Whittaker & Whittaker
[2025] FedCFamC2F 955
•11 July 2025
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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These reasons determine the application for costs (“the costs application”) made by Ms Whittaker (“the Mother”) against Mr Whittaker (“the Father”). The Mother’s costs application is made following the Father discontinuing his application seeking the release of the family report prepared by Dr B (“the family report”) for use in the Magistrates’ Court of Victoria.
The Mother is seeking an order for costs incurred by her in responding to the Father’s initiating application, comprising:
(a)$4,000 (incl GST), costs incurred on an indemnity basis; or
(b)$3,409.07 costs incurred as calculated according to the scale outlined in Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules2021 (“the Rules”).
The Father opposes any order for costs.
In the substantive parenting proceedings, final orders were made by consent by her Honour Judge Howe on 16 September 2024 with respect to the ongoing parenting arrangements for X born in 2022 (“X”). At the time, all extant applications were dismissed.
On 20 February 2025 (noting it was sealed on 24 February 2025), following the finalisation of the substantive proceedings, the Father filed an initiating application (“the Father’s application”) seeking permission to disseminate parts of the family report for the purpose of intervention order proceedings (“IVO”) before the Magistrates’ Court. The IVO proceedings involved the maternal grandfather as the respondent, with the Father and X as the affected family members.
In early 2025, the parties attended the Magistrates’ Court where the Father formed the view, based upon commentary from the sitting magistrate, that his IVO application was unlikely to proceed. He made the decision to withdraw his application after considering the views of the magistrate.
On 13 May 2025, the Father’s application in this court was listed and heard by Judicial Registrar Dixon (“JR Dixon”). It was noted in those orders that the Father’s application was to be listed for interim defended hearing. The orders stated:
A. The issues for determination at the Interim Defended Hearing are:
1.Release from the Harman Undertaking as sought by the Applicant Father in his Initiating Application filed 20 February 2025.
The Father’s application was listed for an interim defended hearing before me on 23 May 2025 at the Dandenong registry.
On 16 May 2025, the Father filed a notice of discontinuance of his initiating application.
On 20 May 2025, without the need for the parties to attend court, a final order was made in chambers granting leave for the Father to discontinue his application filed 20 February 2025 pursuant to rule 10.02 of the Rules and removing the proceedings from the list of pending cases.
An order was made that in the event of any application for costs being made, this would be addressed by way of short written submissions to be filed in accordance with the timeline provided and then considered in chambers.
The Mother provided written submissions in support of her application for costs on 3 June 2025 and the Father provide his written submissions seeking a dismissal of the Mother’s cost application shortly after.
EVIDENCE
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
The Mother and Father relied upon their respective written submissions emailed to my chambers.
LEGAL PRINCIPLES
As this costs application is made in relation to an application that was filed and determined prior to the commencement of Family Law Act Amendments Act 2024 (on 10 June 2025), the legislation as contained within s117 of the Family Law Act1975 (Cth) is applicable.
In accordance with s117 (1) of the Act, the ordinary rule is that each party to the proceedings bears their own costs. However, a cost order may be made if justifying circumstances exist.
If costs are to be ordered, s 117(2A) of the Act sets out a number of factors that should be considered, as follows:
Costs
…
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
Whilst consideration of the factors under subsection (2A) are each mandatory, the weight to be accorded to any of the considerations is wholly discretionary and hence the Court has a wide discretion when considering any application for costs.
The Rules also provide assistance when considering the making of an order for costs. In particular, rule 12.17(1) provides the method for the calculation of costs:
12.17 Method of calculation of costs
(1) The court may order that a party is entitled to costs:
(a) of a specific amount; or
(b)as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.
In addition, rule 12.17(3) sets out the matters that may be considered in the calculation of costs:
(3)In making an order under subrule (1), the court may consider the following:
(a) the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c)the rates ordinarily payable to lawyers in comparable proceedings;
(d)whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate;
(e)the time properly spent on the proceeding, or in complying with pre-action procedures;
(f)whether expenses (paid or payable) are fair, reasonable and proportionate.
CONSIDERATIONS
Court events and material filed.
In response to the Father’s application, the Mother filed the following documents:
(a)Response to final orders filed 6 May 2025; and
(b)Affidavit filed 6 May 2025.
The parties were required to attend at the directions hearing of the Father’s application on 13 May 2025 before JR Dixon.
The Mother filed a costs notice in accordance with rule 12.06 of the Rules prior that hearing. This notice indicated that whilst the Mother had not incurred legal costs as at the date of the hearing, the Mother had $2,420 of legal fees held as WIP (work in progress) and it was anticipated that further disbursements would be incurred.
The Father submitted that the Mother had not incurred costs at the time of filing the notice of discontinuance. This is not reflected in the costs notice or the written submission of the Mother where it acknowledges the work undertaken by her legal representatives that were yet to be billed to the Mother. The costs notice assertion of costs not incurred can only mean costs had not been billed. The same notice indicated billed ‘work in progress’ of $2,240.
I find that the Mother did incur legal costs in response to the Father’s application, including the preparation of filed documents and attendance at the hearing before JR Dixon.
The financial circumstances of the parties
The Court is required to consider the financial circumstances of the parties. The parties did not file significant information regarding their financial circumstances for the cost application.
The Mother indicated that she works on a casual basis as an educator with an income that varies between $748 to $1,068 per week. She is in receipt of government subsidies to assist her with the ongoing care and financial obligations of X. The Mother receives $43.25 per month in child support payments from the Father.
The Mother submitted that the Father is engaged in a full time employment as a tradesperson and also engaged in his own business known as C Business.
The Father indicated that he is currently not in paid employment and that he is experiencing financial hardship. The Father did not provide any further information about his circumstances.
In the absence of any detailed information, the Court remains unaware of the financial and working circumstances of the Father. Taking the Father’s submissions at their highest, the Father would contend that his impecunious position is the reason why he discontinued the proceedings and a reason why an order for costs should not be made against him.
While the Court has regard to the purported impecunious position of the Father, that is no bar to the making of a costs order if I find that there are other circumstances justifying the making of such an order. The Mother, with limited or modest financial resources, is left with a substantial legal bill that is mostly related to material filed after the early 2025 Magistrates’ Court hearing.
Whether the parties are in receipt of assistance of legal aid.
Neither party in this matter was in receipt of a grant of legal aid. The Father was self-represented throughout the Father’s application. The Mother was privately represented throughout the Father’s application.
The conduct of the parties in the proceedings generally.
The rules of the court should be considered when the court is exercising its discretion as to costs: see Northern Territory v Sangare (2019) 265 CLR 164 at [25]. Parties have a mandatory obligation pursuant to rule 1.04 of the Rules to conduct proceedings in a manner consistent with the overarching purpose of the court, being the just resolution of disputes according to law as quickly, inexpensively and efficient as possible.
The Court may have regard to the conduct of a party which in some way or other leads to an increase in costs by the other party.
In Plaza & Ricos [2025] FedCFamC1A 83 (“Plaza”), Schonell J explained at [15] that when assessing the conduct of the parties:
What is relevant is conduct of a party which in some way or other leads to an increase in costs by the other party. Such factors may include uncooperative behaviour, obstruction, prolonging litigation or the bringing of unreasonable or unmeritorious applications. It may include non-disclosure or a failure to comply with the (…) Rules (…) in relation to disclosure.
The Mother stated that the Father’s conduct in issuing his application despite the inadequacy of his evidence and then discontinuing it without notice, just one (1) week prior to the interim hearing is a relevant consideration.
The Father stated that his conduct cannot be criticised as he discontinued his application on 16 May 2025 shortly after receiving further clarification from the Court process. It is his position, that the Mother had ample notice of his intention not to proceed.
I accept that the mere filing of his application required the Mother to file material in the Court, thus incurring costs. It is also apparent that the Father sought the material within the family report for the purpose of using it in the IVO proceedings, which he indicated he realised had no prospect of success on or after early 2025.
In circumstances where the Father was not proceeding with his IVO application and that he made this determination at some point following comments heard in early 2025, it should have been apparent that his application within this Court was unmeritorious and should have been discontinued or withdrawn prior to the hearing before JR Dixon. It can be inferred that the Father did not advise the Court of his intention to discontinue as the adjournment of the matter to an interim defended hearing was for the determination of the Father’s application.
If the Father had discontinued these proceedings in a timely manner following his IVO appearance in early 2025, the Mother would not have incurred the costs associated with filing the material and attending the hearing.
As such, I am of the view that the Father’s inaction, or lateness, in filing his notice of discontinuance has caused the Mother expense in responding to an unmeritorious application.
Failure to comply with previous orders
The proceedings were not necessitated by the failure of either party to comply with previous orders of the court.
Whether any party has been wholly unsuccessful
It is submitted on behalf of the Mother that I should accept the Father has, in effect, been wholly unsuccessful given that he discontinued his application.
However, the Full Court has recognised that the cessation of a proceeding arising from filing a Notice of Discontinuance does not in itself automatically produce a conclusion that the proceeding was “wholly unsuccessful”. Section 117(2A)(e) contemplates an application being heard and determined on its merits, and the absence of success which might then be revealed should thereafter be considered and assessed (Bant & Clayton (Costs) [2016] FamCAFC 35 at [22]).
Where an application has been discontinued, the Court should not be drawn into a hypothetical argument as to whether the application would ultimately have been successful or otherwise. However, when determining a costs application, the likely prospects of success or otherwise of the substantive application may be apparent in certain matters (Caffyn & Caffyn [2018] FamCAFC 259 (“Caffyn”) at [11] and the cases cited therein). There may be circumstances in which the Court may have some confidence that “one party was almost certain to have succeeded if the matter had been fully tried” (McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625, as cited in Caffyn).
The Father did not make submissions about this issue.
The matters listed within the Father’s application and the evidence relied upon by him in support of his application had not been tested or assessed. Effectively, the testing of such an application did not occur because of the Father’s filing of his notice of discontinuance. In these circumstances, I am not able to determine whether the provision of the family report reached the threshold of exceptional circumstances, nor conversely satisfied that the report would or would not contribute to the administration of justice in the Father’s IVO proceedings.
The fact of the discontinuance, however, remains a relevant matter as it has meant that the Mother has incurred costs about proceedings commenced by the Father, which have ultimately not proceeded.
Relevant offers
The Court was not advised of any relevant offers between the parties. The Father indicated that the Mother was provided with ample knowledge of his intent to discontinue proceedings, however, the Court was not furnished with such evidence.
EVALUATION
The exercise of ordering costs against a party is what has been described as a wide discretion, taking into account relevant matters. In this case, those described in section 117(2)(A) (as it previously was).
I am satisfied that the Mother incurred legal costs because of the Father’s application. She incurred costs of preparation of filed documents and then costs associated with the appearance at the hearing before JR Dixon, effectively thrown away as the Father discontinued the proceedings.
I am satisfied that the costs of the Mother could have been avoided had the Father discontinued these proceedings in a timely manner following his decision to withdraw the IVO proceedings on or about early 2025.
Balancing all the factors with the submission by the Father that he is impecunious, I find that the conduct of the Father justifies a costs order in favour of the Mother.
The Mother seeks her costs on an indemnity basis of $4,000 (incl GST) or in the alternative $3,409.07 in accordance with scale of costs.
Indemnity costs
The Mother submitted that exceptional circumstances exist that warrant an order for indemnity costs. However, the mere filing of an application that is ultimately unsuccessful is and of itself not sufficient to demonstrate an ulterior motive.
The authorities make it clear that an order for costs on an indemnity basis ought not be made lightly and is generally considered a departure from the usual course, see Colgate-Palmolive Company & Anor v Cusson Pty Ltd (1993) 46 FCR 225 (‘Colgate-Palmolive Company’) observed by Sheppard J at 233.
In Colgate-Palmolive Company, Sheppard J provided some examples of circumstances that might justify the awarding of indemnity costs, and Holden CJ in Munday & Bowman (1997) FLC 92-784, at 84,660 (‘Munday & Bowman’), drew from his Honour’s decision these examples:
(a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts…
(b) Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud…
(c) Evidence of particular misconduct causing loss of time to the court and to other parties…
(d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions…
(e) An imprudent refusal of an offer to compromise.
(Citations omitted)
The categories of circumstances which enliven the discretion to award indemnity costs are not closed: see e.g. Yunghanns & Yunghanns (2000) FLC 93-029. However, the case law makes it clear that making an order for indemnity costs represents a very significant departure from the usual standard and should only be made where there are circumstances justifying that the “departure should be of an exceptional kind”, as observed by their Honours in the Full Court in Kohan & Kohan (1993) FLC 92-340 at 79,614.
I acknowledge the Father was ultimately unsuccessful. But I am not satisfied that his filing and then discontinuing of his application was borne out of any misconceived idea that it was inappropriate to request the release of the family report. It is not uncommon for parties to seek the release of documents prepared or filed within this Court for use in either criminal proceedings or IVO proceedings within the state jurisdiction. It was clear that the Father was seeking to use the report for a bona fide purpose and his application was based on the knowledge that he would be unable to refer to the relevant passages without leave of this Court. I also take into account that the Father did withdraw his application, which saved the Mother further costs of a future hearing.
There were no submissions from the Mother that persuaded me that such costs were justified. I am ultimately not satisfied that there are exceptional circumstances that warrant an order for costs on an indemnity basis.
QUANTIFICATION OF COSTS
Quantum of costs
If indemnity costs are not ordered, the Mother in her response sought an order that the Father pay her costs in accordance with the scale provided for in the family law Rules.
Rule 12.17 of the Rules sets out the methods for calculating costs. That includes that I am able to fix an amount for costs. This enables the parties to avoid the expense, delay and inconvenience involved in taxation; Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51] approved by the Full Court in Vang & Chung [2024] FedCFamC1A 25.
Rule 12.17 of the Division 2 Rules states that the Court may order costs:
(a)of a specific sum;
(b)as assessed on a particular basis;
(c)to be calculated in accordance with a method determined by the court; or
(d)as assessed in accordance with Schedule 3 of the Rules. In circumstances where this schedule is applicable to proceedings in Division 1 of the court, this court may apply the scale of costs at Schedule 3 or the scale of costs at Schedule 1 of the Division 2 Rules.
Consistent with the broad discretion available to me to make an award of costs, is the understanding that an award of costs is compensatory. Costs are not designed simply as a punishment for arguing a case which is ultimately unsuccessful and where litigation normally does encompass uncertainty as to the ultimate result.
The Father did act to prevent the matter moving beyond a directions hearing. Such action contained the Mother’s legal fees.
I am satisfied that it is appropriate to order costs in accordance with Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021. I have regard to the following items contained therein:
Item 1: Initiating or opposing an application up to the completion of the first court date.
The Court was not provided with any evidence of work undertaken by the Mother’s legal representative beyond the preparation of filed documents and appearance at the hearing. As such, I do not intend to make an order in the full amount as sought by the Mother.
Due to the Father’s purported financial circumstances, I will allow a period of five (5) months before such payment is due and payable.
I order that the Father pay to the Mother the amount of $2854.75 with such money to be paid into the trust fund of the Mother’s legal representative Aston Legal Group on or before 11 November 2025.
For the above reasons, I make my orders.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 11 July 2025
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