Byrnes v Brisconnections Management Co Ltd [2025] FedCFamC2F 1625 | Case summary

Federal Circuit and Family Court (Div 2)|2025-11-19

For the reasons recorded above I am satisfied that there are circumstances that justify the displacement of s114UB(1) of the Act and that it is just to order costs.
Rule 12.17 states that the court may order costs:-
- of a specific sum;
- as assessed on a particular basis;
- to be calculated in accordance with a method determined by the court;
- or the scale of costs at Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) ("costs at scale").
The ordinary rule is that an order for costs is calculated on a party/party basis, and to depart from that rule and award indemnity costs, exceptional circumstances must be demonstrated: ; , at 79,614.

(a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts...

(b) Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud...

(c) Evidence of particular misconduct causing loss of time to the court and to other parties...

(d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions...

(e) An imprudent refusal of an offer to compromise.

The categories of circumstances which enliven the discretion to award indemnity costs are not closed: Yunghanns & Yunghanns (2000) FLC 93-029; [2000] FamCA 681 at [31].
The Full Court in Phillips & Hansford [2020] FamCAFC 28 stated as follows at [35]-[37]:

Indemnity cost orders are made only in exceptional cases.

Whilst the categories of cases in which indemnity cost orders may be awarded are not closed, it is accepted that such orders 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".

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" and where "a party persists in what should on proper consideration be seen to be a hopeless case".

(Citations omitted)

Whilst the mother has provided her costs agreement with both her legal representatives and counsel,[4] there is no evidence as to how the indemnity sum sought by the mother is comprised, bar the assertion that it is made up of $9,451.20 for Kalpaxis Legal's fees and Counsel's fees of $5,500 between 19 March 2025 and 30 June 2025. There is no itemised bill that records how such fees are comprised. I am not satisfied in those circumstances that I am able to award costs on an indemnity basis as sought by the mother.
I am satisfied that it is appropriate to order a fixed sum so as to avoid further delay and inconvenience to the parties by the requirements of a bill being taxed: see Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51]. To order costs in a specified amount avoids the expense, delay, and aggravation arising out of an assessment of costs (Graham & Squibb [2019] FamCAFC 33; (2019) FLC 93-892 at [92]).
I am not satisfied that the complexity of the issues before the court arising from the mother's interim application required the briefing of Counsel.
By way of reference, costs at scale would comprise broadly the following:

Initiating or opposing an application for interlocutory orders (including an interim hearing)

(a) $2,275.34; and

(b) $1,364.75 (the daily hearing fee specified in item 13 that applies to the hearing, being a half day hearing)

$682.375 (50% of the daily hearing fee specified in item 13 that applies to the hearing)

Drafting, conference and chamber work - allowed at solicitor rate and for five hours

Taking the scale into consideration, for the reasons recorded above I am satisfied that it is appropriate and just to fix costs to be paid by the father in the sum of $7,500 and will so order.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.

[1] Visible on the court portal as "Correspondence" and thus marked as "Exhibit F1".

[2] Father's Financial Statement filed 25 June 2025.

[4] Attached to Written Submissions filed 28 July 2025.

Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021

Circuit and Family Court of Australia (Family Law) Rules 2021

The father is self-employed as an allied health worker and is in receipt of weekly income of $2,066.[2] He deposes to having expenses totalling $1,985. Such expenditure includes weekly asserted expenditure of $321 for groceries, Netflix and charity of $16, car servicing and maintenance of $77, entertainment/ hobbies of $35, and education expenses of $42 per week absent any corroborative evidence. The father deposes as to having $26,784 worth of property, primarily consisting at the time of filing (in June 2025) of a motor vehicle and a motorcycle, the latter of which has now been sold. There is no evidence to support a finding as to his outstanding legal fees which the father "estimated" to be $99,000. The father's submissions consistently refer to his inability to pay and that "bankruptcy is a strong avenue of consideration."
The mother privately funds her legal representatives. She is employed as an educator and is in receipt of average weekly income of $2,972, inclusive of $2,470 in salary, a total of $430 in Family Tax Benefit and child support from the father. She deposes to expenditure of approximately $2,986 per week.
The mother submits that financial disclosure requested of the father was late-received and has made it difficult to truly ascertain the father's capacity to pay, and that the existence of the father's superannuation and asserted inability to meet costs must be viewed against a background of his discretionary spending (including paying for flights) and ceasing to pay the children's high school fees.
I am not satisfied that the father has met his evidentiary burden for me to make a finding that he lacks the capacity to contribute to the mother's costs. In any event, impecuniosity or poor financial circumstances is no bar to an award of costs being made: Lenova & Lenova (Costs) [2011] FamCAFC 141 and D & D (Costs) No 2 (2010) FLC 93-435.
Neither party is in receipt of legal aid.
The rules of the court should be taken into account when the court is exercising its discretion as to costs: see Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [25]. Parties have a mandatory obligation pursuant to r 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to conduct proceedings in a manner consistent with the overarching purpose of the court, being the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.
The listing of the matter in chambers on 16 April 2025, for directions on 2 May 2025 and the Defaulter's List on 30 June 2025, arose entirely from the father's failure to comply with the orders made by consent on 11 December 2024. But for the father's non-compliance causing the mother to file an Application, the matter may have proceeded in the normal course.
The father's costs notice filed on 12 December 2024 anticipated the costs of the appointment of the single expert. The orders for the single expert report were made by consent. The father's submission that he was "not asked or consulted with if I had capacity to pay" is difficult to reconcile with those realities. He provides no evidence as to how his financial circumstances have shifted from the time of entering the consent orders to such purported incapacity at the present date. He had ample opportunity to inform both the mother and C Centre of such inability when invoices were received and correspondence in reminder exchanged. He failed to do so until after the deadline for payment had passed. It is solely the conduct of the father that has raised the mother's legal fees beyond what they should have been in light of the consent orders. It was open to him to seek to vary the orders, or to seek to discharge them, or to at the very least inform the mother as to his inability to pay, which may have led to some compromise. His submission that it was not his intent to "wilfully disregard anyone" does not assist because costs have already been incurred on account of his inaction. It is too late.
Not only did the father's inaction cause an increase in the mother's legal costs, it too had an impact on this court's scarce resources. I accept the mother's submission that the father did not provide any alternative means of satisfying his contribution until the day of the hearing.
The father further submits that he attempted to engage in discussions with the mother due to his inability to pay "requesting a mutually rational way forward" which were declined by her.[3] There is no evidence bar the father's bare assertion that any attempt was made at contacting the mother or her legal representatives as to this issue and I cannot be satisfied this occurred. The father has not filed an affidavit as was open to him to do so by the 30 June 2025 orders in support of his position which would have afforded him the opportunity to put evidence on of those attempts, if they existed.
The father's submissions are largely unhelpful and are littered with irrelevant material as to the mother's conduct, particularly in relation to the mother's parenting. He then lays blame on her for engaging legal representatives, despite that being within her right as a litigant in this court; "the applicant has Soley [sic] chosen, of her own will, to engage multiple lawyers and counsel to provide advice and representation."[4] Such submissions reflect poorly on his insight as to his conduct in delaying the matter. Further, his submission that the mother was reimbursed in full and suffered no financial loss is plainly incorrect given the sum clearly and necessarily expended by her on legal fees. I do not accept it.
The mother deposes to numerous attempts at resolving the dispute as to the single expert's fees via correspondence in her affidavit. The father, as recorded above, simply did not respond.
The mother's application of 2 May 2025 and the subsequent orders made on 29 October 2025, albeit by consent, directly arose from the father's conduct as referred to above.

Byrnes v Brisconnections Management Co Ltd

At a glance

Court

Decision date

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Judgment (14 paragraphs)

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Legislation Cited (3)

Cases Cited (3)