Pantoja & Pantoja [2025] FedCFamC1A 151 (26 August 2025)

1. These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 26 August 2025

1. These reasons relate firstly to an application for the costs of the appeal by the appellant and secondly, to applications for costs certificates by both the appellant and respondent, in relation to the appeal and to the remitted substantive proceedings.
2. The substantive appeal was from property adjustment orders made pursuant to s 79 of the Family Law Act 1975 (Cth) ("the Act").
3. The appellant pursued four grounds of appeal, succeeding on two, but failing on two. The result was the allowing of the appeal and remittal of the proceedings to the Federal Circuit and Family Court of Australia (Division 2) for rehearing.
4. The starting point for the consideration of costs, pursuant to s 114UB(1) of the Act, is that each party will bear their own costs. Where there are circumstances justifying it, a court may, on consideration of the matters contained at s 114UB(3), make an order for costs. Although conditioned, it is a broad discretion.
5. As to the first consideration, the financial circumstances of the parties, the appellant points to limited income and to each of the parties receiving a significant settlement by virtue of the now set aside orders.
6. The second matter raised by the appellant as relevant was, as identified by s 114UB(3)(e), whether a party has been "wholly unsuccessful in the proceedings". Given his success in the appeal, the appellant argued that the respondent was wholly unsuccessful in resisting the appeal. He concedes that the respondent was successful in resisting some of the grounds of appeal.
7. As described by the appellant, in terms of resisting the appeal the respondent can be taken to have been wholly unsuccessful. However, other than the fact of the lack of success, no matter was identified that indicated that the respondent was unreasonable in resisting the appeal, particularly in circumstances where the appeal was pursued, in part, on the basis of grounds that were ultimately without merit.
8. The third and final matter raised by the appellant was as to an offer made by him in writing to settle the proceedings. That offer was for the substitution of orders dividing the property 55-45 in favour of the respondent in lieu of the orders made by the primary judge adjusting the property 59-41 in favour of the respondent. The reasonableness or appropriateness of the offer, or the unreasonableness of the respondent in rejecting the offer, is not apparent in circumstances where the matter is now remitted for rehearing. It remains to be seen whether the appellant will do equal to, or better than, the offer made. In those circumstances, the offer in writing adds nothing to the appellant's claim.

1. Although the respondent was wholly unsuccessful in resisting the appeal, the circumstances of that resistance do not give that factor sufficient weight to warrant a departure from the position that each party should bear their own costs. That is not a position that changes on the weighing of the parties' financial circumstances. The appellant's application for costs is refused.

1. The appeal succeeded on a question of law and has resulted in the granting of a new trial. Certificates will issue to both parties as requested by them, pursuant to sections 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Gill & Carter.