Danton & Lancaster (No 3) [2025] FedCFamC2F 517 (28 April 2025)

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

1. This matter concerns an application for costs brought by Mr Danton ("the father") following the making of final parenting orders on 6 August 2024 ("the substantive proceeding.") In that proceeding, the father was successful in achieving orders for a change of residence for the child X born in 2011 ("X").
2. The father seeks the costs of the substantive proceeding as well as costs of:

(1) the contravention application filed by the father on 31 March 2022 ("the contravention application");

(2) the recovery order proceedings on 8 August 2024 ("the first recovery order proceeding");

(3) the recovery order application filed by the father on 12 December 2024 and responding to the mother's initiating application filed the same day ("the second recovery order proceeding"); and

(4) the costs of this cost application filed 2 September 2024.

1. If the court is against the father on his application for costs for the entirety of the substantive proceeding, he asks the court at a minimum, award him costs thrown away resulting from the adjournment of the trial on 5 March 2024.

1. The parties in this matter are the father, the respondent mother Ms Lancaster, ("the mother") and the Independent Children's Lawyer ("the ICL"). The ICL did not seek to be heard on the issue of costs.
2. The matter has a long history with the first set of final orders being made on 15 June 2017 by his Honour Judge Curtain. Those orders provided for X to live with the mother and spend time with father. The full background to this matter can be found in my reasons for judgment in Danton & Lancaster [2024] FedCFamC2F 1045 ("the final judgment").
3. This particular tranche of proceedings commenced with the father filing a contravention application on 31 March 2022. The mother then filed an application seeking to revisit the first final orders on 20 May 2022. The father subsequently abandoned his contravention application.
4. The matter first came before me for final hearing on 4 March 2024, with an estimate of three hearing days, however on 5 March 2024 the hearing was adjourned to 3 June 2024. The matter continued on 3 June 2024 for a further five hearing days and concluded on 7 June 2024.
5. I handed down final orders in this matter on 6 August 2024 ("the final orders") which in short, changed the residence of X to live with his father and placed a moratorium on the mother's time. Orders were made that the mother should immediately return X to the father's care, should X attend at her residence.
6. On 7 August 2024 X went to the mother's home however she did not return X to the father's care.
7. On 8 August 2024 the father made an oral application to the court for a recovery order. An order was made for the return of X with a recovery order to issue in the event the mother was unable to effect same ("the first recovery order proceedings")
8. On 9 August 2024 X was returned to the father's care. The recovery order was not required to be executed and was subsequently discharged.
9. On 14 August 2024 the mother filed an appeal of the final orders.
10. On 2 September 2024 the father filed his application seeking his costs of the final order proceedings.
11. On 4 September 2024 the mother filed an Application in a Proceeding seeking a stay of the final orders pending the outcome of the appeal.
12. On 2 October 2024, the final orders were stayed by me pending the outcome of the appeal.
13. On 11 December 2024 the appeal was dismissed, and the mother was ordered to pay the father's costs of $14,000 within 28 days.
14. On 12 December 2024 the father filed an Application in a Proceeding seeking a recovery order for X. On the same day the mother filed an Initiating Application seeking to discharge the final orders. These two applications were heard together at an interim hearing before me on 18 December 2024. Following that hearing, a further order was made for X to be returned to the father's care (with a recovery order to issue if this could not be effected by the mother) and the mother's Initiating Application was dismissed ("the second recovery order proceedings"). I ordered that the father's costs application would be determined on the papers,[1] and made orders for the filing of written submissions, with the father to file no later than 28 January 2025 and the mother by 25 February 2025.
15. The father filed his written submissions by 28 January 2025.
16. On 14 February 2025 the father filed a further application for final orders seeking another recovery order, and that the mother pay the father's costs of and incidental to this additional application.
17. On 17 February 2025 this matter was resolved by consent at an interim hearing before me, with no order as to costs. A further recovery order was issued and unfortunately on this occasion, the recovery order was required to be executed by the Australian Federal Police. A further order was made on this day extending the mother's time to file submissions as to costs to 11 March 2025.
18. The mother did not file 'written submissions' but a response to an application in a proceeding, an affidavit, and a financial statement. The father did not object to the mother relying upon that material provided he was given time to respond. The father was given until 31 March 2025 to provide further written submissions. The father's further written submissions were filed on 31 March 2025.

1. The father relies on his written submissions filed on 28 January 2025 which set out the documents he relied upon in paragraph 5 of those submissions:
   • Orders made and Reasons for Judgment delivered on 6 August 2024 in the matter of Danton & Lancaster [2024] FedCFamC2F 1045;
   • Orders made and Reasons for Judgment delivered on 2 October 2024[2] in the matter of Danton & Lancaster (No 2) [2024] FedCFamC2F 1464;
   • Orders made and Reasons for Judgment delivered on 11 December 2024 in the matter of Lancaster & Danton [2024] FedCFamC1A 232;
   • his application in a proceeding filed 2 September 2024;
   • his affidavit filed 2 September 2024;
   • his application in a proceeding filed 12 December 2024;
   • his affidavit filed 12 December 2024;
   • his affidavit filed 16 December 2024;
   • the Order made 18 December 2024;
   • his financial statement filed 28 January 2025;
   • his affidavit filed 28 January 2025; and
   • the written submissions filed 28 January 2025.
2. He also relies upon his further written submissions in reply filed on 31 March 2025.

1. The mother relied upon the following:
   • her response to an application in a proceeding filed 11 March 2025;
   • her affidavit filed 11 March 2025; and
   • her financial statement filed 11 March 2025.
2. I have had regard to the contents of the submissions and documents relied upon by the parties, noting that a large part of the mother's affidavit sought to reagitate matters dealt with at the final hearing, and did not specifically relate to the question of costs.
3. The father submits that the court ought put no weight on the financial statement filed by the mother in circumstances where she has not responded to a request for documents pursuant to Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"). Rule 6.06 of the Rules states as follows:

(1) The duty of disclosure applies to a financial proceeding.

(2) Subrules (3) to (9) do not apply to a party to a property proceeding who is not a party to the marriage or de facto relationship to which the application relates, except to the extent that the party's financial circumstances are relevant to the issues in dispute.

(3) Without limiting subrule (1), a party to a financial proceeding must make full and frank disclosure of the party's financial circumstances, including the following:

(a) the party's earnings, including income that is paid or assigned to another party, person or legal entity;

(b) any vested or contingent interest in property;

(c) any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;

(d) any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;

(e) the party's other financial resources;

(f) any trust:

(i) of which the party is the appointor or trustee; or

(ii) of which the party, the party's child, spouse or de facto spouse is an eligible beneficiary as to capital or income; or

(iii) of which a corporation is an eligible beneficiary as to capital or income if the party, or the party's child, spouse or de facto spouse is a shareholder or director of the corporation; or

(iv) over which the party has any direct or indirect power or control; or

(v) of which the party has the direct or indirect power to remove or appoint a trustee; or

(vi) of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms; or

(vii) of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or

(viii) over which a corporation has a power referred to in any of subparagraphs (iv) to (vii), if the party, the party's child, spouse or de facto spouse is a director or shareholder of the corporation;

(g) any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity referred to in paragraph (c), a corporation or a trust referred to in paragraph (f) that may affect, defeat or deplete a claim:

(i) in the 12 months immediately before the separation of the parties; or

(ii) since the final separation of the parties;

(h) liabilities and contingent liabilities.

1. A "financial proceeding" is defined under Rule 1.05 of the Rules as follows:

financial proceeding means a proceeding (other than an appeal) involving an application:

(a) Relating to the maintenance of one of the parties to a marriage, or of a de facto relationship after the breakdown of the relationship, including an application for permission to start a spousal maintenance proceeding; or

(b) relating to the property of the parties to a marriage, or of a de facto relationship after the breakdown of the relationship, or of either of them, including the following:

(i) an application for permission to start a property proceeding;

(ii) an application to set aside an order altering property interests under section 79A or 90SN of the Family Law Act;

(iii) an application under section 85A of the Family Law Act in relation to a financial agreement;

(iv) an application under section 90K of the Family Law Act in relation to a financial agreement;

(v) an application under section 90UM of the Family Law Act in relation to a Part VIIIAB financial agreement or a Part VIIIAB termination agreement;

(vi) an application under section 106B of the Family Law Act in relation to a transaction to defeat a claim; or

(c) relating to the vested bankruptcy property in relation to a bankrupt party to a marriage, or of a de facto relationship after the breakdown of the relationship; or

(d) relating to the maintenance of children; or

(e) under section 116, 123 or 129 of the Assessment Act; or

(f) relating to child bearing expenses (see section 67B of the Family Law Act);

and includes, for the purposes of Part 6.1 of these Rules, a proceeding (other than an appeal) involving an application for the enforcement of a financial obligation.

(As per original)

1. The rule does not appear to cover cost applications. However, if I am wrong, it is unclear to me why failure to provide discovery should mean I place no weight on the financial statement itself. Indeed, the father does not say that he has provided the mother with the same discovery where he is also relying on a financial statement.
2. In any event, if the rule is applicable, I propose to exercise my discretion pursuant to rule 1.31 of the Rules, in the interests of justice, to dispense with the Rules. This is primarily to avoid the parties incurring even further costs and delay to the resolution of this matter.
3. Accordingly, I have taken into consideration the contents of both parties' financial statements.

1. Section 117(1) of the Family Law Act 1975 (Cth) ("the Act") provides that ordinarily a party in a family law dispute is to bear their own costs.
2. However, pursuant to section 117(2) of the Act, the court has the discretion to make a cost order if the court is of the opinion the circumstances justify doing so. In exercising this discretion, the court is to have regard to the considerations under sub-section (2A) as follows:

(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. I have considered each of those sub-sections although I shall only refer to those which I consider to be relevant to the outcome of this application.

FINANCIAL CIRCUMSTANCES OF EACH OF THE PARTIES TO THE PROCEEDINGS

1. The father is currently unemployed and in receipt of WorkCover payments. In the father's financial statement filed on 28 January 2025 the father deposes to his expenses exceeding his income per week by $58. The father also contended in his financial statement that his liabilities exceed his property by $19,140. The father has two mortgages as well as a loan to his parents of $214,618.68 which he has incurred to pay his legal fees in these proceedings.
2. The mother is a public servant. Her financial statement filed 11 March 2025 evidences a similarly precarious financial position. Her total expenditure exceeds her income by $193 and her liabilities exceed the value of her property by $15,130. She says she owes her family $92,666. The mother also has other cost orders against her totalling $27,658. I understand that she was ordered to pay the father's costs of the appeal of $14,000, and $13,440.50, also to the father, following the intervention order proceedings, which are both outstanding.
3. The father says in his affidavit that the mother owns her own home in Town H, Victoria with an estimated value of $1 million, although it is evident that the mother and her mother, the maternal grandmother, are "tenants in common" in equal shares on the title of that property, and that it is subject to a mortgage.

1. It is submitted for the father that the mother's unilateral cessation of time with X led to the necessity for the contravention application filed by the father on 31 March 2022 and the substantive proceedings that followed. It is also submitted on behalf of the father that the mother's failure to make any genuine attempt to return X to the father's care resulted in the need for the two recovery order proceedings.

1. On 21 March 2023 the court ordered by consent that the contravention application of the father filed 31 March 2022 be dismissed.
2. It is submitted for the father that "the father quite properly abandoned the contravention application and engaged with the substantive proceedings."[3] Inherent in this statement is a concession that the substantive application was the preferred application, noting that the father also sought to revisit the 2017 final orders.

1. Having heard the evidence at the trial of the substantive proceeding it was clear that this case involved a very complex family dynamic. The case involved numerous witnesses, including X's counsellor, a family therapist, and the family report writer. It was by no means clear cut. Indeed, the ICL did not support a change of residence to the father, even at the conclusion of the hearing. Furthermore, whilst I was highly critical of the mother in my final judgment for her actions, it would be simplistic to attribute to her the entire responsibility for the situation that the parties unfortunately found themselves in.

1. The father argues that the mother failed to seek an order pursuant to section 102NA of the Act, which would have allowed her to apply for a lawyer under the section 102NA Commonwealth Family Violence and Cross Examination of Parties Scheme, ("the Cross Examination Scheme") until the second day of trial, on 5 March 2024, which necessitated the trial being adjourned. The father argues the mother ought to have been aware of her ability to apply to the Cross Examination Scheme pursuant to notations in previous orders, and, that the father's solicitor had reminded the mother of those notations in correspondence sent on 5 February 2024, a month prior to trial.
2. However, the mandatory provisions of that section did not apply to the parties, and as such there was no barrier to the mother cross-examining the father herself. Furthermore, I accept that the mother, who had not to my knowledge ever run a family law trial, believed she was capable of doing so. Despite this, it became increasingly apparent over the course of the first day on 4 March 2024 that the mother was struggling emotionally and was genuinely overwhelmed with the process. In circumstances where she was alleging family violence by the father, I determined to exercise my discretion to make the section 102NA order pursuant to the Cross Examination Scheme the following day.

The first and second recovery order proceedings

1. In respect of the two recovery order proceedings, I have no difficulty finding that the mother's actions, or more accurately, her failure to take action, led to the need for the two recovery order proceedings. Indeed, it was evident that following the first and second recovery order proceedings, the mother was able to return X to the father on each occasion without the need for the recovery order to be executed. I conclude from this, that in each case the mother had the capacity to comply with the final order to return X to the care of the father, but had not done so until the recovery order was made.

WHETHER ANY PARTY TO THE PROCEEDINGS HAS BEEN WHOLLY UNSUCCESSFUL IN THE PROCEEDINGS

1. The father asserts that the mother, in essence, has been "wholly unsuccessful" in this matter.
2. The Full Court decision of Anison & Anison [2019] FamCAFC 108 considered the meaning of "wholly unsuccessful" and stated as followed:

37. It is well settled that paragraph (e) refers to a situation where proceedings as a whole have been unsuccessful. For example, where an application without merit has been dismissed.[4]

(Emphasis added)

1. The court dismissed the father's contravention application, by consent. The father was therefore wholly unsuccessful in that application.

1. In a parenting matter it is not usually the case that a party is "wholly unsuccessful." Even in this case, where the final orders more closely resembled those orders sought by the father, it was not the case that the mother's application was dismissed in its entirety. However, the fact that the father was more successful than the mother is something I shall return to in this judgment shortly.

1. The day after the making of the final orders on 6 August 2024, X ended up back in the care of the mother, who was either unwilling or unable to return him to the father's care. The court was notified and an urgent hearing scheduled for the following day, 8 August 2024. The father made an oral application for a recovery order and that order was granted. The mother was wholly unsuccessful in opposing that application.

1. On 11 December 2024 the mother's appeal of the final orders was dismissed by the Honourable Christie J. The order dated 2 October 2024 staying the final orders pending the appeal therefore lapsed, however, the mother refused to return X to the father's care. The mother filed an initiating application dated 12 December 2024, the day after the appeal judgment was handed down, seeking to discharge the final orders made 6 August 2024.
2. On 18 December 2024 the mother's application was dismissed, and an order made for X to be returned to the father's care, with a recovery order to issue in the event that this could not be affected by the mother. The mother was therefore wholly unsuccessful in pursuing her initiating application and opposing the father's recovery order.

SUCH OTHER MATTERS AS THE COURT CONSIDERS RELEVANT

1. The Full Court has made it clear that "such other matters" include whether a party was partially successful. In Neibert & Featherstone [2025] FedCFamC1A 45 his Honour Austin J said as follows:
   1. ...The provisions of s 117(2A) of the Act do not foreclose a costs order being made against a party who has been partially successful merely because one salient consideration happens to be whether the party has been wholly unsuccessful. As here, the circumstances might be such that the measure of success enjoyed was so limited or insignificant that a costs order might still be justified for the substantive failure of success in the proceedings. In this instance, but for those portions of the respondent's application conceded by the applicant, he was completely unsuccessful in relation to the contested portions.[5]

1. In this case, whilst the mother was not wholly unsuccessful in the substantial proceedings, the father was, for the most part, successful in the orders that he was seeking, in particular a change of residence for X to be placed into his primary care.

1. Having had the benefit of hearing evidence in the final hearing, I determined that it was appropriate to decide the issue of costs on the papers. In coming to this conclusion, I was also mindful of the mounting number of hearings that the parties had attended and the need to mitigate any further legal costs.

1. Given it was the father who was wholly unsuccessful in this application, I do not propose to order the mother pay his costs in connection with same.

1. In circumstances where the mandatory requirements of section 102NA of the Act were not met, it was within the mother's right to represent herself at the final hearing. I accept that the mother would not have realised how difficult that would be until the trial commenced on 4 March 2024. There was no evidence that the mother sought a section 102NA order so as to delay the trial. In such circumstances, I do not propose to award costs thrown away as a result of the 5 March 2024 adjournment.

1. Although the mother was not wholly unsuccessful, I accept that the father achieved his primary goal which was for a change of residence of X. However, I have already commented on the complexity of this matter and that the result was never black and white. Whilst the orders were made in favour of the father, it is important to stress that this does not mean the mother was entirely to blame. Both parents had a part to play in the dynamics which led to the poor and most unfortunate situation in which X has found himself in. If the father sees the final orders and judgment as entirely vindicating him of his part in this case, then that is most unfortunate.
2. In all of the circumstances of this case, I do not propose to exercise my discretion to award costs in relation to the substantive proceedings.

The first and second recovery order proceedings

1. I do however propose to award costs in relation to the two recovery order proceedings. Both proceedings were necessitated by the mother's failure to return X to the father pursuant to the final orders.
2. The fact that on two occasions the mother was ultimately able to have X returned to the father's care suggests that she was not incapable of doing so, just that she was unwilling to assert her full parental authority to ensure this happened.
3. The mother's initiating application filed 12 December 2024 was also entirely misguided in circumstances where there was no significant change of circumstances for X, nor was it in his best interests to reopen the matter so soon after the final hearing.
4. Whilst the mother asserts that she does not have the capacity to pay any cost order, and this would appear to be the case pursuant to her financial statement, that is not a reason in and of itself not to make such an order.[6]

1. The father has quantified his costs on scale, pursuant to schedule 1 of the Rules, save that he has included the actual costs of his counsel. However, I note that in relation to the first recovery order proceedings the father claims costs for filing a recovery application, where no such recovery application was actually filed. The matter was listed following an approach to my chambers by email requesting the matter be heard, and an oral application permitted on the day. Accordingly, the only costs thrown away of that hearing was for the attendance of his counsel.
2. In regard to the second recovery order proceedings, the father did file an application for a recovery order. He also filed a response to the mothers initiating application, which was also heard on that day, as well as affidavit material. He claims a total amount of $12,732 being the costs of the recovery application and responding to the mother's initiating application, said to be calculated on scale, save that it again includes actual costs of his counsel.
3. In my assessment costs on scale are as follows:

(1) The recovery order hearing (oral application) on 8 August 2024

• Item 13(b) - daily hearing fee - half day in the amount of $1,255.75
• Item 14 - advocacy loading in the amount of $627.88

(2) The recovery order application filed 12 December 2024

• Item 1 - costs of an application up to the completion of the first court date in the amount of $2,512.56

(3) Opposing the mother's application in a proceeding filed 12 December 2024

• Item 1 - costs of an application to the completion of the first court date in the amount of $2,512.56

(4) The mention date on 16 December 2024

• Item 13 - daily hearing fee - $342.19
• Item 14 - 50 per cent advocacy loading - $171.09

(5) The interim hearing on 18 December 2024

• Item 13 - daily hearing fee for a half day - $1,255.75
• Item 14 - 50 per cent advocacy loading - $627.88

TOTAL $9,305.66

1. Taking into account that there would necessarily be some overlap in preparing for the recovery order application and responding to the mother's initiating application, I assess total costs to be $8,500.00.
2. The mother will be ordered to pay a total of $8,500.00 within 90 days.[7] In fixing the time frame for payment, I have taken into account the mother's financial situation as well as the father's need to repay some of his liabilities as soon as practicable.
3. In all of the circumstances, in particular that the father was only partially successful in his application for costs, I do not propose to exercise my discretion to order any further costs in this matter.
4. For all of these reasons, I make the orders as set out at the commencement of this judgment.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins.

[1] I note the father also sought in his 2 September 2024 affidavit that his application in a proceeding be determined on the papers to reduce costs.

[2] The father's written submissions filed 28 January 2025 refer to the 'Orders made and Reasons for Judgment delivered on 20 September 2024 ...' however my reasons were reserved on that date and the Orders and Reasons for Judgment were delivered on 2 October 2024.

[3] Father's written submissions filed 28 January 2025 at [21].

[4] Anison & Anison [2019] FamCAFC 108 at [37].

[5] Neibert & Featherstone [2025] FedCFamC1A 45 at [29].

[6] Nada & Nettle (Costs) [2014] FamCAFC 207 at [11]. See also Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12].

[7] The court is permitted to fix a time frame for costs. See Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.13(5).