Kensit & Kensit [2025] FedCFamC2F 572 (7 May 2025)

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons relate to the mother's oral application for costs made against the father following a contravention hearing on 4 April 2025.
2. The father's Application - Contravention filed 18 October 2024 was dismissed at the hearing on 4 April 2025 and the father was directed to provide to the Court, by email, his financial circumstances and submissions on whether or not he can meet the mother's costs application.
3. The father was allowed to forward a Financial Statement detailing his financial position. He has not done so. Nevertheless, the Court has considered his email to the Court and attached material.
4. The mother was to provide a response to the father's email within seven days. She provided a written response with material which the Court has also considered.
5. Section 117(1) of the Family Law Act 1975 (Cth) ("the Act") provides that each party to proceedings shall bear their own costs. Section 117(2) states that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make such order as to costs as the Court considers just. Section 117(2A) provides that in considering what order, if any, should be made as to costs, the court shall have regard to the following matters:

(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. The Court now turns to relevant matters that the Court should consider under s 117(2A) of the Act.
2. As to the financial circumstances of the parties, on the basis of the material before the Court in relation to this costs application, it would appear that the father earns income through his business however the Court accepts that this business income is "lumpy" as he contends; he had stated to Child Support in about February 2025, inter alia, that he is maintaining a current home loan and that his business has outstanding loans and he hopes to draw income again in the next 4 to 6 months.
3. The father had informed Child Support that the mother had a potential earning capacity however she had not sought full-time employment since separation. The mother, the father contended, receives some government assistance.
4. As to the conduct of the parties in the proceedings, the father's affidavit evidence in support of his Contravention Application did not contain relevant admissible evidence proving the mother's alleged contraventions. Accordingly, his Contravention Application was dismissed. The Court observes that in relation to a significant number of contravention counts pleaded by the father, relating to his allegations that without reasonable excuse the mother did not release the child Y into his care for various periods, his affidavit evidence had merely stated, for example:

Count 18: The respondent [Ms Kensit] without reasonable excuse did not release my son [Y] into my care for the week about care arrangement.

Order alleged to have been contravened: Order 12 of the orders dated 08 September 2023

Date, time and location of alleged act or omission: 25/08/2024, 4pm, [G Street, Suburb J] NSW [...]

1. The mother, at the contravention hearing, had entered pleas of not guilty in relation to the father's alleged contravention counts. It was open to her to so plead in light of the absence of relevant evidence in the father's affidavit proving the alleged contravention counts. The Court takes into account the mother's solicitor's open email letter to the father of 18 March 2025 referring to significant make up time spent by the child Y with the father in early 2025 and requesting that the father withdraw his contravention application; this email letter suggests that the child had not spent time with the father pursuant to previous orders of the Court. The father did not accede to this request from the mother's solicitor and pressed his contravention application.
2. Having regard to the above matters, it will be just that the father pay 50 per cent of the mother's claimed scale costs (she claims scale costs totalling $10,626). The father should have six months to pay the mother the sum of $5,313.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.