Alphen & Alphen (No 2) [2025] FedCFamC1F 482 (7 July 2025)

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).

1. These reasons were delivered ex tempore and have been settled from the transcript. Grammatical errors have been corrected, citations have been added and amendments have been made to make the orally delivered reasons clearer and easier to read.
2. The application before the Court is an application brought by the mother, MS ALPHEN, for an order for costs against the father, MR ALPHEN, following contested parenting proceedings with respect to their daughter, X who was born in 2016 and is aged nine. The father opposes the mother's application for costs and seeks that each party bear their own costs.
3. The substantive proceedings culminated in judicial determination by way of a judgment delivered by the Honourable Berman J on 1 May 2025. The costs application has come before me as a consequence of his Honour's subsequent retirement.
4. The final orders made by his Honour aligned in very large part with the orders that had been sought by the mother, particularly with respect to the major issues of X's living arrangements and the allocation of parental responsibility between her parents. Those orders provided, in summary, that X continue to live with the mother, who had been her longstanding primary caregiver, and that the time she spends with the father be reduced from the pre-existing arrangement of five nights per fortnight to three. They also provided that the mother have sole parental responsibility with respect to decisions pertaining to major long-term issues. Those orders accorded with the mother's application.
5. At trial, the father sought orders providing for X to reside primarily with him and spend three nights per fortnight with the mother. He also sought sole responsibility with respect to long-term decision-making. Although not formally sought, his Honour permitted the father to put an alternative position, being a continuation of the then-existing arrangement for X to spend five nights per fortnight in his care.
6. His Honour's judgment included findings that were critical of the conduct of both parties, particularly for their respective roles in exposing their daughter to the intractable conflict between them, which his Honour found had caused her considerable harm. His Honour also made findings suggestive of a lack of insight and understanding on the part of the father with respect to X's needs and experiences.

1. The provisions of the Family Law Act 1975 (Cth) ('the Act') relating to costs were amended from 10 June 2025 by the Family Law Amendment Act 2024 (Cth). The applicable transitional provision provides that the legislation as amended applies to 'proceedings instituted before, and not finally determined before, the day this Division commences, other than proceedings in respect of which a final hearing has commenced before that day.'[1]
2. In my view, although all extant applications were dismissed at the time of making of the final orders, the present costs application is a further application made within those earlier proceedings, rather than a new proceeding. As such, this remains, in my view, a proceeding in which the final hearing commenced prior to the commencement of the reforms, with the consequence that the costs provisions which were in existence prior to the reforms continue to apply. If I am wrong in this interpretation, my consideration of the relevant considerations and the outcome of the application will be unaffected because the applicable provisions are identical in all material respects.
3. The general rule pursuant to subsection 117(1) of the Act is that each party to proceedings under the Act must bear that party's own costs. Subsection 117(2) provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may depart from that general rule. Considerations relevant to departure from that general rule are set out at subsection 117(2A). Those relevant to this matter are as follows:

The financial circumstances of each party to the proceedings

1. The father's evidence is that he is self-employed in management of a business through which he employs the parties' adult son. He is required by final property orders made on 16 November 2021 to pay a fully franked dividend of $16,000 and a franking credit of $6,068.96 to the mother annually for 12 and a half years from that date. He has mortgage liabilities totalling approximately $744,000 relating to his home and holiday house. It appears to be an agreed fact that the father was the primary breadwinner during the parties' relationship.
2. The mother has given no evidence of her financial circumstances for the purposes of this application. The father's evidence is that she is employed in a service industry, that she sold the former matrimonial home, which she had retained as part of the parties' property settlement, for $1.4 million in 2022, and that she owns her current home.
3. Both parties were able to, and did, expend considerable funds on legal costs and disbursements during the parenting proceedings.

The conduct of the parties to the proceedings in relation to the proceedings

1. I note that the relevant conduct in this regard is each party's conduct as a litigant.[2] In this regard, the father points to the late filing and service of the mother's trial material the business day prior to the trial, which he says impacted upon his ability to give proper consideration to his position in light of her material prior to the commencement of the trial and left him with limited time within which to finalise his trial preparation.
2. Failure to comply with binding Court orders is unacceptable. Court orders are not merely suggestions and timetabling orders are made for very important reasons which include, but are not limited to, fairness. This conduct on behalf of the mother is relevant to her application for costs.
3. It was submitted on behalf of the mother that she had focused her time and effort on trying to resolve the proceedings. While resolution is a worthwhile objective and efforts to resolve contested litigation are to be encourage, a litigant's choice to focus their time and effort on something other than complying with their obligations pursuant to binding court orders does not support an award of costs in that party's favour.

Whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. The mother asserts that she has been wholly successful and that the father has been wholly unsuccessful. I do not agree. In particular, the mother sought injunctions against the father which his Honour was not satisfied were supported by the evidence before the Court, and those injunctions were not made. In addition, there were a number of orders sought by the father in relation to ancillary matters which were made.
2. However, the mother has been successful with respect to the overwhelming majority of the orders that were sought by her and the father was largely unsuccessful, and that is a matter to which I have regard pursuant to subparagraph (g) of subsection 117(2A).
3. I note that the mother's ultimately successful position was largely consistent with the recommendations of the family report of Ms O dated 24 February 2025. That the report was clear in its lack of support for the father's proposal for a change of X's living arrangements. This is relevant to the ability of the father and his legal representatives to assess the likelihood of the mother's application succeeding and was an indicator of the strength of her case.
4. However, a family report is not determinative and is just one part of the evidence before the Court, and it is trite to say that the Court is not bound to follow the recommendations of such a report.[3] It is, however, an important part of the evidence and will often be given considerable weight.[4] The father, relying on Hawkins & Roe,[5] emphasised that the reviews of report writers are but one piece of the evidence in parenting proceedings, that such decisions are highly discretionary and that it would be unreasonable to expect litigants simply to bow out of proceedings based on the recommendations of family report writers.
5. The father says there were many matters in the family report which were concerning to him and which he wished to test by cross-examination, particularly issues with respect to his allegations of lack of support by the mother of X's relationship with him. It was submitted on his behalf that he was entitled to do so, and to put to her material which had not been before her at the time of the report, including the parties' extensive trial material.
6. I accept the submission made on behalf of the father that parties in contested parenting proceedings are ordinarily entitled to challenge the recommendations of report writers and the underlying assumptions on which they have based their opinions and to put additional evidence to them. Indeed, this is one of the very purposes of a trial. As was submitted on behalf of the father, the opportunity to challenge the family report writer's evidence did not arise until the final day of the trial, by which time most of the costs in question had been incurred.
7. It is also relevant that an earlier family report had included recommendations that were more favourable to the father than Ms O's report. In this regard, the father again relies on Hawkins & Roe, in which the Full Court of the Family Court of Australia ('the Full Court') held that it is understandable that a party would persist with litigation armed with some positive recommendations in their favour, notwithstanding later recommendations to a different effect. The difference in the present case is that although the recommendations in the earlier report supported what ultimately became the father's alternative position, those recommendations were not aligned with, and were indeed vastly different from, his formal position before the Court, and I have regard to that fact.

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

1. In this regard, the mother relies on an offer of settlement sent by her solicitors to the father's solicitors in early 2025 which was not accepted by him. By that letter, the mother proposed to resolve the matter on the basis that she have sole decision-making responsibility with respect to major long-term issues, that X live with her, and that X spend time with the father from Friday to Monday on alternate weekends, being three nights per fortnight.
2. It is well established by authorities such as Harris & Harris[6] that an offer should be expressed with precision and in terms which are objectively capable of being clearly understood. The offer in this case was detailed, clear and precise, and I am satisfied that this requirement was satisfied. Aside from the issue of the injunctions, which I have already mentioned, the offer was in very similar terms to the orders ultimately made by his Honour. At the time the offer was made, the father had the benefit of the family report and was aware that the offer aligned with its recommendations, though I repeat the comments I have already made in this regard.
3. The mother's evidence is that, following making the offer, she incurred legal fees of $55,704.83. It is well established, particularly by the Full Court's decision in Pennisi & Pennisi,[7] that offers must be seen in the context of the case and the stage of the proceedings. It is not simply a question of assessing whether a party has 'done better' than an offer they have made. It is necessary to consider the reasonableness or otherwise of rejection of the offer.[8]
4. In parenting proceedings, the considerations to be taken into account differ from financial proceedings where the outcome of the proceedings can readily be weighed against the costs of proceeding with them.
5. I note that the offer in the current circumstances was made only two clear working days prior to the trial, which meant that the proceedings were well progressed and the issues generally defined. However, this also meant that the father had limited time to consider the offer prior to the commencement of the trial, particularly given, as his counsel submitted, that it was received at a time when there was still much left to be done.
6. The father points out that the offer was made prior to the filing of the mother's trial material, and he was not in a position to assess the offer in a meaningful way, or obtain advice without that material. This is exacerbated by the mother's trial material not having been filed on time and having been filed only the business day prior to the trial which left him limited opportunity prior to the trial to consider the offer in light of her material. I agree that this is a relevant consideration.
7. I have regard also to the fact that had the mother been compliant with the filing deadline as she should have been, her material would have been filed the day immediately following the day on which the offer was made, meaning that even its immediate acceptance could not have saved her the costs of preparation of those documents.
8. I note that the offer was in precisely the same terms as the mother's application before the Court at trial and was made only the day before the application was due to be filed. In those circumstances, in my view, it did not represent a genuine compromise from her position, but rather merely an invitation to surrender.[9] This is notwithstanding the fact that the mother's application had, up until that time, sought that X spend less time with the father than did the offer and the position ultimately pressed by her.
9. The father's failure to accept the offer takes the matter no further than his resistance to the mother's application and his failure to submit to complete capitulation.

Such other matters as the court considers relevant

1. The mother urges the Court to have regard to the fact that the father had an experienced legal team acting for him at all times. I am asked to infer, and do infer, that he had the benefit of proper legal advice.
2. The father points to additional matters, including the apparently agreed fact that the proceedings were required to be commenced by him as a result of the mother overholding X, following which the father was successful in having her time with him reinstated; the fact that he had been successful in maintaining the status quo earlier in the proceedings when the mother had sought to reduce the time spent with him; and that the maintenance of the status quo had been recommended in an earlier report. Although not formally pleaded by him, his Honour ultimately accepted the maintenance of the status quo was the father's alternative position at the trial.
3. It was submitted on behalf of the father that his opposition to the mother's position at trial, though ultimately unsuccessful, had not been without reasonable cause, frivolous, vexatious or fanciful, and was not pursued for ulterior motive. It simply did not ultimately succeed. I accept that submission and agree that it is a relevant consideration.
4. Noting that, as set out in subsection 117(1), this is not a jurisdiction in which costs automatically follow the event, the reasonableness of the father having proceeded with his opposition to the orders sought by the mother must be assessed having regard to all the circumstances that existed at the time and not merely by reference to hindsight, including hindsight as to which elements of the disputed evidence before the Court were ultimately accepted.
5. The mother submitted that the father's position that there should be a change of living arrangements was contrary to the weight of the evidence before the Court, including, in particular, the expert evidence. I accept that submission. The father's primary position was not realistically likely to succeed based on the available evidence.
6. It did not, however, follow axiomatically that the mother's position would be adopted. The father's alternative position was not so unsupported by evidence that it could be considered entirely devoid of merit, notwithstanding that it was not supported by the family report and his Honour was not ultimately persuaded that such an arrangement would be in X's best interests.
7. There is force in the submission made on behalf of the mother that it is significant that the alternative position was not formally put by the father and did not emerge until the trial was already well underway, meaning that the mother was facing only an application for a change of living arrangements which was not supported by expert evidence, and she therefore had no realistic option but to proceed with the trial. However, the evidence does not support an inference that the trial would have been avoided if the father's alternative position had been put forward earlier, or even if it had been his primary position, because the mother's only offer was in the same terms as her own position.
8. It is submitted on behalf of the father that the proceedings involved a genuine parenting dispute, with both parties promoting orders they each considered to represent the best interests of their daughter. In this regard, the father relied on paragraphs [146] and [147] of the Full Court's judgment in Hawkins & Roe, in which their Honours held as follows:[10]
   1. While in this case the judge expressed adverse findings about the conduct and attitude of the father in his reasons, it is relevant to note that there was no allegation or finding of dishonesty. Nor did his Honour make any adverse findings about the father's conduct of his case at the trial. Counsel for the mother conceded in oral submissions before us that at no point during the trial did his Honour direct the father to cease repetitive questioning, or to move his questioning more quickly, for example.
   2. Whilst the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.
9. I accept that this is an important consideration. There is no basis on the material before the Court, including his Honour's judgment, for concluding that the father's position arose from anything other than a genuine desire to protect his daughter from what he believed was emotional harm and a genuine desire to promote her best interests, notwithstanding that his Honour ultimately was not persuaded of those needs.
10. As a general proposition, parties ought not be penalised for pursuing arrangements they genuinely consider to be in the best interests of their children, in the absence of some additional features rendering such conduct unreasonable or evidence of improper conduct or motivation. In Hawkins & Roe, the Full Court held as follows:
    1. In proceedings involving children's or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.
11. It was submitted on behalf of the mother that the father had disregarded independent evidence, including the family report, and had also disregarded the mother's own evidence and that this is the circumstances that warranted an order for costs. However, this is precisely the type of approach which the Full Court warned against in Hawkins & Roe. There is a difference between disregarding evidence and not accepting it unchallenged and at face value. The father was entitled to test the evidence he disputed.
12. In addition to the considerations set out in section 117, I am required to have regard to the overarching purpose imposed by section 95 of the Act, which provides as follows:

95 Overarching purpose of the family law practice and procedure provisions

(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

(a) in a way that ensures the safety of families and children; and

(b) in relation to proceedings under this Act in which the best interests of a child are the paramount consideration--in a way that promotes the best interests of the child; and

(c) according to law; and

(d) as quickly, inexpensively and efficiently as possible.

Note: For family law practice and procedure provisions, see subsection (4).

(2) Without limiting subsection (1), the overarching purpose includes the following objectives in relation to proceedings under this Act:

(a) the just determination of all such proceedings;

(b) the efficient use of the judicial and administrative resources available for the purposes of courts exercising jurisdiction in such proceedings;

(c) the efficient disposal of the overall caseload of courts exercising jurisdiction in such proceedings;

(d) the disposal of all such proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make applicable Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4) The family law practice and procedure provisions are the following, so far as they apply in relation to proceedings under this Act:

(a) the applicable Rules of Court;

(b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia or any other court.

1. Also relevant for present purposes is section 96, which requires parties and their lawyers to act consistently with the overarching purpose.
2. I also have regard to paragraphs 1.4 and 1.5 of the Court's Central Practice Direction,[11] which provide as follows:

1.4 The Courts expect parties and their lawyers to have in mind, at all times, the cost of each step in the proceedings and whether it is necessary, and to avoid unnecessary process-driven costs and unjustified use of court resources. In everything they do, parties and lawyers are expected to approach proceedings in a manner directed towards identifying the issues in dispute and ascertaining the most efficient, including cost efficient, method of resolution or determination. This includes giving proper consideration to identifying the issues in dispute, complying with their obligation to provide full and frank disclosure in a timely manner (see section 71B or section 90RI of the Family Law Act (for financial or property matters) and Part 6.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (the Family Law Rules)), engaging in productive and resolution-focused communication with other parties, making appropriate admissions and pressing only issues of genuine significance. Ambit claims should be avoided and aggressive and unnecessarily adversarial conduct will not be tolerated. At all stages in the proceedings, parties must avoid filing evidence that is unnecessarily lengthy or only of limited relevance to the issues genuinely in dispute. Parties should limit the number of witnesses they rely on to those necessary to prove or disprove those issues truly requiring determination.

1.5 Any failure to comply with these requirements may attract costs orders against parties and/or practitioners and other consequences including, in appropriate cases, the drawing of adverse inferences, the making of a summary decree pursuant to section 102QAB of the Family Law Act, or orders providing that a matter be heard on an undefended basis.

1. The evidence before the Court does not suggest that the father failed to comply with his obligations in this regard. Indeed, it was the mother who failed to comply with the timetabling orders with respect to the filing of documents in preparation for the trial.

1. Having regard to all of these considerations, notwithstanding the father's ultimate lack of success at trial, I am not satisfied that the circumstances justify an order as to costs.

1. In the circumstance where no costs order is being made, the father sought an order for the payment of his costs with respect to the costs application itself.
2. The costs sought by the father in this regard were $11,990 on an indemnity basis or $7,644.14 in accordance with the scale set out at Schedule 3 of the applicable rules of court.
3. Again, I emphasise that costs do not follow the event in this jurisdiction and that the starting point is that each party bears that party's own costs. I repeat my summary of the relevant legislation and principles and the considerations already discussed insofar as they are relevant to this consequential application.
4. The most relevant consideration in relation to this aspect of the application is the fact that the mother was wholly unsuccessful in the costs application. However, the mother's costs application appears to have been brought in good faith, and given her considerable success in the parenting proceedings, it cannot be said that it was devoid of merit, hopeless or frivolous. Much like the father's parenting application, it simply did not ultimately succeed.
5. There is also the issue of the mother's conduct as a litigant in the late filing of her case outline, being another breach of a binding court order. Although it does not render it acceptable, counsel accepted responsibility for this on the mother's behalf.
6. The father relied on an offer made by him in mid-2025 in which he offered to pay $10,000 as costs of the parenting proceedings. I am not satisfied that it was unreasonable for the mother not to accept that offer, noting that there were considerable factors leaning both ways, with respect to the mother's costs application, to which I had regard in my primary reasons in relation to the costs of the parenting proceedings.
7. In all of these circumstances, I am not satisfied that the circumstances justify an order for costs in relation to the present application.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Parker.

[1] Family Law Amendment Act 2024 (Cth) Sch 4, Pt 1, Div 3.

[2] Brott & Joachim [2006] FamCA 256; (2006) FLC 93-259; Stephens & Stephens and Anor (Enforcement) (Costs) [2010] FamCAFC 172; Renald & Renald (Costs) [2018] FamCAFC 4; (2018) FLC 93-819.

[3] Hall & Hall [1979] FamCA 73; (1979) FLC 90-713; BBT & JMT [1979] FamCA 82; (1980) FLC 90-809; DL & W [2012] FamCAFC 5; (2012) FLC 93-496.

[4] Hall & Hall [1979] FamCA 73; (1979) FLC 90-713; Akston & Boyle [2010] FamCAFC 56; (2010) FLC 93-436; Muldoon & Carlyle [2012] FamCAFC 135; (2012) FLC 93-513.

[5] [2012] FamCAFC 77.

[6] [1991] FamCA 124; (1991) FLC 92-254. See also Johnston & Johnston [2004] FamCA 556; (2004) FLC 93-189.

[7] [1997] FamCA 39; (1997) FLC 92-774. See also See also Farmer & Panshin [2014] FamCAFC 78; (2014) FLC 93-587; Paradin & Paradin [2020] FamCAFC 245.

[8] Roydon & Roydon [2024] FedCFamC1A 105.

[9] Westbury Holdings Kiama Pty Ltd v ASIC [2007] NSWSC 1064; Leichhardt Municipal Council v Green [2004] NSWCA 341; Allard & Jokela [2025] FedCFamC1F 10.

[10] [2012] FamCAFC 77.

[11] Federal Circuit and Family Court of Australia, Central Practice Direction - Family Law Case Management.