Plaza & Ricos [2025] FedCFamC1A 83 (14 May 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 Plaza & Ricos has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 27 November 2024, a judge of the Federal Circuit and Family Court of Australia (Division 2) delivered reasons for judgment on a review of orders made by a senior judicial registrar. The reasons for judgment are recorded as Ricos & Plaza [2024] FedCFamC2F 1729.
2. On 29 November 2024, the appellant filed a Notice of Appeal from the orders made by the primary judge. On 29 November 2024, the appellant filed an Application in an Appeal seeking expedition of the appeal. On 11 December 2024, the application was heard by Appeal Judicial Registrar Cameron and on 16 December 2024 reasons were delivered dismissing the application for expedition.
3. On 23 December 2024, Appeal Judicial Registrar Cameron made procedural orders including the preparation of Appeal Books and the filing of Summaries of Argument. The appeal was subsequently listed for hearing before this court on 27 March 2025.
4. On 14 March 2025, the Court caused the matter to be listed for directions. On that occasion the parties were advised that the Court could hear the final applications over three days commencing 5 May 2025 in the event that the Notice of Appeal was withdrawn.
5. On that day, orders were subsequently made as follows:
   1. By consent the Amended Notice of Appeal filed 10 December 2024 is withdrawn and dismissed.
   2. The hearing date of 27 March 2025 is vacated.
   3. The question of costs in the appeal are adjourned for determination to 7 May 2025.
6. The respondent seeks to have determined an application for costs of the appeal that was withdrawn and dismissed. The respondent seeks an order that the appellant pay his costs in accordance with his Costs Schedule in the sum of $36,500.
7. On 7 May 2025, each of the parties' counsel made brief submissions in relation to the question of costs; the appellant indicating that she opposed an order for costs.
8. An application for costs is governed by the provisions of s 117 of the Family Law Act 1975 (Cth) ("the Act"), which provides a general rule that each party to the proceedings should bear their own costs.
9. Section 117(2) of the Act reposes in the Court a discretion to make a costs order if the Court determines there are circumstances that justify this and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A) of the Act.
10. In Penfold v Penfold (1980) 144 CLR 311 at 315, the plurality in the High Court determined that to make an order under s 117(2) of the Act, the Court needs to make a finding of "justifying circumstances" as a preliminary prerequisite to the making of an order. Their Honours also observed that a term such as "a clear case" is not necessarily a determiner of whether an order for costs should be made. All that is required or necessary is that there are justifying circumstances.
11. It is well-settled law that no one factor in s 117(2A) is determinative, and the Court may give such weight as it considers relevant to any factor. In Fitzgerald v Fish [2005] FamCA 158; (2005) 33 Fam LR 123 at 130, the Full Court observed:
    1. ... Nowhere in subsection 2(A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection 2(A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
12. Addressing the matters under s 117(2A) I find as follows.

(a) The financial circumstances of each party to the proceedings

1. Each of the parties are in employment and it was conceded by counsel for the respondent that the respondent's income was greater than that of the appellant. Each party has privately funded the litigation to date, and each have spent in excess of $300,000 in legal fees.

(b) Whether any party was in receipt of legal aid

1. What is relevant is conduct of a party which in some way or other leads to an increase in costs by the other party. Such factors may include uncooperative behaviour, obstruction, prolonging litigation or the bringing of unreasonable or unmeritorious applications. It may include non-disclosure or a failure to comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") in relation to disclosure.
2. The respondent contends as a relevant consideration in relation to the application for costs that the appellant brought an ultimately unsuccessful application for expedition. The appellant's application was brought as a matter of right. It does not reflect adversely, in a conduct sense, where a party brings a legitimate albeit unsuccessful application. A review of the reasons of the Appeal Judicial Registrar does not reveal that the Court considered the application as other than bona fide. I am not satisfied that the application was in and of itself so completely without merit as to a be a relevant consideration.

(d) Whether the proceedings were necessitated by the failure of a party to comply with a previous order

(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. The term "wholly unsuccessful" refers to a situation in which proceedings as a whole have been unsuccessful, rather than necessarily an application or a form of relief (Bant & Clayton (Costs) [2016] FamCAFC 35; (2016) 56 Fam LR 31). This is not applicable.

(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

(g) Any other matter the court considers relevant

95 Overarching purpose of family law practice and procedure provisions

(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

Note 1: See also paragraphs 5(a) and (b).

Note 2: The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.

(2) Without limiting subsection (1), the overarching purpose includes the following objectives:

(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);

(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c) the efficient disposal of the Court's overall caseload;

(d) the disposal of all proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4) The family law practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:

(a) the Rules of Court;

(b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).

1. The overarching purpose is reinforced by the Rules and the Federal Circuit and Family Court of Australia Central Practice Direction - Family Law Case Management, 1 May 2024, especially the core principles including that parties must conduct the proceedings (including negotiations for settlement of the dispute) in a way that is consistent with the overarching purpose.
2. The reality is that the parties were, by the actions taken by the appellant in seeking to withdraw and dismiss the appeal, able to have their applications for parenting orders heard and determined much earlier than would have been the case if the appeal had run, irrespective of its success.
3. I am satisfied that the appellant in consenting to the dismissal of the appeal and the acceptance of an early hearing date acted entirely consistent with the overarching purposes of family law litigation.

1. I am not satisfied that there are any circumstances that justify a departure from the provisions of s 117(1) of the Act.
2. Consequently, the respondent's application for costs will be dismissed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.