Family Law Act 1975 (Cth) ss 114UB, 117

Armington & Armington [2020] FamCA 765

Cole v Ingram (2020) 62 Fam LR 158

Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

Fitzgerald v Fish [2005] FamCA 158; (2005) 33 Fam LR 123

Unterbrink & Unterbrink [2025] FedCFamC1F 280

Guild v Stasiuk [2020] FamCA 348; (2020) 63 Fam LR 322

Hatcher v Cohn [2004] FCA 1548

H v N [2017] FCCA 1190

In Dwyer v McGuire (1993) 17 Fam LR 42

In the Marriage of Gyselman [1991] FamCA 93; (1992) 15 Fam LR 219

In the Marriage of Bendeich [1992] FamCA 114; (1992) 16 Fam LR 371

In the Marriage of Kohan [1992] FamCA 116; (1992) 16 Fam LR 245

In the Marriage of Munday & Bowman (1997) 22 Fam LR 321

Ishak v Thowfeek [1968] 1 WLR 1718

Leyfield & Padfield [2012] FamCAFC 83

Medlon v Medlon (No 6) [2016] FamCAFC 34; (2016) 54 Fam LR 389

McNamara (McGrath) v Consumer, Trader and Tenancy Tribunal (2005) 221 CLR 646

Marshall v Director-General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24

Moy & Pao [2022] FedCFamC1A 17

Nemeth v Nemeth [1987] FamCA 12; (1987) FLC 91-844

Ogden Industries Pty Ltd v Lucas [1968] UKPCHCA 1; (1968) 118 CLR 32

Palmanova Pty Ltd v Commonwealth [2025] HCA 35

Penfold v Penfold [1921] HCA 43; (1980) 5 Fam LR 579

Verdon & Verdon (2020) 62 Fam LR 573

R v Hunt; ex pare Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. Pursuant to s 114UB of the Family Law Act, the wife must pay the husband's costs of and incidental to the application determined by me in Unterbrink & Unterbrink.[1]
2. Those costs are to be assessed on a party and own party basis.
3. I order that costs ordered to be paid by the wife must not be recovered by the husband until after the hearing and determination of the parties' s 79 application or the settlement of that litigation.
4. I direct that this proceeding is listed for directions before me at 10.00am on 2 February 2026 for ongoing case management.

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

1. Consequent upon the orders made in Unterbrink & Unterbrink,[2] the husband sought costs on an indemnity basis in the sum of $191,889 or alternatively on scale in the sum of $111,976.02. The husband relied on an annexure to his submissions to demonstrate the way in which costs were calculated.
2. The wife submitted that costs should be reserved for determination at trial.
3. For the reasons that follow, I am of the opinion that a costs order should be made now but that payment of it should await the hearing and determination at trial of the parties' s 79 application or a settlement of that litigation.

1. Pursuant to orders made on 2 May 2025 in Unterbrink & Unterbrink,[3] the wife was ordered to take all steps to enable a valuer to attend at the principal place of business of a clothing enterprise trading in State R India called "B Partnership" so as to value the wife's partnership interest in B Partnership and then for the valuer to provide a sworn valuation of the wife's interest in that business.
2. In that application the wife resisted the grant of the orders ultimately made. She was unsuccessful in her opposition to those orders. I invited submissions on costs.
3. Written submissions were duly filed by both parties, on behalf of the husband on 2 June 2025 and on behalf of the wife on 2 July 2025.

1. The relevant decision in respect of which costs were sought was made 2 May 2025, that is to say, after the commencement of the operation of s 114UB of the Family Law Act which replaced s 117(2) and (2A) of the Family Law Act.
2. It is well established in family law jurisprudence that an order for indemnity costs is to be made only in exceptional circumstances.[4] The expression "exceptional circumstances" was addressed by Kiefel J in Hatcher v Cohn.[5] That case concerned legislation relevant to the medical profession, there being no immediately apparent parallel to legislation governing costs in family law litigation.
3. As a matter of statutory construction it is well established that a particular phrase used in one piece of legislation does not necessarily bear the meaning attributed to that phrase where the same phrase is used in different legislation. I surveyed the learning on that issue on Guild v Stasiuk[6] and in Verdon v Verdon.[7] The decided cases on point include Ogden Industries Pty Ltd v Lucas,[8] McNamara (McGrath) v Consumer, Trader and Tenancy Tribunal,[9] Marshall v Director-General, Department of Transport[10] and Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority.[11] Context is critically important in construing the provisions of legislation, as was held by the High Court in Palmanova Pty Ltd v Commonwealth.[12] I am prepared to proceed on the basis that despite the different contexts of a consideration of costs in a family law dispute (as is this case) and of legislation concerning health issues (as were involved in Hatcher v Cohen)[13] the words "exceptional circumstances" have the meaning given to that phrase by Kiefel J (as her Honour then was), namely, out of the ordinary.
4. The statutory starting premise in any consideration about costs is reposed in s 114UB(1), namely, that each party bears his, her or its own costs. Section 117(1) of the Family Law Act was to like effect.
5. It is permissible for a court to make an order that deviates from the statutory starting premise in s 114UB(1). Section 114UB(2) permits the court (subject to various statutory provisions) to make any order for costs the court considers just, whether by interlocutory order or otherwise. In order for the court to make such an order that deviates from the more unusual order for each party to bear, his, her or its own costs, the court must be of opinion that there are circumstances justifying it in doing so.
6. Section 114UB(3) imposes a mandatory requirement for the court to "have regard to" seven specified matters set out between s 114(3) (a) - (g) "in considering what costs order (if any) should be made". The requirement for the court to "have regard to" certain specific provisions in the subsections to s 114UB(3) does not mean that the court must incorporate in its reasons its cogitation of those specific provisions. In addressing these reasons in relation to costs, I have had regard to each of the matters in each of the subparagraphs of s 114UB(3) of the Family Law Act, even though I have not recorded in writing my cogitation of each of those matters. So far as the words "have regard to" are concerned, they were the subject of specific attention in R v Hunt; ex pare Sean Investments Pty Ltd[14] where Murphy J held that those words require the decision maker to take the prescribed matters into account and to consider them, giving due weight to them, but the decision maker has an ultimate discretion.
7. In In the Marriage of Bendeich[15] Mushin J applied the ratio decidendi in Sean Investment,[16] adding that a similar line of reasoning was discernible from the High Court's decision in Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[17] In In the Marriage of Bendeich[18] Mushin J was concerned with an application under the Child Support (Assessment) Act whereas in Sean Investments the court was concerned with aspects of the National Health Act. In Dwyer v McGuire[19] the court was also concerned with aspects of the Child Support (Assessment) Act. In that case it was held that the phrase "must have regard to" means that "the court has a duty to take those matters listed into account and give due weight to them, subject however, to the overriding discretion of the court", citing Ishak v Thowfeek.[20] Citing In the Marriage of Gyselman,[21] in Dwyer v McGuire[22] it was held that when legislation provides that the court must have regard to matters in a collection of such paragraphs, that does not mean that "it is necessary in each case to slavishly go through each of the paragraphs".
8. In Fitzgerald v Fish[23] it was held in reference to s 117(2A) of the Family Law Act as it was then operative, there being no relevant difference between s 117(2A) and s 114UB(3), that there was nothing to prevent any one factor of the several factors mentioned being the sole foundation for a costs order.
9. That brief examination enables certain propositions to be stated. They are -

(a) as was held in Fitzgerald v Fish[24] only one of the matters in s 114UB(3) needs to be relied on for a party to seek an order that deviates from the more usual order under s 114UB(1) of the Family Law Act;

(b) while seven separate matters are set out in s 114UB(3) being matters to which "the court mut have regard", as was held in Sean Investments[25] I am required to consider each according due weight to each but I ultimately have a discretion in their application; and

(c) according to In the Marriage of Gyselman,[26] I am not required to slavishly go through each of the subparagraphs of s 114UB(3).

1. Counsel for the husband propounded an order for indemnity costs. Counsel for the wife resisted such an application contending that an order for indemnity costs was not just in all the circumstances. It was also put on behalf of the wife that no basis had been shown for the making of an order for indemnity costs, that is to say, the triggering criteria had not been established.
2. The husband cast his case for the imposition of indemnity costs on the wife's failure to comply with her disclosure obligations. In written submissions filed in support of his costs application dated 2 June 2025 his position was expressed in the following terms -

"As the Applicant contends, the Respondent has a 25% interest in the clothing partnership business known as '[B PARTNERSHIP]' located at [Property C], India ("[B Partnership]") from where she is entitled to profits which are deposited into her Capital account with B Partnership. The Respondent has resisted to provide full and frank disclosure as to her interest in B Partnership."

1. My reasons dated 2 May 2025 were set against a backdrop in which the wife, as respondent in this litigation, declined to comply with her disclosure obligations. I made an array of orders, none of which was the subject of challenge.
2. Expressed most basically, the wife has at all relevant times been a partner in a retail enterprise governed by Indian partnership law, the name of which enterprise is "B Partnership'. The partnership is constituted by a deed of partnership dated 1 July 2001 pursuant to the terms of which the wife, her parents and her sister each held a 25% interest in the partnership. By supplementary deed of partnership made on 1 December 2021, the wife's interest in the partnership diminished from a 25% interest to a 5% interest. It was asserted in debate on 14 April 2025 that the supplementary deed made on 1 December 2021 was only revealed once this litigation commenced in 2022 in Division 2 of this court.
3. One of the issues before me on 14 April 2025 was whether a valuer should value the wife's interest in the B partnership and to that end, whether the husband should be at liberty to provide to the valuer such documents as the wife had previously disclosed to enable the valuer to carry out the valuation. I made orders to that effect. In the course of providing reasons for judgment dated 2 May 2025 I made various observations about a party's obligation to make adequate disclosure.[27] I concluded that the wife's compliance with her duty of disclosure had been defective.

1. Pursuant to my orders made on 2 May 2025, the husband filed his affidavit sworn 2 June 2025 in which he deposed to a collection of issues relevant to costs. He also deposed to matters under the heading "the respondent's conduct". Several paragraphs of that affidavit impermissibly purported to introduce information having little probative value and which incorporated words, phrases and expressions that were pejorative. Paragraph 27 of that affidavit is replete with instances of that. Solicitors preparing affidavits must keep in mind that a deponent is required to depose to material facts, not make submissions, nor should the deponent purportedly depose to phrases that are not based in fact. When that pejorative material is disregarded, the gravamen of the respondent's 2 June 2025 affidavit is contained in his contention that the orders made on 2 May 2025 are largely reflective of the proposals in his correspondence on 24 August 2023, 18 October 2023, 20 October 2023, 23 October 2023 and 25 October 2024.
2. To my way of thinking, the more relevant issue is that consent orders were made on 22 February 2024 instructing a valuation to be obtained of the wife's interest in B Partnership. The wife thwarted the valuation process. I ordered her to undertake the tasks set out in my orders made on 2 May 2025.
3. The husband relied on the wife's conduct under s 114UB(3)(c) of the Family Law Act in support of his costs application. He argued that the wife's conduct in providing disclosure had been defective warranting an order for her to pay costs. He called in aid statements about a party's disclosure obligations in cases such as Oriolo v Orido[28] and Nemeth v Nemeth.[29] He also submitted that he was successful in the application then before the court warranting a costs order.[30]
4. In addition to seeking an order for the wife to pay his costs, the husband argued that such an order should be on an indemnity basis. In support he relied on several decisions including my own in H v N[31] and in Armington & Armington,[32] plus the decision in Hamod v New South Wales,[33] Colgate Palmolive Co v Cussons Pty Ltd[34] and Leyfield & Padfield.[35]
5. The husband submitted that the wife adopted a position which was devoid of merit. He said indemnity costs should follow.

1. I take the view that it is not appropriate to order costs on an indemnity basis. The wife resisted the provision of disclosure. Her reasons for doing so were rejected. However, she did not behave in a manner that was exceptional in the sense that it was out of the ordinary. It was wrong, however. Yet costs on a party/party basis will suffice.
2. I agree that it would be unjust to order her to pay costs on an indemnity basis.
3. Further, costs on a party and own party basis must be assessed.
4. To order the wife to pay those assessed costs now, prior to the determination of the parties' s 79 application would be unjust.
5. Further, costs must be assessed by a registrar.

1. For the above reasons I order that pursuant to s 114UB of the Family Law Act, the wife must pay the husband's costs of and incidental to the application determined by me in Unterbrink & Unterbrink.[36]
2. Those costs are to be assessed on a party and own party basis.
3. I order that costs ordered to be paid by the wife must not be recovered by the husband until after the hearing and determination of the parties' s 79 application or the settlement of that litigation.
4. I direct that this proceeding is listed for directions before me at 10.00am on 2 February 2026 for ongoing case management.

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

[1] [2025] FedCFamC1F 280.

[2] [2025] FedCFamC1F 280.

[3] [2025] FedCFamC1F 280.

[4] In the Marriage of Kohan [1992] FamCA 116; (1992) 16 Fam LR 245, In the Marriage of Munday & Bowman (1997) 22 Fam LR 321, Medlon v Medlon (No 6) [2016] FamCAFC 34; (2016) 54 Fam LR 389, and Moy & Pao [2022] FedCFamC1A 17, for example. The list of authorities on point is vastly larger than these, however.

[5] [2004] FCA 1548.

[6] [2020] FamCA 348; (2020) 63 Fam LR 322.

[7] (2020) 62 Fam LR 573 (at fn [60]).

[8] [1968] UKPCHCA 1; (1968) 118 CLR 32.

[9] (2005) 221 CLR 646.

[10] [2001] HCA 37; (2001) 205 CLR 603.

[11] [2008] HCA 5; (2008) 233 CLR 259.

[12] [2025] HCA 35.

[13] [2004] FCA 1548.

[14] [1979] HCA 32; (1979) 180 CLR 322.

[15] [1992] FamCA 114; (1992) 16 Fam LR 371.

[16][1979] HCA 32; (1979) 180 CLR 322.

[17] (1985) 162 CLR 24.

[18] [1992] FamCA 114; (1992) 16 Fam LR 371.

[19] (1993) 17 Fam LR 42.

[20] [1968] 1 WLR 1718.

[21] [1991] FamCA 93; (1992) 15 Fam LR 219.

[22] (1993) 17 Fam LR 42.

[23] [2005] FamCA 158; (2005) 33 Fam LR 123 (at [41]).

[25] [1979] HCA 32; (1979) 180 CLR 322.

[26] [1991] FamCA 93; (1992) 15 Fam LR 219.

[27] Unterbrink & Unterbrink [2025] FedCFamC1F 280 (at [45] et seq).

[28] [1985] FamCA 54; (1985) FLC 91-653.

[29] [1987] FamCA 12; (1987) FLC 91-844.

[30] Penfold v Penfold [1921] HCA 43; (1980) 5 Fam LR 579 and Cole v Ingram (2020) 62 Fam LR 158.

[31] [2017] FCCA 1190.

[32] [2020] FamCA 765.

[34] (1993) 118 ALR 248.

[35] [2012] FamCAFC 83.

[36] [2025] FedCFamC1F 280.