Northern Territory v Sangare

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 determine the application for costs made by Ms Breitner ("the Mother") ("costs application") against Mr Breitner ("the Father") following the dismissal of her amended initiating application seeking adult child maintenance payment for the child, Mr C born in 2005 ("Mr C"), who was 19 years of age at the time of the final defended hearing ("the substantive proceedings").
2. In the substantive proceedings, the Mother sought a periodic payment of adult child maintenance pursuant to s 66 of the Family Law Act 1975 (Cth) ("the Act") in the amount of $5,000 per month with such payments to be backdated to commence on 1 November 2023. The Mother was also seeking payment of Mr C's private medical insurance, gap expenses for medical and dental costs and all costs associated with his university fees.
3. The Father was seeking a summary dismissal of the Mother's costs application. He was, by direct arrangement with Mr C, already making supportive payments to and for Mr C.
4. On 7 February 2025, orders were made following a final defended hearing of the substantive proceedings which resulted in the dismissal of the Mother's initiating application.
5. It is unnecessary to recite the circumstances and controversies of the substantive proceedings in this matter as they are outlined in Breitner & Breitner [2025] FedCFamC2F 196 ("reasons for orders").
6. On 7 March 2025, the Mother filed an application in a proceeding (noting the application was signed on 6 March 2025) seeking the following order:
   1. Cost orders be made in favour of [Ms Breitner] by [Mr Breitner] pursant [sic] to Section 117 of the Family Law Act for an amount to be determined by the Judge, pursuant to Section (sic) 117 a, c, d, e, f and g
7. Within the Mother's written submissions, she further clarified what she was seeking as:

I am hoping that you may consider awarding costs for:

• - Reasonable necessary expenses that I incurred for [Mr C], for the 58 weeks we (sic) was with me,
• - CPI increase for the period July to November 2023,
• - Any party to party costs caused considered appropriate.

1. On 7 March 2025, the Father filed a response to the application in a proceeding seeking the following order:
   1. That the Application in a Proceeding filed on 6 March 2025 be dismissed.
   2. Such further and other order as this Honourable Court deems appropriate in all of the circumstances.
2. On 7 March 2025 at 10.02am, the parties were sent an email from my chambers indicating that the application in a proceeding had been received and that it was proposed the matters contained within the application be heard on the papers. Each party was put on notice that they were required to submit short written submissions of no more than two (2) pages in length by no later than 4.00pm on Friday 21 March 2025.

1. The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
2. Section 140 of the Evidence Act 1995 (Cth) provides:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject- matter of the proceeding; and

(c) the gravity of the matters alleged.

1. The Mother relied upon the following documents:

(a) Her application in a proceeding filed 7 March 2025;

(b) Her affidavit filed 7 March 2025; and

(c) Written submissions filed 19 March 2025.

1. The Father relied upon the following documents:

(a) Response to an application in a proceeding filed 7 March 2025;

(b) Affidavit filed 7 March 2025; and

(c) Written submissions filed 21 March 2025.

1. I have read all the documents relied upon and referred to by the parties. I have examined that evidence and do not propose to repeat it in these reasons.
2. It is not possible to refer to every fact and/or matter raised by the parties within their material and nor is it necessary to do so. If I have not referred to a particular fact or matter it does not follow that I have not had regard to it.

1. As this costs application is made in relation to a final defended hearing that occurred prior to the commencement of Family Law Act Amendments Act 2024 (10 June 2025), the legislation as contained within s 117 of the Act is applicable.
2. In accordance with s 117 (1) of the Act, the ordinary rule is that each party to the proceedings bears their own costs. However, a cost order may be made if justifying circumstances exist.
3. If costs are to be ordered, s 117(2A) of the Act sets out a number of factors that should be considered, as follows:

Costs

...

(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. Whilst consideration of the factors under subsection (2A) are each mandatory, the weight to be accorded to any of the considerations is wholly discretionary and hence the Court has a wide discretion when considering any application for costs.
2. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ('the Rules') also provide assistance when considering the making of an order for costs. Rule 12.17(1) provides the method for the calculation of costs:

(1) The court may order that a party is entitled to costs:

(a) of a specific amount; or

(b) as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or

(c) to be calculated in accordance with the method stated in the order; or

(d) for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.

1. In addition, rule 12.17(3) sets out the matters that may be considered in the calculation of costs:

(3) In making an order under subrule (1), the court may consider the following:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness of each party's behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);

(c) the rates ordinarily payable to lawyers in comparable proceedings;

(d) whether a lawyer's conduct has been improper, unfair, unreasonable or disproportionate;

(e) the time properly spent on the proceeding, or in complying with pre-action procedures;

(f) whether expenses (paid or payable) are fair, reasonable and proportionate.

1. The Court is required to consider the financial circumstances of the parties. The parties did not file significant information regarding their financial circumstances for the costs application, however, it is noted that this information was provided during the substantive application.
2. The Mother did not specifically address her financial position in her affidavit or written submissions. It is the Mother's evidence that she was currently not in paid employment, however, was continuing to apply for a fulltime role. She indicated that any saved money from a provisionally accepted workers compensation claim was spent on the major storm damage repair which provided for safe property access. Such was the financial position of the Mother, that the mortgage secured over her property remains under hardship provisions.
3. The Father remains employed on a fulltime basis. The financial circumstances of the Father were contained within the financial statement filed 27 September 2024, which was filed for the purpose of the substantive proceedings. The Father's income could be considered substantial, however, the statement reflects substantial outgoings and expenses.
4. The Mother submitted that the Father's expressed income is not accurate as he had not disclosed certain share trading accounts, however, as will be discussed within these reasons this is not fatal to the Father's current application or relevant to the Mother's application.

Whether the parties are in receipt of assistance of legal aid.

1. Neither party in this matter was in receipt of a grant of legal aid. The Father privately funded his legal representation for the substantive proceedings.
2. The Mother was self-represented at the final defended hearing.

1. The rules of the court should be considered when the court is exercising its discretion as to costs: see Northern Territory v Sangare [2019] HCA 19; (2019) 265 CLR 164 at [25]. Parties have a mandatory obligation pursuant to rule 1.04 of the Rules to conduct proceedings in a manner consistent with the overarching purpose of the court, being the just resolution of disputes according to law as quickly, inexpensively and efficient as possible.
2. The Court may have regard to the conduct of a party which in some way or other leads to an increase in costs by the other party. Such factors include uncooperative behaviour, obstruction, prolonging litigation or the bringing of unreasonable or unmeritorious applications.
3. The substantive proceedings were commenced by the Mother. It is the Mother's position that she had no alternate solution to discuss the issue of financial support for Mr C as the Father refused to respond to any correspondence sent to him. The Mother said she formed the view that any attempt at mediation was pointless, despite this being requested by the Father.
4. This application is not the first of its kind before the Court between these parties. In 2020, the Mother made an application for adult child maintenance for Mr D born in 2002 ("Mr D") that was ultimately dismissed by her Honour Judge Small. A costs order in favour of the Father in the amount of $20,000 was made following the dismissal of the Mother's application.
5. The Mother was put on notice by the Father's response and via correspondence that her application was unmeritorious and that she should not have pursued her application. Ultimately, a finding within the reasons for orders was made that the Father's assessment of the Mother's application was correct, and a summary dismissal resulted.
6. The Court was not provided with any evidence that would indicate any concern for the Father's conduct within the substantive proceedings. Rather, the Father, in the substantive proceedings and this application demonstrated an admirable stoicism and restraint in the face of an unreasonable application. During the substantive proceedings, Mr C, who had been living at his Mother's home, made clear his disapproval of the Mother's application and moved out of her home.

1. The Mother was wholly unsuccessful in her application within the substantive proceedings.
2. The Father was wholly successful in his application within the substantive proceedings.
3. The Mother's application and her persistence with it after Mr C moved out was plainly unreasonable.

1. It is submitted by the Father that he had made various offers to settle all outstanding matters between the parties. The Father submitted that the following offers were made to the Mother, however, were all were rejected:

(a) By letter dated 6 May 2024, the Father offered inter alia to pay periodic adult child maintenance at the rate of $200 per week, plus annual expenses (totalling $16,674 per annum) until such time that Mr C graduated from his first university degree on or around December 2026 whichever being the sooner;

(b) By letter dated 21 January 2025, the Father invited the Mother to withdraw her application, noting that he had incurred approximately $39,338 but was not seeking any costs order in the event the application was withdrawn at that time, however, the Mother was put on notice that costs may be sought if ultimately her application was dismissed;

(c) By letter dated 23 January 2025, following the receipt of the Mother's email of rejection and counteroffer, the Father offered inter alia that the Mother withdraw her application, and that costs of $45,000 be paid by her.

1. I am satisfied that the Father made all reasonable attempts, including the invitation to mediation, to discuss and resolve the issue with the Mother, with all efforts being unreasonably rebuked.

1. Despite being wholly unsuccessful in her application for adult child spousal maintenance and having been self-represented for the final defended hearing, the Mother is seeking costs against the Father. It is apparent from the affidavit material and written submissions filed, that the Mother has inferred that any application for 'costs' is one where she could be paid for reasonable expenditure or costs incurred by her when supporting Mr C.
2. Despite referring to an award for costs in accordance with s 117 of the Act within her application, contained within the Mother's affidavit is evidence that she is ultimately seeking past costs incurred by her or Mr C for living expenses previously incurred. In support of her application for costs, the Mother stated the following in her affidavit:
   1. I would like Costs to be considered to be awarded to me for the period of November 2023 - January 2025. I substantially met most of [Mr C]'s costs during that period. When [Mr Breitner] contributed to costs related to the computer and car accident it was because I contacted [Mr Breitner] about the costs. [Mr C] and [Mr D] are not able to confidently negotiate costs with [Mr Breitner]. They are not skilled business men. They are not aware of what they can and cannot ask for.
   2. In November 2024, [Mr C] had multiple medical needs which have always been [Mr Breitner]'s responsibility to pay. When I asked [Mr C] to get the money from his Father he refused to do this. Costs included regular dental treatment and medications for an alleged workplace injury.
3. Unfortunately, the Mother appeared to be using this costs application as an avenue of recourse for what she believes to be an unjust financial relationship and lack of financial responsibility by the Father in circumstances where her primary application has been summarily dismissed.
4. While the Mother feels aggrieved by the Father's reasonable conduct regarding his financial responsibility to Mr C and possibly disgruntled by the final determination of the substantive proceedings, she is misconceived as to the purpose and effect of a cost application following a final defended hearing. A costs application is not to be used as pseudo appeal application to overcome the dissatisfaction with the original result.
5. In the exercise of what has been described as a wide discretion, the most significant considerations in this matter for the purpose of dismissing the Mother's costs application relates to the Mother being wholly unsuccessful and the Father being wholly successful in their respective substantive applications.
6. It is noted that the Father does not seek to pursue a claim for costs against the Mother.
7. Having regard to the evidence before me, I find that an order for costs is not appropriate.
8. As I find that there is to be no orders as to costs, it is not required of me to do an analysis of the Father's financial circumstances or an investigation into the accuracy of his representations. That being said I have no reason to doubt any relevant assertion he has made about his affairs.
9. For the above reasons, I make my orders.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.