases cited: Albert & Plowman [2022] FedCFamC1F 243
Cassidy v Murray [1995] FamCA 91; (1995) 19 Fam LR 492; (1995) FLC 92-633
Colgate-Palmolive Co. v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania v Fish)) [2005] FamCA 158
In the Marriage of Munday & Bowman [1997] FLC 92-784; (1997) 22 Fam LR 321
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; (1990) 7 ALR 45
Lawson & Glenning [2021] FedCFamC2F 118; (2021) 64 Fam LR 414
Lombardi & Rider [2021] FedCFamC2F 57; (2021) 64 Fam LR 103
Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157
Penfold v Penfold [1980] HCA 4; (1980) 5 Fam LR 579; (1980) FLC 90-800
Division: Division 2 Family Law Number of paragraphs: 93 Date of hearing: 9 May 2025 Place: Newcastle Solicitor for the Applicant: Dakin Law Counsel for the Respondent: Mr Moutasallem Solicitor for the Respondent: Cole & Butler Solicitors ORDERS
NCC 2868 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WHITEHEAD
Applicant
AND: MR WHITEHEAD
Respondent
ORDER MADE BY:
JUDGE SUTHERS
DATE OF ORDER:
28 JULY 2025
THE COURT ORDERS THAT:
1.Pursuant to r 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the FLR’), the Court certifies that at the hearing on 9 May 2025, it was reasonable for the respondent, MR WHITEHEAD (‘the respondent’), to engage counsel to attend on their behalf.
2.By 4.00pm Monday 25 August 2025, the respondent is to pay the costs of the applicant, MS WHITEHEAD’S (‘the applicant’), fixed in the sum of $26,000 as directed in writing by the applicant.
3.If by the due date in Order 2, the respondent fails to pay all or part of the costs awarded THEN the outstanding sum (together with default interest) shall be deducted from the respondent’s share of the sale proceeds of…
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CaseChat Overview and Summary
The court was required to determine whether there were exceptional circumstances to justify an indemnity costs order against the respondent. The court noted that the respondent's conduct had been poor and that it was just to make such an order. The court emphasised that the conduct of both parties' legal representatives had also been lacking in objectivity. In light of this, the court ordered that the respondent pay a specified sum of $26,000 to the applicant as fixed costs. If the respondent failed to pay, the costs would be deducted from his share of the sale proceeds of a property at B Street, Town C. Additionally, the court directed that the applicant could provide a copy of the judgment to the solicitor or conveyancer handling the property sale to facilitate these orders.
The court dismissed all outstanding applications and noted that if the parties could not agree on the quantum of default interest in the event of non-payment, they should cooperate to arrange for a lawyer or conveyancer to calculate it, with the costs borne by the respondent. The court highlighted the importance of cooperation between the parties and their legal representatives to avoid further litigation and to ensure access to justice for all members of the community. The form of the order was subject to review and potential variation under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Orders
Orders of the court
NCC 2868 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS WHITEHEAD
Applicant
AND:
MR WHITEHEAD
Respondent
ORDER MADE BY:
JUDGE SUTHERS
DATE OF ORDER:
28 JULY 2025
THE COURT ORDERS THAT:
1. Pursuant to r 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the FLR’), the Court certifies that at the hearing on 9 May 2025, it was reasonable for the respondent, MR WHITEHEAD (‘the respondent’), to engage counsel to attend on their behalf.
2. By 4.00pm Monday 25 August 2025, the respondent is to pay the costs of the applicant, MS WHITEHEAD’S (‘the applicant’), fixed in the sum of $26,000 as directed in writing by the applicant.
3. If by the due date in Order 2, the respondent fails to pay all or part of the costs awarded THEN the outstanding sum (together with default interest) shall be deducted from the respondent’s share of the sale proceeds of B Street, Town C in the State of New South Wales (‘B Street’) and paid to the applicant as directed in writing by them before the respondent receives the balance.
4. To facilitate these Orders and better explain Notation B, the applicant is permitted to provide a copy of the Judgment to the solicitor/conveyancer appointed to conduct the sale of B Street.
THE COURT DIRECTS THAT:
5. All outstanding applications are dismissed.
THE COURT NOTES THAT:
A. Order 1.f.v.2. made 9 August 2024 specifies the percentage adjustment payable to the respondent from the nett sale proceeds of B Street.
B. If Order 3 is triggered as a result of the respondent’s default and the parties are in dispute about what the quantum of default interest looks like; to avoid further litigation between the parties at the expense of access to justice being available to other members of the community, the Court expects the parties to co-operate to arrange either-
i. the lawyer/conveyancer having conduct of the sale of B Street, or
ii. another lawyer,
to calculate the default interest component with any costs incurred in doing so being the sole responsibility of the respondent and deducted from the respondent’s share of the sale proceeds of B Street before the respondent receives the balance.
C. Calculation of default interest is specified within rr 12.19 and 10.17 of the FLR. The reason the Court has had to identify these provisions is to support the parties’ lawyers engaging co-operatively (should the need arise) because the evidence to-date would suggest that to varying degrees each of them has lost some of the objectivity expected of lawyers.
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
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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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