AMS v AIF

Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33

House v The King (1936) 55 CLR 499; [1936] HCA 40

Mega and Betrys [2025] FCWA 136

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Warbrick & Warbrick (No 2) (2021) FLC 94-030; [2021] FamCAFC 101

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

1. The Notice of Appeal filed 24 June 2025 is dismissed.
2. The appellant pay the respondent's costs fixed in the sum of $5,000, such sum to be paid within 60 days of the date 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 the pseudonym Betrys & Mega has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By Notice of Appeal filed 24 June 2025, the appellant sought to appeal orders made by a judge of the Family Court of Western Australia dismissing the appellant's application for indemnity costs. On 11 June 2025, the primary judge delivered reasons recorded as Mega and Betrys [2025] FCWA 136 ("the primary judge's reasons").
2. There are 16 grounds of appeal, each ground variously asserting a mixture of discretionary legal and/or factual error. The sheer number of grounds may, contrary to the appellant's contentions, demonstrate that none have merit (Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85; Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317).
3. The appeal is from a discretionary determination pursuant to s 117 of the Family Law Act 1975 (Cth) ("the Act") as it then was. With the exception of those grounds asserting a denial of procedural fairness, to succeed the appellant must bring his appeal within the categories of error identified in House v The King (1936) 55 CLR 499 at 505. The observations of Brennan J in Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 540 resonate as words of caution in appeals from such a determination, where his Honour observed:

The "generous ambit within which reasonable disagreement is possible" is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.

1. In the context of an application for costs pursuant to s 117 of the Act (which for present purposes is identical to that now found in s 114UB of the Act) it is apposite to observe the settled jurisprudence is as follows:

(1) Section 117 of the Act, now s 114UB(1), provides that each party to the proceedings should bear their own costs.

(2) Section 117(2) of the Act reposed in the Court a discretion to make a costs order. In Penfold v Penfold (1980) 144 CLR 311 at 315, the plurality in the High Court observed that in making an order under s 117(2) of the Act, the Court needed to make a finding of "justifying circumstances" as a preliminary prerequisite to the making of an order. Their Honours observed that a term such as "a clear case" is not necessarily a determiner of whether an order for costs should be made. All that was required or necessary is that there are justifying circumstances.

(3) No one factor in s 117(2A) of the Act is determinative, and the Court may give such weight as it considers relevant to any factor and there is nothing to prevent any one factor being the sole foundation for an order for costs (Fitzgerald v Fish [2005] FamCA 158; (2005) 33 Fam LR 123 at 130).

1. On 27 November 2024, the Court made orders and delivered reasons in proceedings pursuant to Pt VII of the Act in relation to the parties' one child. The focus of the hearing was whether the child should live with the appellant in Town B or the respondent in Town C, where she had lived since early 2021.
2. The final orders provided for the parties to share parental responsibility, for the child to live with the respondent in Town C, and for the child to spend time with the appellant during school holidays in Town B.
3. On 18 December 2020, the parties reached an agreement which was embodied in a draft Consent Order and provided, amongst other orders, for the child to live with the respondent in Town C ("the 2020 agreement"). The order was never made and some two days later on 20 December 2020, the respondent withdrew from the 2020 agreement.
4. Notwithstanding such prior agreement, the hearing was conducted on the basis that the child would live either with the respondent in Town C or the appellant in Town B.
5. Following the making of the final orders, the appellant sought an order for his costs on an indemnity basis for a defined period between 18 December 2020 (being the date of the 2020 agreement) to 7 March 2023 (being the date upon which his legal representatives ceased to act for him).
6. The primary judge addressed the relevant considerations under s 117 of the Act including having regard to the financial circumstances of each party, observed that neither party was in receipt of a grant of legal aid, recorded the various arguments advanced by the appellant in relation to what was contended to be the respondent's conduct including what it was that gave rise to a recusal application, the 2020 agreement from which the respondent withdrew, accepted the respondent's position that the final orders represented a more favourable outcome to her than that embodied in the 2020 agreement and that neither party had sought to narrow the issues at hearing and concluded by finding:
   1. Given the degree of detail in the agreement made on 18 December 2020, and given the [respondent] withdrew from the agreement on 20 December 2020, the Court considers as a highly material consideration her failure to present an alternative proposal for the [appellant]'s consideration.
   2. However, the Court is satisfied that the [respondent] achieved a better outcome at trial. The Court is not satisfied that the circumstances render it just to make a costs order against the [respondent] in favour of the [appellant]. The Court forms this view after taking into account and weighing all of the above considerations.

1. A number of the grounds contend a denial of procedural fairness. Consistent with authority such grounds will be dealt with first (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]).

**Ground 1: Procedural Unfairness: Improper acceptance of late Notice to Dispute Facts.

Ground 2: Procedural Unfairness: Refusal of adjournment.

Ground 11: Procedural Unfairness and mischaracterisation of the costs application under s 117(2A)(g)**

1. Grounds 1, 2 and 11 as framed in the Notice of Appeal assert a denial of procedural fairness. Whilst so framed, the appellant's Summary of Argument expanded each ground to contend discretionary error.
2. Ground 1 contended that the appellant was denied procedural fairness in permitting the respondent to rely on a late-filed Notice Disputing Facts and that the primary judge erred in his factual finding.
3. Procedural fairness concerns itself with fairness of the process, not fairness of the result (Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180). However, procedural fairness is not a one-way street. The court is obliged to afford procedural fairness to all parties. The appellant was heard on his objection. He was not denied procedural fairness.
4. A Notice to Admit Facts and a Notice Disputing Facts are entirely a creature of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"). While the Rules may record a process whereby a fact can be denied, the Rules are designed to serve the interests of justice to both parties. The Full Court's observations in Dimmick & Harrison [2023] FedCFamC1A 30, albeit it in a different context, are apposite:
   1. ... [T]he Rules are a guide to sound forensic practice, not a judicial straight-jacket. They are meant to be applied flexibly to meet the ends of justice. It does not matter that the appellant did not apply for relief from compliance with the Rules. The appeal registrar could act of his own volition and was entitled to dispense with the Rules as needed ... to ensure the quick, inexpensive and efficient conduct of the proceedings (s 67(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
5. Whilst the appellant contended a prejudice occasioned by permitting the respondent to proceed upon the Notice Disputing Facts, we are not satisfied that is so. No aspect of the ruling prevented the appellant from making a submission which he clearly did. In so far as the appellant contended that the primary judge erred in his factual finding, we are not satisfied that the factual error bears the materiality urged by the appellant. There is no merit to Ground 1.
6. Ground 2 contends the refusal to grant an adjournment amounted to a denial of procedural fairness. The appellant was heard on his application, and the application was refused as the primary judge concluded that the interests of justice required that the hearing proceed. The primary judge's determination accorded with the observations of the Full Court in Chong & Kerimowa [2025] FedCFamC1A 158 where their Honours observed:
   1. Decisions on mid-trial adjournments are pre-eminently procedural decisions requiring speedy disposition. The avoidance of undue delay and the efficient use of public resources are considerations which may transcend the individual interests of a party, particularly in litigation concerning children (Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175 at [25]-[26], [91]-[103], [111]-[113] and [148]-[149]; Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390; Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 at 628-629 and 636)...
7. We are not satisfied that the appellant was denied procedural fairness. No error is exposed by the refusal of an adjournment. There is no merit to Ground 2.
8. By Ground 11, the appellant contends that the primary judge failed to afford him procedural fairness by not raising with him during the hearing that he should have adduced evidence as to the quantum of costs he sought and by so doing "unfairly characteris[ed]" the application as incomplete.
9. It is apposite to record that the appellant sought to conduct the hearing on the basis that the Court first determine whether an order should be made and at some later date determine the quantum. The appellant contended that he proceeded on that basis as that was how he interpreted the Rules. The primary judge observed:
   1. Firstly, for reasons which do not appear from the [appellant]'s material, he does not present his entire case in respect of costs in the documents he filed. In his written submissions the [appellant] refers to his application being made in two stages, the first stage seeking to establish costs liability, and if liability is established, stage two determining the quantum of costs through agreement or taxation. The [appellant] further states that the submissions and his affidavit form part of the first stage and do not attempt to quantify the costs, that is do not address stage two.
   2. The programming orders for the costs determination (made on 30 January 2025 and 7 March 2025) do not give any indication that the process will extend beyond an oral hearing. The oral hearing was only programmed by orders made on 7 March 2025 because the [appellant] availed himself of the opportunity, afforded by the orders made on 30 January 2025, to request such a hearing.
   3. Each party was required to, and has had the opportunity to, bring forward all of the evidence upon which that party relied prior to the oral hearing and this is apparent from the terms of the orders.

1. No part of the orders made by the primary judge in preparation for the costs hearing would have led the appellant to believe that the hearing was to be conducted in the manner he imagined.
2. The appellant's contention as to error is erroneous. A court is not required to provide advance notice of its determination. While a court may be required to provide an unrepresented person with guidance as to its procedures (Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072) such guidance does not extend to the provision of legal advice. To do that which the appellant submits the primary judge should have done would be procedurally unfair to the respondent.
3. The obligation fell upon the appellant to present his case in its entirety. The settled jurisprudence of the court and the Rules make plain that the court retains a wide discretion in the way in which it determines costs (see r 335(1)). It is implicit in such an application that a party who fails to adduce some evidence as to the quantum of costs and how it was calculated does so at their peril.
4. There is no merit to Ground 11.

Ground 3: Failure to compel or engage with disclosure

1. The appellant submits the primary judge erred as follows:
   1. The primary judge erred by failing to compel or meaningfully engage with the [respondent]'s lack of disclosure; the absence of disclosure was not addressed in any procedural rulings or fact-finding, thereby depriving the [appellant] of procedural fairness and preventing relevant evidence from being considered.
2. The focus of the appellant's submission was the respondent's affidavit which contained what he described as unsubstantiated assertions addressing the reasons why the respondent withdrew from the 2020 agreement and how much worse off financially she would have been under the 2020 agreement. The appellant submitted she failed to disclose documents that went to such an assertion and that the primary judge failed to address the issue of disclosure.
3. It is apposite to observe that a judge is not required to address every factual contention or every submission a party makes (Whisprun Pty Ltd v Dixon [2003] HCA 48; [2003] 200 ALR 447). However, supposing for the moment the correctness of the appellant's submission, then the respondent's failure to disclose provided the platform for the appellant to invite the primary judge to infer by its absence that the evidence would not have assisted the respondent. Consequently, there was no prejudice to the appellant. More pertinent however is the absence of any finding by the primary judge that the respondent would have been worse off. Consequently, the error if it exists is devoid of the necessary ingredient of materiality. As Kirby J observed in AMS v AIF [1999] 199 CLR 160:

150. [A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.

Ground 4: Failure to consider relevant conduct under s 117(2A)(c)

1. By Ground 4, the appellant contends the primary judge erred as follows:
   1. When determining conduct did not warrant costs, the primary judge failed to consider that the recusal application arose directly from the [respondent]'s conduct, namely the ex-parte communications from her solicitor's office to Moncrieff J Chambers.
2. The appellant's ground and submission misquote the primary judge's reasons. Contrary to how the ground was framed, the primary judge did consider the recusal application but concluded that he was not satisfied that the respondent's opposition to the recusal application constituted conduct justifying a costs order. Having given reasons as to why it was not relevant, the primary judge was not obliged to engage with the factual contentions anterior to the making of the recusal application nor could he in the absence of reasons explaining why the judge recused himself (appellant's Written Submissions filed 28 September 2025, paragraph 65).
3. There is no merit to Ground 4.

Ground 5: Misapplication of s 117(2A)(e): Wholly unsuccessful proceedings improperly dismissed as irrelevant

1. The appellant contended the primary judge erred as follows:
   1. The primary judge misapplied s 117(2A)(e) by failing to observe it as a mandatory consideration. Having found that the [respondent]'s opposition to the recusal application wholly unsuccessful, the judge was bound to weigh that fact in the exercise of the costs discretion.
2. None of the considerations pursuant to s 117(2A) of the Act are mandatory. Antithetical to that submitted by the appellant, the primary judge did weigh the recusal application in the exercise of discretion by finding that it was not a relevant consideration. Dissatisfaction with a finding does not without more establish discretionary error. There is no merit to this ground.

Ground 6: Error of Principle: Applied incorrect test under s 117(2A)(f)

1. The appellant contends that the primary judge erred as follows:
   1. The primary judge misapplied s 117(2A)(f) by treating the finding that the [respondent] obtained a more favourable outcome at trial as determinative, rather than addressing the correct question - whether it was reasonable to reject the offer at the time it was made.
2. Grounds 6 to 9 deal with asserted error in relation to s 117(2A)(f) of the Act (as it then was) and will be dealt with collectively.

Ground 7: Failure to assess the reasonableness of the [appellant]'s offer in the context of when it was made under s 117(2A)(f)

1. The appellant contends the primary judge erred as follows:
   1. This misapplication of s 117(2A)(f) amounts to an error of principle, as it treated the ultimate trial outcome as dispositive rather than addressing the statutory requirement of assessing reasonableness at the point of offer.

Ground 8: Failure to assess whether rejection of the offer was unreasonable in the context of when it was made under s 117(2A)(f)

1. The appellant contends that the primary judge erred as follows:
   1. The primary judge erred by failing to assess whether the [respondent]'s rejection of the 18 December 2020 mediated agreement was unreasonable in the context of when it occurred, as required under s 117(2A)(f), and instead improperly treated the subsequent trial outcome as determinative.

Ground 9: Failure to consider financial detriment to the [respondent] arising from final orders under s 117(2A)(f)

1. The appellant contends that the primary judge erred as follows:
   1. The primary judge erred by failing to consider material evidence and submissions relevant to s 117(2A)(f) of the Family Law Act 1975 (Cth), namely the financial detriment to the [respondent] under the final orders compared to the 2020 agreement.
2. The subsection invites the court's attention, assuming its relevance, to the fact of an offer and its terms. Contrary to that submitted by the appellant at paragraph 47 of his Summary of Argument, the primary judge did not find the fact that the outcome was more favourable as determinative. It was but one of many considerations as made clear at [31] of the primary judge's reasons. It is erroneous to contend, as the appellant does at paragraphs 46, 48, 50, 51, 52, 58 and 59 of his Summary of Argument, that the correct question is one of reasonableness or that there is a statutory requirement to consider reasonableness. There is no such statutory requirement.
3. The reasonableness of a party in refusing an offer is but one of many considerations. To describe the primary judge's conclusions at [31] as an error of principle is specious. The primary judge's assessment that the outcome to the respondent was more favourable was open and his treatment of it as a relevant consideration was entirely consistent with authority.
4. In respect of Ground 9, no aspect of s 117(2A)(f) of the Act requires or mandates as contended for by the appellant a consideration of the financial detriment to the respondent of not accepting the 2020 agreement as a matter relevant to the question of costs. In circumstances where there is no such mandate, it cannot constitute an error to not have regard to it.
5. There is no merit in Grounds 6 to 9.

Ground 10: The primary judge erred in finding that the [respondent] obtained a more favourable outcome at trial than under the consent orders dated 18 December 2020 when assessing s 117(2A)(f)

1. The primary judge compared the two positions, articulated by the parties at [19] and [20] of the primary judge's reasons. At [21] the primary judge accepted the respondent's summary as more accurate. No aspect of the appellant's submissions challenges the primary judge's finding as an error of fact. The primary judge provided reasons for rejecting the appellant's submission that the respondent's outcome was worse than what she might have obtained under the 2020 agreement and, providing reasons for so concluding based upon the difference in the two positions as to parental responsibility, school holiday time, attendance at extracurricular activities and apparent flexibility to the appellant. The outcome to the respondent of the proceedings was but one aspect of the primary judge's determination. No aspect of the appellant's submissions is demonstrative of discretionary error on the part of the primary judge.
2. There is no merit to Ground 10.

Ground 12: Error in treating the [appellant]'s litigation conduct as relevant under s 117(2A)(g)

1. The appellant contended that the primary judge erred as follows:
   1. The Court erred in treating the [appellant]'s response to the repudiated agreement as relevant adverse conduct under s 117(2A)(g), and thereby based the decision on a legally flawed characterisation of the proceedings' history.
2. The appellant's ground and submission fail to properly address the primary judge's reasons. The primary judge addressed both parties' conduct. In that respect, the primary judge observed as follows:
   1. Secondly, neither party sought to narrow the issues for determination at trial in light of the document signed on 18 December 2020. In particular, the [appellant] did not thereafter present his case on an open basis (including at trial) that the relocation was conceded. The contrary proposition was vigorously argued by the [appellant] at trial, and formally pursued since 13 August 2021, despite the [appellant] presumably considering that it was in the child's best interests for the relocation to occur, in combination with the other orders with which he agreed.
   2. Equally, the [respondent] determined to proceed to trial and made no further counter-offer after 18 December 2020, despite the principal issue of relocation being agreed between the parties. The [respondent]'s explanation is that she believed there were a number of intractable issues dealt with during the eight-hour mediation style conference on 18 December 2020 which could not be resolved prior to trial. The [respondent] specifically identifies the degree of flexibility given to the [appellant] and her concern about the possibility of ongoing litigation as a result of that flexibility.

1. Despite disrespectfully characterising the primary judge's consideration of the appellant's conduct as "legally flawed" and an application of the "wrong test" (appellant's Summary of Argument filed 21 August 2025, paragraphs 94 and 95) he cites no authority for such specious contention. The appellant was perfectly entitled having agreed to one course of action to resile from it, as was the respondent. What he could not escape was the logical conclusion properly drawn by the primary judge. The conduct of both parties in the way they conducted the hearing relative to the 2020 agreement was a highly relevant consideration particularly where one sought the other pay their costs on an indemnity basis. There is no merit to Ground 12.

Ground 13: Failure to consider post-agreement events that justified the [appellant]'s position under s 117(2A)(g)

1. The appellant contends that the primary judge erred as follows:
   1. The primary judge erred in criticising the [appellant] for not narrowing the issues at trial, by failing to consider material factual developments that occurred after the December 2020 consent orders were signed and withdrawn, which reasonably justified the [appellant]'s decision to continue contesting relocation.
2. It was a highly relevant and pertinent observation for the primary judge to record in his reasons, particularly in circumstances where the appellant sought an order for costs, that the appellant had maintained a position contrary to that submitted by him in the 2020 agreement. It only became a relevant consideration in circumstances where the appellant sought an order for costs. No aspect of the ground or the submission points to, let alone establishes, discretionary error.

Ground 14: Error in considering the [respondent]'s assertion that intractable differences were dealt with in the agreement of 18 December 2020 under s 117(2A)(g)

1. The appellant contends that the primary judge erred as follows:
   1. The Court erred in considering the [respondent]'s explanation without evaluating its credibility or testing it against the objective documentary evidence. This failure contributed to an erroneous finding that her refusal to proceed with the agreement or to make further offers was not unreasonable under s 117(2A)(f).
2. The appellant's submission is misconceived. The primary judge did not make a finding accepting the respondent's evidence of "intractable issues" nor did the primary judge make a finding that the respondent's refusal to proceed with the 2020 agreement or to make further offers was not unreasonable. Quite to the contrary, the primary judge's reasons reveal a criticism of her failure to advance an alternate proposal. There is no merit to Ground 14.

Ground 15: Error in considering the [respondent]'s assertions about flexibility as a justification for withdrawing from the signed agreement under s 117(2A)(g)

1. The appellant contended error on the part of the primary judge as follows:
   1. By failing to evaluate the credibility of the [respondent]'s retrospective justification and by treating it as reasonable under s 117(2A)(f), the judge reached a conclusion that was inconsistent with the evidentiary record. This error materially affected the assessment of whether the [respondent] had not acted unreasonably in withdrawing from the agreement and proceeding to trial, and therefore impacted the outcome on costs.
2. The ground and the submission are without merit and misstate the primary judge's reasons as explained above. The primary judge did not make any finding that the respondent's withdrawal from the 2020 agreement was reasonable. Having not made such a finding there was no error of fact and consequently the ground and submission is erroneous.

Ground 16: Failure to consider the proportionality of the litigation under s 117(2A)(g)

1. The appellant contends that the primary judge erred as follows:
   1. In failing to consider whether the pursuit of trial was proportionate to the issues in dispute and the extent of the differences in the competing outcomes, the primary judge erred in not giving proper effect to s 117(2A)(g).
2. The primary judge did consider the proportionality of the parties' respective positions, made clear by the primary judge's reasons at [28] and [29] where the primary judge observed that neither party sought to moderate their respective positions. There is no merit to Ground 16.

1. For the above reasons, the appellant's Notice of Appeal will be dismissed.

1. The respondent sought an order that the appellant pay her costs in the sum of $8,703.55. The appellant opposed an order for costs. In circumstances where the appeal was without merit and will be dismissed, we are satisfied it is appropriate to make a costs order.
2. The court has the power to fix a sum for costs to avoid delay, aggravation and further costs (Graham & Squibb [2019] FamCAFC 33; (2019) FLC 93-892). There is sufficient evidence before us to fix costs in a set sum. To do otherwise, given the high degree of conflict and the inability of these parties to agree, would be to condemn them to further disputation and costs. We propose to adopt the approach taken in Warbrick & Warbrick (No 2) (2021) FLC 94-030 at [13] where the Full Court observed that it did "not intend to permit the costs question to become in effect satellite litigation" and will fix the amount of costs. Having regard to the Itemised Costs Account filed on behalf of the respondent, we are satisfied that the circumstances justify an order in the sum of $5,000.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Campton, Christie & Schonell.