Aon Risk Services Australia Ltd v ANU

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).

1. The wife seeks costs against the husband in relation to the long-running trial for which final judgement was delivered by me on 6 October 2023: Fowles & Fowles (No 4) [2023] FedCFamC1F 819. The wife filed her application on 3 November 2023 seeking costs pursuant to rule 12.17 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) ("the Rules"). That is, indemnity costs. She calculates costs at $2,102,141.70(+) with a sliding scale of lesser amounts down to $445,747(+) if her costs are ordered to be calculated otherwise than on an indemnity basis.
2. The hearing of the wife's costs application was delayed by other proceedings taken by the husband and judicial availability. It was finally set down for hearing on 21 July 2025 but could not proceed on 21 July 2025 because the husband had not complied with directions and had filed no material. He wanted a lawyer to be appointed for him in light of s 102NA of the Family Law Act 1975 ("the Act"). A final intervention order was then, and remains, in operation, in favour of the wife as against the husband. Therefore, as was mandatory, I made a s 102NA notation. The costs of the hearing on 21 July 2025 were applied for by the wife but I reserved that issue. Counsel did not make submissions as to costs of 21 July 2025 in the course of this hearing and I cannot make orders in respect of those reserved costs at this time.
3. My reasons for granting the adjournment, over the wife's objection, on 21 July 2025 appear in Fowles & Fowles (No 9) [2025] FedCFamC1F 491. I incorporate those reasons into these reasons. On 21 July 2025, I extended the time for the respondent husband to file material to 4 August 2025 and reserved the wife's costs thrown away that day. The adjournment of approximately 8 weeks should have allowed sufficient time for the s 102NA Victoria Legal Aid ("VLA") Commonwealth Family Violence and Cross-Examination of Parties Scheme to allocate legal representation to the husband and for the husband to file material.
4. On 19 August 2025 the respondent husband sought leave pursuant to s102QAE(1) to file a Notice of Appeal against my orders made 21 July 2025. The decision, dismissing the husband's application, was made by Austin J on 21 August 2025 in Fowles [2025] FedCFamC1A 147.
5. The hearing proceeded using the Courts' Webex Videoconferencing Software. The wife was represented by Mr GE of Counsel. The husband was represented by Mr GF of Counsel, instructed by BTT Lawyers who were funded pursuant to the s 102NA Scheme.

1. The wife's primary position is that she seeks total indemnity costs of $2,102,141.70.
2. The wife seeks that the husband pay her costs of and incidental to the property proceedings on an indemnity basis as set out in the wife's Affidavit in Support filed 28 March 2025 in the following sums:

(a) $1,828,901.70; or

(b) In the alternative, $1,600,886.94; or

(c) in the alternative, $1,496,603.59; or

(d) in the alternative, $1,021,850.49; or

(e) in the alternative, $445,747.44.

1. The basis of the sums are set out in the wife's affidavit from paragraph 13 and I record them here in table form for completeness.

Total fees billed to 2 November 2023[1], plus outstanding court hearing fees totalling $16,870, deducting:

a) $1,500 in costs paid by the respondent pursuant to orders made on 5 October 2015;

b) $5,521 in costs paid by the respondent pursuant to orders made on 12 September 2018;

c) $19,617.40 sought by way of indemnity costs in the applicant's written submissions filed 7 December 2018 (noting the husband was ordered to pay costs fixed in the amount of $10,550;

d) $51,575 sought by way of indemnity costs in the applicant's written submissions filed 9 December 2022 (noting that the husband was ordered to pay costs fixed in the amount of $40,000);

e) $74,014 sought by the respondent in his application in a proceeding dated 5 October 2022 in respect of the applicant's unsuccessful application with respect to the admissibility of documents marked for identification; and

f) $13,479.60 in fees related to IVO proceedings (prior to commencing IVO work on a pro bona basis).

Calculated by further deducting $228,014.76, being all fees and disbursements incurred after the conclusion of the final hearing on 10 September 2021.

Calculated by further deducting $104,283, being all costs prior to the parties' mediation on 18 April 2016

This amount is calculated by deducting $579,036.35, being all costs incurred prior to the commencement of the trial on 19 March 2018, from $1,600,886.94

This amount is calculated by deducting $1, 115,139.50 from $1,600,886.94, being all costs prior to the applicant's Calderbank offer to the respondent dated 2 October 2020.

(a) Unbilled Counsel fees of $273,240 incurred during the trial but not billed at time of filing the wife's affidavit on 28 March 2025;[2]

(b) Further total costs of $43,744.77 in relation to her costs of and incidental to her Application in a Proceeding filed 3 November 2023, constituted of:

(i) the sum of approximately $7,224.77 in relation to the costs of and incidental to this cost application and submissions incurred with Lander & Rogers;

(ii) the sum of $24,640 in counsel's fees (Invoice #[...] for Mr GE of Counsel) in relation to this cost application; and

(iii) estimated further costs of the hearing before Justice Bennett on 25 September 2025 in the sum of $13,420.00.

1. The wife's application for costs of this costs application is dealt with below.
2. Accordingly, at the uppermost end of the scale, the wife seeks indemnity costs of $2,102,141.70 (excluding costs of the costs application). Alternatively, the wife seeks the husband pay her costs on a party/party basis in such sum as represents 70% of the costs specified in the above table (per her written submissions filed 3 July 2025 at [6]).
3. According to her Application filed 6 November 2023, in the event that the Court is not inclined to order costs to be fixed, then the applicant wife seeks an order for costs to be assessed:

(a) on an indemnity basis;

(b) in the alternative, solicitor and client basis; or

(c) in the alternative, on a party and party basis.

1. The husband's Response was filed on 7 December 2023. In summary, the husband seeks that the wife's costs application be adjourned/stayed pending the determination of his Notice of Appeal filed 3 November 2023 (being appeal NAA305/2023). The husband's Notice of Appeal filed 3 November 2023 was against the final property orders and was finalised, with the husband being wholly unsuccessful, on 12 July 2024. The wife's cross-appeal was likewise dismissed on 12 July 2024. The husband sought leave to appeal to the High Court. Leave was refused by the High Court on 7 November 2024, with costs. There have been two further applications by the husband, being an appeal or an application in an appeal in a matter numbers NAA 379/2025 and NAA 392/2025. Both matters were finalised on 21 August 2025, with the husband being wholly unsuccessful.
2. The only affidavit material relied upon by the husband was objected to by the wife on the basis of relevance and struck out. The husband then relied on his written submissions dated 6 August 2025 and filed 17 September 2025 in which he describes the relief he seeks as:
   1. The Husband's primary position is that the Wife's application for costs should be dismissed due to significant unresolved conflicts of interest and procedural unfairness. In the alternative, should costs be awarded, they should be substantially reduced and ordered on a party/party basis (pursuant to the Family Law Scale of Costs), not an indemnity basis, and that any such orders should be stayed pending the resolution of fundamental issues concerning the conduct of the Wife's legal representatives and the funding of this litigation...
3. Under the heading "Preliminary Objections: Conflicts of Interest and Procedural Unfairness" of his written submissions the husband asserts various misconduct by the wife's solicitor firm Lander & Rogers, various employees of Lander & Rogers and members of Counsel acting on behalf of the wife. The husband's submissions in relation to costs are mere assertions. The husband does not provide evidence in support of the assertions. It is incumbent on the husband to produce evidence (as opposed to bare assertions) of mischief or detriment suffered by him or the interference with the judicial process. The husband does not do so.
4. The husband seeks the following orders under the heading "Conclusion and Orders Sought":

[23] For the reasons set out above, particularly the unresolved and significant conflicts of interest concerning the Wife's legal representatives, the Husband requests the Court to:

• Vacate or adjourn the costs hearing listed for 25 September 2025, pending the full resolution of the VLSB complaint and the conflict and disqualification application listed before Justice Hartnett on 25 September 2025, and associated issues relating to trust funds, caveat abuse, and misrepresentation.
• Dismiss the Wife's application for costs due to the alleged misconduct and conflicts of her legal representatives.
• Alternatively, reduce any award of costs that it does make to reflect reasonable party/party costs calculated on the Family Court scale, considering the issues raised regarding the quantum and transparency of the Wife's claimed expenses.
• Order Lander & Rogers to provide segregated trust accounting for the $50,000 payment previously ordered to the Wife.
• Order the release of suppressed documents subpoenaed from Plenti that are held by the Court, which the Husband believes are critical to demonstrating the nature of the litigation funding arrangement.
• Grant the Husband leave to issue subpoenas to Lander & Rogers, [Ms. FX], [Ms. FY], and [Ms. FW] for relevant information.

1. I have regard to [23] of the husband's submissions as stating the relief sought by the husband.

1. First, I deal with the husband's contentions as to why the wife's application should be adjourned from today and then why it should be adjourned permanently (in effect stayed). Then I deal with the costs dispute. For ease of reference, these reasons appear under the following headings:

THE WIFE'S APPLICATION

HUSBAND'S RESPONSE

STRUCTURE OF THESE REASONS

THE HUSBAND'S ORAL APPLICATION FOR AN ADJOURNMENT OF THE WIFE'S COSTS APPLICATION

HUSBAND'S FURTHER APPLICATION TO VACATE OR ADJOURN COSTS HEARING ON 25 SEPTEMBER 2025, DISMISS WIFE'S COSTS APPLICATION AND OTHER ORDERS SOUGHT

The husband has no evidence

Past Associates and Ms FW

Previous costs orders

THE LAW WITH RESPECT TO COSTS

Financial Circumstances (s114UB(3)(a) and whether either party has been in receipt of legal aid and the extent of that grant (s114UB(3)(b)

Conduct of the Parties to the Proceedings ((s114UB(3)(c)) including whether the proceedings were necessitated by the failure of a party to comply with previous court orders ((s114UB(3)(d))

Whether any party has been wholly unsuccessful ((s114UB(3)(e))

Whether a party had made a previous offer ((s114UB(3)(f))

Any other relevant matters ((s114UB(3)(g))

WIFE'S APPLICATION FOR COSTS IN RESPECT OF THE COSTS APPLICATION FILED 3 NOVEMBER 2023

THE HUSBAND'S ORAL APPLICATION FOR AN ADJOURNMENT OF THE WIFE'S COSTS APPLICATION

1. Counsel for the husband made an oral application for an adjournment of the hearing of the wife's costs application. The application for an adjournment was foreshadowed in the husband's submissions filed 17 September 2025, but no formal application was made until the oral application made the day of hearing, 25 September 2025.
2. The husband sought the adjournment on the grounds that his lawyer was only able to access the file two days prior to this hearing. The husband's solicitor and counsel were funded pursuant to the s 102NA scheme by Victoria Legal Aid. Counsel for the husband informed the Court that his instructor, the husband's s 102NA lawyer, had only received funding three days prior to the hearing, and filed a Notice of Address for Service on the 23rd of September 2025. Counsel for the husband informed the Court that he had been briefed only the day before and was "still trying to read all the material relevant to these proceedings which have been on foot since 2015. My instructor and I have been placed in a difficult position because of the lateness in which [the material] was provided."
3. I dismissed the husband's application for an adjournment and said that I would deliver my reasons with this decision. These are those reasons.
4. As indicated, the basis of the husband's application for adjournment was expressed to be procedural fairness. Counsel for the husband submitted that he and his instructing solicitors had insufficient time to adequately prepare the husband's case for the purpose of the hearing. However, I was not addressed in terms of what material the husband's practitioners would have generated or how the husband's case would have been differently presented if they had more time and for how long the husband sought that the application be adjourned. The funding provided by Victoria Legal Aid under the s 102NA scheme relates to facilitating cross-examination, it does not relate to drawing written submissions or preparation of evidence or other documents.
5. It is as well to look at what s 102NA actually provides. It reads as follows:

S 102NA Mandatory protections for parties in certain cases

(1) If, in proceedings under this Act:

(a) a party (the examining party) intends to cross - examine another party (the witness party ); and

(b) there is an allegation of family violence between the examining party and the witness party; and

(c) any of the following are satisfied:

(i) either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;

(ii) a family violence order (other than an interim order) applies to both parties;

(iii) an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;

(iv) the court makes an order that the requirements of subsection (2) are to apply to the cross - examination;

then the requirements of subsection (2) apply to the cross - examination.

(2) Both of the following requirements apply to the cross - examination:

(a) the examining party must not cross - examine the witness party personally;

(b) the cross - examination must be conducted by a legal practitioner acting on behalf of the examining party.

(3) The court may make an order under subparagraph (1)(c)(iv):

(a) on its own initiative; or

(b) on the application of:

(i) the witness party; or

(ii) the examining party; or

(iii) if an independent children's lawyer has been appointed for a child in relation to the proceedings--that lawyer.

1. The section is predicated on the following:
   • one party intends to cross examine another party;
   • there is an allegation of family violence as between the parties; and
   • at least one of the first three indicia in s 102NA(c) apply -

then, certain constraints in relation to cross-examination apply. The constraints on cross-examination are, first, that neither party can cross examine the other party personally and, second, that cross-examination must be conducted by a legal practitioner acting on behalf of the party who is entitled to cross examine.

1. In addition, the Court may order that the restrictions on cross examination apply as between parties in proceedings on its own initiative or on the application of one of the parties concerned or an Independent Children's Lawyer.
2. As Riethmuller J, sitting as the Full Court, observed in relation to s 102NA(2) in the matter of Bryson & Bryson [2024] FedCFamC1A 32:
   1. [...] The effect of the provision, once engaged, is to present three alternatives to a party: first, they may engage their own lawyers (as the respondent did); or secondly, they may apply for a grant of aid under the funding scheme for the purpose of having a lawyer represent them in the proceedings; or thirdly, a party may choose to forego cross-examining their spouse...
3. Accordingly, s 102NA, where it applies, imposes constraints on cross examination. It does not per se entitle a litigant to representation. Representation is provided by legal aid authorities in each state and territory as a means of preserving a right to cross examine safely subject to the litigant making application in proper form and in a timely manner.
4. On 25 September 2025 there was the following interchange, or discussion to the following effect, between the Court and Counsel for the husband:[3]

HER HONOUR: Well, your client has known for a very extensive time that he faced this cost application. He cannot expect to avoid a hearing by making sure that he retains a solicitor and barrister who arguably will say that they've had insufficient time to become familiar with the material, it's incumbent upon him as the respondent to make sure he's represented as he wants to be represented, that he puts his representees in a position of knowing what to do. That is, you don't go to a solicitor at the last minute and then say, "I can't proceed with the hearing because my solicitor has been retained at the last minute". To allow that would be to allow him as many adjournments as he has new solicitors. So, do you have any other reason basis for an adjournment?

[MR GF]: No, your Honour, this is the only ground I can provide. I seek an adjournment because these are my instructions, but I appreciate that this matter [...] has been before the Court and before your Honour for quite some time and my client has been on notice for many months of this cost application.

HER HONOUR: And is there anything that you can say to me that will persuade me that the husband is not the architect of his own misfortune because he's approached practitioners in insufficient time to be able to give them the material?

[MR GF]: I understand from my instructor that the funding was only available on the 22nd and [...] then they filed a notice on the 23rd and excess documents yesterday, that's all I'm able to say that's the only information I have. I'm not quite sure how the funding.

HER HONOUR: How many solicitors has your client [...] previously had?

[MR GF]: I'm not quite sure your Honour, I understand from reading your Honour's judgment they were quite a number of [...] and it appears that my client certainly was legally represented until March 2025 and he hasn't been since. That's my understanding.

HER HONOUR: So your client is familiar with what I say to all parties, which is, you know that you have a hearing coming up. Don't do anything that will endanger your legal representation by discharging practitioners or moving legal firms so that the new legal firm isn't going to have enough time to prepare the case adequately. At the end of the day the buck stops with the client and he or she knows that if he doesn't have lawyers who can effectively represent him or her, they may have to represent themselves. So, I would say that it's been your client's responsibility to retain counsel and solicitors in a timely manner so they can represent him and, if he fails to do that, he bears the consequences himself.

1. Counsel for the wife informed the Court that, since 24 July 2025, the husband had had two sets of lawyers appointed to act on his behalf pursuant to s 102NA. Further, that on 6 August 2025, lawyers withdrew as lawyers for the husband "on the basis of an irretrievable breakdown of the relationship with the client". This information was not contradicted by Counsel for the husband.
2. In sum, the husband had since 20 February 2025 (the first mention of the costs application) to adequately prepare his case, including the instruction of private solicitors if he so wished. As to the husband's capacity to fund private solicitors to argue the wife's costs application, in the substantive hearing for property settlement I found that the husband could access funds to pay for lawyers when he wished to do so. That decision was unsuccessfully appealed. My finding as to capacity has not been disturbed.
3. The husband's application for a s 102NA lawyer and consequent adjournment was agitated for the first time a week before the hearing on 21 July 2025, resulting in an avoidable and last-minute adjournment. The adjournment sought by the husband on this occasion (25 September 2025) is the second adjournment application of the wife's costs application in proceedings which have been utilising court resources since 2015. If I were to grant the husband's second application for adjournment, I have no confidence that the husband would not proceed to make a third application for an adjournment on the next date.
4. To say that the husband is an experienced and seasoned litigant in this Court would be an understatement. The husband has proven himself perfectly capable of drafting and serving documents. He had the benefit of a s 102NA lawyer appointed on his behalf in August 2025 but, as we heard from Counsel for the wife, that solicitor/client relationship broke down. The husband is familiar with the s 102NA Scheme. He had apparently been appointed s 102NA representation for the Contravention proceedings heard by Justice Hartnett. The purpose of a s 102NA Scheme is to balance the need to protect family violence victims from being re-traumatised by way of personal cross-examination with the need for procedural fairness for parties.[4] Before me, neither party sought to cross-examine the other party. Neither party sought to cross-examine the other party's solicitor. Indeed, no cross-examination occurred at all.
5. Late appointment of a second s 102NA lawyer does not excuse the failure of the husband to file any material in accordance with my Order made 21 July 2025 (coincidentally, the same day that the s 102NA order was made on the husband's request). As stated above, lawyers are appointed under s 102NA for the purpose of facilitating cross-examination, not to prepare documents such as affidavits and submissions where such cross-examination is not envisaged.
6. In the matter of Bryson & Bryson [2024] FedCFamC1A 32, his Honour Justice Riethmuller stated, and I agree:

[17] The underlying principle is that litigants must be provided a reasonable opportunity to be heard. The application of the general principle to the variety of circumstances that confront trial judges depends upon the particular circumstances of each case. In this case, there is no complaint that there was inadequate notice of the date of the trial. It cannot be said that a party has not been afforded procedural fairness simply because the conduct of that party leaves them at a disadvantage, such as engaging representatives on a limited basis, failing to engage representatives, or failing to take advantage of the s 102NA funding scheme in a timely manner. To allow a party to have a trial adjourned (with the inevitable emotional and financial costs to the other party) simply because they have failed to arrange their representation (or make a timely application pursuant to the s 102NA scheme) or have only limited (or no) legal assistance, would impose an unfair burden upon the other party.

1. The overarching purpose of the Court in relation to non-parenting matters is to resolve disputes according to law and as quickly, inexpensively and efficiently as possible. The wife's costs application and supporting material was filed on 3 November 2023. Some delay was a necessary consequence of the husband's entitlement to pursue an appeal. However, it has now been almost two years since the filing of the costs application. The disposition of cases without undue delay and the efficient use of public resources are considerations which apply in the determination as to whether or not a Court should grant an adjournment (Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175). A further adjournment, as is sought by the husband, is not consistent with the inexpensive and efficient disposition of the wife's costs application.
2. It is not procedurally unfair to the husband to go ahead with the costs hearing. Accordingly, the husband's oral application for an adjournment is dismissed and the hearing can proceed.

HUSBAND'S FURTHER APPLICATION TO VACATE OR ADJOURN COSTS HEARING ON 25 SEPTEMBER 2025, DISMISS WIFE'S COSTS APPLICATION AND OTHER ORDERS SOUGHT

1. The second limb to the husband's application to prevent the wife from proceeding with her costs application on 25 September 2025 appears in the husband's submission dated 6 August 2025 under the heading "Preliminary Objections: Conflicts of interest and procedural unfairness". For ease of reference, I have referred this applications as seeking a stay of the wife's costs application. The husband objects:

...to the continuation of these costs proceedings and the appearance of Lander & Rogers due to serious and unresolved conflicts of interest, institutional non-disclosure, and procedural unfairness. These issues go to the integrity of the proceedings and the Court's impartiality.

... the Respondent's objections concern institutional fairness: the appearance of bias due to the employment of former judicial associates, prior representation by Mr [GA], and what is alleged to be misuse of trust funds, all of which give rise to conflicts that affect the proceeding as a whole. It is accordingly submitted that Justice Bennett's premature refusal to hear the conflict objection was legally incorrect.[5]

1. Even if the husband's speculation about the former associates had some basis in fact (which is not accepted), the husband fails to explain how his effects the costs application.
2. On 21 July 2025, the husband made submissions to the effect that Mr [GA] had withdrawn from representing the wife's solicitors due to a conflict of interest. The husband made further submissions in support of a disclosure of documents relating to the trust account of Lander & Rogers with respect to a payment of $50,000 that he said should have been paid to the wife as a result of an order made by myself on 4 February 2020. He further sought release of documents received on subpoena issued to the wife's litigation funder and leave to issue subpoenas to the wife's solicitor and three employees of the wife's solicitor on the issue of a perceived conflict of interest. He sought this by way of an oral application for leave to make an application. It was not appropriate, and the husband did not adequately establish the relationship between any of the above grounds and the wife's costs application.
3. On 21 July 2025, I made comments as follows: Fowles & Fowles (No 9) [2025] FedCFamC1F 491

[12] Next, the husband mentioned a number of times and sought to proceed with an application seeking to restrain the wife's solicitors, Landers & Rogers, from acting for the wife. That application is not before me. It is before Hartnett J and I am unaware of whether Lander & Rogers are even a party to that application.

[13] Insofar as the husband described the conflict of interest, that is a conflict which arises, it seems to me, if it arises at all, potentially between the wife and her solicitors. It is not his business. It is not a matter which he can assert prevents or ought to prevent Lander & Rogers from acting for the wife. It is, in any event, a matter that is before Hartnett J and not before me. The only matter before me are costs and, as indicated, I have adjourned those to 25 September 2025.

1. By way of written submissions filed 17 September 2025 the husband states that:
   1. Justice Bennett's ruling on 21 July 2025, that any alleged conflict of interest involving Lander & Rogers "arises between [them] and the wife, if it arises at all" and is "essentially none of [the Respondent's] business", misstates the applicable legal test and denies the Respondent standing contrary to binding authority. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, the High Court held that a party may raise apprehended bias where "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is to decide" (at [6]). Similarly, in Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; (2001) 4 VR 501, the Victorian Court of Appeal confirmed that the integrity of proceedings may be compromised by a solicitor's conflict, even where the opposing party is not the client. In Kallinicos v Hunt [2005] NSWSC 1181 at [76], after extensively reviewing the authorities, Brereton J held that "the proper administration of justice" may require that a lawyer be restrained from acting where the appearance of impropriety arises, regardless of who raises it.
2. I record that Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; (2001) 4 VR 501 is the authority for the three basis upon which the court could restrain a lawyer from acting, expressed by Brooking JA in the lead judgment as follows:

(a) The danger of misuse of confidential information;

(b) A breach of a fiduciary duty of loyalty not to act against a client or a former client in the same matter or a closely related matter; and

(c) The inherent jurisdiction of the Court to control the conduct of solicitors as officers of the Court.

1. Ormiston JA summarised the case in Spincode as follows:

[62] This was, as Brooking, J.A. has demonstrated, a most obvious case where information of a confidential kind on many matters pertaining to the company, its formation and the interests of other parties in that company must have been disclosed to the appellant's solicitors over the years and in particular over the last few months before the appellant and the other parties fell out. More importantly, the litigation itself commenced by the appellant raised, and still has the potentiality to raise, a large number of issues and involve the investigation of many facts connected with the company in ways which are obvious to a large degree but which may in the fullness of time be thought, by one party or the other, to be relevant in a way which cannot presently be predicted. This is inevitable in an oppression application and a claim to wind a company up on the just and equitable ground, each kind of proceeding involving almost invariably the widest possible enquiry into the history and affairs of the subject company. Howsoever one should characterise presently the information available to the appellant's solicitors as confidential, there can be no doubt that there is a real risk that some information of that kind will be capable of being used against the respondents in ways which cannot so far be identified. Whatever be the precise limits of a former solicitor's obligations, the risk here is such that there should never have been any question of the company's former firm acting for the appellant and the appellant has no basis for complaining that it has been restrained from using that former firm.

1. In the NSW Supreme Court, Brereton J made the following statements (cited as Kallinicos v Hunt [2005] NSWSC 1181, [76] (citations omitted)):

[...]

The court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice [...]

The test to be applied in this inherent jurisdiction [to restrain solicitors from acting in a particular case] is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice...

[...]

1. The authorities upon which the husband relies appear to demonstrate a divergence of opinion between Victoria and New South Wales as to the basis upon which lawyers can be restrained from acting, which is interesting but not at all germane to this costs application. I also note that the husband has quoted Brereton J selectively, omitting the important statement that court's power to restrain a solicitor "is to be regarded as exceptional and is to be exercised with caution".[6]
2. The husband's submission as stated at [42] above is irrelevant to the costs dispute.[7] The husband does not have an application before me to restrain Lander & Rogers or Mr GE of Counsel from acting for the wife. Indeed, pursuant to a harmful proceedings order made by Hartnett J on 16 July 2025, husband is not now entitled to bring an application without prior leave of the Court. The husband cannot style an application to restrain lawyers from acting as a response to the wife's costs application and thereby circumvent the obligation to obtain leave as required by the harmful proceedings order.
3. There is a distinction between alleged bias of a judge and of a solicitor. A judge must be neutral but a solicitor is, by the nature of his/her profession, aligned with the client's interest. The husband's submissions were created and signed by him. Many of his submissions, whilst sounding authoritative, are misconceived and apt to confuse. I give due allowance for the husband being a litigant in person and not a trained lawyer.

1. I will deal with the husband's submissions in relation to what I will call his "conflict of interests grounds". However, it is important to note that, his Response to an Application and one set of written submissions dated 6 August 2025 and filed 17 September 2025 is all that the husband has filed. He does not rely on affidavit evidence. Apart from any concessions made by the wife or findings made by the Court, the husband has no evidence. The wife's written submissions were filed for the hearing on 21 July 2025. The husband then filed his written submissions on 17 September 2025 but which are dated 6 August 2025. The wife filed a supplementary submission as to quantum of costs for the hearing on 25 September 2025 but did not respond to the husband's submissions about his conflict-of-interest grounds in the supplementary written submission or orally through her Counsel. One cannot say whether the wife's silence as to the husband's conflict of interest grounds was an oversight or strategic. I am not critical of the wife for not expressly joining issue with the factual basis of all of the husband's submissions. It is premature for the wife to put on evidence to rebut what the husband claims but in respect of which he has not bothered to put before the court in admissible form. The husband bears the onus of proving whatever case he wants to make out by reliance on concessions, undisturbed findings of fact or admissible evidence. He does not have any of those. Accordingly, where the husband makes a submission which requires an evidentiary basis and no evidence is adduced, concession made or finding recorded, the submission fails as it is no more than an unsupported assertion which cannot be tested.

[7] Conflict of Counsel (Mr. [GA]): Mr. [GA], who previously represented the Husband in these same proceedings (briefed by [Mr CF]), appeared on behalf of Lander & Rogers (the Interested Party) at a hearing before Registrar Sudholz on 12 June 2025. This creates a direct and disqualifying conflict inconsistent with the duties of independence and loyalty. The Husband submits that Mr. [GE] is also now representing both Lander & Rogers as an interested party and the Wife, further evidencing a conflict. He appeared in court and stated he was representing Lander & Rogers on 4 July and 21 July, and 22 July.

1. The husband is silent as to what occurred once it was drawn to the attention of Mr [GA] that he had previously acted for the husband. The husband does not adduce evidence of what occurred and how he was impacted, if he was impacted at all.

1. The husband submits that Mr GE, of Counsel, represented both the wife and his instructing solicitors on 4, 21 and 22 July 2025 thereby giving rise to a conflict of interest. I hold to the view which I expressed in my reasons for the decision on 21 July 2025, that Mr GE' appearance for the solicitors Lander & Rogers is, prima facie, a matter for the wife, not the husband. The wife, Lander & Rogers and Mr GE have a common interest in the success of wife's costs application insofar as the common goal is for the wife's costs to be paid.
2. The husband submits: [9]

[8] Lander & Rogers as an Interested Party: Lander & Rogers has been formally recognised as an "Interested Party" by Registrar Sudholz in orders made on 12 June 2025. This was in relation to the fact that Lander & Rogers did not pay the wife $50,000 from the 30 cent trust as ordered by Justice Bennett on 2 February 2020. Further, they misrepresented to the court that the wife's loan from [FH Finance] was in "penalty interest." Lander & Rogers then redrew on the loan to pay themselves, after putting in place a fraudulent caveat. It is submitted that Lander & Rogers cannot simultaneously represent the Wife and appear as a separate interested party in the same proceeding, particularly given the Husband's applications for them to pay costs. This raises fundamental issues of conflict between the firm and its client.

1. The matters complained of by the husband do not impact the husband and are irrelevant to this costs application. The husband's contention would apply to most costs applications made by represented parties. There is no conflict of interest apparent between the wife and Lander & Rogers as far as this current application is concerned. It is in their mutual interest to be paid. The wife is currently unable to pay her lawyers from her own resources. The wife succeeding in this application for the husband to pay costs is in the mutual interest of the wife and her lawyers.

[9] Employment of Former Associates by Lander & Rogers:

• Ms. [FW]: Lander & Rogers recruited Ms. FW, a solicitor who was "currently advising" the Husband and was privy to confidential information relating to this case. The Husband's former legal firm, [GC Lawyers], formally wrote to Lander & Rogers raising this conflict, but no response was received. A rule requiring her to be quarantined is understood not adhered to have been adhered to.
• Former Judicial Associates (Ms. [FX] and Ms. [FY]): Freedom of Information (FOI) disclosures on 3 July 2025 confirmed that Ms. [FX] and Ms. [FY], both former associates to the Honourable Justice Bennett, joined Lander & Rogers during these proceedings. Crucially, the Court's FOI response stated that no post-employment conflict protocols or safeguards exist within the Federal Circuit and Family Court, and no disclosure was made to the parties, nor were any firewalls or management steps implemented.
• The Husband submits that these failures raise serious concerns under the test for apprehended bias set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, where a "fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the dispute".
• These undisclosed employment arrangements, without the adoption of any safeguards, directly undermine confidence in the Court's impartiality and call into question the sustainability of orders made during the conflict period.

1. Ms FW is not known to me. It is not sufficient for the husband to submit that "a rule requiring [Ms FW] to be quarantined is understood not (sic) adhered to have been adhered to." This is a ground which would, if it was relevant, require an evidentiary basis as to Ms FW acting for the husband, the rule to be observed and non-adherence to the rule at the very least. There is no such evidentiary basis.
2. The submission concerning Ms FX and Ms FY would also require an evidentiary basis (which it lacks). The husband's submission that employment arrangements undermine confidence in the court's impartiality and "call into question the sustainability of orders made during the conflict period", is a backdoor attempt to impugn the final property settlement orders which the husband has unsuccessfully appealed and with which he has apparently not yet complied.
3. The husband submits:

[10] Regulatory Scrutiny: The [regulator] has also confirmed that the Husband's complaint against [Mr GE] and against Lander & Rogers, alleging fiduciary breach, trust fund misuse, conflicts of interest, and misleading conduct, has been escalated for formal investigation. These active forms of regulatory and scrutiny render any costs proceeding premature and procedurally inappropriate until they have been resolved.

1. There is no evidence of the husband's complaint or contents of a complaint to the regulator let alone the progress of any final investigation. The husband's contention is vague, unhelpful and, all things considered, quite possibly mischievous. If the husband has carriage of a complaint to the regulator and this submission (unsupported by evidence) is the best he can come up, his failure to provide any confirmatory documentation or admissible evidence must be viewed with scepticism.

1. In [11] to [14] inclusive of his written submissions, the husband describes the Full Court's order that each party bear their own costs of the husband's appeal and the wife's cross appeal against my final property settlement orders. It has no relevance to the husband's application to stay/adjourn/dismiss the wife's costs application.

1. The power to order costs is conferred upon the Court by Part XIVC of the Family Law Act 1975 (Act).
2. Section 114UB(1) of the Act provides that, subject to s 114UB(2) (Court to be satisfied that circumstances justify a costs order, s 102QAB(6) (summary decrees), s 114UC (independent children's lawyers) and s 114UD (matters to which Court is to have regard), "each party to proceedings under this Act shall bear the party's own costs."
3. Section 114UB(2) confers a discretion upon the Court to make costs orders that the Court considers just and order a party to pay costs if the Court is of the opinion there are circumstances that justify it in doing so. In Penfold v Penfold (1980) 144 CLR 311, the High Court when considering the then s117(1) and 117(2) of the Act (the predecessors of the current ss 114UB(1) and 114UB(2) of the Act) concluded that correct interpretation of the interrelationship between ss 114UB(1) and 114UB(2) is:[11]

It is an accurate description of Sec 117(1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to Sec 117(2). As sub-section (1) is expressed to be subject to sub-section (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions, which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in 'a clear case'.

(2) If, in proceedings under this Act, the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (3) of this section, sections 114UC and 114UD and the applicable Rules of Court, make any order for costs and security for costs that the court considers just, whether by way of interlocutory order or otherwise.

1. Section 114UB(3) sets out factors to be considered in relation to what, if any, costs order can be made. Sections 114UC and s114UD are not relevant to this case.
2. The Act is silent as to what matters should inform my opinion that there are circumstances that justify an order that a party pay or contribute to another party's costs. Accordingly, I can have regard to any matter including, but not limited to, the factors set out in s114UB(3) of the Act. Material non-disclosure by the husband, obfuscation by the husband and the prolongation of the proceedings by the husband due to unresponsive answers in cross examination and inappropriate behaviour are all circumstances that justify departure from the usual position of each party bearing their own costs in this case and I take them into account. I bear in mind that I must not conflate the two sub-sections.
3. As stated in my final judgment, the husband was in the witness box for a total of 53 hours over a period of 22 days. The husband was a problematic witness. A great deal of Court time was wasted because the husband was non-responsive and disruptive. The husband gave evidence with an apparent intention to confuse and add complexity. He was an unreliable witness.[12]
4. In my final reasons I concluded that:

[383] I am satisfied that the husband has failed in his duty of full and frank disclosure to the wife and to the court. A great deal of time and money was wasted by virtue of his intentional concealment and obfuscation.

1. On Appeal, the Full Court held that "we are comfortably satisfied that the conclusionary finding at [383] was satisfactorily explained when regard is had to the reasons as a whole and in particular to [52], [153], [156], [249], [281], [306], [340], [375], [380], [435], [477], [511]".[13]
2. I am comfortably satisfied that this is a matter in which a costs order is justified.
3. The next step is to consider what, if any, costs order should be made. I am mandated to take into account matters arising under s114UB(3). Section 114UB(3) of the Act provides as follows:

(3) In considering what costs order (if any) should be made, the court must have regard to the following:

(a) the financial circumstances of each party to the proceedings;

(b) whether any party to the proceedings is receiving assistance by way of legal aid in respect of the proceedings and, if so, the terms of the grant of the assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting paragraphs (a) and (b), 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, and in relation to their duty of disclosure under subsection 71B(1), 90RI(1) or 90YJA(1);

(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 a 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;

(g) such other matters as the court considers relevant.

1. In considering the above factors, I may give such weight as I consider relevant to each factor (Fitzgerald v Fish [2005] FamCA 158; (2005) 33 Fam LR 123 at 130). Not every factor in s 114UB(3) must be engaged before a costs order can be made. A costs order can rest on only one factor or circumstance.
2. I am assisted by the wife's written submissions which are well prepared, and I draw on them.

Financial Circumstances (s114UB(3)(a) and whether either party has been in receipt of legal aid and the extent of that grant (s114UB(3)(b)

1. In my reasons for the final orders, I found that the wife's prospects of employment were "slim" "not good" and that she had poor employment prospects.[14] There is no evidence that the wife's circumstances have improved. The wife further submits she has significant legal invoices due and payable as at 18 June 2025, amounting in total to approximately $2.15 million.
2. I found that "pending full compliance by the husband with this Order, the wife is in a parlous state".[15] That finding was not disturbed. The wife deposed to further evidence in her affidavit at paragraphs [54]-[65] as to her present circumstances. She states she is due to receive a modest inheritance but she has a large amount of fees owing to her lawyers and litigation funder which are more than the expected inheritance. Her litigation funding loan continues to attract interest due to the non-compliance with the husband with the final property orders.[16] She receives a Centrelink benefit and no other income.
3. I made the following findings as to the husband's financial capacity:

[5] There is ample evidence that the husband has assets and financial resources which cannot be identified with precision or valued...

[305] I accept that the husband has control of the [Fowles] Family Trust in his capacity as the Investment Committee and that he exercises that control in fact...

[306] I find that the [Fowles] Family Trust is the puppet of the husband. Neither his sister nor the trustee exercise any control over the Trust or the assets of the Trust. I cannot attribute a value to the Trust because of the husband's non-disclosure. From the manner in which the husband has conducted these proceedings, so as to deflect any meaningful assessment of the Trust assets, I infer that the Trust assets are substantial...

[435] I am satisfied that the husband has an income earning capacity considerably in excess of that of the wife. He has not disclosed its source or its dimensions, but I find that over these very lengthy proceedings the husband has been unable to disguise that he has the wherewithal to obtain funds when it suits him...

1. At the final hearing, I held that "the husband is concealing substantial assets".[17] Further, that "as a consequence of the husband's lack of disclosure, [the table of legal and equitable interests] does not represent all of the property and financial resources which the husband has at his disposal",[18] those financial resources being substantial including the Fowles Family Trust, the husband's interest in his mother's and father's estate and his interest in the 2017 DD Trust.
2. The husband was unsuccessful in his appeal against my final property orders. My findings stand and I take them into consideration as to the husband's present financial status, there being no updating evidence to the contrary before me.
3. The husband does not have any affidavit evidence before the Court in respect of the costs application as to his financial circumstances. The wife submits, and I accept, that the Court should infer that, given my finding, the husband's failure to file an affidavit in this cost application as to his current financial circumstances is because such evidence could not assist him in resisting the wife's cost application. This factor supports an order for costs in favour of the wife.
4. The wife is not in receipt of legal aid. The husband is in receipt of assistance under the s 102NA Scheme.

Conduct of the Parties to the Proceedings ((s114UB(3)(c)) including whether the proceedings were necessitated by the failure of a party to comply with previous court orders ((s114UB(3)(d))

1. I accept the wife's submission that the husband conducted the substantive proceedings in furtherance of a fraud which he sought to perpetrate on the wife and the Court. Relevantly, I found that the husband acted in furtherance of the "Marital Exit Plan"[19] and embarked on a course of conduct to defeat or minimise the wife's entitlement to an alteration of property interests and spousal maintenance.
2. The wife submits, fairly in my view, that the enormous disparity between the husband and the wife as to access to financial resources post-separation emboldened the husband to behave poorly and disrespectfully as a party to the proceeding. The wife submits that the facts as found by the Court establish that the husband was ethically and morally delinquent when engaging in the antecedent conduct that gave rise to the litigation. This included, but was not limited to, the husband creating false documents in an attempt to perpetrate a sham transaction (the loan) in relation to the X Street property. The husband alienated $3M worth of property by establishing the Fowles Family Trust, collapsing the 2003 DD Trust in 2017 and the contemporaneous appointment of that trust's assets to the 2017 DD Trust. As was observed by the Full Court on the parties' appeals:[20]

"The husband's approach to the litigation became clear on the first day of hearing when his senior counsel announced that the husband's Financial Statement had just been uploaded to the court portal and was about to be served on the wife. The husband continued to disclose further documents throughout the course of his evidence.''

1. This factor strongly supports an order for costs in favour of the wife.
2. It is submitted on behalf of the wife, again correctly in my view, that the fundamental obligations upon any litigant in this Court are:

(a) The duty to act consistently with the overarching purpose of the family law practice and procedure provisions.[21]

(b) The continuing duty of disclosure.[22] Further, in financial cases, compliance with this obligation being "full and frank disclosure of the party's financial circumstances" as to all matters identified by Rule 6.06 of the Rules.[23]

(c) The duty to call only evidence which is relevant and truthful.

1. I concur with the wife's submission that the husband's non-compliance with his duty to act consistently with the overarching purpose of the family law practice and procedure provisions was egregious. This factor strongly supports an order for costs in favour of the wife. As to:

(a) The duty to ensure a "just determination" of the proceeding, I held:

(i) That in relation to the X Street property, the [Fowles] Family Trust (and the resultant alienation of $3M of property) and the DD Trust, the husband has embarked on a course of conduct to defeat or minimise the wife's entitlement to an alteration of property interests and spousal maintenance;

(ii) As to the husband's payments of $100,000.00 and $135,000.00 to meet the legal expenses incurred by EE and his father regarding the Supreme Court proceeding: "I am satisfied that the husband was motivated to pay the monies in order to make it more difficult for the wife to achieve a just and equitable result by way of alteration of property proceedings."[24]

(b) The duty to facilitate the quick, inexpensive and efficient resolution of the dispute, I held:

[13] The husband was in the witness box for a total of 53 hours over a period of 22 days. The husband was a problematic witness. A great deal of Court time was wasted because the husband was non-responsive and disruptive. The husband gave evidence with an apparent intention to confuse and add complexity. He is an unreliable witness.

[383] I am satisfied that the husband has failed in his duty of full and frank disclosure to the wife and to the court. A great deal of time and money was wasted by virtue of his intentional concealment and obfuscation.

[511] This case was made infinitely more complicated than it needed to be by the husband's resolute financial non-disclosure.

Further, the Full Court also observed that the husband had attempted to lead the trial judge and the Court "down rabbit holes"[25] and pushed "the boundaries of proper conduct."[26]

(c) The duty to facilitate the resolution of the dispute at a cost that is proportionate to the importance and complexity of the matters in dispute. The total asset pool was determined to be $6,900,840.00.[27]

(i) The husband at all relevant times claimed he was insolvent. I rejected this claim. I found "that when the husband wants to pay for something the money is found and applied in accordance with his wishes."[28]

(ii) The husband has expended legal costs relevant to the instant proceeding in the amount of approximately $2.935M ($2.7M to his lawyers and $100,000.00 and $135,000.00 on behalf of EE Company and his father respectively).

(iii) The wife alleges that she incurred approximately $1,977,738.70 in legal fees and disbursements in litigating these proceedings as at November 2023 (being the time of the making of the Final Orders).[29] $945,487.38 of that sum is outstanding, according to the wife. The additional sum of $288,200 is also owing to counsel for work undertaken in the substantive proceeding including trial which has yet to be billed. This sum also remains outstanding according to the wife.[30]

(iv) The wife notes that Lander & Rogers will record a provisional write-off on the substantive family law matter for the financial year ended 30 June 2025 of approximately $500,000 for accounting and balance sheet purposes, however this sum is still sought by the wife and will remain payable to Lander & Rogers for its legal fees. This is in addition to further write offs of approximately $350,000 in prior years.

(v) The wife notes that she has suffered relevant ancillary expenses of approximately $460,902[31] in the Supreme Court proceedings, the appeal proceedings (Full Court and High Court) and the enforcement and contravention proceedings presently before Justice Hartnett, including fees owing to Mr GE and Mr GH of Counsel. Lander & Rogers have also undertaken pro bono work of approximately $37,063 in relation to the various intervention order matters involving the husband.[32]

(d) The duty of disclosure. The wife submitted that the Court should find that the husband's breach of his duty of disclosure was egregious. I did so. Further, the wife submits that the husband's breach of his duty of disclosure is grossly exacerbated by:

(i) his persistent claim that he was insolvent; and

(ii) advancing to the Court false documents created to deceive in his attempt to further a sham;[33] and

(iii) calling witnesses that the Court regarded "as emblematic of the husband's reliance on witnesses who were primed to give evidence in relation to restricted topics which lacked any comprehensive perspective."[34] It is submitted that this characterisation was applicable to the witnesses Mr. CG, Mr. Y, Mr. AZ, Ms. BB, Ms. OO and Mr. HH.

(iv) Calling a witness, namely Mr DD for the purpose of plugging "holes which the husband realised were appearing in his case and that Mr DD willingly complied."[35]

(v) Failing to call the relevant witnesses Mr. [Fowles] Senior, Ms. DA, Mr. Z, the Trustee of the FFT and Mr. NN.[36]

1. This factor strongly supports an order for costs in favour of the wife.

Whether any party has been wholly unsuccessful ((s114UB(3)(e))

1. The husband was not wholly unsuccessful and the wife was not wholly successful.

Whether a party had made a previous offer ((s114UB(3)(f))

1. The husband's breaches of his duties to act in conformity with the overarching principles extended to negotiating settlement of the dispute.[37]
2. The husband made no meaningful offers throughout the proceedings. The husband's purported "offers" were as follows:[38]

(a) The husband made an offer in writing on 28 July 2021 which did not include any offer of payment at all but rather suggested that the wife should "abandon all court cases, go bankrupt and then lawyers won't get paid, saving a million dollars."

(b) The husband made an offer in writing on 21 August 2023 which again did not include any offer of payment and rather that all intervention order applications be withdrawn and each party pay their own costs. A term of the offer required "[Mr FU] and [Mr GE] admit you are assholes" and stated, "Lets [sic] be serious about this, you are never going to get paid, so you should settle to stop spending time on this."

1. The wife made an offer of settlement on 2 October 2020. The wife submits that the offer was made in accordance with Calderbank v Calderbank [1975] 3 All ER 333. The wife submits that her offer included the following terms.

(a) That the husband pay the sum of $3,250,000 to the wife;

(b) That the husband otherwise retain the X Street property;

(c) That the parties otherwise retain the cars, personal belongings and chattels currently in their possession, as well as funds in any bank accounts in their sole name (including previous part property settlements and uncharacterised payments);

(d) That each party bear their own costs of the proceedings.

1. The final result, in money terms, was that the wife received 60% ($4,140,504) and the husband's 40% ($2,760,336) of the total known property pool. In summary, each party retained assets in their possession. The wife retained the X Street property ($2,375,000) and was to receive a payment from the husband of $1,240,231 to effect the 60/40 division. Accordingly, the wife's entitlement under the final property orders is better than her Calderbank offer. This factor strongly supports an order for costs in favour of the wife.

1. Turning to the husband's "Substantive issues with the wife's costs claim" commencing at [15] which mostly can be characterised as a list of confused matters which the husband fails to make relevant to the costs application under consideration.
2. The alleged lack of transparency in relation to Mr GE's fees commencing at page 5 will be addressed as part of the assessment process I will order.
3. Any misuse of trust funds and misrepresentation regarding the litigation loan commencing at page 6, is a matter for the wife to take up with her lawyer if she wishes to do so, noting that the allegation made by the husband does not suggest anything other than a proper use of the wife's money, that is, to discharge her debt to her lawyers. The solicitors, as her agents, are authorised to accept money on her behalf. Treatment of trust monies is the subject of strict rules and professional standards.
4. As to the purported request for leave to issue subpoenas as to disclosure (page 7), the husband would have to make specific application for leave to issue subpoenas and serve the intended recipients with a copy of that application. His Counsel did not make that application. This is a superior Court of record. The last dot point of the husband's submission dated 4 August 2025 does not constitute an application. In any event, the husband has failed to demonstrate how any evidence that could be given in response to the subpoenas would impact on the wife's application for costs and his liability to pay costs. That is, he has failed to establish relevance.
5. The wife's costs of 21 July 2025 were reserved. However, no submissions in these proceedings were directed to the husband's responsibility for the adjournment and an order for costs in that respect. Those costs remain reserved.

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.

(2) If costs are payable under the Family Law Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party and party basis.

(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.

1. I consider whether the costs should be fixed or assessed (s113UB(5)). It was my express intention to fix costs and, thereby, avoid an assessment where I am satisfied that the assessment will be beset by as many distractions and irrelevancies as the hearing before me has suffered. Unfortunately, the quantum of cost is too complex for me to be satisfied that a global assessment by me would do justice between the parties. A significant issue is Mr GE not having invoiced his costs, or, if those invoices are in existence, they have not been provided to the Court. Reluctantly, I will order that the wife's costs be assessed.
2. The wife seeks costs on an indemnity basis. The wife must establish that the circumstances are of an exceptional kind that warrants orders for costs on that basis (Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225). This was a complex matter made all the more difficult by the manner in which the husband's case was conducted and by the husband's poor behaviour. The husband's conduct caused the wife to incur costs which are disproportionate to the case even having regard to the complexity of the case. However, the wife's case was not presented by Counsel in an exemplary manner. A considerable amount of time was spent with Counsel squabbling between themselves and, all in all, setting a poor example for the husband in relation to appropriate behaviour in Court. I acknowledge that the husband, "embarked on a course of conduct to defeat or minimise her entitlement to an alteration of property interests and spousal maintenance".[39] However, I do not regard this as putting the case in the 'exceptional' classification required by the authorities in order to justify indemnity costs. Indemnity costs are further contra-indicated where the wife is seeking to recover Counsel's fees as part of her costs award but Counsel has, inexplicably, failed or neglected to raise fee slips or a costs agreement. That should be sorted out at the assessment.
3. The wife filed an affidavit on 28 March 2025 pursuant to my Orders and annexed, inter alia, costs agreements between herself and her solicitors. She was not cross-examined, despite the husband having been funded for Counsel to cross-examine.
4. The husband's poor behaviour during the trial, his flagrant non-disclosure and his obfuscation were exceptional and directly caused the wife to incur a great deal more costs and disbursements than she should have. Accordingly, costs assessed on a party/party basis would, in my view, fail to compensate the wife for the over-run in costs caused by the husband.
5. Costs calculated on a solicitor/client basis is a good fit for the circumstances of this case. Cost drawn on a solicitor/client basis are more realistic but are still capable of being challenged and moderated by concepts of reasonableness and proportionality. Solicitor/client costs provide a generous apportionment of costs for the wife.
6. There is no complaint by the husband to the effect that the wife's costs exceed the rates ordinarily payable to lawyers in comparable proceedings. Nor is it alleged that the wife's solicitors charges (paid or payable) are unfair, unreasonable and/or disproportionate to what was reasonably required. I have already commented on the anomalies around fees charged or to be charged by Mr GE of Counsel. To the extent that Mr GE has relied on an alternate method of calculating payment (I do not know), I note that conditional and contingency costs agreements are not permitted in family law proceedings in Victoria.[40]
7. The wife's costs payable by the husband should date from the first day of the trial because the husband's behaviour commenced and ran unabated from the first day of the trial. I will not order the costs to be assessed on the basis of the sliding scale of claims set out in the wife's table because the wife had to make her case ready for trial. Costs of the days of the trial is sufficient and proper.
8. As part of her primary position,[41] the wife seeks the husband pay the outstanding Court hearing (setting down) fees for the matter totalling $16,870, accounting for 19 trial days, namely 4, 6, 7 November 2019, 19 to 21 October, 27 October to 30 October 2020, 31 August-3 September 2021 and 6 -10 September 2021. I am satisfied that the husband's prolongation of the trial justifies an Order being made in respect of this disbursement. This was a 43 day trial. I am satisfied that the husband's conduct extended the time of trial. I order that the husband be responsible for the setting down fees for 19 days of the trial, being $16,870.

WIFE'S APPLICATION FOR COSTS IN RESPECT OF THE COSTS APPLICATION FILED 3 NOVEMBER 2023

1. In respect of the wife's further application for costs in relation to her Application in a Proceeding filed 3 November 2023,[42] it is premature for me to make any order because I do not know how this decision will be received. For instance, one party may make an offer to resolve the substantive cost dispute which would be relevant to consider pursuant to s114UB. The Registrar who does the assessment will be apprised of all relevant circumstances so I will reserve the costs of the costs application to the National Costs Registrar.

1. It is appropriate that the professionals named by the husband, from whom I have not heard and do not have notice of these proceedings (that I am aware of) not be identified. Their names should be anonymised.

I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

[1] Being the date prior to the filing of the wife's costs application.

[2] The mother's aide memoir records that these fees relate to invoices [...] and [...], totalling $294,360.00. However $6,600 has been discounted from the first invoice as this relates to the recusal application and $21,120 has been deducted from invoice [...] as it relates to the issue of the STI documents of which costs have already been determined, and therefore are not costs sought in this application.

[3] Court audio recording, not officially transcribed, 25 September 2025.

[4] Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018.

[5] Husband's written submissions paragraph 4, 6.

[6] Kallinicos v Hunt [2005] NSWSC 1181, [76] citing Black v Taylor [1993] NZCA 266; [1993] 3 NZLR 403 Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446; Bowen v Stott [2004] WASC 94.

[7] Relief sought by the husband is summarised at [16]

[10] Written submissions of the husband.

[11] Penfold v Penfold (1980) 144 CLR 311, 315-6.

[12] Fowles & Fowles (No 4) [2023] FedCFamC1F 819, [13].

[13] Fowles & Fowles (No 2) [2024] FedCFamC1A 115, [173].

[14] Fowles & Fowles (No 4) [2023] FedCFamC1F 819 [441], [443] and [481].

[15] Fowles & Fowles (No 4) [2023] FedCFamC1F 819 [482].

[16] Affidavit of the wife made 28 March 2025 at [17] and [84].

[17] Fowles & Fowles (No 4) [2023] FedCFamC1F 819 [387].

[18] Fowles & Fowles (No 4) [2023] FedCFamC1F 819 [388] - [390].

[19] Fowles & Fowles (No 4) [2023] FedCFamC1F 819 [132] onwards.

[20] Fowles & Fowles (No 2) [2024] FedCFamC1A 115, [18].

[22] Family Law Act s.71B_: Federal Circuit and Family Court of Australia (Family Law) Rules 2021_

[24] Fowles & Fowles (No 4) [2023] FedCFamC1F 819 [422].

[25] Fowles & Fowles _(_No 2) [2024] FedCFamC1A 115 at [92].

[26] Fowles & Fowles (No 2) [2024] FedCFamC1A 115 at [125].

[27] Fowles & Fowles (No 4) [2023] FedCFamC1F 819 [389].

[28] Fowles & Fowles (No 4) [2023] FedCFamC1F 819 [423].

[29] Affidavit of Ms Fowles filed 28 March 2025, para [7].

[30] Affidavit of Ms Fowles filed 28 March 2025, para [10] and updated Costs Notice of Wife dated 3 July 2025.

[31] Wife's Costs Notice dated 3 July 2025.

[32] Wife's Costs Notice dated 3 July 2025.

[33]Fowles & Fowles (No 4) [2023] FedCFamC1F 819 [196] - [198].

[34] Fowles & Fowles (No 4) [2023] FedCFamC1F 819 [244].

[35] Fowles & Fowles (No 4) [2023] FedCFamC1F 819 [194].

[36] Fowles & Fowles (No 4) [2023] FedCFamC1F 819 [298].

[38] Affidavit of the wife made 28 March 2025 [51] and [52].

[39] Fowles & Fowles (No 4) [2023] FedCFamC1F 819 [140] - [141].

[40] Legal Profession Uniform Law s181(7), s183.

[41] Affidavit of the wife made 28 March 2025 at paragraph 25(b).

[42] See wife's submissions filed 25 September 2023 at [5] and [6].