Beach Petroleum NL v Johnson

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garner & Jansen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This decision concerns an application for costs following the resolution of contravention proceedings initiated by the father Mr Garner ("the father"). Those proceedings were resolved by way of consent orders, following findings that the mother had contravened three orders of the court that had been made on 8 May 2024 in respect to the parties' child X ("the child"), born 2020. The contravention findings were made in orders dated 16 May 2025. In those orders the mother, Ms Jansen ("the mother"), was found to have contravened the following orders:

(1) Order 4(b)(i) made on 8 May 2024, which she contravened on 13 August 2024.

(2) Order 4(a)(i) made on 8 May 2024, which she contravened on 3 September 2024.

(3) Order 4(b)(ii) made on 8 May 2024, which she contravened on 14 September 2024

1. Each of those contraventions related to the mother's failure to facilitate the changeover of the child to the father in accordance with the relevant interim parenting orders to which I have referred.
2. Consequent to the contravention findings the proceedings were listed for further hearing on 11 August 2025 to hear arguments in respect to the mother's defence of reasonable excuse in respect to the contraventions, and also in respect to the question as to whether there should be any variation to the parenting orders made on 8 May 2024.
3. To their credit, on 11 August 2025, the parties reached agreement to resolve the contravention proceedings. Leaving aside trial directions made in respect to the final hearing of this matter, which has been listed for five days commencing 4 May 2026, the consent orders provided as follows:

BY CONSENT AND PENDING FURTHER ORDER, THE COURT ORDERS THAT:

Finding of Contravention

1. The Court finds that the Mother, [Ms Jansen], has contravened the Orders made on 8 May 2025, specifically the Orders referred to below, without reasonable excuse.

1.1. Order 4(b)(i) made 8 May 2024: The Mother contravened this order on 13 August 2024 by not facilitating the changeover of the child to the Father.

1.2. Order 4(a)(i) made 8 May 2024: The Mother contravened this order on 3 September 2024 by not facilitating the changeover of the child to the Father.

1.3. Order 4(b)(ii) made 8 May 2024: The Mother contravened this order on 14 September 2024 by not facilitating the changeover of the child to the Father.

Declaration Of Guilt

1. The Court declares that the Mother, [Ms Jansen], is guilty of contravening the orders referred to in paragraph 1 above.

3. No penalty shall be imposed in respect of the above findings.

Further Orders

4. That Order 5(b)(ii) of the Orders made on 8 May 2024 be terminated.

1. That commencing on 5 September 2025 the Father is to spend time with the child in Week 2 as follows:

In Week 2:

(i) From after school or 3.00pm on Tuesday until before pre-school/school or 9.00am the following Wednesday morning; and

(ii) From after school or 3.00pm on Friday until before pre-school/school or 9.00am on the following Monday morning.

1. In the event that changeover between the parties does not occur on a day when the child is attending pre-school/school, the changeover shall be supervised at a contact centre or by supervision services, and the following shall apply:

6.1. Within seven (7) days of the date of these Orders, the Father shall provide to the Mother, the names and contact details of three (3) proposed supervision services;

6.2. Within another seven (7) days of receiving the nominations pursuant to Order 5.1 above, the Mother is to select one of the proposed supervision services and notify the Father in writing of her selection; and

6.3. The parties shall each take all necessary steps to engage with the selected supervised changeover service or supervisor to facilitate the changeover arrangements as set out in these Orders.

1. That within seven (7) days of the date of these Orders, the Mother is to file an updated Financial Statement.
2. That the Father has leave to issue no more than five (5) updating subpoenas to the Mother's banks.
3. That within twenty one (21) days, each party is required to file and serve written submissions in respect of the Father's Application for Costs of the Contravention Hearing, with such submissions being no longer than two (2) pages.

1. In accordance with Order 9, on 1 September 2025 the father filed submissions in support of an application for costs in respect to the contravention proceedings. On 3 September 2025 the mother filed her written submissions opposing the father's application.

1. There is a presumption in the Family Law Act 1975 (Cth) ("the Act") that, as a general rule, each party to the proceedings should bear their own legal costs: s 114UB(1).
2. However, the Court retains a discretion to order costs where it considers that circumstances justify doing so (s 114UB(2) of the Act). That discretion must be exercised judicially and in accordance with the considerations set out in s 114UB(3), which include:

(a) the financial circumstances of each party;

(b) whether a party is in receipt of legal aid;

(c) the conduct of the parties in the proceedings;

(d) whether the proceedings were necessitated by a party's failure to comply with prior orders;

(e) whether any party has been wholly unsuccessful;

(f) any written offer of settlement; and

(g) any other relevant matters.

1. These factors must be considered and assessed holistically. No single factor is determinative, nor is it necessary that all factors be present for an order for costs to be made: I & I (No 2) (1995) FLC 92-625 at 82,277; Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish [2005] FamCA 158; (2005) 33 Fam LR 123 at 130 [41]. Relevantly, the High Court in Penfold v Penfold (1980) 144 CLR 311 at 315 confirmed that a party seeking costs bears no special onus beyond satisfying the Court that one or more of the factors in s 114UB(3) of the Act (then s 117(2A)) justifies an order for costs in their favour.
2. When a costs order is made, costs will generally be awarded at the scale set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"). Pursuant to the Rules, the Court retains the discretion to award costs in a fixed sum. In that respect, r 12.17(1)(a) of the Rules permits the Court to order costs in a specific amount. The power to do so is to "avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation": Graham & Squibb [2019] FamCAFC 33; (2019) FLC 93-892 at [92] quoting Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120.
3. If the fixed sum approach is taken, the amount identified must be "logical, fair and reasonable" (Stoian v Fiening (Costs) [2014] FamCA 944 at [91] citing Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 at [8]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at [16]).

1. The father seeks an order for the mother to pay his costs on an indemnity basis.
2. He contends that it is relevant that the mother was found guilty of three contraventions of parenting orders made on 8 May 2025. The father contends that the consent orders made on 11 August 2025 confirmed that these contraventions occurred in circumstances where the mother lacked a reasonable excuse.
3. The father contends that the circumstances of this case fall into the exceptional category of cases where an order for indemnity costs is appropriate and in the interests of justice.
4. The relevant exceptional circumstances, he contends are the following:
   • The father was successful in establishing the mother's guilt in three of five alleged contraventions.
   • The mother defended the charges but failed to provide, or even attempt to provide, a reasonable excuse for her conduct.
   • The father was compelled to incur significant legal costs in preparing for the application, attending two days of hearings, and instructing counsel.
   • By letter dated 1 July 2025 the father made a genuine offer to settle the proceedings whereby he proposed that the mother admit contravention without reasonable excuse, attend a post-separation parenting course, and agree to varied orders. If accepted, the father would have withdrawn the contravention application and sought no order as to costs. The mother did not respond.
   • The mother's conduct, including her ultimate concession of contravention, rendered further hearing unnecessary and resulted in unnecessary litigation and costs being incurred by the father.
5. Additionally, the father contends that the mother continued to repeat a pattern of conduct that gave rise to the original contravention proceedings even after the hearing of his contravention application. In that respect, he contends that, at a changeover on 14 June 2025, the mother failed to facilitate a changeover of the child moving from her care to the father's care in order to spend time with him in accordance with interim orders. As a consequence, the father contends that the changeover period lasted approximately 80 minutes with the police attending to enquire of the child's welfare before moving on without further action.

1. The mother contends that the circumstances of this case do not warrant departure from the general principle that each party, in family law proceedings, bears their own costs in accordance with s 114UB(1) of the Act.
2. In respect to the relevant factors set out in section 114UB(3) the mother contends as follows.
3. In terms of the financial circumstances of the parties (s 114UB(3)(a) of the Act), the mother, by reference to the parties' respective financial statements, contends that there is a stark disparity in resources with the father earning between $272,500 and $461,800 per annum, while the mother receives $425 per week by way of income and pays $650 per week in rent. This necessitates the mother relying upon child support and government benefits to make ends meet.
4. The mother contends that an adverse costs order would disproportionately burden the mother, who has majority care of the parties' child, and would compromise her ability to provide for the children's needs. In that respect the mother contends that, if she is required to pay the father's costs, it will reduce a relatively minor amount that she has set aside to provide for the child's future needs.
5. In terms of s 114UB(3)(e) of the Act, the mother contends that she was not wholly unsuccessful noting that two of the five allegations of contravention made against her were dismissed.
6. In terms of s 114UB(3)(c) of the Act, the mother states that it is relevant that she has complied with all procedural directions and, after reading the Court's reasons, entered into consent orders increasing the father's time and restructuring handovers. This, the mother contends, demonstrates acceptance of the Court's findings and her taking genuine steps towards facilitating the child's relationship with the father. In that respect the mother argues that the parties' agreement reflects developing trust. Imposing a significant adverse costs order risks undermining these fragile steps and may hinder the parties' ability to cooperatively engage in child focused co-parenting arrangements in the future.
7. In terms of s 114UB(3)(g) of the Act, the mother contends that it is relevant that the contraventions found against the mother were at the lower end of seriousness, unlike cases where serious costs consequences were imposed.
8. Finally, and, in the alternative, the mother contends that if the Court is minded to make a costs order, it should be for a modest, fixed sum or a small percentage of scale, and payment should be structured to avoid detriment to the child's welfare.

1. The father relies on conduct that he contends the mother engaged in on 14 June 2025 as a factor to be considered by the Court in determining whether the case falls into the exceptional category where an order for indemnity costs is justified. However, in rejecting that submission, it is important to appreciate that the reference to conduct in s 114UB(3)(c) of the Act is conduct as a litigant; Stephens & Stephens (Enforcement) (Costs) [2010] FamCAFC 172; (2010) 44 Fam LR 117 at 139 [118].
2. Even if the father's account of what he states occurred on 14 June 2025 is correct, it is not the mother's conduct as a litigant. Accordingly, I have not had regard to the father's assertions as to what he contends occurred on 14 June 2025.
3. I have considered the father's other submissions in support of the making of an order for indemnity costs. I have determined, however, that the relevant factors referred to by the father are not such that the case falls within that exceptional category of cases where an order for indemnity costs is justified.
4. I have, however, determined that an order for costs is justified in respect to the proceedings on a party/party basis. In doing so I have considered the following to be relevant.
5. In terms of s 114UB(3)(d) of the Act, it is highly relevant that the proceedings were necessitated by the mother's failure to comply with previous orders of the court.
6. In terms of s 114UB(3)(f) of the Act, even if she considered the offer to be unsatisfactory, it was imprudent of the mother to fail to respond to the settlement proposal set out in the letter from the husband's solicitors dated 1 July 2025. This was in circumstances where, at that stage, three of the five contraventions had been established, and where it could reasonably have been inferred that the mother faced significant challenges in establishing the existence of reasonable excuse. It was also relevant that, in my judgment of 16 May 2025, I encouraged the parties to attend family dispute resolution.
7. As against the factors that are indicative of an order for costs being made, I note that the mother was not wholly unsuccessful in respect to the proceedings. I further note that the mother, at the proceedings on 11 August 2025, took a responsible approach to settlement negotiations which ultimately proved constructive. As a result of those negotiations, the parties were able to reach an agreement to modify the parenting arrangements with a view to reducing issues that have given rise to tension between the parties including, most relevantly, the changeover arrangements.
8. Having regard to those matters, I am of the opinion that it is appropriate for the mother to pay 50% of the costs incurred by the father in respect to the contravention proceedings on a party and party basis, rather than an indemnity basis.
9. As earlier indicated, while I have the power to make a lump sum order in respect to costs, the information provided to me by the solicitor for the respondent appears to be assessed on an indemnity basis and, as a result, is not such that I can determine the appropriate quantum of costs assessed in accordance with the relevant Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
10. Additionally, the mother has made a case as to how the imposition of a significant lump sum costs order will present hardship to her and how such an order would adversely impact upon her ability to provide for the child's needs.

1. Accordingly, for all of the above reasons, I order that the mother is to pay 50% of the father's costs in respect to the contravention proceedings assessed on a party/party basis at the appropriate scale set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), with such costs to be paid within 90 days of being agreed or assessed.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.