Bant v Clayton

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. These are parenting proceedings between Mr Petris ("the father") and Ms Fava ("the mother") concerning their child X born in 2013 ("the child"). The mother filed an Initiating Application on 8 March 2024 seeking variation of final orders made by consent on 6 November 2023 ("the final orders"), only some four months after those orders were made.
2. The final orders provided that the parents have equal shared parental responsibility for the child, that the child live with the mother, and a framework for the child to spend every third weekend with the father on alternate days depending on how far the father lived from the child's school.
3. The mother initially sought variation of the final orders on an interim basis so that the child's time with the father be as agreed by the parties in writing, but by an Amended Initiating Application filed on 15 August 2024 she instead sought interim orders that the child spend time with the father in terms similar to those in the final orders.
4. By his Amended Response filed 20 August 2024, the father sought interim orders that he have sole parental responsibility for the child in respect of health and education, that the child live with him, and that the child spend time with the mother every second weekend.
5. The competing interim applications were listed before a Senior Judicial Registrar ("SJR") on 5 February 2025 for hearing, following completion of a Family Report dated 18 December 2024.[1] Interim parenting orders were made by consent on that occasion without a hearing being required. In respect of with whom the child lives and spends time, those order provided that:

Time between Child and their Parents

1. The child, [X] born [in] 2013 ("the child") live with the Mother.
2. The child shall spend such time with the Father as can be agreed in writing between the Mother and the Father, and failing such agreement, the child spend time with the Father following incremental increases in time commencing with time on the [Region B], occurring in collaboration with and on recommendation from the family therapist.

1. The SJR also ordered in respect of the mother's costs application that, by determination:

Application for Costs

1. The Mother's application for the Father to meet her costs of today's hearing will proceed by way of written submission and be listed for determination in chambers before Senior Judicial Registrar Spink on 24 February 2025 with no appearance of the parties and practitioners required.

2. The Father file and serve, by no later than 4:00pm on 14 February 2025, any written submissions and Financial Statement in response to those submissions filed by the Mother by way of the Mother's:

(a) Case Outline (Interim hearing) filed 31 January 2025;

(b) Tender bundle submitted 5 February 2025;

(c) affidavit filed 8 October 2024; and

(d) Financial Statement filed 7 August 2024.

1. The Mother file and serve, by no later than 4:00pm on 21 February 2025, any written submissions in reply.
2. The Mother's application for costs is otherwise reserved.

1. On 28 March 2025, the SJR made an order that the father pay the mother's costs in the sum of $4,523.04 within fifty-six days ("the costs order"). Written reasons for judgment were provided for this determination.[2]
2. On 12 May 2025, the father filed an Application for Review in which he seeks:

(a) Leave to file the Application for Review outside the time prescribed by the _Federal Circuit and Family Court (Family La_w) Rules 2021 (Cth) ("the Rules"); and

(b) That each party bear their own costs of the interim hearing.

1. On 22 May 2025, the father also filed an Application in a Proceeding seeking stay of the costs order until the determination of the Application for Review ("the stay application").

1. The applications referred to at [8] and [9] of these reasons came before me on 29 May 2025 for hearing. The mother was represented by a solicitor and the father represented himself. The Independent Child's Lawyer was excused from attending the hearing as she did not wish to be heard on the issues for determination.
2. The mother did not oppose the Court determining the stay application despite its late service as it is relevant to the outcome of the Application for Review.

1. In relation to the application for extension of time, the father was invited to make submissions about the reasons for the delay in filing his review application, whether he had a reasonably arguable case for the interim orders he sought, and any prejudice to the parties.
2. The father submitted that he had needed to see the reasons of the SJR for making the costs order before he determined whether he should seek to review the order. He submitted that the failure to file within 21 days was due to this reason.[3] In addition, he stated his interim case was reasonable because he had final orders providing that the child spend fixed time with him, but the mother had not been complying with those orders and continued to contravene them. He made no meaningful submissions about prejudice.
3. The mother disputed the claim that there was delay between when the costs order was made and the provision of the reasons for the order. The mother's solicitor submitted that the reasons were available for download from the Commonwealth Courts Portal on 28 March 2025, as advised by email to both parties from the Chambers of the SJR,[4] while the father contends that they were not available to him until three weeks later.
4. The mother's solicitor submitted that the parties had agreed to a therapeutic process when orders were made on 17 June 2024 and there was no basis for seeking a change in primary care by the interim application the father made. Further, he submitted that there was prejudice to the mother if the review was heard and determined in favour of the father because she has limited financial means and if the order for costs is not enforced, that will impact on her ability to be heard in the future conduct of the proceedings.
5. Concerning the application for review, the father relied on:
   • The Application for Review filed 12 May 2025; and
   • The Application in a Proceeding filed 22 May 2025.
6. He tendered into evidence the reasons for judgment of the SJR dated 28 March 2025, which was marked as Exhibit A1. At the conclusion of the review hearing, he was given leave to provide emails evidencing the instructions he provided to his then solicitors in respect of family therapy. These were received by Chambers by email on 29 May 2025, and I have marked them as follows:
   • An email from the father to his then solicitor dated 21 June 2024, marked as Exhibit A2;
   • An email from the father's then solicitor to the father dated 23 October 2024, marked as Exhibit A3; and
   • An email from the father to his then solicitor dated 29 October 2024, marked as Exhibit A4.
7. The mother relied on:
   • Her Financial Statement filed 7 August 2024, marked as Exhibit R6; and
   • Her affidavit filed 8 October 2024, marked as Exhibit R7.
8. She also tendered into evidence:
   • The Family Report of Ms C dated 18 December 2024, marked as Exhibit R2;
   • An email from mother's solicitor to the father's then solicitor dated 8 August 2024, marked as Exhibit R3;
   • A letter from mother's solicitor to father's then solicitor dated 18 September 2024, marked as Exhibit R4; and
   • An email from the father to the Indepdendent Children's Lawyer dated 3 February 2025, marked as Exhibit R5.
9. In essence, the father submitted that the SJR had made the wrong decision about costs because they erred in finding that the child had not spent time with him since the Father's Day weekend in September 2024, because pursuant to the court orders he had 40 per cent time with the child. He referred to the spend time orders that had been made and the contravention applications determined in his favour.[5]
10. On behalf of the mother, it was submitted that the reasons of the SJR for making the costs order were correct because the father had accepted a therapeutic approach in June 2024 due to the child resisting spending time with him, but that he had unreasonably delayed in taking steps to implement that approach consistent with the orders made on 17 June 2024.
11. Essentially, the mother submitted that the SJR approached the question of costs in accordance with the relevant legal principles and properly placed emphasis on the conduct of the father being unsatisfactory in delaying the therapeutic approach and continuing to pursue orders for change in residence.
12. In relation to the submissions at [22] of these reasons, I enquired about the contradictory and confusing terms of the orders made on 17 June 2024, in that on the one hand they required the mother to facilitate fixed time with the father immediately but on the other hand required the parties to comply with a therapeutic process at the same time which appeared unworkable.[6]
13. The solicitor acknowledged my observations about the orders of 17 June 2024 and agreed, but maintained the submission that the father had unreasonably delayed in taking steps to initiate family therapy and that his interim application was essentially bound to fail.
14. I enquired why that was necessarily so as, if the child last spent time with the father on Father's Day in September 2024 as stated at [21] of the SJR's reasons, it appeared that the mother may have been in contravention of the fixed spend time with orders. I observed that the father appears to have heeded the advice in the Family Report dated 18 December 2024 once it was released and abandoned pursuit of the change of residence prior to the interim hearing on 5 February 2025, which had not in fact occurred.

1. The costs order by the Senior Judicial Registrar was purportedly made pursuant to delegated powers[7] and is subject to judicial review.
2. Part 14.3 of Chapter 14 of the Rules provides for Applications for Review from the decision of a Judicial Registrar or Senior Judicial Registrar. In this instance, the application was not made within the required timeframe of 21 days.[8] However, the court has discretionary power to extend this timeframe.[9]
3. The procedure for the review is governed by Rule 14.07 and I exercise the same power the Senior Judicial Registrar exercised on the interim hearing. I am to determine the interim issue de novo.

1. It is uncontroversial that proceedings under the Family Law Act 1975 (Cth) ("the Act") are ordinarily conducted on the basis that each party bear their own costs.[10] It is also uncontroversial that the Court has a power to award costs against a party, and in deciding whether it should do so, it must take into account a number of non-exhaustive considerations.[11] Those considerations are found in s117(2A) of the Act, and are as follows:

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

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

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

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

1. Furthermore, it is well-established that, when having regard to the matters to be considered and in deciding whether to make an order for costs at all, the Court is required to find that there is a justifying circumstance for making the order.[12] Further, the Court conducts a discretionary evaluation of the relevant considerations.[13]
2. Importantly, the delegated power of a SJR to make a costs order is not at large, it is confined to an application they have heard.[14]

1. I do not have affidavit evidence about the reasons for the delay in filing the application for review, but it is uncontroversial that the father was self-represented by the time the SJR made the costs order and delivered written reasons.
2. Simply emailing the parties to advise that the costs order had been made and directing the parties to the Commonwealth Courts Portal is, in my view, not a satisfactory means of putting parties on notice of decisions or orders made by an SJR which are subject to mandatory rights of review due to the delegated judicial power they exercise under the Act. Further, a costs order being one requiring the payment of money and made in Chambers, must be served.[15]
3. While legal practitioners with day-to-day conduct of files for clients routinely access emails and the Commonwealth Courts Portal very frequently during their working day, the same cannot be said to apply or be reasonably expected of self-represented persons who have work, family and normal living commitments.
4. Where judicial decisions are made pursuant to delegated powers, they remain judicial in character and accordingly notice of the time of delivery of the judgment or decision ought to be given. There is no evidence before the Court that the costs order was served on the father, and the mother's solicitor did not assert that it had been. I am not satisfied about the date the father had notice of the costs order or the fact that it had been made on 28 March 2024, and accordingly I accept he has given an adequate explanation about the delay in filing the Application for Review.
5. Contrary to the premise of the costs order made by the SJR, the father submitted that he did not delay in engaging in the required actions for engagement of family therapy. He was given leave to provide evidence as to this claim.[16] His communication to his lawyer demonstrates that he gave instructions to initiate the appointment of a family therapist on 21 June 2024.[17]
6. The father was legally represented at the time he filed his Amended Response 20 August 2024 pursuant to an order of the Court made on 8 August 2024 and I infer that he was likely acting on legal advice. In the context of matters at [36] of these reasons, I consider the father has a reasonably arguable case on the review application, including because no defended interim hearing occurred on 5 February 2025.
7. I accept the mother will experience some financial prejudice if leave is granted, but ultimately the other considerations referred to above satisfy me that the Court should exercise its discretion and grant the extension of time sought.

1. The copies of communications between the parties' solicitors before me demonstrate the following chronology of events concerning family therapy and I find accordingly:

Orders were made by Cole J, including for family therapy at Order 3(a) and fixed time between the child and father at Order 5.

The father provided names and phone numbers of three family therapists to his then solicitor by email, in compliance with Order 3(a)(i) of the Orders made 17 June 2025.[18]

The mother's solicitor emailed the father's then solicitor attaching a draft joint letter of instruction for family therapy.[19]

The mother's solicitor emailed the father's then solicitor about delay in signing the joint letter to the family therapist, acknowledging problems with compliance with the orders of 17 June 2024 and confusion. This also refers to delay in signing the letter to the family therapist and invites withdrawal of the "meritless application" for a change in residence.[20]

The father's then solicitor emailed the father with matter updates, addressing alleged contraventions of spend time orders, giving advice to sign a joint letter to the family therapist, and proposing to give an explanation to the mother for the delay in signing the engagement letter sent to them on 18 September 2024.[21]

The father emailed his then solicitor in reply, stating "I thought you guys had already replied about family therapy". From this I infer that he had already instructed his lawyers to sign the letter of instruction to appoint the family therapist.[22]

1. The findings at [39] of these reasons do not satisfy me that the father personally or solely delayed the commencement of family therapy. It appears there was some delay by the mother or her solicitors, and likely delay on the part of the father's then solicitors also.
2. Given the contributions to the delay and the fact that there was confusion about the fixed time orders which were not stayed or delayed, it is not fair or reasonable to attribute sole responsibility to the father for the delay in commencing family therapy during late 2024.
3. I accept that the mother's financial circumstances are modest on the basis of her Financial Statement filed 7 August 2024. Her weekly income is approximately $680 from wages before tax and $424 in Centrelink benefits. Her estimated total expenses including tax are $857, indicative of a small surplus of weekly income after her expenses. In addition, she has a car worth about $2,000 and superannuation of $114,916.
4. The father said at the hearing before me that he owns a home subject to mortgage with little equity. In addition, he stated he earns income as an apprentice and stopped engaging a lawyer because he could not afford to do so. In view of the Costs Notices filed by the father's prior solicitor[23] and their email to the father dated 23 October 2024,[24] I consider his statements about his finances to be essentially accurate. To say that the father owns his own home is misleading because it does not accurately reflect his financial position.
5. Relatively speaking, the parties are not in markedly different financial circumstances, and neither is in receipt of a grant of legal aid.
6. The historical background to the current proceedings is unusual but relevant to the issue of costs. The Court had made final parenting orders on 15 February 2023 after a defended hearing and those orders were then varied by consent on 6 November 2023 without a new Initiating Application ever having been filed. Despite this procedural anomaly, when the father filed a contravention application because the mother was not complying with the final orders,[25] the orders of 6 November 2023 were the relevant and enforceable orders ("the Final Orders").
7. The mother then brought another Application for Final Orders on 8 March 2024 to vary the Final Orders which has necessitated the current proceedings.
8. The SJR who made the costs order considered the father to have been wholly unsuccessful in the proceedings.[26] However, consistent with established authority about the meaning of "wholly unsuccessful in the proceedings",[27] I do not accept that to be so because:

(a) The parties reached agreement about what interim orders should be made before the interim hearing;[28]

(b) The interim order made by consent on 5 February 2025 removed the conflict and confusion created by the Orders made 17 June 2024; and

(c) There has been no defended hearing of the interim application and the Amended Initiating Application and Amended Response are yet to be determined on a final basis.

1. Relevant to any offer made in writing to the father,[29] the mother relies on her letter of 18 September 2024.[30] I do not accept that the terms of that letter constitute an offer in writing to settle the proceedings. Instead, it constitutes a warning or notice of a possible application for costs, the terms of which are not expressed with precision or clearly. In my view, it does not constitute an offer to settle the proceedings.
2. Finally, in my opinion the costs order made by the SJR was beyond the scope of the delegated power vested in them by Clause 12.1 of Schedule 4 of the Rules, which is expressly confined to an application heard, meaning after taking evidence at a hearing and then giving a decision, as opposed to making consent orders as agreed and sought by the parties.

1. I am not satisfied that there was power to make the costs order or, if there was power, that there was a justifying circumstance for making a costs order against the father for all the foregoing reasons.
2. Section 117 of the Act applied both at the time of the SJR making the costs order under review and when the review application was heard and reserved by me. Consequently, the applicable provisions under the Act governing costs are those referred to in these reasons and not Part XIVC of the Act which amended provisions apply from 10 June 2025.[31]
3. The Application for Review will be allowed and consequently the stay application is otiose or serves no purpose. There will be orders that:

The time for the filing of the Application for Review is extended to 12 May 2025.

(a) The Application for Review filed 12 May 2025 is allowed and Order 1 of the Orders made 28 March 2025 is discharged.

(b) The Application in a Proceeding filed 22 May 2025 seeking a stay is dismissed.

(c) The costs of the interim hearing listed 5 February 2025 are reserved to final determination of the proceedings.

I certify that the preceding fifty-three (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

[6] Order 3 and Order 5 of the Orders made 17 June 2024.

[7] Section 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and in Schedule 4, Clause 12.1 of the Rules, by adoption.

[11] Section 117(2) and (2A) of the Act.

[12] Penfold and Penfold (1980) 144 CLR 311.

[13] Greedy and Greedy [1982] FamCA 41; _In the Marriage of Mallet_t [1946] ArgusLawRp 6; (1983) 52 ALR 193.

[14] Clause 12.1 of Schedule 4 of the Rules.

[16] Order 2 of the Orders made 29 May 2025.

[23] Filed 1 May 2024, 14 June 2024, 7 August 2024, and 8 November 2024.

[25] See order of 17 June 2024 and narrative to those orders.

[26] At [33] of the reasons of SJR dated 28 March 2025.

[27] Bant v Clayton (Costs) [2016] FamCAFC 35; (2016) 56 Fam LR 31; Parke and the Estate of the Late A Parke [2016] FamCAFC 248.

[31] Family Law Amendment Act 2024 (Cth).