Ragni & Carrera (No 2) [2025] FedCFamC1F 618 (5 September 2025)

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

1. On 30 June 2025, following a final hearing over five days in March 2025, I made final parenting orders in respect of three-year old X. X's parents are Ms Carrera and Mr Ragni. The orders provide for Ms Carrera to have sole parental responsibility for X, for X to live with Ms Carrera and to spend time with Mr Ragni in stages, culminating in four nights a fortnight during school terms and half school holidays. In my Reasons, I made findings that, during the parents' short relationship, Mr Ragni had used family violence towards Ms Carrera, including physical violence and controlling and coercive behaviour. I also found that he had responded to Ms Carrera's evidence about family violence by trying to blame her and raise questions about her mental health and behaviour which were not justified (Reasons [151]).
2. These Reasons deal with an Application in a Proceeding filed 28 July 2025 by which Mr Ragni seeks an order that Ms Carrera reimburse him for half of the fees charged by the single expert appointed in the proceedings and in respect of the preparation of a Family Report and the reading of additional material. The single expert was appointed by way of consent orders made 16 September 2022. Those orders provide that Mr Ragni is to meet the costs of the expert "at first instance", which he did. The parents equally paid the cost of the single expert attending for cross examination.
3. The parenting matter was complex, the material provided to the single expert voluminous, and the cross examination of her significant. The total of the fees charged by her for preparation of the report and reading material that post-dated the report was $42,952.48. Mr Ragni seeks reimbursement of half of the fees for the report and reading (being $21,476.29) as well as his costs of the Application in a Proceeding.
4. The parents each spent close to $700,000 in legal fees on the proceedings. No other application for costs has been made.
5. Ms Carrera seeks the dismissal of the Application in a Proceeding, and her costs of responding to it.
6. I note that, because the final hearing in this matter occurred prior to 10 June 2025, the relevant costs provision is s 117 of the Family Law Act 1975 (Cth) ("the Act"), rather than the new provision (s 114UB). Those provisions are, in any case, the same in all relevant respects.
7. The Application gives rise to the following questions:

(1) Is Mr Ragni's application one for costs pursuant to s 117 of the Act or an application for an order under Chapter 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules")?

(2) If it is an application pursuant to s 117, what is the relationship between r 7.06 (which provides that, unless the parties agree or the Court otherwise orders, the parties are equally liable to pay a single expert witness's fees) and s 117? (And if it is not an application pursuant to s 117, what factors guide the exercise of the Court's discretion?)

(3) In either event, what is the relevance of the fact that an order was made by consent for Mr Ragni to pay the single expert's fees "at first instance"?

1. It was submitted on behalf of Mr Ragni that "section 114UB(2) of the Act has no application to the present matter." This could only be so if his application is not an application for costs, but rather an application for an order under Chapter 7 (Experts and assessors) of the Rules. For the following reasons, I reject that submission.
2. Section 117 provides as follows:

Costs

(1) Subject to subsection (2), subsection 102QAB(6) and sections 117AA and 117AC, each party to proceedings under this Act must bear the party's own costs.

(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

(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. There is no definition of "costs" in the Act. In Re JJT; Ex Parte Victoria Legal Aid (1998) 195 CLR 184, Hayne J at [90]-[91] dealt with the meaning of costs in s 117, as follows (citations omitted):

In Cachia v Hanes, Mason CJ, Brennan, Deane, Dawson and McHugh JJ said:

It has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation.

On its face, then, the reference in s 117 to "costs" is a reference to "costs" as that word is ordinarily understood in the law: the amount which the person to whom the order is directed must pay to some party to the litigation as partial indemnity for the professional legal fees and expenses incurred by that party in the course of the litigation ...

1. Reflecting that definition, "costs" is defined in the Rules in the following way: "costs means an amount paid or to be paid for work done by a lawyer, and includes expenses" (emphasis added). Expenses are often referred to as "disbursements". Chapter 12 of the Rules (Costs), clearly contemplates that the expenses involved in the preparation of a report by an expert are relevant costs:

12.32 Expenses for preparation of report by expert

An amount paid, or to be paid, to an expert for preparation of a report for a party or an independent children's lawyer is a disbursement properly incurred for a proceeding if:

(a) the report is reasonably required; and

(b) the amount is reasonable, or is authorised or approved by the court.

1. I am therefore satisfied that the sums paid to the single expert by Mr Ragni are "costs" within the meaning of s 117. It follows that Mr Ragni's application is an application for costs and s 117 must be applied.

WHAT IS THE RELATIONSHIP BETWEEN S 117 AND R 7.06?

1. Section 117 embodies the starting position that "each party to proceedings under this Act is to bear the party's own costs."
2. Rule 7.06 provides that:

Single expert witness's fees and expenses

(1) Unless the parties agree otherwise or the court otherwise orders, the parties (but not an independent children's lawyer) are equally liable to pay a single expert witness's reasonable fees and expenses incurred in preparing a report.

Note: Rule 12.32 sets out the circumstances in which an amount paid to an expert for preparation of a report is a disbursement properly incurred in a proceeding.

(2) A single expert witness is not required to undertake any work in relation to the expert witness's appointment until the fees and expenses are paid or secured.

1. In circumstances where I am asked by one party to order the reimbursement of half of the costs of a single expert which have already been paid, I need to resolve the relationship between the section and the rule or, if there is inconsistency, apply the section.
2. On one view, r 7.06 has no work to do once the single expert's fees have been paid; once Mr Ragni has paid the amount, then those are Mr Ragni's costs, and he would bear them unless I find that there are circumstances that justify me making a costs order - having regard to the matters in s 117. On another view, because of the operation of r 7.06, half of the costs of the single expert are each of the parties' costs and they should each bear them unless I find that there are circumstances that justify me ordering otherwise. In my view, the correct position is an intermediate position, which is that the costs paid are Mr Ragni's but that relevant factors under s 117(2A)(g) are the fact that the Rules normally require equal sharing of the payment of a single expert's fees, and that Mr Ragni only agreed to pay those fees "at first instance". I do not accept that I must be persuaded to depart from r 7.06 - rather, that rule is a relevant matter for me to consider in determining whether I should make a costs order.
3. Mr Ragni gave evidence that he understood the agreement in relation to the single expert's fees to be that Ms Carrera would repay him half of the costs upon resolution of the proceedings. The order made could have been drafted in those terms, but was not. At least in parenting proceedings, the phrase "at first instance" is one which is used to indicate that the payment is made subject to any subsequent agreement or determination of any costs application which the payer may make. Such an application is governed by the terms of s 117.

1. In Penfold v Penfold (1980) 144 CLR 311, the High Court considered that, while there must be justifying circumstances for a costs order to be made under s 117 of the Act, no "additional or special onus" is placed upon applicants in their pursuit of costs. Once justifying circumstances are found, the Court has discretion to award costs.
2. I need to be satisfied that the requirements of s 117(2) have been met. That is, I must be satisfied that there are circumstances that make it just for me to make an order for costs in Mr Ragni's favour, having regard to the matters in s 117(2A). For the reasons set out below, I am not so satisfied.

The financial circumstances of each of the parties to the proceedings

1. Both parents have spent all that they have, and more, on these proceedings. They both have significant debts as a result. Mr Ragni's debts are greater than those of Ms Carrera. Neither owns any significant property - having had to sell it to meet their legal costs. Both have good incomes and well-established careers. Mr Ragni has a significantly greater income than Ms Carrera. She works four days a week to balance her caring responsibilities for X. Mr Ragni pays child support as assessed and now cares for X during the day only four days a fortnight. Ms Carrera bears the balance of the care for X. She has ongoing costs associated with mental health treatment in respect of her recovery. Her and X's expenses exceed her income.
2. This factor points against the making of the costs order sought - although impecuniosity is not a bar to the making of such an order.

The conduct of the parties in relation to the proceedings

1. The parenting proceedings consumed the first three years of X's life. They were long-running, difficult and expensive. Mr Ragni raises that Ms Carrera did not agree to contain the material provided to the expert, resulting in the expert's fees more than doubling. He also refers to the delay in progressing to unsupervised time, notwithstanding the recommendations of the single expert. Ms Carrera says that Mr Ragni provided more affidavit material to the single expert than she did, and also engaged in conduct which included issuing a lengthy Notice to Admit Facts (which was not tendered), issuing 46 subpoenas and otherwise unreasonably increased her legal costs and the mental pressure on her.
2. Mr Ragni responds that Ms Carrera's position changed "from a 'no time' case to a 'only supervised time' case, and then [in July 2024] to a case nuanced more closely to the developmental needs of the child" - such that his approach changed as well. Ms Carrera points out that Mr Ragni continued to maintain a position of joint parental responsibility and equal time, notwithstanding the single expert's recommendations. He also continued to deny that he had used family violence against Ms Carrera and, after hearing all the evidence, I was comfortably satisfied that he had - although also made adverse credibility findings against Ms Carrera.
3. Ms Carrera's conduct of the proceedings - including her reluctance to progress X's time with Mr Ragni - has to be seen in the light of my findings that she has experienced considerable anxiety, which was at least contributed to by Mr Ragni's conduct towards her, and that she was acting generally in a protective way. Her conduct was not such as to point in the direction of a costs order being made against her.

Whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. Neither parent was wholly successful in the proceedings. So far as the progression of time was concerned (a significant issue in the proceedings), I made orders by which the progressions were not as fast as Mr Ragni sought, but were not as slow as Ms Carrera proposed. Nonetheless, the orders I made were significantly closer to those sought by Ms Carrera than those sought by Mr Ragni. In particular, I made the order she sought for sole parental responsibility, and orders that did not progress time beyond four nights a fortnight during school terms. Mr Ragni maintained his position for joint parental responsibility and equal time throughout the proceedings. Given the state of the parents' relationship, that position was close to untenable, even leaving aside the findings that I made as to his use of family violence. These are matters to which I have regard either pursuant to s 117(2A)(c) or (g). They point against the making of the costs order as sought by Mr Ragni.

1. On 29 August 2024, which was after the original final hearing dates had not been reached, Ms Carrera made an offer to settle on terms which were, in a number of key respects, more favourable to Mr Ragni than the orders I ultimately made. In particular:

(1) While I ordered sole parental responsibility with an obligation to consult, Ms Carrera had offered joint decision making in respect of X's cultural and religious upbringing and otherwise sole parental responsibility subject to consultation;

(2) While I ordered that Mr Ragni's overnight time with X commence in June 2026, Ms Carrera had offered that it start in January 2026.

(3) While I ordered that Mr Ragni's time with X time progress to four nights a fortnight in March 2028, Ms Carrera offered that four nights a fortnight commence in August 2027.

1. Mr Ragni rejected that offer without any further engagement, other than putting Ms Carrera on notice that were the Court to make orders consistent with or better than Mr Ragni's previous offers of settlement, he would seek certain costs from her, including one half of the single expert's current and future fees. Mr Ragni's offers involved orders for joint parental responsibility and an equal shared care arrangement by 2027.
2. This matter points against the costs order being made.

Such other matters as the Court considers relevant

1. Significant factors for my consideration are that:

(1) At the time the single expert was appointed, bookings had already been made for appointments in November 2022 through Court Children's Services for a Court Child Expert to prepare a Child Impact Report;

(2) Both parents agreed that the appointment of a single expert was appropriate;

(3) Ms Carrera's position was that she could not, at the time the appointment of a single expert was being contemplated, afford a single expert's fees and that, if Mr Ragni was unable to pay such fees "at first instance", then a report through Court Child Services should be obtained;

(4) Correspondence in relation to this issue referred to the fact that when the appointment of a single expert was being considered, Ms Carrera was on maternity leave, and not in a position to contribute to the costs at that time;

(5) Mr Ragni agreed to pay the whole of the single expert's fees "at first instance" and that position was embodied in the order made on 16 September 2022;

(6) The single expert was appointed and the appointments with the Court Child Expert vacated;

(7) The usual rule is that each party will pay the costs of the single expert in equal shares.

1. I also have regard to the fact that Mr Ragni has paid more than Ms Carrera towards the costs of supervision, because he was solely responsible for those costs from September 2022 until May 2024. For most of that time, Ms Carrera was on maternity leave.
2. These matters point in favour of the costs order being made.

1. The matters considered above, with the exception of the matters addressed in paragraphs [29] and [30], point against the making of the costs order sought by Mr Ragni. Considering all the relevant matters together, I am not persuaded that there are justifying circumstances that mean it is in the interests of justice to make the costs order sought.

SHOULD MR RAGNI PAY MS CARRERA'S COSTS OF RESPONDING TO THE APPLICATION?

1. Mr Ragni has been wholly unsuccessful in the application. I have set out other matters of relevance above and have indicated where they do not support the making of a costs order against Ms Carrera. Generally, those same matters also support the making of the costs order that Ms Carrera seeks. In addition, there is a degree of disproportionality to the making of an application for little more than $20,000 where the parents have both spent what they have (a total of close to $1.4 million), and where the parents' costs notices indicate that the costs of making and responding to this application are not insignificant (although Mr Ragni's costs in respect of this application are significantly lower than Ms Carrera's). I am satisfied that there are circumstances that make it just for me to make an order for costs in Ms Carrera's favour, having regard to the matters in s 117(2A).
2. While not relevant to my decision, I note that Mr Ragni's decision to pursue this matter notwithstanding the outcome and findings means that the parents have been consumed by further legal proceedings in the aftermath of the making of final orders, as opposed to focusing on healing and X.
3. The parents should not have to incur further expense, stress and delay in the calculation of the costs payable. I am satisfied that Mr Ragni should pay Ms Carrera's costs of responding to the Application in a Proceeding fixed in the sum of $5,000. That sum falls short of the amount sought by Ms Carrera ($8,000) and even further short of what she has spent (more than $11,000). I am satisfied that $5,000 is reasonable in all the circumstances, including the requirement for the filing by Ms Carrera of an affidavit and financial statement and the filing by both parties of written submissions, but where no Court appearance was required. Mr Ragni will have 90 days to make that payment.

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