Belo & Peusen [2026] FedCFamC1A 47 (23 March 2026)

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

1. These reasons for judgment explain why the Court will make an order for costs fixed in the sum of $15,000 against the appellant pursuant to r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules").

1. This Court was convened with the intention of hearing a dispute between the appellant and the respondent arising out of a Notice of Appeal filed 13 November 2025. The appellant discontinued her appeal by way of Notice of Discontinuance filed 23 February 2026, one day before the substantive appeal was listed for hearing. By way of an Application in an Appeal filed 24 February 2026, the respondent now seeks his costs in relation to the discontinued proceedings.

1. On 13 November 2025, the appellant filed the Notice of Appeal in relation to orders made on 16 October 2025 by a Justice of the Federal Circuit and Family Court of Australia (Division 1). The sole ground of appeal contended that "[t]he learned Justice did not provide to the Appellant sufficient procedural fairness at the time when she became a self-represented litigant on 1 September 2025".
2. The Notice of Appeal, and by proxy the sole ground of appeal, were discontinued the day before the hearing was scheduled to occur. Indeed, even if the ground had not been abandoned, it was without merit. When the matter came before us on 24 February 2026, the appellant's legal representative conceded at the outset that there was nothing that the primary judge was obliged to do, that she did not do. This was an appropriate concession to make.
3. Shortly following the discontinuance, the respondent filed the costs application together with a supporting affidavit of Melanie Boyd, solicitor for the respondent, filed 24 February 2026, seeking costs incurred in preparation for the abandoned hearing.

1. At the outset of the hearing the appellant's legal representative made an oral application for an adjournment to provide the appellant adequate time to file a Response to the Application in an Appeal, and any affidavit material in support.
2. Notwithstanding this, when pressed, the appellant's legal representative quite properly conceded that if the adjournment application was declined, he could nonetheless make submissions in relation the costs application, and tender any relevant documents required in support. The oral adjournment application was opposed by counsel for the respondent.
3. The Court dismissed the oral adjournment application as it was in the interests of justice for the matter to proceed to finalisation as expeditiously as possible.

1. The costs application was presented on two alternative bases:
   1. That within fourteen (14) days, the Appellant Mother pay the Respondent Father's costs of and incidental to the Appeal filed 13 November 2025, on an indemnity basis in the amount of $36,925.

Or in the alternative

1. That within fourteen (14) days, the Appellant Mother pay the Respondent's costs of and incidental to the Appeal filed 13 November 2025, on a standard basis in accordance with the Scale prescribed in Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 in the amount of $29,933.54.

1. The figures contained within the costs application differ from those provided in the respondent's Schedule of Costs filed 16 February 2026 pursuant to r 13.53 of the Rules. The Court understands that the lower figures outlined in the costs application form the basis of the respondent's claim for the present hearing, as the reduced amount factors in a reduction for expected court appearance fees.
2. The appellant formally opposed the costs application, however submitted that should the Court consider making such an order, a fixed costs order in the sum of $6,000 would be appropriate.
3. Counsel for the Independent Children's Lawyer appeared but did not wish to be heard on the costs application. The Court understands that he was not instructed to seek costs but nonetheless wished to remain present in the proceedings and did so.

1. The amendments to the Family Law Act 1975 (Cth) ("the Act") brought into effect by the Family Law Amendment Act 2024 (Cth) on 10 June 2025 apply to determine these competing applications. Section 114UB of the Act is the central provision concerning costs orders and replaces the now repealed s 117 of the Act. Section 114UB is in materially the same terms as the repealed s 117. Neither party contended otherwise. We are satisfied that the body of authority decided under s 117 remains applicable.
2. Subsection 114UB(1) of the Act provides that ordinarily, each party to the proceedings bears his or her own costs. Subsection 114UB(2) provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to subsection (3), s 114UC, s 114UD and the Rules, make any order for costs that the Court considers just.
3. Subsection 114UB(3) of the Act sets out the factors the Court must have regard to in considering what cost order, if any, to make. The discretion to award costs is a "broad" one, and the various enumerated factors are not to be read in any restrictive way (Collins and Collins [1985] FamCA 15; (1985) FLC 91-603). Any one of the factors may be the sole foundation for an order for costs (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish [2005] FamCA 158; (2005) 33 Fam LR 123).
4. The factors in s 114UB(3)(a), (c) and (e) were raised by the parties during oral submissions. None of the remaining factors were addressed by the parties and we are satisfied they are not relevant.
5. In relation to an award of indemnity costs, the Full Court decision of Phillips & Hansford [2020] FamCAFC 28; (2020) FLC 93-941, helpfully summarises the position as follows:
   1. Indemnity cost orders are made only in exceptional cases (Kohan and Kohan [1992] FamCA 116; (1993) FLC 92-340; Limousin v Limousin (Costs) [2007] FamCA 1178; (2007) 38 Fam LR 478; D & D (Costs) (No. 2) (2010) FLC 93-435).
   2. Whilst the categories of cases in which indemnity cost orders may be awarded are not closed, it is accepted that such costs may be ordered where a case was pursued with "wilful disregard of known facts or clearly established law" and where there has been "an imprudent refusal of an offer to compromise" (Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 at 233).
   3. In relation to the first category, it has been said that indemnity costs may be awarded where "the applicant, properly advised, should have known that he had no chance of success" (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401) and where "a party persists in what should on proper consideration be seen to be a hopeless case" (J Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers - Western Australian Branch & Anor [1993] FCA 70 per French J at 5).

1. Whilst counsel for the respondent acknowledged that indemnity costs were sought in the costs application, he again quite properly conceded that this was not pressed strongly. We agree and find that there is no basis on the material before us for making an indemnity costs order. This matter is not exceptional in the sense contemplated by Kohan and Kohan [1992] FamCA 116; (1993) FLC 92-340; amongst others.
2. Counsel for the respondent however submitted that an order for costs according to scale under Sch 3 of the Rules would be reasonable.

1. On behalf of the appellant, it was submitted in general terms that her financial circumstances, as compared with that of the respondent, were such that no order for costs should be made. The primary judge found at [423] that the appellant was currently unemployed, has not been in employment since 2020, was in receipt of Centrelink benefits, has otherwise no current earning capacity, and possesses modest financial resources. This was not subject to comment or question by the respondent.
2. Nonetheless, at [444], the primary judge found that the appellant was entitled to retain total net value assets of $783,761.85, which would involve a cash payment from the respondent to her in the sum of $169,287.85. As part of this, the appellant retained what was known in the final reasons as the Suburb F property unencumbered. The parties agreed, on a filed joint balance sheet set out at [363] of the reasons, that the value of the Suburb F property was $570,000.
3. On these bases, we are satisfied that the appellant has the capacity to meet a costs order, if made. In any event, impecuniosity is not a basis for declining to make an order for costs which is otherwise appropriate in the circumstances (Cross v Beaumont [2008] FamCAFC 68; (2008) 39 Fam LR 389).
4. The respondent submitted, and the appellant appropriately conceded, that the appellant was not wholly unsuccessful in the appeal proceedings, as she discontinued the proceedings prior to them being determined. However as foreshadowed above, and as conceded on behalf of the appellant, the sole ground of appeal was highly problematic. The discontinuance, filed the day before the appeal was scheduled to be heard, is equally problematic. In our view, the appellant's conduct in relation to the appeal proceedings caused the respondent to incur unnecessary costs.
5. On balance, we consider the circumstances do justify the making of an order for costs against the appellant in favour of the respondent.

1. The appellant made submissions in relation to the reasonableness and proportionality of the respondent's claim for costs. Those submissions took the Court to several specific issues which do not need to be addressed in detail. The Court accepts that not all of the scale costs claimed by the respondent were reasonable.
2. What is clear to the Court, however, is the lack of correlation between the complaints made by the appellant's legal representative, and their contention that only a costs order fixed in the sum of $6,000 would be appropriate.
3. Rule 12.17(1)(a) enables the Court to award costs in a fixed sum if it is minded to do so. The Full Court in Bartram & Marsden (No 3) [2025] FedCFamC1A 77 at [41] recently affirmed that "[t]he Rules and authorities make plain that we can fix an amount for costs (Pascoe & Larsen (No 2) [2022] FedCFamC1A 126; Graham & Squibb [2019] FamCAFC 33; (2019) FLC 93-892)".

1. There are no apparent statutory bounds placed on the discretion afforded to the Court. Justice Murphy, with whom Ryan and Strickland JJ agreed, stated in Wilmer & Golding (No 2) (2017) FLC 93-813 at [64] "Obviously enough, the court must act judicially in fixing or specifying a sum of costs".
2. This Court finds that it is desirable to fix costs, rather than put the parties to the further time and expense of engaging in an assessment or taxation of costs. Having closely reviewed the Schedule of Costs, and considered the submissions made, we consider costs fixed in the amount of $15,000 to be just.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Altobelli & Schonell.