Dajani & Dajani (No 3) [2025] FedCFamC1F 432 (30 June 2025)

(a) Application in a Proceeding filed 22 November 2024;

(b) Amended Application in a Proceeding filed 2 April 2025;

(c) Affidavit filed 15 October 2024;

(d) Affidavit filed 22 November 2024;

(e) Cost Schedules filed 2 April 2025;

(f) Affidavit of Ms D filed 8 April 2024;

(g) Written submissions filed 2 April 2025 ("wife's written submissions");

(h) Written submissions in reply filed 8 May 2025 ("wife's written submissions in reply"); and

(i) Written submissions filed 20 May 2025 ("wife's fixed costs submissions").

1. In support of his case, the husband relies upon:

(a) Response to an Application in a Proceeding filed 23 April 2025;

(b) Affidavit filed 23 April 2025;

(c) Written submissions filed 23 April 2025 ("husband's written submissions"); and

(d) Written submissions filed 20 May 2025 ("husband's fixed costs submissions").

1. The law relating to costs in family law proceedings is well settled and is set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke [2016] FamCAFC 248; (2016) FLC 93-748.
2. An application for costs is governed by s 117 of the Family Law Act 1975 (Cth) ("the Act"). Section 117(1) of the Act sets out the general presumption that each party to the proceedings shall bear their own costs. This is subject to s 117(2), which provides that:

If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as the court may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

1. Section 117(2A) sets out the matters that the Court is to have regard to:

(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a) the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, 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;

(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 either 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; and

(g) such other matters as the court considers relevant.

1. Although the Court is required to consider each of the abovementioned factors, their relevance to a particular matter will depend upon the circumstances of that case and they should be considered in that light. That is, no one factor prevails over another and it is a question of the weight that is to be afforded to each of the relevant factors depending on the circumstances of the matter (Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) FLC 93-664 at [24]). There is also "nothing to prevent any factor being the sole foundation for an order for costs" (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish & Another [2005] FamCA 158; (2005) 33 Fam LR 123 at [41]).
2. Whilst the applicant in a costs application must establish the circumstances justifying the making of a costs order, the Court is not limited to making such an order only in what has been described as a "clear case" (Penfold v Penfold (1980) 144 CLR 311).

1. In the stay costs application, the wife seeks the following orders:
   1. That the Respondent pay the Applicant's costs of and incidental to the Application in a Proceeding filed 14 October 2024 on an indemnity basis in the sum of $30,302.67 and in the alternative, that costs be calculated in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 in the fixed sum of $21,530.46.
   2. That the Respondent pay the Applicant's costs of this application on an indemnity basis in the sum of $2,931.50 and in the alternative, that costs be calculated in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 in the fixed sum of $1,858.09.

3. Such further orders that the Court deems fit and necessary.

1. In the substantive costs application, the wife seeks the following orders:
   1. That the Respondent pay the Applicant's costs of and incidental to these proceedings on an indemnity basis in the sum of $508,764.54 and in the alternative, that costs be calculated in accordance with Schedule 3 to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (The Rules) in the fixed sum of $367,192.82.
   2. In the alternative to Order 1, that the Respondent pay the Applicant's costs of and associated with these proceedings after 15 July 2021 (being the date of the offer) calculated on an indemnity basis and fixed in the sum of $390,235.57 and in the alternative, that costs be calculated in accordance with Schedule 3 of The Rules in the fixed sum of $280,699.48.
   3. That the Respondent pay the Applicant's costs of this application on an indemnity basis in the sum of $7,614.75 and in the alternative, that costs be calculated in accordance with Schedule 3 of The Rules in the fixed sum of $6,115.35.
   4. No interest shall accrue if the costs are paid within 28 days of the date of the orders, otherwise, interest shall be calculated in accordance with Rule 10.17 of The Rules.
   5. Such further orders that the Court deems fit and necessary.
2. In the response, the husband seeks the following orders:

In relation to the Application in a Proceeding filed on 10 October 2024 and amended on 2 April 2025:

1. The Application be dismissed.

1. In the alternative, in the event the Court finds it appropriate to make any order for costs:
   1. The period for which costs be paid be from the date of the trial to 10 October 2024 only; and
   2. Within twenty-one (21) days of the Court's determination of this Application, the Applicant instruct a qualified Costs Consultant, at her cost to prepare a Bill of Costs for the ordered date range, calculated in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and
   3. The Respondent pay the Applicant's costs as assessed in the Bill of Costs prepared in accordance with Order 2b above within fifty-six (56) days of the date of service of the Bill of Costs.

In relation to the Application in a Proceeding filed on 22 November 2024:

1. The Application be dismissed.

1. In the event the Court orders that costs are payable in relation to the Application in a Proceeding filed on 22 November 2024 those costs be fixed in the sum of $5,000.

1. At the outset of the husband's fixed costs submissions, he suggests that the Court should not rely on the wife's fixed costs submissions as they exceed the stipulated word count and are not relevant. Instead of asking the Court to strike out, or to not read the material, the husband seeks that the wife's fixed costs submissions be considered as evidence of "failure to comply with Court orders" and that this be "taken into account as to the issue of costs of the application" (husband's fixed costs submissions, notation B).
2. It is unclear what relief the husband seeks. The body of the fixed cost submissions filed on behalf of the wife is no more than 277 words in length. The body of the fixed cost submissions filed on behalf of the husband are 345 words in length and 450 words in length when the notations atop the document are included. The Court speculates that the notations atop the husband's fixed costs submissions may be in response to an early version of the wife's fixed cost submissions that were subsequently altered before filing. In any event, the husband's contentions regarding the wife's fixed costs submissions are incorrect. The Court will consider the wife's fixed costs submissions.

1. Costs orders are made at the Court's discretion based on the factors listed in s 117(2A) of the Act. The Court must consider all the factors in s 117(2A), and no one factor takes precedence over another (In the Marriage of I & I (No. 2) [1995] FamCA 80; (1995) FLC 92-625).
2. The Court sees no reason not to, broadly, address the costs applications in unison. Where required, certain actions, conduct or comments attributable solely to the substantive costs application or the stay application may be made. This will be expressly demarcated where it occurs. A discussion of the s 117(2A) considerations follows.

Section 117(2A)(a): Financial circumstances of the parties

1. Both parties are financially comfortable. The wife is retired and earns approximately $2,308 weekly from a superannuation account-based pension (wife's written submissions, paragraph 9). The husband is incarcerated and is unable to engage in gainful employment. His Financial Statement filed 19 April 2024 deposes to an income of $229 weekly. Despite the husband's inability to work, by virtue of the substantive proceedings he retains net matrimonial assets valued at about $3,300,000 after paying an amount to the wife (final reasons at [191]-[192]). The wife will retain the net balance of the matrimonial assets valued at not less than approximately $4,694,010 (final reasons at [191]).
2. The Court does not accept, for several reasons, the husband's contention that his long-term financial circumstances prohibit, or otherwise make unjust, a cost order adverse to his interests.
3. Firstly, the husband raises the former matrimonial home "being sold undervalued" as a factor under s 117(2A)(a) weighing against a costs order ("husband's written submissions, paragraph 6).[1] In the final reasons for judgment at [4] this Court noted that the former matrimonial home was "worth approximately $4 million" (Emphasis added). The $4,000,000 figure was derived from a valuation undertaken by Mr O ("the Expert") on 22 March 2024. This valuation is annexed to the Affidavit of Single Expert Witness Mr O filed 28 March 2024 ("Expert Report"). The parties included the $4,000,000 valuation figure on the joint balance sheet handed to the Court during the final hearing (final reasons at [79]). There was no reason for the Court to depart from this figure (final reasons at [104]).
4. It is clear that the Expert valued the former matrimonial home according to "market value" (Expert Report, page 10). The definition of 'market value' adopted in the Expert Report at page 11 is consistent, in the view of this Court, with the long-standing test outlined by Griffith CJ in Spencer v The Commonwealth (1907) 5 CLR 418 at 432 ("Spencer v The Commonwealth"):

"In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, i.e., whether there was in fact on that day a willing buyer, but by inquiring 'What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?' It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural. The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together."

1. The husband creatively suggests that the wife prejudiced the net matrimonial asset pool, and thus his financial circumstances, by accepting the 'price a man desiring to sell could actually have obtained for [the former matrimonial home] on a given day' as opposed to the price demanded by 'a vendor willing to sell [the former matrimonial home] for a fair price but not desirous to sell'. This is an artificial point that must fail.
2. As explained by Wigney J in Federal Commissioner of Taxation v Miley [2017] FCA 1396; (2017) 106 ATR 779 at 795 ("Federal Commissioner of Taxation v Miley"):

[80] Where, however, there is no ready market for the asset in question, or where there may be no willing purchaser at the time when the valuation is sought or required, the method for valuing the asset generally involves hypothesising that there is a willing and knowledgeable, but not anxious purchaser. The question then becomes what a willing but not anxious vendor could reasonably expect to obtain, and what amount the hypothetical purchaser could reasonably expect to have to pay, if they got together and agreed on a price: Abrahams v Federal Commissioner of Taxation [1944] HCA 32; (1944) 70 CLR 23.

[81] That is not to say that it is always necessary to employ the hypothesis of a willing seller and purchaser. That hypothesis is merely a useful and conventional method of arriving at a market value: Boland v Yates Property Corp Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209 at [83] (per Gleeson CJ, citing Minister for Public Works v Thistlethwayte [1954] AC 475). Where the asset in question has been the subject of a recent arm's length sale, it is generally unnecessary to hypothesise. If the recent sale transaction can be said to be one between a willing but not anxious seller, and willing but not anxious buyer, the price that the buyer and seller actually agreed on may generally be taken to be the market price, or at least a reliable indictor, if not the best evidence, of the market price: Inez Investments Pty Ltd v Dodd (1979) 26 The Valuer 501; Rostam Pty Ltd v Valuer General [2011] NSWLEC 1387 at [13]; Commonwealth Custodial Services Ltd v Valuer General [2007] NSWCA 365; (2007) 156 LGERA 186 at [106], [115]; Alcan (NT) Alumina Pty Ltd v Commissioner of Taxes [2007] NTSC 9; (2007) 19 NTLR 153; 65 ATR 784.

1. Justice Wigney colourfully described that employing a 'hypothetical test' in light of actual recent evidence of the assets arm's length exchange value in the free market would be "somewhat contradictory, if not schizophrenic" (Federal Commissioner of Taxation v Miley at 793). This Court agrees.
2. There is no evidence before the Court to suggest that the wife acted mala fide or incompetently in accepting $3,850,000 on sale of the former matrimonial home. There is also no evidence suggesting that value received for the former matrimonial home was not the actual arm's length market value for the property. If anything, the inverse applies (wife's written submissions in reply, paragraph 1). The proper onus of proof for issues of incompetence or impropriety lay with the accuser. No criticism is made by the Court towards the wife for providing "no explanation in these Applications for Suburb D being sold undervalued" (husband's written submissions, paragraph 6). The husband has not discharged his onus with respect to his allegations about the value of the former matrimonial home. The husband's contention must therefore fail.
3. Secondly, the husband contends that the wife "has assets of >$5,000,000 and does not require further funds to support herself" (husband's written submissions, paragraph 11). This assertion is conceptually flawed. It is well established that the basis for costs in this jurisdiction is compensatory in nature (B Pty Ltd & Anker [2025] FedCFamC1A 85 at [34]). The aim of any costs order must therefore be to provide recompense for expenses incurred as a result of proceedings (Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at [19]). A cost order is not made to provide 'further funds' to a litigant whether or not they can financially support themselves. It matters little whether the husband considers that the wife has ample means to provide for the rest of her life. Even accepting that the wife enjoys a superior financial position to the husband (husband's written submissions, paragraph 12) and that the wife is better placed to use her portion of the former matrimonial assets as a springboard for future wealth (husband's written submissions, paragraph 13), the s 117(2A)(a) consideration is not influenced by these contentions.
4. Thirdly, even if the Court accepts the husband's figures without question, his financial circumstances would not deter this Court from making a costs order should it be appropriate. The husband holds approximately $1,729,570 in net assets, excluding personal belongings (husband's written submissions, paragraph 9). When the Court deducts the husband's enumerated future costs, he would still be left with $1,144,696 in net assets, excluding personal belongings, when he is discharged from jail aged between 72-77 years old (husband's written submissions, paragraph 9). Admittedly, this figure does not account for the unquantified future costs outlined at paragraph 9 of the husband's written submissions. Notwithstanding this, after applying a generous notional discounting factor to the husband's prospective wealth at the time of his release, the Court is satisfied that a costs order could be made without unjustly impacting the husbands' financial circumstances.
5. If the Court is wrong in this respect, and the husband would be impecunious upon his release from gaol, this is not determinative of the consideration under s 117(2A)(a) of the Act (Lenova & Lenova (Costs) [2011] FamCAFC 114; (2011) FLC 93-467; Bhatt & Acharya (Costs) [2017] FamCAFC 71) especially if his conduct is found to warrant such an order (Cross & Beaumont [2008] FamCAFC 68; (2008) 39 Fam LR 389).
6. The Court's view is that the financial circumstances of the parties do not speak against the making of a costs order adverse to the husband.

Section 117(2A)(b): Whether the parties are in receipt of legal aid

1. Neither party is in receipt of legal aid funding.

Section 117(2A)(c): The conduct of the parties

1. A fundamental pillar of both parties' submissions directs the Court's attention towards the conduct of the other.

1. The wife seeks to attribute unnecessary costs caused by delays of the husband as negative conduct of the husband.
2. A detailed understanding of the procedural history of this matter is important to the following reasons, criticisms and conclusions of the Court. The recount of the procedural history found in the final reasons is unchallenged by either party and is reproduced below:

[5] This matter has a complex procedural history, owing to the husband's criminal proceedings. The wife filed an Initiating Application on 10 June 2020. On 17 May 2022 the final hearing was listed for three days commencing 28 November 2022. On 31 October 2022, the final hearing was vacated after a request for an adjournment by the husband, to allow for the husband to be sentenced in the criminal proceedings and for any criminal appeal to be filed and heard (which was estimated to be at the end of 2022). The Court notes the wife opposed this request given the uncertainty of the timeline of the criminal proceedings. The matter was listed for mention in the new year to ascertain whether there was any more clarity regarding the husband's criminal proceedings and to decide whether the matter should be re-listed for final hearing.

[6] At the next Court event on 1 February 2023, the wife pressed for the allocation of final hearing dates, given that the matter had already been on foot for two and a half years, and the husband's appeal would further delay the hearing of the matter by almost another year. The Court declined to do so, however, because this would cause injustice to the husband in circumstances where he was sentenced to incarceration with a non-parole period of [many] years and his solicitor told the Court that he had filed an "all-grounds appeal" that may be heard towards the end of 2023 at the earliest, the outcome of which would impact the Court's determinations under s 75(2) of the Act. The Court notes the husband had in fact only filed a Notice of Intention to Appeal on 28 November 2022.

[7] When the matter came back before the Court on 30 November 2023, the solicitor for the husband again requested a further adjournment until the finalisation of the criminal proceedings (including any appeal) due to the impact that the outcome of those proceedings would have on the Court's determinations under s 75(2) of the Act. She indicated that the husband was in the process of obtaining new legal representation in respect of the criminal proceedings. The Court declined to grant the adjournment request in circumstances where the husband's interests needed to be balanced with those of the wife. The matter was listed for final hearing on 22 April 2024. The husband filed a Notice of Appeal on 22 December 2023, seeking for the orders made 30 November 2023 to be dismissed and for the matter to be listed for mention after the hearing of the husband's appeal in the criminal proceedings (which would be heard no earlier than March 2024). He filed a Notice of Discontinuance of that appeal on 19 January 2024.

[8] The husband then filed an Application in a Proceeding on 27 March 2024 seeking for the final hearing to be vacated once again, because he had been transferred from one correctional facility to another and had not been able to properly confer with his legal representatives, give instructions, or prepare the required Court documents. The wife opposed this application. The matter was listed for mention on 9 April 2024 where I made orders pursuant to s 77 of the Crimes (Administration of Sentence) Act 1999 (NSW) for the husband to be produced to Court on 18 and 19 April 2024 in order for his legal representatives to obtain instructions and finalise his trial material. This occurred successfully and the application for an adjournment can be taken to have been abandoned.

1. The Court pauses at this juncture to address certain contentions raised by the husband. He suggests that "throughout the family law matter the husband still pursued attempts to overturn his convictions" (husband's written submissions, paragraph 24) and that he "has steadfastly maintained his innocence in relation to his criminal charges and acted consistently with that" (husband's written submissions, paragraph 14). This portrayal is misleading.
2. Whilst it is correct that the husband filed a Notice of Intention to Appeal on 28 November 2022, the pursuit of this appeal was an issue at the final hearing which he failed to adduce cogent evidence to establish. This Court made unchallenged findings relevant to the progress of the husband's criminal matter at paragraphs 36 and 37 of the final reasons. The situation remains, as far as this Court is aware, that no steps were taken, and no progress was made in the husband's criminal proceedings, during a nearly 14-month period. This, frankly, is not "pursuing attempts to overturn his convictions", nor is it acting "consistently with" a maintenance of innocence.
3. The husband seeks to minimise his inaction by labelling 14-months of inaction as "a delay in filling of my criminal appeal" (husband's affidavit filed 23 April 2025, paragraph 18 ("husband's affidavit")). It is clear, when he desires to take litigious action, that the husband can do so. The husband unsuccessfully appealed the final reasons within four months of the publication of that judgment, and, if the Court accepts the information at paragraph 16 of his affidavit, he has already filed an application for special leave to the High Court challenging the appeal reasons. The Court is convinced that, should he have desired to take more expeditious action regarding his criminal appeal, he would have done so. He did not do so.
4. The husband also seeks to excuse his inaction in the criminal proceedings by blaming "unprofessional conduct by [his] former criminal lawyers" that were allegedly found by the New South Wales Supreme Court to have acted "in a way which was unethical and below professional standards" (husband's affidavit, paragraph 18). An allegation of impropriety or incompetence of legal counsel is a serious one, and one that this Court is reticent to entertain without cogent proof. The husband does not lead any evidence in his affidavit material that may suggest that his criminal solicitors acted improperly. Nor does the husband proffer the New South Wales Supreme Court decision that affirms his allegations. On this basis, the Court cannot accept the husband's contention that his former solicitors acted improperly. To the extent relied upon by the husband, assertions made within his written submissions cannot be used as a basis for factual findings, as written submissions themselves are not 'evidence' (Quen & Chen [2025] FedCFamC1A 39 at [56]; Randwick City Council v Fuller [1996] NSWCA 444; (1996) 90 LGERA 380 at 382).
5. As is readily apparent, the Court was prepared to delay the final hearing in this matter to ensure fairness to the husband in his criminal defence. Seeking an adjournment of family law proceedings to properly defend criminal proceedings cannot be said to be ipso facto a ground for making a costs order. However, given the ineffective use of the time by the husband in the facts of this matter, seeking a delay cannot be seen as anything but conduct that induced further unnecessary costs. Alternatively phrased, the Court would not have sanctioned the associated delay in these family law proceedings if it had known that the husband would have squandered the time.
6. The husband pressed that the Court would be without factual basis to conclude that any delay induced by his criminal proceedings generated further costs for the wife. The Court accepts that the wife has failed to proffer any direct evidence on what portion of her costs are attributable to delay. This does not affirm the husband's assertion. It is plainly implausible that two parties engaged in litigation in this Court would not have incurred legal costs whilst awaiting trial. This is an inescapable inference drawn from known facts. In any event, the Court notes, s117(2A)(c) refers to conduct of the parties in relation to the proceedings, and not loss or cost incurred.
7. The husband is partially correct in suggesting that his criminal convictions were materially relevant to the final reasons and that there was some benefit in waiting until the criminal proceedings were resolved. Given his criminal appellate inaction, this argument can only carry the reasonableness of the husband's conduct in late 2022; the date of his sentencing. Much of the delay after this point should be attributed, at least in part, to the conduct of the husband.
8. It is important to note that, whilst the husband's criminal convictions were materially relevant to a property adjustment pursuant to Kennon & Kennon [1997] FamCA 27; (1997) FLC 92-757 ("Kennon"), this does not mean that the Kennon argument could not be sustained without such material. It is entirely unnecessary speculation to conclude whether such argument would have been successful. It is enough that the balance of the wife's evidence, even without the husband's criminal convictions, raises a plausible legal argument in favour of a 'Kennon' adjustment.
9. Further, the Court pauses to criticise the language used by the husband at paragraph 15 of his written submissions, that his criminal convictions "... ultimately benefited the wife...". It is nonsensical to suggest that long-term sexual abuse of the parties' eldest daughter "benefitted the wife". The principle in Kennon is designed to assess contribution where "his or her contributions [were made] significantly more arduous than they ought to have been" (Kennon at 84, 294). It is only by recognising the sustained difficulty of the wife in raising the parties' distressed daughter; induced as a direct result of the husband's sexual offending, that some property adjustment was warranted. It is a legal, logical and factual failing of the husband that led to this assertion coming before the Court.
10. The Court rejects the notion that making a costs order based on the husband's poor conduct "cannot be sustained", because it amounts to some form of double counting or repeat recognition of the Kennon adjustment (husband's written submissions, paragraph 15). To suggest this misapprehends the rationale for the two regimes and the facts of this case. The undue burden that the wife bore in contributing to the parties' matrimonial assets is considered pursuant to the Kennon principle, the unnecessary legal costs induced by a misused or unnecessary delay is compensated through a costs order.
11. The husband's conduct in unnecessarily delaying the substantive proceedings weight in favour of a costs order adverse to his interests.

1. The wife suggests that the husband has ignored, delayed or otherwise not been forthcoming with disclosure such that costs were unnecessarily expended in issuing subpoena to seven organisations (wife's written submissions, paragraph 13). In her submissions the wife wishes to characterise the husbands lack of disclosure as conduct worthy of a costs order. The husband broadly accepts this noncompliance but seeks to minimise his degree of culpability based on procedural difficulties relating to his incarceration (husband's written submissions, paragraph 16). Neither party address this point in their affidavit material, and no relevant findings were made in the final reasons. The Court would fall into error if it were to attribute fault without foundation. Consequently, nothing arises from these submissions.

Order 3(k) of the final reasons & the removal of personal property

1. The husband alleged that the wife did not furnish him with information relating to the sale of the former matrimonial home as required pursuant to Order 3(k) of the final reasons. By virtue of paucity of information, he asserts that he incurred excess costs in removing his personal belongings from the former matrimonial home.
2. The wife does not deny that she failed to provide the husband with relevant information required in the final reasons. The wife simply raises in her reply submissions that:

[3] The Husband asserts that he incurred $147,943 removing his belongings from the property and these costs were exacerbated by the Wife's conduct and the short window to remove the items. The Wife's Amended Initiating Application filed 21 June 2021 sought final orders for the sale of the [Suburb D] Property. She maintained this position at the final hearing. Therefore, since 21 June 2021, the Husband ought to have foreseen that there was a likelihood that he would be required to remove his personal belongings from the property. As set out above, the Wife requested that the Husband remove his belongings to be leased. This did not occur. The Husband was again on notice that his belongings had to be removed at the time of judgement and then when the stay application did not succeed.

1. There is some merit to the wife's contention that the husband has long been on notice of the fact that he may be required to remove his personal property from the former matrimonial home. It is, however, inescapable that the husband would likely have incurred less costs in removing his personal belongings if he was equipped with the information the Court stipulated that he have. This may have afforded him greater planning time such that valuable and fragile plant and equipment would not have been exposed to the elements, and more negotiating power in discussions with tradesmen.
2. The wife's failure to comply with Order 3(k) of the final reasons would have been conduct which attracted the ire of the Court, if not for her correct assertion at paragraph 4 of her written submissions in reply:

The Husband asserts that his plant and equipment (including the [machinery]) are valued at $163,260. On or around 26 November 2024, the purchasers of the [Suburb D] Property offered to purchase the Husband's plant and equipment for the sum of $40,000. The Husband would have been in a better financial position had he agreed to sell the items, given the costs he asserts he incurred to remove same. It was the Husband's decision to remove the items having regard to the relevant costs associated with same and the Wife cannot be attributed blame for the Husband's decision to do so.

1. Adopting the husband's disclosed costs of removing the property; $147,943, he retained net $15,317 in value. Had he agreed to sell his personal property he would have received $40,000. Consequently, the wife cannot be appropriately criticised for these losses incurred by the husband. He had an option to mitigate his losses which he chose not to accept.

1. The husband contends that the conduct of the wife is "materially relevant" to approximately $300,000 in forfeited rent receipts from the former matrimonial home (husband's written submissions, paragraph 19).
2. The husband suggests that his legal representatives first contacted the wife about placing the former matrimonial home for rent on 31 August 2021. The wife replied on 14 September 2021 indicating that she did not agree to this. Orders were ultimately made on 6 October 2021 by Senior Judicial Registrar Jenkinson for the property to be leased pending the final orders.
3. The husband contends that the former matrimonial home "was not rented, and I say this is because of [the wife's] conduct" (husband's affidavit, paragraph 27). The wife's written submissions in reply direct the Court's attention to the wife's trial affidavit filed 5 April 2024 ("wife's trial affidavit"). Paragraphs 113 to 129 of the same detail, at length, the steps the wife took to rent the former matrimonial home. By way of broad summary, the wife contends that the husband's inaction in removing his belongings, unreasonable rejection of proposed leasing agents, and tardiness in paying certain fees necessary to repair the home frustrated any attempt to lease the former matrimonial home. Generally, the Court prefers the more detailed and corroborated account of events lead by the wife.
4. The parties agree that in 2024 potential tenants were found for the property. The husband suggests that the tenants were prepared to pay $1,800 per week (husband's affidavit, paragraph 29). The husband states that the tenancy did not arise because the wife "would not agree to the property being tenanted at that time until after the conclusion of the final hearing" (husband's affidavit, paragraph 28). The wife contends that, whilst the property was advertised for rent at $1,800 per week, the prospective tenant only offered $1,400 per week (wife's trial affidavit, paragraphs 128-129). Further, she suggests that the husband had not paid his half share of the deposit required to fix a pool fence on the property and that consequently, due to tenancy legislation, the property could not be leased, and the deal collapsed (wife's trial affidavit, paragraph 129). The Court prefers the wife's account of events for the same reasons outlined above.
5. Even if the Court were to accept that there was some conduct by the wife worthy of compensation by way of costs order, the figure of forfeited rent contended by the husband is problematic. The husband outlined his methodology at paragraph 29 of his affidavit:

[29] The period from the date I first proposed through my solicitors that the [Suburb D] property should be leased to the date the [Suburb D] property was sold was approximately 171 weeks. If the property had been rented out during that period at $1,800 per week this would have resulted in approximately $307,800 in rental income being received by [Ms Dajani] and I. However [Ms Dajani] did not agree to the [Suburb D] property being rented out, and no rental income was ever received.

1. Of note is the fact that the husband chooses the date of first contact between his legal representatives and the wife as beginning point. Why this is not the date of the orders made by Senior Judicial Registrar Jenkinson is not clear. The husband also calculates the figure based upon the advertised weekly rental, not at the value of the only offered rental known to the Court. Again, the reason for this is not clear. Consequently, if the Court was minded to consider this in the present costs context it could not confidently do so on the figures outlined. In any event, the husband would only have received half this rental, as the wife would have received the rest.
2. The Court is satisfied that, having regard to the above, the husband's conduct warrants a costs order against him.

Section 117(2A)(d): Failure to comply with orders of the Court

1. Neither the wife nor husband press this as a relevant consideration regarding the determination of the costs applications.

Section 117(2A)(e): Whether a party has been wholly unsuccessful in the proceedings

1. On the words of the Act alone, this Court is to consider whether a party has been wholly unsuccessful in the proceedings; not whether a party has been relatively successful in prosecuting varying applications within the proceedings. The word 'proceedings' is defined within s 4 of the Act as meaning:

... a proceeding in a court, whether between parties or not, and includes cross - proceedings or an incidental proceeding in the course of or in connection with a proceeding.

1. The stay proceedings constitute an 'incidental proceeding' flowing on from the substantive proceedings, as, but for the final reasons being delivered and appealed, the stay proceedings would not have occurred. In these circumstances, it is proper to analyse the costs applications jointly for the purposes of considering whether any party was "wholly unsuccessful" pursuant to s 117(2A)(e) of the Act.

1. To be "unsuccessful" an application must be dismissed without merit (In the Marriage of S R Higginbotham and G M Robinson [1991] FamCAFC 5; (1991) FLC 92-209; Anison & Anison (2019) Fam LR 581 at [37]). Alone this does not illuminate much. In Hawkins & Roe [2012] FamCAFC 77; (2012) 47 Fam LR 526, Thackray J stated at [161] "[E]ven a meritorious case can be "unsuccessful" when the other case is found to have greater merit". An application that is dismissed or not upheld may be both substantively competent; meritorious, but practically unsuccessful.
2. To be wholly unsuccessful is a higher bar. As stated by the Full Court in Peake v Benedict (Costs) [2014] FCCA 2723; (2014) 53 Fam LR 476 at [138]:

...wholly unsuccessful means there was no justified basis for the position adopted having regard to the outcome of the proceedings. Being "wholly unsuccessful" must look not just at the outcome but the position adopted by the party as well.

1. Strange as it may seem, the wife's submissions do not contend that the costs of the substantive proceedings should be ordered on the basis that the husband was "wholly unsuccessful" in the substantive proceedings. Perhaps unsurprisingly, the husband does not respond to this issue in his submissions. The Court can take this no further.
2. The wife's contention that the husband was "wholly unsuccessful in his [stay] application" is rejected (wife's written submissions, paragraph 15). The husband's stay application was not dismissed. Elements of Orders from the final reasons were stayed pending the appeal. The wife's primary position in her Response to an Application in a Proceeding filed 25 October 2024 was that no stay be granted. The husband's primary position was the inverse of this. Even noting the husband's concession that "the Court preferred the structure of the Wife's orders in the Stay Application" (husband's written submissions, paragraph 21), he was partially successful in achieving some stay.
3. This Court does not view the husband's stay application to be "wholly unsuccessful". This consideration speaks against the making of a costs order adverse to the husband on this factor.

1. Where an applicant relies on s 117(2A)(f) of the Act as a justification for costs, "she bears the onus of demonstrating the offer was reasonable, or that it was not reasonably accepted by the husband" (Penner & Conroy [2022] FedCFamC1F 283 at [37]).
2. Paragraphs 16 and 17 of the wife's written submissions go to this issue directly:
   1. On 15 July 2021, the Wife made an offer to the Husband to settle the substantive proceedings on the basis that the Wife retain 60% of the net asset pool and the Husband retain 40% of the net asset pool. The Husband did not accept the offer which was open for acceptance until 12 August 2021. Following the trial, the Court made orders effecting a 62.5%/37.5% division of the net asset pool in the Wife's favour. In percentage terms, the Wife asserts that the Husband would have been 'better off' had he accepted the Wife's settlement offer in July 2021.
   2. Moreover, in respect of the stay application, on 25 October 2024, the Wife made an offer to the Husband to settle the Stay Application on the basis that the parties sell the [Suburb D] Property and the net sale proceeds be distributed such that the Wife receive such sum to result in her receiving 40% of the asset pool, a sum of 22.5% of the pool be quarantined pending the appeal and the balance to be distributed to the Husband. The Court effectively made these orders. Accordingly, had the Husband accepted the Wife's offer, she would not have incurred the costs of and associated with the preparation and attendance at the Stay Application.

1. The sole basis of the wife's application for costs based on an offer of settlement is her 15 July 2021 letter which is Annexure E to her affidavit filed 15 October 2024. There is no other basis. On the face of the letter, the document proports to "resolve this matter as expeditiously and cost effectively as possible". The document is headed "without prejudice save as to costs" in accordance with the principles found in Calderbank v Calderbank [1975] 3 All ER 333 ("Calderbank v Calderbank").
2. Despite deriving from English authority, offers made pursuant to Calderbank v Calderbank are "undoubtedly a relevant authority in claims in this jurisdiction for indemnity costs" (Cotter & Eggers-Cotter (No 2) [2015] FamCA 1008 at [25] ("Cotter & Eggers-Cotter (No 2)"); see also Messiter v Hutchinson (1987) NSWLR 525). The wife attests to having incurred, as of 2 April 2025, $390,235.57 in legal expenses since the offer was made.
3. Offers made in accordance with Calderbank v Calderbank are "useful in establishing that the rejection of an offer was unreasonable rather than that the offer was reasonable" (Cotter & Eggers-Cotter (No 2) at [26]). In Cotter & Eggers-Cotter (No 2) at [27] Cronin J further added that:

To be unreasonable, the response to an offer must take into account the recipient's perception of the sense of the outcome. It would be unreasonable to continue on with litigation after an offer was made if the intention of the recipient was to just make life unpleasant or to run up legal costs for the other party. A court can take into account that the recipient has legal advice and even though the exercise of the s 79 power is highly discretionary, making the outcome uncertain, lawyers are trained to make predictions within parameters.

1. The husband's submissions about the reasonableness of not accepting the wife's offer are found at paragraphs 23 and 24 of his written submissions:

The Wife made an offer of settlement [in mid]-2021, while the Husband's criminal proceedings were unresolved. It was reasonable for the Husband not to accept this offer in circumstances where he had not been convicted, and absent convictions a 60% division to the Wife may not have been just and equitable considering the superior initial contributions of the Husband. The [...] offer lapsed [in mid-2021 and was not open for acceptance when the Husband was convicted [in mid]-2022. The Husband had also not been sentenced and did not know his incarceration period.

At the time this offer was made, and throughout the family law matter the husband still pursued attempts to overturn his convictions. He maintains his innocence. These circumstances make resolution of the matter difficult. This is a unique case where much turns on proceedings in another jurisdiction and a different outcome there could have changed the course here.

1. The husband's "perception of the sense of the outcome" was necessarily obscured by, and interlinked with, his pending criminal convictions. It is unnecessary to speculate what may have occurred if the husband was acquitted of all criminal charges, but it is safe to say that a different outcome "within parameters" may have occurred. To this extent, the Court agrees with the husband's submissions. This is a case where the wife's offer was entirely reasonable, and the husband's rejection of the offer was entirely reasonable.
2. This consideration in respect of the substantive cost's application is neutral and does not rebut the general principle that each party bear their own costs (s 117(1) of the Act).

1. The wife asserts that she made an offer to the husband to settle the stay proceedings on 25 October 2024. This offer, broadly, stipulated that the former matrimonial home be sold and "and the net sale proceeds be distributed such that the Wife receive such sum to result in her receiving 40% of the asset pool, a sum of 22.5% of the pool be quarantined pending the appeal and the balance to be distributed to the Husband" (wife's written submissions, paragraph 17).
2. The Court agrees with the wife that the Orders made in the stay judgment effectively reflect her 25 October 2024 settlement proposal. On this basis alone, regardless of the husband's mindset or goals, it would have been prudent for the husband to accept the offer.
3. As an ameliorative factor, the husband asks the Court to consider his own written requests to settle the stay application at paragraph 22 of his written submissions:

... [He] requested the Wife not sell [Suburb D] pending the Appeal (3 October 2024), offered to stay the sale by consent (14 October 2024), and offered to purchase [Suburb D] (15 November 2024). The Wife refused these proposals, acceptance of any of which would have prevented costs being incurred in the Stay Application.

1. The wife had the benefit of final orders that she was entitled to rely on, notwithstanding the filing of an appeal. A finding made by the Court in the substantive proceedings was that "it is fanciful and unreasonable for the husband to suggest that he should be able to retain the Suburb D property" given the likelihood of the husband's deportation to New Zealand once he is released from gaol (final reasons at [188]). This must cast doubt on the bona fides of the husband's later offer to purchase.
2. The Orders made in the stay judgment do not reflect the results assured by the husband's 14 October 2024 correspondence. Naturally, given the outcome of the stay judgment, it was not unreasonable for the wife to refuse the husband's settlement offer. This is not a case, however, where the husband "sought to run up legal costs for the other party" (Cotter & Eggers-Cotter (No 2) at [27]). The husband simply desired to retain the former matrimonial home pending the outcome of the appeal.
3. Regarding the 15 November 2024 offer. The husband's offer included a proposal to exchange $1,314,244; by way of partial property settlement, for legal title to the former matrimonial home. This would have involved the wife receiving 40% of the net matrimonial asset pool, the husband 37.5%, with the remaining 22.5% of the pool be quarantined pending the appeal. This has a very similar effect to the wife's 25 October 2024 settlement offer with the 'bonus' of retaining the former matrimonial home. Despite being an admittedly sensible offer, the wife was not obliged to accept it. She was entitled to rely on the fact that the final reasons were correct. It was explicit within the husband's offer that, should he fail on the appeal, he would inevitably be forced to sell the former matrimonial home to satisfy the wife's property adjustment entitlements.
4. Perhaps more importantly, if the wife was minded to accept the husband's 15 November 2024 offer, she would have had to negotiate with a prospective purchaser, after contracts had been exchanged on the former matrimonial home, to invoke recission of the sales contract. There is no guarantee the prospective purchaser would have engaged in this process. There is also no guarantee that the prospective purchaser would have been incentivised to rescind the contract for the $20,000 offered as 'compensation' by the husband. It is therefore not unreasonable for the wife to have refused the husband's 15 November 2024 offer.
5. Taking the husband's submission at its highest, the Court is unable to conclude that the husband's refusal to settle the stay application was reasonable. He should have accepted the wife's 25 October 2024 settlement proposal. This factor weighs towards a costs order adverse to the husband.

1. Neither party proffers any other relevant matters that the Court should consider any under this heading.

1. This Court is satisfied that s 117(2) of the Act is enlivened as there are circumstances justifying a costs order in favour of the wife. Several issues arise from the parties' written submissions about the quantum and manner any such costs order ought to be made.

1. The wife seeks that the Court make an indemnity costs order in her favour for both costs applications.
2. It is well settled that when costs are ordered by this Court, such costs are payable on a party-party basis. It has been held that the Court should not lightly depart from the ordinary rule (Kohan and Kohan [1992] FamCA 116; (1993) FLC 92-340).
3. The provision relating to the calculation of costs is governed by r 12.17(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") which is as follows:

12.17 Method of calculation of costs

(1) The court may order that a party is entitled to costs:

(a) of a specific amount; or

(b) as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or

(c) to be calculated in accordance with the method stated in the order; or

(d) for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.

(3) In making an order under subrule (1), the court may consider the following:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness of each party's behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);

(c) the rates ordinarily payable to lawyers in comparable cases;

(d) whether a lawyer's conduct has been improper, unfair, unreasonable or disproportionate;

(e) the time properly spent on the proceeding, or in complying with pre‑action procedures; and

(f) whether expenses (paid or payable) are fair, reasonable and proportionate.

1. 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) 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).
2. In the wife's fixed costs submissions at paragraph 2, she asserts that "costs assessed only at scale would not be appropriate or just". In her written submissions at paragraph 19 she suggests that there "is a sufficient or unusual feature" that justifies a departure from party-party costs in this matter. The Court does not agree.
3. There is little exceptionality that justifies an indemnity costs order in favour of the wife. It is unfortunately common that this Court determines cost applications based on poor conduct and refused settlement offers from one or multiple litigants. The facts of this matter are not 'sufficient' in the sense to cause this Court to exercise its discretion in the monumental manner required to sanction indemnity costs.

1. In the event that the Court was not minded to award indemnity costs, the wife "concedes that a fixed sum of costs is appropriate" (wife's fixed costs written submissions, paragraph 3). She did not make any submission as to what quantum the fixed costs order should be made in.
2. The husband, confusingly, states both that a costs order "is not possible in this case because of the conduct of the Wife and the inaccuracy of the information before the Court" (husband's fixed costs submissions, paragraph 1), and, that "the Court has a wide discretion to award costs in a lump sum it is submitted and could make such an Order" (husband's fixed costs submissions, paragraph 3). Regarding the quantum of any fixed cost order, he suggests that "a lump sum Order could not be more than half of the sum sought by the Wife on the basis of scale given the huge errors that exist" (husband's fixed costs submissions, paragraph 3).

1. Given the lack of clarity in the husband's contentions it is necessary to examine the basis of the Court's powers for making fixed cost orders.
2. 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] ("Bartram & Marsden (No 3)") recently affirmed that "...the 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)".
3. 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] FamCAFC 213; (2017) FLC 93-813 ("Wilmer & Golding (No.2)") at [64] "Obviously enough, the Court must act judicially in fixing or specifying a sum of costs". The 'judicial' nature of the exercise prevents public perception of costs orders as endorsing idiosyncratic notions of fairness.
4. In Wilmer & Golding (No.2) at [64], although dealing with r 19.18 of the now repealed Family Law Rules 2004 (Cth), Murphy J cited the following passages of Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 ("Idoport Pty Ltd v National Australia Bank Ltd") with approval:

[11] ... it is not an arbitrary exercise of power for the Court to weigh up competing factors and make a determination, even if, as is often the case, the task cannot be undertaken in a mathematical or precise manner. As the Court of Appeal found in Norris v Blake (by his Tutor Porter) [No (1997) 41 NSWLR 49 mathematical weightings of potential outcomes in loss of chance cases might be unsustainable and reliance rather should be placed on more intuitive methods to determine loss: (1997) 41 NSWLR 49 at 71-73. Similarly, the courts are frequently required to estimate damages that are not capable of precise quantification and require a degree of approximation and even guesswork. [Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 at 83 and 138 and 153; Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257 at [37]-[38]]

[12] The Court is no stranger to intuitive determinations, or determinations made without absolute precision, arrived at by acting judicially: cf Murray v Shillingsworth [2006] NSWCA 367 per Santow JA at [10]. It is misconceived to suggest that such determinations or approaches are arbitrary.

1. It is of no moment that the observations of Murphy J concern a repealed provision. The root of the fixed costs power and the nature of the judicial exercise undertaken remain the same for r 12.17 (see the endorsement of Stoian v Fiening (Costs) [2014] FamCA 944 at [91] by McClelland DCJ in Pascoe & Larsen (No 2) [2022] FedCFamC1A 126 at [28]).
2. In Idoport Pty Ltd v National Australia Bank Ltd at [9] Einstein J outlined the principles that inform the exercise of judicial discretion to make a fixed costs order:
   1. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation;...
   2. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable;...
   3. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available;...
   4. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place;...
   5. the gross sum "can only be fixed broadly having regard to the information before the Court";...

1. It is therefore clear that the Court can fix costs in whatever manner appropriate provided that such costs are fair in the circumstances and based on evidence placed before the Court.

1. The husband contends that 'inaccuracies' in the wife's Schedule 3 schedule of costs and disbursements ("the schedule") prevent the Court from making any fixed costs order. He goes to great lengths, including colour coding various forms of 'error', to highlight faults within the schedule. The colour coded schedule is Annexure "H" to the husband's affidavit, and a key is provided at paragraph 72 of the husband's affidavit.
2. Assuming that the Court finds error in the schedule to the magnitude asserted by the husband, he contends that the schedule is "useless" and that it "would be entirely unjust if that document formed the basis of a lump sum order" (husband's fixed costs written submissions, paragraph 2).
3. The wife continues to rely upon the schedule for the purposes of any costs order; fixed or otherwise (wife's fixed costs written submissions, paragraph 3), and seeks to rebut elements of the father's critique (wife's fixed costs written submissions, paragraph 4).
4. The husband suggests in the alternative of any fixed costs order, that it is open for "the Court to Order the Wife to prepare an amended schedule of costs and set a timetable for same" (husband's fixed costs submissions, paragraph 4). The Court rejects this path for similar reasons to that outlined by the Full Court in Bartram & Marsden (No 3):

[41] ...In circumstances where these parties have been engaged in litigation over a long period, including now two failed appeals, we propose to adopt the approach taken by the Full Court in Warbrick & Warbrick (No. 2) (2021) FLC 94-030 where the Full Court observed that it did "not intend to permit the costs question to become, in effect, satellite litigation" at [13]...

1. The Court accepts the invitation of the wife at paragraph 5 of her fixed costs written submissions to make "a determination about costs in a fixed sum, so as to bring about the finality of the matter".
2. Whilst the principles outlined in Idoport Pty Ltd v National Australia Bank Ltd are not lost on the Court, it is not clear to me that I must use the schedule as the sole, or even leading, basis for any fixed cost order. In Warbrick & Warbrick (No. 2) (2021) FLC 94-030 the Full Court made a fixed costs order in favour of an appellant despite their schedule of costs being arguably more, manifestly deficient:

[3] The wife seeks costs on an indemnity basis and, failing that, in accordance with Schedule 3 of the Family Law Rules 2004 (Cth) ("the Rules"). Schedule 3 is an itemised scale of costs that sets out the maximum amount of party/party costs a person may recover unless the court fixes the amount (r 19.19 of the Rules). Calculated on an indemnity basis, the wife claims costs in the amount of $45,359.74. Calculated in accordance with Schedule 3, the wife's costs as set out in the Schedule of Costs filed 3 September 2020 are said to be $45,150. The similarity between the two amounts is obvious and even the most rudimentary examination of the wife's Schedule 3 costs, reveals that it is not what it purports to be. Indeed it is obvious that no attempt was made by the wife to calculate her party/party costs. In this respect, the so called Schedule 3 costs simply claims for work undertaken, whether necessary or not, which is charged at a rate other than in accordance with Schedule 3. Senior Counsel's estimated fee of $10,000 to prepare the wife's Summary of Argument establishes the point. It bears no relationship with Schedule 3.

...

[13] Regrettably, the wife has not provided her properly quantified party/party costs. In the event that we determined such an order should be made, the wife proposed that the husband pay her party/party costs as agreed or assessed. We do not intend to permit the costs question to become, in effect, satellite litigation. It is appropriate that the wife's costs are fixed and this issue is brought to a close.

1. Further, in Doherty & Doherty [1995] FamCA 157; (1996) FLC 92,652 at 92,684, the Full Court stated that:

I am satisfied that it was open to the trial Judge to make the order for costs which he made, although it may not have been in the terms which the respondent actually sought, or in the terms which the appellant considered an order may have ultimately been made. However, the fact remains that His Honour considered the submissions of both parties and considered all relevant factors. I am not persuaded, following the authority of the High Court in Penfold's case, that any error has been demonstrated. I would also, therefore, dismiss the appeal in relation to the question of costs.

1. This Court views, pending any further statement of principle from the Full Court, that a fixed cost order could be made on terms, or a quantum, unexpected by either party without error provided that all relevant material and submissions are considered.

1. Considering the long history of this matter, the filed evidence of the parties and the written submissions currently before the Court, a fixed costs order of $150,000 should be made in favour of the wife. Such fixed costs order is necessary to finalise these proceedings.

I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.

[1] The Court addresses this point under the heading s 117(2A)(a) for ease of reference to the husband's submissions. In reality, the point advanced is better characterised as a s 117(2A)(g) factor, and has been substantively considered as such.