Keon & Photina [2025] FedCFamC1F 806 (10 November 2025)

1. The husband pay the wife's costs of and incidental to both the adjournment and today's hearing in the sum of $6,000 within 28 days.

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. The matter comes before me today listed for a final hearing in respect of a threshold issue under section 90RD of the Family Law Act 1975 (Cth) ("the Act"). When it came before me this morning, I was told that that matter has been resolved in a manner which suggests that the threshold issue has been conceded - that is the Court is in a position to make a declaration that there was a de facto relationship between the parties as that term is defined in the Act.
2. The applicant seeks her costs and the respondent seeks that those costs be reserved.
3. It is appropriate that I deal with the costs issue in circumstances where I have dealt with the matter to date, and for another judicial officer to be involved in the costs issue would be productive of further costs.
4. On 5 April 2025 a Certificate of Readiness was filed in this matter which indicated that the matter was ready to proceed and that each party intended to rely on multiple affidavits. As it transpired, as the matter came closer to a final hearing, the number of affidavits filed was not as foreshadowed.
5. This is a jurisdiction in which the usual rule is that each party bear his or her own costs of the litigation. That said, the Act provides that if there are justifying circumstances, the court may make an order that one party meets some or all of the costs of the other party. The justifying circumstances are set out in the Act.
6. In this case, I am told that the financial circumstances of the parties are relevant, conduct of the parties are relevant, and the fact that one of the parties has been wholly unsuccessful is relevant. I will deal with each of those in turn.
7. It is fair reading of the evidence before the Court to conclude that the financial circumstances of the applicant for costs are weaker than those of the respondent to the application. That may in certain circumstances be sufficient to justify the making of a costs order. However, in this case I am also taken to conduct. About one week ago, on Friday prior to this matter being listed for a final hearing, an application for an adjournment was made. That application was granted on the application of the applicant. No suggestion was made that the matter may be conceded at that point. The matter was adjourned until today. There was no indication that the matter may resolve until this morning. In those circumstances, that conduct is relevant to the fact that the applicant's costs have incurred legal expenses. Finally, the concession means that the husband in this case has been wholly unsuccessful. A Costs Notice was filed on behalf of the applicant for costs. No costs notice has been filed by the respondent to the application.
8. I accept what the respondent's counsel tells me; namely that the costs notice reflects costs of the matter more generally - including the parenting matter - and it could not be possible on this application to ascertain which of those costs relate to that matter. In addition, there have been periods in which the applicant has been self-represented. If I were to make an order for the sum incurred by Mr Leamey as indicated in the costs notice, that would effectively be an order for indemnity costs.
9. The applicant for costs sought that if I were to make a costs order, it ought to be as agreed or assessed. That in itself is productive of satellite litigation and further costs. The Rules allow me to make an order for fixed sum. In the circumstances of this case, there are justifying circumstances to depart from the usual rule, and I decline to make it as agreed or assessed.
10. Taking the figure which Mr Leamey indicates had been incurred before he sought to amend his Costs Notice of $8,300. If I were to make an order in that sum, it would amount to an indemnity costs order in circumstances where the preconditions in the jurisprudence for the making of an indemnity costs order are not present in this matter. Accordingly, doing the best I can, I order that the husband pay the wife's costs of an incidental to both the adjournment and today in the sum of $6,000. That sum to be paid within 28 days.
11. The parties will be notified when the matter is next before the Judicial Registrar for case management.

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