Kerimowa & Chong (No 4) [2025] FedCFamC1F 824 (14 November 2025)

Daines & Daines (Costs) [2014] FamCAFC 170.

Davis & Peterson [2023] FedCFamC1A 13; (2023) FLC 94-130 at [75].

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & another [2005] FamCA 158; (2005) 33 Fam LR 123 at 130.

Hitch & Hitch [2012] FamCAFC 124; (2012) 47 FamLR 603.

I and I (No 2) [1995] FamCA 80; (1995) FLC 92-625.

Jensen & Jensen [1982] FamCA 57; (1982) FLC 91-263.

Kerimowa & Chong [2025] FedCFamC1F 277.

Lenova & Lenova (Costs) [2011] FamCAFC 141.

Nada & Nettle (Costs) [2014] FamCAFC 207; (2014) FLC 93-612

Parke & The Estate of the Late A Parke (2016) FLC 93‑748.

Prantage & Prantage (Costs) [2014] FamCA 850 at [12].

Vandale & Cino (No 2) [2025] FedCFamC1F 234 at [49] to [52].

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. Within twenty-eight (28) days of the date of these Orders, the mother is to pay to the Trust Account of the father's solicitor the sum of $3,296.65.
2. The Application in a Proceeding filed on 3 October 2025 and the Response to an Application in a Proceeding filed on 31 October 2025 be dismissed.

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 Kerimowa & Chong (No 4) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The substantive proceedings between the applicant father ("the father") and the respondent mother ("the mother") were finalised when I delivered my reasons for judgment on 1 May 2025: Kerimowa & Chong [2025] FedCFamC1F 277.
2. On 12 May 2025, the mother filed an Application in a Proceeding seeking a stay of the final orders ("the stay application").
3. This judgment deals solely with a costs order sought by the father with respect to the stay application.
4. For the reasons discussed below, I will make an order that the mother pay the father's legal costs fixed in a sum of $3,296.65.

1. The father's application for parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) ("the Act") was finalised on 1 May 2025. On that day, I made final parenting orders and delivered Reasons for Judgment.[1]
2. On 12 May 2025, the mother filed an Application in a Proceeding seeking a stay of the final orders ("the stay application"). The application was initially listed on 21 May 2025 but at the request of the parties and the Independent Children's Lawyer, the hearing was adjourned to provide the mother with an opportunity to file a Notice of Appeal.
3. The mother filed her Notice of Appeal on 29 May 2025. That document was amended on 29 July 2025.
4. On 10 June 2025, I heard the stay application. I delivered Orders and reasons for judgment on 17 June 2025 dismissing the application. I also made orders reserving the costs of the father and the Independent Children's Lawyer. I further directed that any application for costs together with an affidavit in support be filed within twenty-eight days of the determination, withdrawal or abandonment of the mother's appeal.[2]
5. The appeal was heard by the Full Court of the Federal Circuit and Family Court of Australia on 27 August 2025. On 8 September 2025, the Full Court dismissed the mother's appeal and made an order obliging the mother to pay the costs incurred by the father and the Independent Children's Lawyer.
6. On 3 October 2025, the father filed an Application in a Proceeding ("Costs Application") seeking an order that the mother pays his costs of and incidental to the stay application on a party and party basis such costs fixed in a sum of $3,296.65.[3]

(a) An Application in a Proceeding filed on 3 October 2025;

(b) An affidavit in the name of the father filed on 3 October 2025; and

(c) Written Submissions filed on 5 November 2025.

(a) A Response to an Application in a Proceeding filed on 31 October 2025;

(b) An Affidavit filed on 31 October 2025;

(c) A Financial Statement filed on 31 October 2025; and

(d) Written Submissions filed on 6 November 2025.

1. Section 114UB(1) of the Act abolishes for the purposes of family law proceedings, the general rule that in civil proceedings, costs follow the event. It provides that each party should bear his or her own costs in such proceedings.
2. However, the Court retains a discretion to make an order as to costs. The relevant principles are well settled.[4] The Court has a wide discretion, which is to be exercised judicially.
3. Relevantly, section 114UB(2) of the Act reads as follows:

If, in proceedings under this Act, the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (3) of this section, sections 114UC and 114UD and the applicable rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise.

1. When considering what order (if any) is just, the legislation mandates that the court have regard to those matters set out in s 114UB(3) of the Act. The legislation does not identify that any of those seven matters is determinative. However, the Court must consider each matter in the seven alphabetical subsections.[5] There is nothing to prevent any factor being the sole foundation for any order for costs being made.[6]
2. Section 114UB(3) of the Act provides that when considering what costs order (if any) should be made, 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 paragraphs (a) and (b), 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, and in relation to their duty of disclosure under subsection 71B(1), 90RI(1) or 90YJA(1);

(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. It is now appropriate to consider whether there are any circumstances which justify a departure from the general rule provided by s 114UB(1) by virtue of any of the considerations specified in s 114UB(3) of the Act.

Section 114UB(3)(a) - the financial circumstances of each of the parties to the proceedings

1. The father is currently employed on a full-time basis as a professional for a government department. He receives net wages of $4,168 per fortnight.[7] He says that save for a motor vehicle of modest value, he owns no significant assets.[8] The father and the children reside in rental accommodation and the father's rental commitments represent about 45 percent of his income.[9] In accordance with Orders made by me on 1 May 2025, the father has the sole care of the children.
2. The mother had been assessed by the Child Support Agency to pay to the father a sum of $606 per week on account of her obligations pursuant to the Child Support (Assessment) Act 1989 (Cth). However, and on 21 October 2025, the mother resigned from her employment in circumstances where she had a "complete inability to pay any expenses beyond rent".[10] Subsequent to that decision, the father was advised by the Child Support Agency that the mother's obligations as assessed by the Child Support Agency had been reduced to a sum of $20.47 per fortnight.[11] Since the delivery of my judgment on 1 May 2025, the father has only received a sum of $1,791 from the mother such monies garnished from the mother's taxation return and her wages.[12]
3. Prior to the mother's decision of 21 October 2025 to resign from the government agency, the Child Support Agency assessed the mother as having an adjusted taxable income of $102,050 per annum. It was a wage similar to the wage enjoyed by the father.[13]
4. As discussed above, the mother elected to resign from her employment. Such a decision is incongruous with the mother's contention that she was struggling to pay any expenses over and above her rent and that she is otherwise burdened by significant debt.[14] In any event, the mother has not produced any evidence to support a finding that she is incapable of finding appropriate employment. Such a finding would also be inconsistent with the mother's evidence that she proposes to commence new employment at a time of her convenience noting she says that she has agreed to a payment plan to satisfy the fees charged by a solicitor whom the mother engaged subsequent to May 2025 "once I secure new employment".[15]
5. The mother's debts excluding a monthly credit card liability are in the order of $186,663. In respect of that amount:

(a) A sum of $21,000 represents the mother's obligations to pay the costs of the father and the Independent Children's Lawyer pursuant to an Order made by the Appeal Division of the Federal Circuit and Family Court of Australia on 8 September 2025; and

(b) A sum of $120,000 represents monies, which the mother says she has borrowed from a third party so that she might satisfy her legal costs and disbursements.[16] The mother has not produced any evidence, which might support a conclusion that a loan agreement exists.

1. I accept that the parenting proceedings, which commenced in May 2023, have been financially ruinous for each of the parties. Indeed, the father's legal costs and disbursements exceed $100,000.[17] I also accept that at the current time, the mother's financial position is dire. However, it is well established that straitened circumstances and even impecuniosity are not a bar to the making of a costs order where the circumstances otherwise justify it.[18]

Section 114UB(3)(b) - whether any party to the proceedings is receiving assistance by way of legal aid in respect of the proceedings and, if so, the terms of the grant of the assistance to that party

1. This sub-section is irrelevant to my determination.

Section 114UB(3)(c) - the conduct of the parties to the proceedings in relation to the proceedings including, without limited to paragraphs (a) and (b), 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, and in relation to their duty of disclosure under subsection 71B(1), 90RI(1) or 90YJA(1)

1. The mother filed the stay application absent the filing of a Notice of Appeal. This decision led to an adjournment of the time and date originally allocated for the hearing of the stay application and unnecessary communication between the parties' solicitors and the Independent Children's Lawyer.

Section 114UB(3)(d) - whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

1. This sub-section is irrelevant to my determination.

Section 114UB(3)(e) - whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. I dismissed the mother's stay application on 17 June 2025. The hearing before me on 7 November 2025 was the third occasion on which the proceedings had been before me since I delivered my final judgment on 1 May 2025. This is in addition to the proceedings in the Full Court and I consider it to be an important consideration with respect to the father's application for costs of the stay proceeding.

Section 114UB(3)(f) - whether any 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

1. On 29 September 2025, the father's solicitors sent correspondence to the mother's solicitors putting her on notice of an application for costs of and incidental to the stay application. He invited the mother to enter into consent orders with respect to his proposed application. The mother did not respond.[19]
2. As Nygh J held in Jensen & Jensen:[20]

...if as a result of non-cooperation, obstructiveness or otherwise, one of the parties causes the conduct of the proceedings to be unduly prolonged or made unduly expensive to the other side, clearly an order for costs would be warranted.

1. This is a case where precisely that type of conduct has occurred. It behoved the mother to make efforts to compromise the father's application.

Section 114UB(3)(g) - such other matters as the court considers relevant

1. This sub-section is irrelevant to my determination.

1. For the reasons set out above, I consider that it is just for the mother pay the father's costs of the stay application.
2. The father's costs of and incidental to his stay application were in the order of $4,356.90.[21]
3. The father has prepared an Itemised Account pursuant to Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.[22] Pursuant to that Schedule, the father calculates his costs of and incidental to the stay application to be in the order of $3,296.65. The father invites me to fix his costs in that amount. I consider this amount to be reasonable and proportionate to the work performed by the father's solicitor.
4. Pursuant to Rule 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, I am permitted to make an order that the father be paid his costs fixed in a specific amount. It has been determined that where a Court orders a party to pay costs, it may be appropriate for the Court to fix a lump sum. By doing so, the Court can avoid further delay and inconvenience being occasioned by the requirement to tax a bill (Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51]).[23]
5. Accordingly, I will make orders for the mother to pay the father's costs of and incidental to the stay application fixed in a sum of $3,296.65. I order this sum to be paid by the mother within twenty-eight (28) days of the date of this judgment.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

[1] Kerimowa & Chong [2025] FedCFamC1F 277.

[2] Kerimowa & Chong (No 2) [2025] FedCFamC1F 277, paragraphs 32; Order 3, Orders made on 17 June 2025.

[3] Father's affidavit filed 3 October 2025, paragraph 12.

[4] Parke & The Estate of the Late A Parke (2016) FLC 93‑748; Atkins & Hunt (Costs) [2017] FamCAFC 131.

[5] I and I (No 2) [1995] FamCA 80; (1995) FLC 92-625; Hitch & Hitch [2012] FamCAFC 124; (2012) 47 FamLR 603.

[6] Prantage & Prantage (Costs) [2014] FamCA 850 at [12]; Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & another [2005] FamCA 158; (2005) 33 Fam LR 123 at 130.

[7] Father's affidavit filed 3 October 2025, paragraph 14.

[8] Father's affidavit filed 3 October 2025, paragraph 14.

[9] Father's affidavit filed 3 October 2025, paragraph 14.

[10] Mother's affidavit filed 31 October 2025, paragraph 2.

[11] Father's Written Submissions filed 5 November 2025, paragraph 13(ii).

[12] Father's affidavit filed 3 October 2025, paragraph 15; Father's Written Submissions filed 5 November 2025, paragraph 13(ii).

[13] Father's Written Submissions filed 15 November 2025, paragraph 13(iii).

[14] Mother's affidavit filed 31 October 2025, paragraphs 9 and 10.

[15] Mother's affidavit filed 31 October 2025, paragraph 10.

[16] Mother's affidavit filed 31 October 2025, paragraph 10.

[17] Father's Costs Notice filed 6 November 2025.

[18] Davis & Peterson [2023] FedCFamC1A 13; (2023) FLC 94-130 at [75]; D & D (Costs) No 2 [2010] FamCAFC 64; (2010) FLC 93-435 at [21]; Nada & Nettle (Costs) [2014] FamCAFC 207; (2014) FLC 93-612; Lenova & Lenova (Costs) [2011] FamCAFC 141; Daines & Daines (Costs) [2014] FamCAFC 170.

[19] Father's Written Submissions filed 5 November 2025, paragraph 16.

[20] Jensen & Jensen [1982] FamCA 57; (1982) FLC 91-263.

[21] Father's Written Submissions filed 5 November 2025, paragraph 14.

[22] Father's affidavit filed 3 October 2025, Annexure C.

[23] See discussion by Deputy Chief Justice McClelland in Vandale & Cino (No 2) [2025] FedCFamC1F 234 at [49] to [52].