Rathi & Rathi [2025] FedCFamC1A 238 (22 December 2025)

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

Fowles & Fowles (No 2) (2024) FLC 94-198; [2024] FedCFamC1A 115

Gronow v Gronow (1979) 144 CLR 513 at 519

Lenova & Lenova (Costs) [2011] FamCAFC 141

Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11

Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50

Rathi & Rathi [2025] FedCFamC2F 62

Re:F Litigants in Person Guidelines [2001] FamCA 348

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128

Shinohara & Shinohara (2025) FLC 94-266; [2025] FedCFamC1A 126

SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63

University of Wollongong v Metwally (No. 2) (1985) 60 ALR 68 at 71

1. The oral application of the appellant to adduce further evidence is dismissed.
2. The Notice of Appeal filed 4 September 2025 is dismissed.
3. No order as to costs.

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

1. By a Notice of Appeal filed 4 September 2025 the appellant appeals from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 7 August 2025 ("the appealed order").
2. The appealed order provides for the appellant to pay the respondent's costs of the defended divorce proceedings, fixed in the sum of $11,000, which proceeding was determined by the primary judge on 23 January 2025, when Her Honour made an order granting a divorce between the parties (Rathi & Rathi [2025] FedCFamC2F 62 ("the divorce reasons")).
3. The respondent opposed the appeal and seeks its dismissal with costs.
4. For the reasons that follow, the appeal will be dismissed.

1. Both parties are of Indian origin. The respondent migrated to Australia in approximately 2010 and became an Australian citizen in January 2013. They married in India in 2017.
2. Their son was born in 2018 in India and in February 2019, the appellant and their child migrated to Australia.
3. According to the respondent, separation under the one roof occurred in September 2022, after which date he slept in a separate bedroom. In March 2023 the respondent moved out of the family home, after the appellant obtained an intervention order against him. The appellant considers separation occurred in March 2023.
4. In May 2023, the respondent commenced proceedings under Part VII of the Family Law Act 1975 (Cth) and filed an application for divorce in March 2024. The parenting proceedings were set down for trial on 9 December 2025 before a different Judge of Division 2.
5. Following the filing of the divorce application, procedural hearings took place on 20 May 2024, 3 June 2024 and 29 July 2024. The appellant opposed the divorce application because of ongoing proceedings in India and because she asserted Australia was a clearly inappropriate forum for the divorce proceedings.
6. On 11 September 2024, a compliance and readiness hearing took place, during which the application was fixed for determination by the primary judge on 1 November 2024. Orders pursuant to s 102NA (of the Act) were also made at that hearing.
7. The respondent was represented by counsel at the trial, and the appellant was self-represented. Neither party were cross-examined by the other at the trial and it proceeded by way of submissions.
8. On 23 January 2025, the primary judge made the appealed order and delivered reasons. On 20 February 2025, the respondent filed an Application in a Proceeding seeking the appellant pay his costs of the divorce proceeding.
9. On 27 February 2025, at a hearing before the primary judge, as recorded by the primary judge at [3] of the reasons (Rathi & Rathi (No. 2) [2025] FedCFamC2F), the parties agreed the question of costs should be considered in chambers without the need for a further hearing.
10. Following the enactment of the Family Law Amendment Act 2024 (Cth), which amended the previous provisions of the Act regulating costs, the primary judge invited further submissions from the parties, pursuant to an order made on 17 June 2025, which is referred to at [7] of the reasons.
11. At [8] of the reasons, Her Honour recorded the respondent did not file any further submissions and neither did the applicant file any submissions, although she did file an affidavit on 1 July 2025 which consisted of a list of documents relating to her living expense. The appellant did not seek permission to rely on the additional affidavit filed by her.
12. On 7 August 2025, the primary judge made the appealed order and delivered the reasons.

1. During the appeal hearing it became apparent the appellant sought to adduce further evidence, although she had not filed an Application in an Appeal, as required by rule 13.39 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021("the Rules").
2. Because the appellant was self-represented, I permitted her to make an oral application for leave to adduce further evidence. Counsel for the respondent did not oppose leave for the appellant to make an oral application, but opposed the orders sought by the appellant.
3. The further evidence sought to be adduced pertains to the appellant's allegations that the respondent failed to fully and frankly disclose his financial position for the purposes of the costs determination, which documents the appellant said she recently (last week) found at the former family home. The first document is a letter from B Corporation to the respondent dated 26 July 2021, which refers to a very modest income received by the respondent in the financial year ended 30 June 2021.The second document is a letter to the respondent from ANZ dated 6 March 2023 advising him of a deposit into his account, with payment details recorded as "Maintenance". Neither of the documents could be described as relevant to the respondent's financial position as at the date of the cost's submissions.
4. Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCOA Act") confers on an appellate court a discretionary power to grant leave to receive further evidence. In CDJ v VAJ (1998) 197 CLR 172 ("CDJ v VAJ") at [111]-[115], the High Court of Australia considered the principles relevant to the exercise of the discretion.
5. As the High Court explained in CDJ v VAJ, the point of further evidence on appeal is to demonstrate error, bolster the reasons under attack, or provide material for any re-exercise of discretion. I am unable to see how the proposed material does so and I do not necessarily accept the documents suddenly came to light last week, as asserted by the appellant. For these reasons the oral application of the appellant to adduce further evidence will be dismissed.

1. A presumption exists at law that a first instance discretionary judgement is correct, and the onus lies on the appellant to show otherwise (Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621).
2. It is useful to restate the relevant principles which govern appeals from discretionary judgments. It is well settled that error as to judicial process or procedure, or error of the type identified in House v The King (1936) 55 CLR 499 ("House v the King") at 504-505 must be established. There, the majority of the High Court said:

... The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred ...

1. Whilst I accept the appellant is a litigant in person, she is bound by the same principles and obligations as any other litigant.
2. In Aslett & Coren [2025] FedCFam1A 92 ("Aslett & Coren") the Full Court per McClelland DCJ, Jarrett and Strum JJ at [42] said:

In Keighley & Keighley [2023] FedCFamC1A 146 at [67], the Full Court referred to this passage from Re F: Litigants in Person Guidelines and, nevertheless, said that the fact that the appellant, in that appeal, was self-represented, it was "no defence to the criticisms of his further amended Notice of Appeal, his written Summary of Argument or his limited oral submissions" (at [68]). Those observations similarly apply to this appeal.

1. The observations of the Full Court in Aslett & Coren are apposite to this appeal as far as the Notice of Appeal and Summary of Argument are concerned.
2. In this instance the grounds of appeal are defective in multiple respects and fail to set out "a specific and concise statement of the point sought to be argued" (Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50 at [2]).
3. In Shinohara & Shinohara (2025) FLC 94-266 the Full Court identified the purpose of a Notice of Appeal and said at [20]:

The purpose of a Notice of Appeal is to identify with precision in the grounds of appeal the errors that are asserted to have been made by the primary judge. It sets out the metes and bounds of the appeal (Pachris & Tajir (No 3) [2023] FedCFamC1A 230). The importance of identifying the error in the judgment under appeal by way of the construction of the grounds of appeal ought not be discounted or overlooked. Deficient grounds of appeal are liable to elude or conceal essential points. An appellant does not have cause to complain if an appeal is dismissed because of the path and product of their own actions or inactions.

1. It is for the appellant to identify error on the part of the primary judge and then to persuade the appeal court that error has been made. An appellate court cannot be expected to fossick through the broadly expressed contentions and assertions set out in an appellant's Summary of Argument, with a view to identifying a specific and concise ground or grounds of appeal: Newett & Newett (No 2) (2021) FLC 94-051 at [34], quoting Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 ("Bahonko") at [3]. In Bahonko, the Full Court of the Federal Court of Australia said:

Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131; (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.

1. In this matter the six grounds of appeal in the Notice of Appeal are confusing, conflate various categories of asserted error and mostly fail to set out a specific statement of the alleged error.
2. The problems with the Notice of Appeal are compounded by the failure of the appellant's Summary of Argument, amended on three occasions, to comply with rule 13.23(2)(a) of the Rules, and its failure to sequentially address the asserted grounds of appeal.
3. Turning now to the grounds of appeal.

1. Consistent with authority, where an appeal contends allegations of procedural fairness, then such ground must be dealt with first (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]). Procedural fairness requires each party to be given an adequate opportunity to be heard and to present their case (Kioa v West (1985) 159 CLR 550 at 582).
2. As can be seen from the reasons [3], at a hearing on 27 February 2025 and recorded above, the parties agreed the question of costs should be considered in chambers and directions were made for the filing of material addressing costs.
3. At [4] of the reasons, the primary judge identified the documents which the respondent relied upon, which included his costs submissions filed on 13 March 2025 and at [5], Her Honour listed the documents filed by the appellant, to which she had regard, and observed that the appellant had not filed submissions, nor specified the documents on which she relied on the question of costs.
4. The appellant did, however, file documents on 10 April 2025 responding to the respondent's costs application, which included a Response, Financial Statement and affidavit.
5. The appellant and the respondent were afforded a further opportunity to file costs submissions, pursuant to orders made by the primary judge on 17 June 2025, following amendments to the Act, but neither chose to do so.
6. Contrary to the assertions of the appellant, the primary judge provided an adequate opportunity to each party to be heard and present their case.
7. The appellant's specific complaints under this ground are the primary judge erred by failing to ensure the appellant received a fair hearing, including failing to give practical directions to cure clerical errors in her Financial Statement, not facilitating targeted disclosure and failure to consider referring the appellant to a Legal Aid or duty lawyer.
8. I will deal with each limb of complaint. First, the appellant contends she appeared without legal counsel and had no legal training, and the primary judge was therefore required to ensure she was not disadvantaged by procedural difficulties. That contention fails, because there was no appearance by the appellant at the costs hearing, because she had previously agreed to the costs being determined in chambers without the necessity for a further hearing, and there were no identified procedural technicalities. I also reject the appellants contention that s 97(3) of the Act supports her submission, because it plainly does not, or that s 43(c) of the Act does likewise, because there is no s 43(c) of the Act. The reliance on those two sections of the Act in submissions clearly demonstrates the appellant has relied on generative Artificial Intelligence (AI).
9. Secondly, the appellant's Financial Statement filed on 10 April 2025 mistakenly recorded her rent as income, rather than as expenditure. The appellant contends the primary judge was obliged to identify the error and provide an opportunity for her to correct the error. She did not cite any relevant authority in support of that proposition. I reject that contention, particularly when the appellant was afforded multiple opportunities to file submissions and did not do so. Further, despite the error in the Financial Statement, the primary judge correctly described, at [12] the appellant's rent as an expense and found at [14] the appellant's financial circumstances were modest, which finding was not the subject of challenge.
10. Thirdly, the appellant contended the primary judge's disregard of the appellant's affidavit filed 1 July 2025, precluded her Honour relying on that document to find at [14] that the appellant's income was very modest. I reject the contention because nowhere in the reasons does the primary judge state she relied on that document to underpin her finding about the appellant's income. That finding was based on the analysis of the appellant's income in her Financial Statement, as stated at [12] of the reasons and at [13] the primary judge said no weight can be attached to the annexures to the affidavit filed 10 April 2025.
11. Fourthly, the complaints about failure to facilitate targeted disclosure and failure to refer the appellant to a Legal Aid or duty lawyer, in the matrix of a costs application to be determined on the papers in chambers, are nonsensical.
12. This ground fails to identify any denial of procedural fairness by the primary judge and rather is an attempt to construct a complaint arising from the appellant's dissatisfaction with the outcome. As a concept, procedural fairness is concerned only with the fairness of the hearing, not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152). The ground was misconceived and fails.

1. This complaint is about the primary judge's failure to grant an adjournment of the divorce proceedings pending related Indian proceedings and the asserted impact on the primary judge's finding the appellant's contentions during the divorce proceedings were wholly devoid of merit.
2. At [21] of the divorce reasons, the primary judge stated she had dealt with the appellant's application for an adjournment of the divorce hearing and provided ex tempore reasons for refusing the adjournment application.
3. It is difficult to discern what the appellant actually means by this complaint, viz-a-viz the costs proceedings and it is clear that the appellant has conflated the divorce proceedings with the costs determination.
4. There is no merit in this ground.

1. Under this ground the appellant complains the primary judge failed to accord proper weight to her financial position, caregiving responsibilities and limited income, in reaching her conclusion that a costs order was appropriate. She also complains the quantum of costs was disproportionate but does particularise this aspect of her complaint.
2. The weight given to particular evidence in the exercise of discretion is a matter for the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519 ("Gronow")) unless an appellant can show the primary judge was "plainly wrong" (CDJ v VAJ (1998) 197 CLR 172, [186]).
3. It does not justify the reversal of the decision at first instance if an appellate court might have reached a different conclusion by according different weight to competing evidence (Gronow).
4. In this case although the grounds of appeal did not include a complaint to that effect, the appellant submitted in her Summary of Argument, the cumulative effect of procedural failures, untested financial evidence and non-disclosure and punitive quantum demonstrate a miscarriage of discretion.
5. I reject that submission because it is predicated on grounds agitated in the appeal, which I have rejected and consider unmeritorious. The primary judge was not plainly wrong and there was no failure to give adequate weight to relevant considerations, which amounts to a failure to exercise the discretion actually entrusted to the court.
6. There is no merit in this ground.

1. The first limb of the complaint under this ground is broadly cast and to some extent overlaps with the complaint dealt with under Ground 1, as to the asserted failure of the primary judge to ostensibly identify the mistake in the appellant's Financial Statement.
2. The second limb contends the primary judge resolved the costs issue without affording the appellant an opportunity to clarify errors, or to test the respondent's assertions, presumably as to his financial situation. It is ill conceived and unmeritorious for a number of reasons. First, both the appellant and the respondent consented to the determination of the costs issue in chambers and without recourse to a further hearing. There would not be any prospect of cross examination or testing of evidence in those circumstances. Secondly, the appellant filed her documents after the respondent filed his documents and costs submissions and it was open to her to make submissions about her concerns as to the veracity of the asserted financial position of the respondent, which she failed to do, despite being provided with two opportunities to file costs submissions.
3. The appellant is bound by the case she ran at first instance and cannot now raise on appeal new arguments or attempt to rectify deficiencies in the case before the primary judge (University of Wollongong v Metwally (No. 2) (1985) 60 ALR 68 at 71).
4. There is no merit in this ground.

1. It is difficult to discern the exact complaint contended under this ground, but it seems the respondent contends the primary judge failed to adequately assist the appellant, as a self-represented litigant, during the determination of the costs dispute, in accordance with the obligations of a trial judge in Re:F Litigants in Person Guidelines [2001] FamCA 348 ("Re: F").
2. The appellant further complains that the primary judge failed to make orders to compel full disclosure or safeguard the fairness of the proceedings, leaving the appellant without the capacity to test or challenge the respondent's financial evidence.
3. The complaints are misguided. First, because the guidelines set out in Re:F pertain to judicial guidance to a self-represented litigant during a trial and not a determination in chambers, relying on submissions and documents filed by parties.
4. Secondly, there was no right of cross examination or testing of evidence in the circumstances of the case.
5. Thirdly, the appellant was able to file submissions, where she could have addressed her perception of the alleged failure of the respondent to candidly disclose his financial position, but she did not do so, nor is there any evidence to suggest the appellant raised or agitated the issue of financial disclosure by the respondent at the hearing on 27 February 2025.
6. Lastly, the respondent's financial position was but one factor taken into account by the primary judge when exercising her broad discretion. As can be seen from the cost reasons, the respective financial positions of the respondent and indeed the appellant, was not determinative of the costs dispute.
7. Further, the appellant complains the primary judge failed to implement stronger case management and protective orders to uphold the integrity of the proceedings. This complaint is broadly made, generalised and non-specific and it is not possible to discern what is actually identified as asserted appealable error.
8. There is no merit in this ground.

1. Under this ground the appellant complains the primary judge failed to provide adequate reasons for rejecting the appellant's material, fixing the quantum of the costs or otherwise erred in principle.
2. The principles as to what constitutes adequate reasons are well settled. In Fowles & Fowles (No 2) (2024) FLC 94 - 198, the Full Court at [163] and [164] said:

... In Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191 at 78,266-78,267, the Full Court adopted the principles set out in Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; (1989) VR 8, saying:

In Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:

"The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: -

(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or

(b) justice is not seen to have been done.

The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected."

We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday [1985] FamCA 37; (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.

In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, the New South Wales Court of Appeal said:

1. The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "as sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice.

2. The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.

3. The reasons must do justice to the issues posed by the parties' cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge "'enter into' the issues canvassed and explain why one case is preferred over another".

(Citations omitted)

1. Contrary to the appellant's assertion, the primary judge's reasoning is clear and unequivocal. An examination of the reasons demonstrates Her Honour considered, as she was required to do, the relevant statutory considerations, prior to reaching her decision at [24] that the circumstances justified the making of a costs order.
2. At [11] - [13] of the reasons, the primary judge evaluated the evidence pertaining to the financial circumstances of the parties, at [16] - [20] Her Honour considered the evidence of the conduct of the parties to the proceedings and at [21] considered whether any party had been wholly unsuccessful. At [15], Her Honour observed neither party was in receipt of legal aid and at [21], and [23], the primary judge noted neither party had made submissions about failure to comply with previous orders or offers in writing to settle the proceedings.
3. As to the complaint about the primary judge's lack of reasoning about the quantum of costs, at [25]-[33], the primary judge carefully considered and explained her rejection of the respondent's claim for indemnity costs and the basis of the quantum ultimately decided upon.
4. In this case the reasons taken as a whole adequately explain the reasoning process undertaken by the primary judge. There is no merit in this complaint.

1. Because the appeal is wholly lacking in merit, it will be dismissed.

1. In the event the appeal was dismissed, the respondent sought an order for costs against the appellant on a party/party basis, in accordance with his Schedule of Costs filed 1 December 2025, fixed at $ 5,443.98
2. The appellant opposed any order for costs. I do not propose to make an order for the appellant to pay the respondent's costs incurred in the appeal, although in general impecuniosity is no bar to ordering costs (see for example: Lenova & Lenova (Costs) [2011] FamCAFC 141). However, in the particular circumstances of this matter, I am cognisant that the appellant is of limited financial resources, has to provide for the needs of the party's child (at [30] of the reasons) and she will likely face difficulty paying the extant costs order. I consider there is little utility in ordering the appellant to pay further costs which are unlikely ever to be paid.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.