Langley & Mirza [2025] FedCFamC1A 226 (10 December 2025)

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

1. These reasons explain the dismissal of an appeal brought from a costs order.

1. Final parenting orders were made between the parties in April 2024.
2. By an Application in a Proceeding filed in May 2024, the father sought a costs order against the mother, assessed in the sum of $252,235.91 (which were his actual costs) or alternatively $206,262.38 (which were his party/party costs) (at [3], [9] and [10]).
3. By a Response filed in July 2024, the mother resisted the father's application and instead sought a costs order against him, though she did not assess any fixed figure (at [4] and [12]).
4. The costs dispute was heard and determined by the primary judge in chambers on the papers, though judgment was not delivered until a year later, on 11 July 2025.
5. The primary judge ordered the mother to pay the father's costs, fixed in the sum of $77,080.68, within 12 months (Order 1). Otherwise, their applications were dismissed (Order 2) and the matter was removed from the active pending cases list (Order 3).
6. The primary judge accepted the father incurred legal fees in the proceedings totalling $252,235.91 (at [257] and [263]) and was satisfied a costs order should be made in his favour (at [260]), but not to indemnify him for all his costs (at [261]). Comparatively, the mother's legal costs were found to be $98,074.55 (at [263]) and so the parties' overall costs totalled $350,310.46 (at [263]). Her Honour determined the parties should bear those overall costs equally (at [264]). Accordingly, it was determined the mother had to pay the father $77,080.68 to even the ledger (at [265]).
7. The mother appealed from Order 1. The father resisted the appeal.

1. Before addressing the premise of the appeal, it is useful to observe a procedural point. Her Honour assessed the parties' competing costs applications related to the proceedings concluded by the judgment delivered in April 2024. Consequently, her Honour correctly applied the repealed provisions of s 117 of the Family Law Act 1975 (Cth) ("the Act") instead of the new provisions of s 114UB of the Act which, upon enactment of the Family Law Amendment Act 2024 (Cth), took effect in respect of proceedings heard on or after 10 June 2025.
2. The mother relied upon the Amended Notice of Appeal she filed on 28 August 2025.
3. The mother explained in her Summary of Argument how she does not challenge the validity of the costs order made against her. Rather, her challenge is confined to the quantum of the order. Despite multiple grounds of appeal, her complaint is distilled to this single proposition: the primary judge found the father was not entitled to indemnity costs (at [261]) yet, when her Honour calculated the parties' costs (at [263]-[265]), her Honour used the father's actual costs as an integer in the calculations.
4. The mother's argument is encapsulated within these submissions:
   1. It is submitted as per the Amended Grounds of Appeal that Her Honour has on the one hand declined to make an indemnity costs order in favour of the [father] but on the other hand by awarding or assessing the costs of the [father] at $252,223.91 in effect an indemnity costs orders has been made.
   2. Given that Her Honour declined to make an indemnity costs order, in the [mother's] submission, it is submitted that the amount awarded being full costs sought, was unreasonable and unjust in the circumstances and should be set aside.
5. The mother contends the father's costs should have been calculated at $206,262.38 in lieu of $252,235.91, in which event she should only have been ordered to pay the father considerably less than the sum of $77,080.68.
6. The mother's submissions are rejected for two reasons.
7. First, when the primary judge said the father was not entitled to indemnity costs, it should be inferred her Honour meant only that the father was not entitled to receive reimbursement for 100 per cent of his paid costs.
8. Secondly, when the parties' legal costs were tabulated, her Honour used the actual costs incurred by both parties - which was $252,235.91 for the father and $98,074.55 for the mother. It would have been absurd for the primary judge to use the father's party/party costs but the mother's actual costs, as the comparison would not then have been equivalent.

1. Ground 5 alleges the mother was denied procedural fairness because:
   1. ... there was no indication given by Her Honour that the Costs Notices of either party was going to be considered (and whether those Costs Notices would be considered in whole or in part) when deciding to award costs.
   2. In other words, it is submitted the type of Costs Order made with reference to the numerical amount awarded was made without hearing the [mother] (and the [father] as well) on the calculation of the amount that was awarded.

No submissions were invited or requested as to the basis for numerical amount to be awarded.

1. The contention is rejected.
2. The parties' competing applications were being determined on the papers. Both were aware of the application being made by the other and the evidence upon which they respectively relied. Both filed comprehensive written submissions (at [6]-[8]). They were heard.
3. Her Honour was both entitled and obliged to determine the dispute on the material adduced by the parties. The primary judge bore no obligation at all to re-list the proceeding to forecast provisional views and thereby enable the parties another opportunity to argue either for or against such provisional views (Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 599; SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [48]).

1. Ground 1 asserts inconsistency by the primary judge finding the father was not entitled to indemnity costs but then using his indemnity costs in the calculations. The rejection of that proposition has already been explained.

1. Ground 2 alleges an error by the failure to give sufficient consideration to the factors listed within s 114UB (but properly s 117(2A)) of the Act), which proposition is rejected.
2. Her Honour canvassed all the factors prescribed by s 117(2A) of the Act (at [102]-[264]).
3. To the extent the Summary of Argument illuminates this ground, the mother submitted:
   1. The [mother] seeks to amend Ground 2 by replacing the words "Section 117" with "Section 114 UB" and would submit that under Section 114 UB(3)(g) it is a relevant factor as to all the material that Her Honour considered when deciding to calculate and determine that the amount payable the [mother] to the [father] for costs was an amount of $77,080.68 inclusive of GST and the fact the [mother] was not able to make any submissions.

1. The submission is rejected. It seemingly says nothing more than Ground 5 in respect of procedural unfairness, which has been addressed and rejected.

1. Ground 4 alleges discretionary error by the primary judge failing to take all the mother's Costs Notices into account when assessing the quantum of the costs order.
2. In her Summary of Argument, the mother submits that, although the primary judge took account of her Costs Notices filed in October 2023 and March 2024 (at [263]), her Honour overlooked the Costs Notice she filed in December 2021.
3. On 6 June 2024, the mother was ordered to file her Response in rebuttal of the costs application and any affidavit upon which she wished to rely by 18 July 2024 and to file her submissions by 29 August 2024, though those dates were later extended. The mother filed the material upon which she relied (at [4], [7] and [8]).
4. The mother's lawyer informed the primary judge he had been acting for the mother since July 2022 and he adduced evidence of the Costs Notices she filed between November 2022 and March 2024. The Costs Notice filed by the mother in December 2021 was not amongst the evidence she adduced. It was not in evidence merely because it had been filed years before. Therefore, that Costs Notice was neither in evidence nor mentioned in the submissions and so was not drawn to her Honour's attention by the mother's lawyer. The mother is bound by the way her lawyer conducted the dispute. The primary judge made no factual or discretionary error on the evidence adduced by the parties.

1. Ground 3 alleges the primary judge gave inadequate reasons for the costs order, though the actual complaint is much narrower.
2. The mother contends in her Summary of Argument the primary judge gave inadequate reasons for "why it would be difficult to award costs under [Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)] or not allowing either party to undertake costs assessment".
3. In that regard, her Honour said this:
   1. Whilst costs could be awarded in accordance with the scale of costs set out at Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), or at Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2)(Family Law) Rules 2021 (Cth), my inability to conclude that either party was wholly unsuccessful on any particular occasion makes it difficult to award costs in accordance with either Schedule. I consider that any order for costs that requires the parties to undertake an assessment of costs is likely to only lead to further disputes which will, in turn, generate additional costs for each party. I consider such an outcome is unjust and unwarranted.
4. That paragraph sufficiently explains why her Honour decided to fix costs and avoid further debate between the parties at extra cost.

1. The appeal is dismissed.
2. The appeal was wholly unsuccessful and so the respondent should have his party/party costs of the appeal, reasonably assessed at $10,000 and therefore fixed in that sum pursuant to s 114UB(5)(a) of the Act. The father sought costs of nearly $25,000, but that was an excessive solicitor/client assessment which cannot be justified and was properly abandoned. The appeal was simple, which the quantification of costs should properly reflect.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.