Beach Petroleum NL v Johnson

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 Theodor & Fadl has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The Applicant mother, Ms Fadl ("the mother"), and the Respondent father, Mr Theodor ("the father"), were involved in parenting proceedings before this Court which were commenced by the father in April 2024. Those proceedings were listed for final hearing before me for five days commencing on 15 December 2025.
2. On 9 December 2025, the father lodged a Notice of Discontinuance ending his pursuit of orders sought in his Amended Initiating Application filed on 1 December 2025. The father's solicitor approached my Associate by email attaching a copy of the Notice of Discontinuance and raising the question of leave to file the document. The matter was listed on 11 December 2025 for a Case Management Hearing.
3. By way of email sent on the morning of 11 December 2025, the Independent Children's Lawyer ("the ICL") provided my Associate with a final parenting minute agreed between the mother and the ICL. When the matter came before me later that day, each parent and their respective legal representatives, as well as the ICL, appeared. Following a brief discussion, I granted leave pursuant to r 10.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") to the father to file and rely upon his Notice of Discontinuance. It was agreed that the father's Amended Initiating Application ought be withdrawn and dismissed, and I made those orders. The father's solicitor was subsequently excused from further participation.
4. Having regard to the Single Expert Report of Mr van Meurs and the ICL's submissions, and having been satisfied that the orders agreed between the mother and the ICL were in the child's best interests, I made final parenting orders and vacated the hearing. Those orders provided, inter alia, that:

(a) The mother have sole decision making responsibility;

(b) The child live with the mother and have no time or communication with the father;

(c) The child's name be changed to reflect the mother's surname; and

(d) Orders authorising the mother to apply for, and hold, an Australian passport for overseas travel by the child.

1. On 7 January 2026, the mother filed an Application in a Proceeding and affidavit in which she sought that the father pay her costs of, and incidental to, the parenting proceedings on an indemnity basis and fixed in the sum of $95,978.53. She alternatively sought that the father pay her costs on a party-party basis. The costs application was listed for Case Management Hearing before me on 16 January 2026 at which time I made orders listing the costs application for hearing on 16 February 2026 and timetabled the filing of the father's Response as well as case outlines.
2. In an Amended Application in a Proceeding filed on 12 February 2026, the mother varied her initial application such that she instead sought that the father pay her costs in the fixed sum of $60,000 or, in the alternative, costs on a party-party basis as assessed.
3. The father filed a Response to Application in a Proceeding on 30 January 2026 in which he sought the dismissal of the mother's costs application.
4. On 16 February 2026, I heard submissions from each party as to costs, noting that the ICL's appearance was excused following her electing not to seek payment of her costs or to be heard as to the costs dispute between the parents. I thereafter reserved my decision as to costs.

1. Following the father's filing of his Initiating Application on 5 April 2024, orders were made on 22 May 2024 for the mother to file and serve a Response to Initiating Application, with which the mother complied on 6 July 2024.
2. On 2 July 2024, the matter was allocated to the Evatt List and the ICL was appointed.
3. Between 2 July 2024 and 30 January 2025, across a number of procedural hearings before Registrars, the following occurred:

(a) Interim parenting orders were agreed on 9 August 2024 which included orders for drug testing (by the father), and which did not provide for the father to spend time with or communicate with the child;

(b) Following the making of an Apprehended Domestic Violence Order ("ADVO") for the protection of the mother and the child, the Local Court file was obtained and released to the parties;

(c) A Child Impact Report was prepared by Ms B and released;

(d) Information sharing material was requested from information sharing agencies.

1. At a Compliance and Readiness Hearing on 5 March 2025, the matter was transferred from the Federal Circuit and Family Court of Australia (Division 2) to this Court.
2. The matter was subsequently set down for final hearing and various orders were made in the leadup to the hearing, which included:

(a) Requests for further material from information sharing agencies as well as an up to date copy of the Local Court file; and

(b) The preparation and release, on 27 November 2025, of the Single Expert Report of Mr van Meurs ("Single Expert Report").

1. As previously stated, the father successfully filed a Notice of Discontinuance, by leave granted on 11 December 2025, thereby discontinuing his Amended Initiating Application. That Notice was filed 12 days after the release of the Single Expert Report. Certain recommendations were expressed in that report with respect to the care of the child and the Single Expert Report writer identified vulnerabilities for the child and the mother in the event time between the father and the child was to commence.
2. After the father's filing of his Notice of Discontinuance, the matter remained listed before me as the mother's Response to Initiating Application remained on foot and I made orders as summarised above on 11 December 2025.

1. In support of her application for costs, the mother relied upon the following documents:

(a) Amended Application in a Proceeding filed 12 February 2026;

(b) Case outline filed 13 February 2026;

(c) Her affidavit filed 7 January 2026; and

(d) Costs Notice filed 16 February 2026.

1. The father relied upon the following documents:

(a) Response to Application in a Proceeding filed 30 January 2026;

(b) Case outline filed 9 February 2026;

(c) His affidavit filed 30 January 2026; and

(d) Costs Notice filed 13 February 2026;

1. Each party relied upon the Single Expert Report dated 26 November 2025, which was admitted and became Exhibit 12. The father's solicitor drew my attention to paragraphs four and five of the Child Impact Report dated 11 December 2024 (Exhibit 13).
2. A number of other documents were tendered by each party and admitted into evidence. I have read and considered each of those documents.

1. The Rules provide, with respect to discontinuance (r 10.03(1)), that a party may apply for costs if the other party files a Notice of Discontinuance.
2. The Family Law Act 1975 (Cth) ("the Act") makes clear that unless the court is of the opinion that there are circumstances that justify the making of a costs order, each party is to bear their own costs. In the event that the court is persuaded that there are circumstances which justify the making of a costs order, the court may, subject to s 114UB(3), s 114UC, s 114 UD and the Rules, make any order for costs that "the court considers just" (s 114UB(2)).
3. Section 114UB(3) of the Act outlines the considerations that the court must have regard to when determining what costs order (if any) should be made, as follows:

(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 exercise of discretion to make a costs order and having regard to the matters set out in s 114UB(3) above, I am guided by authority which makes clear that no single factor will be determinative and not all the listed factors need to be satisfied before an order for costs may be made (see for example Prantage & Prantage (Costs) [2014] FamCA 850 at [12], citing Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) & Fish [2005] FamCA 158; (2005) 33 Fam LR 123).
2. The purpose of a costs order remains compensatory, not punitive (see Fowles & Fowles (No 5) [2024] FedCFamC1A 188). Under s 114UB(5) of the Act, the court may order that a party is entitled to costs of a specific amount or assessed on a particular basis (or otherwise as set out in that subsection). If a fixed sum is to be determined, the amount identified must be informed by the evidence available and be "logical, fair and reasonable" (Stoian & 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 mother deposes to being employed and earning an income of $150,000 per annum. She meets the day-to-day needs of the child, including her financial needs. The mother does not receive child support.
2. The mother lives in the former family home with the child and that home is subject to a mortgage. The parties have not resolved property or financial matters between them following the end of their relationship and there are no financial proceedings on foot.
3. The mother has engaged lawyers on a private basis and deposes to having expended total legal costs of almost $96,000 (relating to the parenting proceedings from the date the father served his court documents and not including the costs as they relate to the costs application).
4. The father deposes to previous employment in which he earned $85,000 per annum but that employment ceased in December 2025. Since that time, the father says that he has conducted a small business enterprise and earns a modest income of less than $400 per week on average. The father deposes to being unable to meet his self-support costs, including rental, from his income and that he is assisted by his parents in meeting this shortfall. The father says that he owes his parents $49,000 and that he intends to repay this amount from an eventual property settlement. The father has engaged a litigation funder and asserts that he has incurred total legal costs of a little over $54,000 (allowing for the costs of the costs hearing).
5. While I accept that the mother's financial circumstances are superior to those of the father, impecuniosity is not in itself a bar to the making of a costs order, if other considerations prevail (see for example Cross & Beaumont [2008] FamCAFC 68; (2008) 39 Fam LR 389 at [60]).

1. Neither party is receiving assistance by way of a grant of legal aid.

1. The mother submits that the father's conduct in the proceedings is a relevant consideration. It was submitted on her behalf that the father had caused additional costs by delaying decision making around the engagement of single experts. The father explained in his written evidence (and amplified in the submissions of the solicitor advocate appearing on his behalf) that he had experienced challenges in meeting the costs of his previous lawyers at certain points (during which they declined to progress matters on his behalf) but that in any event, those delays were modest and did not materially impact the total costs incurred on behalf of the mother.
2. The father commenced the proceedings ten months after the separation between the parties and has not seen the child since prior to separation. While the father initially applied for interim orders relating to time with the child, he withdrew his application for interim relief in circumstances where there were criminal proceedings pending (relating to the father's conduct during the relationship).
3. More generally, the mother contends that the father's pursuit of orders with respect to the child was misguided in circumstances where serious risk issues had been identified with respect to the father's conduct and other parenting deficits. Those arguments are addressed more fully below.

The necessity of the proceedings - s 114UB(3)(d)

1. Apart from the mother's contentions as to delay caused by the father, it was not asserted that there were other relevant matters relating to non-compliance with orders or that any aspect of the proceedings was necessitated by the father's failure to comply with orders. Both parties had complied with the filing directions relevant to the final hearing.

Whether a party has been wholly unsuccessful - s 114UB(3)(e)

1. The mother contends that, in discontinuing his application for parenting orders, the father has been wholly unsuccessful. However, the Full Court has recognised that the cessation of a proceeding arising from the filing of a Notice of Discontinuance does not in itself automatically produce a conclusion that the proceeding was "wholly unsuccessful". Section 114UB(3)(e) (formerly s 117(2A)(e)) contemplates an application being heard and determined on its merits, and the absence of success which might then be revealed should thereafter be considered and assessed (Bant & Clayton (Costs) [2016] FamCAFC 35 at [22]).
2. The mother did not make submissions about the distinction between matters concluded after contested proceedings (through which the success or otherwise of proceedings may be revealed) and proceedings concluded following an application being discontinued.
3. The father contends that he made the difficult decision to discontinue the proceedings after he had considered the Single Expert Report and received advice, and that he did so in a timely fashion, saving both parties the costs of conducting the final hearing (and the other non-financial burdens of such).

1. No evidence or submissions addressed this consideration.

1. The mother amended her relief such that she no longer expressly sought that the father pay her costs on an indemnity basis. Instead, the mother sought that the father pay the mother's costs in a fixed sum, the basis of the calculation of which was not made clear by the mother's evidence. While the sum claimed was less than the actual costs incurred by the mother in the proceedings, the basis of the calculation of the quantum claimed was not articulated and no framework was provided through which the court might assess the reasonableness, or otherwise, of the amount claimed.
2. While the court has a broad discretion with respect to fixing costs, any costs order made must be just (s 114UB(2)). The amount claimed by the mother remained substantial.
3. I respectfully refer to, and adopt, the observations of Riethmuller J in Tekla & Tekla [2025] FedCFamC1A 245 about the challenges of making a fixed order for costs:
   1. The costs discretion is a broad one (particularly when fixing modest sums for costs) but, as noted above, it must be exercised judicially. Rule 12.17 provides a variety of bases upon which costs orders may be made. The bases are not limited by the rule: Sfakianakis at 420-421, [10]. It is even open to the court to make a special costs order that sets the amount without specifically choosing a particular basis for assessment. However, a costs order must lead to an assessment of costs that is just: s 114UB(2).
   2. For modest costs orders or orders in circumstances where costs are commonly ordered, a judge's experience is often sufficient to fix a lump sum. For larger costs orders, particularly in litigation where it is uncommon to order costs (such as first instance family law work), the exercise of the discretion requires an evidentiary basis or at least a more structured reasoning process if reliance is to be placed upon court scales or judicial experience. As the determination of the quantum requires assessment of the reasonableness of the items of work done and the rate charged for that work, an itemised list, preferably prepared by a costs consultant as a short form or fully itemised bill of costs on the appropriate scale, is important evidence. This provides evidence of the actual work done, the rates charged and allows for a determination as to whether the work done and rates charged are reasonable. This approach is common in other jurisdictions, but, inexplicably, has not been widely adopted by family lawyers.
4. The mother's evidence establishes that she had engaged lawyers to represent her, had entered into a fee agreement with them and had been billed certain sums by her lawyers, in accordance with that fee agreement. The fee agreement was in evidence, along with (partially redacted) copies of various invoices issued by the mother's solicitors to her for work undertaken in accordance with that fee agreement.
5. The fee agreement between counsel engaged on the mother's behalf (who was not counsel who appeared at the hearing of the costs application) and the mother's solicitors and, or, the mother was not in evidence. Exhibit 6 included fee statements from counsel to the mother's solicitors in which a "cancellation fee" was charged by counsel. As counsel's fee agreement was not in evidence, the basis upon which that fee was claimed remained unclear. I also have regard to r 12.08(5) which makes clear that when costs are sought by one party against another, cancellation fees claimed by a barrister are not taken to be reasonable.
6. Counsel for the mother submitted that the fixed amount claimed by the mother was "about" 60 per cent of the total costs the mother had incurred and that such was a reasonable costs claim in the circumstances of the matter and this approach would save the parties from the additional challenges and costs of a costs assessment. The mother had sought alternative orders that costs be paid on a party-party basis, as assessed.

1. In effect, the mother's argument is that she has been put to considerable expense in responding to the father's parenting application, only to have the father discontinue that application at the last minute. Consequently, the mother contends that the father should bear a considerable part of the costs she has incurred in the proceedings he had commenced, about their child.
2. There is no evidence to suggest that the father's pursuit of orders relating to the care of the child was not bona fide or that he was motivated by reasons other than his belief that doing so was in the child's best interests. The father contends that his continuation of the proceedings was in some part supported by the observations of the Child Impact Report writer in December 2024 (Exhibit 13), suggesting that if the father could establish "positive gains" through treatment (to address a range of deficits and challenges to his psychological health), then the parties might benefit from further discussions about the parenting of the child.
3. Upon receipt of the Single Expert Report, and consideration of the recommendations expressed in that report, the father determined that he would not persist in his application for parenting orders. That decision had the benefit of saving each of the parties (and inferentially, the child) from the various burdens of a final hearing. I have regard to the overarching purpose of family law practice as set out in s 95 of the Act. The just resolution of disputes in a timely manner, while limiting the application of the resources of the parties and the court, is encouraged.
4. I am not persuaded, in the circumstances summarised above, that there is justification to deviate from the general principle that each party should bear their own costs. The father's decision to discontinue his application for parenting orders, made in a timely fashion, after consideration of the recommendations of the Single Expert, does not in itself, establish a basis for a costs order being made against him. While none of the evidence in the proceedings was tested and no findings were made, the father has arguably evidenced insight about the state of the evidence, at that time, and the challenges he likely faced in securing the orders he proposed relating to the child. Having made that determination and thereby obviating the necessity for a five-day final hearing, I am not persuaded that the father ought to be held responsible for payment of any part of the costs incurred by the mother.
5. I propose to dismiss the mother's Amended Application in a Proceeding and will make an order that each party bear their own costs.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Simpson.