Whittaker & Whittaker - [2025] FedCFamC2F 955

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Whittaker & Whittaker [2025] FedCFamC2F 955

File number(s): DGC 3617 of 2023

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 11 July 2025

Catchwords: FAMILY LAW – Costs application – heard on the papers – where the Father discontinued his application – where the Mother sought costs – where the Mother incurred costs in preparation of response to the Father’s application – where the court is satisfied a costs order be made.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) r 1.04, r 10.02, r 12.06 & r 12.17

Cases cited:
Bant & Clayton (Costs) [2016] FamCAFC 35

Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432

Caffyn & Caffyn [2018] FamCAFC 259

Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 46 FCR 225

Kohan & Kohan (1993) FLC 92-340

Munday & Bowman (1997) FLC 92-784

Northern Territory v Sangare (2019) 265 CLR 164

Plaza & Ricos [2025] FedCFamC1A 83

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

Vang & Chung [2024] FedCFamC1A 25

Yunghanns & Yunghanns (2000) FLC 93-029

Division: Division 2 Family Law

Number of paragraphs: 71

Date of last submission/s: 2 June 2025

Date of hearing: On the papers

Place: Melbourne

The Applicant: In Person

Solicitor for the Respondent: Ms Liberatore of Aston Legal Group
ORDERS

DGC 3617 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR WHITTAKER

Applicant

AND:
MS WHITTAKER

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

11 JULY 2025

THE COURT ORDERS THAT:
1.The Father, Mr Whittaker (‘the Father’), pay to the Mother, Ms Whittaker (‘the Mother’) the amount of $2854.75 (“the payment”).
2.The payment is to be paid into the trust account of the Mother’s legal representative Aston Legal Group on or before 11 November 2025.
3.Within seven (7) days of these orders, the Mother or her legal representative are to provide to the Father via email at …@... the trust account details.
4.All outstanding applications are otherwise dismissed.
5.These proceedings are removed from the Court’s pending cases list

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Whittaker & Whittaker

Details

AGLC: Whittaker & Whittaker [2025] FedCFamC2F 955
Case: [2025] FedCFamC2F 955
Decision Date: 11 July 2025

CaseChat Overview and Summary

The matter before the court was a costs application by Ms Whittaker against Mr Whittaker. The dispute arose from proceedings initiated by Mr Whittaker, who subsequently discontinued his application. Ms Whittaker sought reimbursement of costs she had incurred in preparing a response to the Father's application. The court was required to determine whether Ms Whittaker was entitled to recover her costs from Mr Whittaker and, if so, the amount to be paid.

The court considered the statutory provisions under Part XIVB of the Family Law Act 1975, which permit the recovery of costs in family law matters. The court examined the circumstances under which costs may be awarded, focusing on the necessity for Ms Whittaker to incur costs in response to Mr Whittaker's now-discontinued application. The court found that Ms Whittaker's costs were reasonable and necessary given the circumstances of the case, and thus, she was entitled to recover these costs from Mr Whittaker.

The court ordered that Mr Whittaker pay Ms Whittaker $2854.75. This payment was to be made into the trust account of Ms Whittaker's legal representative, Aston Legal Group, by a specified date. The court also mandated that Ms Whittaker or her legal representative provide the necessary trust account details to Mr Whittaker within a set timeframe. The court dismissed all other outstanding applications and removed the proceedings from its pending cases list.

Orders

Orders of the court

DGC 3617 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR WHITTAKER

Applicant

AND:

MS WHITTAKER

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

11 JULY 2025

THE COURT ORDERS THAT:

1. The Father, Mr Whittaker (‘the Father’), pay to the Mother, Ms Whittaker (‘the Mother’) the amount of $2854.75 (“the payment”).

2. The payment is to be paid into the trust account of the Mother’s legal representative Aston Legal Group on or before 11 November 2025.

3. Within seven (7) days of these orders, the Mother or her legal representative are to provide to the Father via email at …@... the trust account details.

4. All outstanding applications are otherwise dismissed.

5. These proceedings are removed from the Court’s pending cases list

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

Full text does not contain this section.

File number(s):	DGC 3617 of 2023
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	11 July 2025
Catchwords:	FAMILY LAW – Costs application – heard on the papers – where the Father discontinued his application – where the Mother sought costs – where the Mother incurred costs in preparation of response to the Father’s application – where the court is satisfied a costs order be made.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act1975 (Cth) s 117 Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) r 1.04, r 10.02, r 12.06 & r 12.17
Cases cited:	Bant & Clayton (Costs) [2016] FamCAFC 35 Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 Caffyn & Caffyn [2018] FamCAFC 259 Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 46 FCR 225 Kohan & Kohan (1993) FLC 92-340 Munday & Bowman (1997) FLC 92-784 Northern Territory v Sangare (2019) 265 CLR 164 Plaza & Ricos [2025] FedCFamC1A 83 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Vang & Chung [2024] FedCFamC1A 25 Yunghanns & Yunghanns (2000) FLC 93-029
Division:	Division 2 Family Law
Number of paragraphs:	71
Date of last submission/s:	2 June 2025
Date of hearing:	On the papers
Place:	Melbourne
The Applicant:	In Person
Solicitor for the Respondent:	Ms Liberatore of Aston Legal Group

DGC 3617 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR WHITTAKER Applicant
AND:	MS WHITTAKER Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	11 JULY 2025