Saidov & Saidov (No 6) [2025] FedCFamC2F 721 (23 May 2025)

Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801

D & D (Costs) No 2 [2010] FamCAFC 64; (2010) FLC 93-435

Daines & Daines (Costs) [2014] FamCAFC 170

Davis & Peterson [2023] FedCFamC1A 13; (2023) FLC 94-130

Harris & Harris [1991] FamCA 124; (1991) FLC 92-254

Jensen & Jensen [1982] FamCA 57; (1982) FLC 91-263

Kohan & Kohan [1992] FamCA 116; (1993) FLC 92-340

Lenova & Lenova (Costs) [2011] FamCAFC 141

Lyris & Hatziantoniou [1998] FamCA 1311; (1999) FLC 92-840

McDonald & McDonald [1994] FamCA 110; (1994) FLC 92-508

Menz & Menz [1980] FamCA 29; (1980) FLC 90-852

Nada & Nettle (Costs) [2014] FamCAFC 207; (2014) FLC 93-612

Oriolo & Oriolo [1985] FamCA 54; (1985) FLC 91-653

Penfold & Penfold [1980] HCA 4; (1980) 144 CLR 311

Pennisi & Pennisi [1997] FamCA 39; (1997) FLC 92-774

Re David (No 2) (Costs) [1998] FamCA 40; (1998) FLC 92-809

Re P (A Child) [1993] FamCA 40; (1993) FLC 92-376

Saidov & Saidov (No 3) [2025] FedCFamC2F 226

Saidov & Saidov (No 4) [2025] FedCFamC2F 495

Saidov & Saidov (No 5) [2025] FedCFamC2F 715

Roydon & Roydon [2024] FedCFamC1A 105

S & S [1997] FamCA 19; (1997) FLC 92-762

Stephens & Stephens & Anor (Enforcement) (Costs) [2010] FamCAFC 172

Telfer & Telfer [1996] FamCA 26; (1996) FLC 92-688

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. The Mother pay to the Father costs in the sum of $97,011.63, such sum to be offset against the amount to be paid by the Father to the Mother pursuant order 15 of the orders made on 16 April 2025.
2. The Mother pay to the Independent Children's Lawyer costs in the sum of $11,673.70.
3. The Father's solicitor transfer to the Independent Children's Lawyer the sum provided for at order 2 hereof from the funds payable by the Father pursuant to order 15 of the orders of 16 April 2025 prior to payment to the Mother of the balance of the funds payable to her pursuant to order 19 of the orders made 16 April 2025 (as adjusted by order 1 hereof).
4. All extant applications are otherwise dismissed.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).

1. These reasons were delivered ex tempore and have been settled from the transcript. Grammatical errors have been corrected, citations have been added and amendments have been made to make the orally delivered reasons clearer and easier to read.
2. The applications presently before the Court are applications made by the Father and the Independent Children's Lawyer ('ICL') seeking orders for costs orders against the Mother.
3. The Father, by way of Amended Application in a Proceeding filed on 8 May 2025 (which was further amended orally in the Mother's favour at the hearing this day), seeks:

(a) Costs thrown away in the sum of $3,768.11, calculated in accordance with the scale provided for at schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) ('the scale'), pursuant to order 2 of orders dated 13 September 2024 which reserved the costs of an application determined that day;

(b) Costs thrown away in the sum of $513.28, calculated in accordance with the scale, pursuant to order 7 of orders of 14 October 2024 which reserved the costs of an application determined that day;

(c) Costs thrown away in the sum of $2,025, calculated in accordance with the scale, pursuant to order 14 of orders dated 14 February 2025 which reserved the costs of an application determined that day;

(d) Costs of the litigation insofar as they related financial matters in the sum of $105,495.16 calculated on an indemnity basis, or in the alternative, in accordance with the scale in the sum of $87,078.30; and

(e) Costs of the current application in the sum of $8,920, calculated on an indemnity basis; or in the alternative, calculated in accordance with the scale in the sum of $5,651.94.

1. The total amount of costs sought by the Father is therefore $120,120.45, or, in the alternative, $99,036.63.
2. The Father relied on an affidavit of himself filed 7 May 2025 and an affidavit of his solicitor filed 8 May 2025. A copy of the retainer agreement entered into between the Father and his solicitor was annexed to his affidavit.
3. The ICL, by way of Application in a Proceeding filed on 30 April 2025, seeks costs in the sum of $11,673.70 against the Mother, made up as follows:

(a) $8,987.50 by way of contribution to the costs of the ICL;

(b) $479.60, being costs reserved on 13 September 2025;

(c) $479.60, being costs reserved on 14 October 2025; and

(d) $1,727, being the costs of present application.

1. The amounts sought by the ICL are well below the applicable scale amounts.
2. The operation of rule 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)('the Rules') was dispensed with and the annexures to the affidavits relied upon by the Father and the ICL were admitted into evidence.
3. The Mother filed no Response to either of the applications before the Court, did not avail herself of liberty to file an affidavit in relation to such applications as provided for in orders made on 16 April 2025, and did not comply with an order made that day requiring her to file a case outline.
4. An adjournment application filed by the Mother on 21 May 2025 was dismissed for reasons given ex tempore earlier this day,[1] and the hearing of the costs applications proceeded.
5. Prior to the hearing, the Mother, who is self-represented, was provided with copies of section 117 of the Family Law Act 1975 (Cth) ('the Act') and the scale. The Mother was encouraged by email ahead of the hearing to consult with the duty lawyer. At the commencement of the hearing this day, the matter was stood down for over an hour and a half so as to enable her to do so.

1. These costs applications presently before the Court arise from and are made at the conclusion of extremely lengthy and protracted litigation between the parties which commenced on 13 March 2020. Final judgment in relation to both parenting and property matters was delivered on 16 April 2025 ('the trial judgment')[2] and final orders were made that day ('the final orders'). These reasons should be considered having regard to the findings made in the trial judgment. The final orders provided that the parties' three children reside with the Father, that he have sole parental responsibility, and that the children spend no time and have no communication with the Mother other than by way of letters, gifts, and cards.
2. In relation to financial matters, the final orders provided, in summary, that the Father pay to the Mother the sum of $139,151 and that contemporaneously, her interest in the parties' former home be transferred to him. The final orders also provided for a superannuation split in favour of the Mother in the sum of $22,956.
3. This outcome represented an overall distribution of the net assets and liabilities of the parties, including superannuation, in proportions of 58 percent to the Father and 42 percent to the Mother. The final orders provided for the funds payable to the Mother to be held by the Father's solicitor on trust, pending the outcome of the present applications as to costs. The Court has been informed today that those funds have been paid into the Father's solicitor's trust account, though the requirements for implementation of the contemporaneous transfer of the Mother's interest in the real property have not yet been met.
4. As a result of the Mother's failure to file any documents with respect to the applications for costs, the only evidence before the Court with respect to those applications, beyond that which was available at the time of the trial, was that of the Father and the ICL. The Mother made a number of assertions from the bar table during the hearing of the costs applications which were not supported by any evidence, and to which regard cannot therefore be had.

1. The general rule, pursuant to section 117(1) of the Act, is that each party to proceedings under the Act must bear that party's own costs. Section 117(2) provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may depart from that general rule. As the High Court of Australia held in Penfold v Penfold,[3] the legislation confers on the Court a broad discretion with respect to orders as to costs.
2. Considerations relevant to departure from that general rule are set out in subsection 117(2A). Those relevant to this matter are as follows:

The financial circumstances of each of the parties to the proceedings

1. The financial circumstances of the parties were outlined at length in the trial judgment, and I have regard to the matters set out therein.
2. In particular, I note that, at the time of the trial, the Mother was not in paid employment. However, her circumstances have changed considerably in recent months, in that she no longer has the care of the children and her evidence at trial was of an intention to return to the workforce. There is no evidence before the Court as to whether she has in fact done so or of any income currently being earned by her. The Mother made assertions from the bar table today with respect to her financial circumstances which were not supported by evidence. The Father is in paid employment and earns approximately $125,000 per annum.
3. The effect of the final orders is that once they are implemented, after some adjustments provided for therein and prior to any order as to costs, the Father will have net non-superannuation assets totalling $288,239 and superannuation of $273,479 and the Mother will have $209,706 in net non-superannuation assets and $198,036 in superannuation, though some of her superannuation entitlements were notional in nature, as some funds withdrawn by her to fund legal fees prior to the trial were added back.
4. Significantly, the Mother's entitlements include the sum of $139,151, which is payable to her by the Father, and from which any costs order made in the present applications could be met. The Mother asserted from the bar table today that she has already spent those funds on legal fees. That cannot be literally accurate as she has not yet received them. As submitted by Counsel for the Father, it may be that she has notionally earmarked them for that purpose, however, there is no evidence before the Court in that regard.
5. In any event, as correctly submitted by Counsel for the Father, it is well established that straitened circumstances and even impecuniosity are not a bar to the making of a costs order where the circumstances otherwise justify it.[4]

The conduct of the parties to the proceedings in relation to the proceedings

1. This is an extremely significant factor in the context of this matter. The relevant conduct is the party's conduct as a litigant.[5]
2. In this regard, I refer to the numerous findings contained throughout the trial judgment with respect to the conduct of the Mother. From the commencement of these proceedings, the Mother has consistently engaged in highly inappropriate conduct, including persistent breaches of binding court orders and directions, failure to attend hearings when required to do so, and the taking of obstructive and difficult positions. This conduct has added to the lengthy and complexity of the proceedings and has led to the need for the Father to bring numerous applications which would not otherwise have been necessary.
3. The Mother's conduct as a litigant has included, but has not been limited to, the following:

(a) Giving evidence that was found to be unreliable, including but not limited to evidence that was internally inconsistent and evidence that was inconsistent with independent documentary evidence.[6]

(b) Failing to attend the Court when required to do so on two occasions, including on one occasion failing to continue to make herself available for cross-examination after an adjournment had been refused.[7]

(c) Failing to comply with an order requiring her to make the children available to meet with the ICL.

(d) Failing to comply with numerous procedural directions, including but not limited to persistent and deliberate failure to comply with an order made on 9 July 2024 which required her to file an Amended Response with respect to both parenting and financial matters. This failure was part of a broader refusal on the part of the Mother to engage properly with the Father's applications before the Court, which she simply dismissed as 'ridiculous,' despite numerous indications from the Court as to the importance of her engagement in that regard.

(e) Failing to comply with substantive parenting orders on numerous occasions from the commencement of the proceedings, including but not limited to persistent failure to make the children or some of them available to spend time with the Father pursuant to orders. This culminated in a failure to comply with an order to deliver up the children into the care of the Father when an order was made providing for them to live with the Father, which necessitated the issuing of a recovery order. A significant number of breaches of the substantive parenting orders were admitted to by the Mother in her own evidence-in-chief, and no proper explanation, much less excuse, was provided for her conduct in this regard. This conduct persisted in the face of numerous extremely clear warnings from the Court about the necessity for orders to be complied with, all of which were inexplicably unheeded despite the Mother being legally represented at the time.

(f) Failing to comply properly with her disclosure obligations[8] with respect to both parenting and financial matters, in at least some cases deliberately, and in some cases extremely serious failures, which led to the Father, the ICL and the Court being unaware of important matters relating to the proceedings for substantial periods of time. The Mother's unacceptable conduct with respect to her disclosure obligations was so serious that it led to her longstanding lawyers being required to withdraw from acting for her by virtue of their ethical obligations as officers of the court. The fact that failure to comply with disclosure obligations can and will lead to orders for costs is made clear in rule 6.17 of the Rules and in numerous authorities.[9]

(g) Abandoning her case and refusing to participate further during the final two days of the trial, but not before the Father had been required to endure and fund approximately five years of litigation and no less than 10 days of trial, yet failing to proffer any consent position, thus requiring the Father to continue to engage with the proceedings.

1. The ICL attributes part of the costs incurred by her to the Mother's conduct in relation to the proceedings.
2. I note that for the vast majority of the duration of the proceedings the Mother has been legally represented.
3. The same criticisms cannot be levied against the Father. Throughout the proceedings, he has, by and large, complied with orders, and has engaged in appropriate conduct as a litigant.
4. As Nygh J held in Jensen & Jensen:[10]

...if as a result of non-cooperation, obstructiveness or otherwise, one of the parties causes the conduct of the proceedings to be unduly prolonged or made unduly expensive to the other side, clearly an order for costs would be warranted.

1. This is a case where precisely that type of conduct has occurred.

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

1. In relation to the parenting aspects of the proceedings, the Mother was wholly unsuccessful. Her application was for orders providing that she have sole parental responsibility for the children and that they live primarily with her. The orders ultimately made were for the Father to have sole parental responsibility and for the children to live with him and spend no time with the Mother.
2. Not only was the Mother wholly unsuccessful in the ultimate result, but she was also repeatedly unsuccessful at interlocutory stages of the proceedings with respect to her ongoing attempts to restrict the progression of time and the relationship between the children and the Father while they were in her care (a position which was perpetuated in her submissions this day), which resulted in numerous interim hearings at which orders were made which largely reflected or were consistent with applications brought by the Father. This is relevant to the ICL's application and to the Father's to the extent to which it relates to parenting matters.
3. Neither party was wholly successful in relation to financial proceedings. The Mother was largely unsuccessful when her application is compared to the outcome ultimately ordered, which is a matter to which I will shortly return.

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

1. It is well established, particularly by the Full Court's decision in Pennisi & Pennisi,[11] that offers must be seen in the context of the case, the stage of the proceedings and the extent of the offeree's knowledge of the parties' financial circumstances at the time during which the offer is live.
2. It is not simply a question of asserting whether a party has 'done better' than any offer they made. It is necessary to consider the reasonableness or otherwise of the other party's rejection of the offer.[12] It is also well established by authorities such as Harris & Harris,[13] that an offer should be expressed with precision and in terms which are objectively capable of being clearly understood.
3. In the present matter, on 2 June 2023, the best part of two years prior to the ultimate determination of the proceeding, the Father made an offer to resolve the property aspects of the matter by way of a payment to the Mother in the sum of $350,000, with the balance and the structure of the offer not being substantially different to the orders otherwise made save that it provided for an equalisation of the parties' superannuation interests, itself a proposal more favourable than that ultimately obtained by the Mother.
4. This was a genuine offer of compromise which was for an amount that was substantially more favourable to the Mother than the amount ultimately received by her, even when an interim payment to the mother in the sum of $50,000 pursuant to orders made on 2 April 2024 is taken into account.
5. No response to the offer was received.
6. The Mother asserted that she had rejected the offer because she had not agreed with various valuations upon which it had been based. However, none of the issues raised by her in this regard were properly put before the Court for the purposes of the trial, with the result that the determination ultimately made by the Court was likewise made based on valuations with which the Mother asserts that she did not agree. It is therefore difficult to see how such purported concerns can be said to affect the prudence or otherwise of the Mother's rejection of the Father's offer.
7. I have regard to the fact that at the time of the offer, both parties' applications provided that the children would remain in the care of the Mother, and that position was also supported by the ICL. That would have been a factor weighing in favour of the Mother with respect to the property settlement and she was entitled to consider the offer made by the Father in that context. The reasonableness both of the Father's offer and its rejection must therefore be considered through that lens, though it is also important to ensure that injustice does not arise by virtue of the Father's ultimate success with respect to the parenting proceedings causing him to be deprived of costs which he would otherwise have recovered.
8. I accept the submission of Counsel for the Father that even having regard to that consideration, the offer, which represented a settlement of 65 percent to the Mother, was favourable to her at the time it was made, and its rejection was imprudent and ill-considered. Had the Mother accepted that offer, considerable costs subsequently incurred by both parties, but most relevantly the Father, could have been avoided.

Such other matters as the court considers relevant

Mother's obstructive attitude to parenting matters

1. In relation to both the reserved costs sought by the Father with respect to hearings concerning parenting matters and the ICL's application, I note the finding contained in the trial judgment that, throughout the course of the proceedings, the Mother had routinely made the making of interim arrangements for time unnecessarily difficult, either by failing to respond or failing to respond in a constructive manner to reasonable communications sent by the Father's solicitors to hers seeking to make arrangements.
2. The ICL submitted, and I agree, that the proceedings were plagued with applications brought by the Father seeking compliance by the Mother with extant orders, or seeking to ensure that reasonable time spending could occur during school holidays, amongst other issues. These applications were in general terms necessitated by positions taken by the Mother that were unreasonable and unrealistic when considered in light of the evidence before the Court, and which were persistently taken by her notwithstanding the fact that she was legally represented.
3. In my view, the unreasonable and obstructive nature of the Mother's positions frequently went far beyond a simple disagreement about the appropriate orders to be made, such that the Father was routinely left with no realistic alternative other than to bring further applications before the Court to enable him to spend time with and progress his relationship with the children in any meaningful way.
4. None of the evidence induced by the Mother for the purposes of the trial excused her oppositional behaviour in this regard, and indeed much of her own evidence demonstrated that her attitude and behaviour towards facilitating a relationship between the Father and the children were deeply problematic. This was not mitigated by the tenor of the submissions that she made before the Court today.

1. I also have regard, in relation to this factor, to the relative success of the parties where neither party was wholly unsuccessful, as, in my view, was the case in relation to the property aspects of the proceedings.
2. I have regard to the fact that, although the financial orders ultimately made (which provided for the parties' net superannuation and non-superannuation assets to be divided in proportions of 58 percent to the Father and 42 percent to the Mother) were not precisely the orders sought by the Father, they were significantly closer to his position of a distribution of 60 percent to him and 40 percent to the Mother than to the Mother's position, which was a division of 85 percent in her favour.
3. Even allowing for the fact that the Mother's position with respect to financial matters was premised upon the success of her application that the parties' three children remain predominantly in her care, it is extremely difficult to see how anything even remotely approximating a distribution of 85 percent in her favour could possibly have been considered even slightly realistic in the circumstances of this case. Furthermore, the Mother was not only provided with the opportunity to, but was in fact required by order made on 9 July 2024, to file an Amended Response setting out her position with respect to (inter alia) financial matters in the event of the children residing with the Father. She refused to do so, with the result that her only application before the Court with respect to financial matters was for 85 percent.
4. The Father's application was within the range of outcomes which might reasonably be expected to have resulted from a judicial determination and the Mother's simply was not.
5. The Mother's untenable position was clearly an ambit claim brought without any proper consideration for her obligations as a litigant, including but not limited to the obligations contained within the Court's Central Practice Direction: Family Law Case Management, and without any consideration being given to the application of the law to the evidence.
6. I note that the Mother was legally represented when an application seeking such an outcome was first filed on her behalf in September 2021, and was represented by different solicitors and by counsel when this unrealistic outcome was repeated in her case outline filed on 7 April 2024.

Costs orders in favour of an Independent Children's Lawyer

1. In relation to the ICL's application, additional subsections of section 117 of the Act have application.
2. Subsection 117(3) provides that:

To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.

1. The ICL in the present application relies on that subsection.
2. Subsection (4) provides that such an order must not be made if the party has received legal aid in respect of the proceedings, which is not the case here, or where the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the ICL.
3. Pursuant to subsection (5), in considering such an order, the court must disregard the fact that the ICL is funded under a legal aid scheme.
4. The ICL also relies on rule 3.11(2) of the Rules which enables the court to order that the costs of the ICL be met by one or both parties.
5. The ICL further relied on the decision of Kirby J in CDJ & VAJ (No 2),[14] in which in the circumstances of that case his Honour noted that the children being children of both parties, the parties should share equally in the costs of their children being separately represented. It was submitted that the same consideration should apply in the context of the present case. There are also many other authorities supporting the award of costs in favour of an ICL where the circumstances warrant it.[15]

1. In addition to those already discussed, there are a number of other sources of obligations imposed on parties to proceedings under the Act which are relevant to the present applications.
2. From 1 September 2021 until 6 May 2024, and therefore for most of the duration of these proceedings, the overarching purpose enshrined in section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ('FCFCOA Act') and the corresponding obligations on parties in section 191 of that Act applied to these proceedings. From 6 May 2024, those obligations ceased to apply pursuant to section 191A, which was introduced by the Family Law Amendment Act 2023 (Cth), and I refer to the transitional provisions in part 2, item 3 of schedule 5 thereof.
3. Although a new overarching purpose was imposed by section 95 of the Act from 6 May 2024, that amendment did not apply to proceedings in which a final hearing had already commenced as at 6 May 2024, pursuant to schedule 5, part 2, item 18 of the Family Law Amendment Act, and therefore does not apply to these proceedings.
4. Sections 190 and 191 of the FCFCOA Act provide as follows:

190 Overarching purpose of civil practice and procedure provisions

(1) The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:

(a) according to law; and

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

Note 1: For civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), see subsection (4).

Note 2: The Federal Circuit and Family Court of Australia (Division 2) 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 2);

(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 civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), 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 civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), 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 2).

191 Parties to act consistently with the overarching purpose

(1) The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

(2) A party's lawyer must, in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia (Division 2) (including negotiations for settlement) on the party's behalf:

(a) take account of the duty imposed on the party by subsection (1); and

(b) assist the party to comply with the duty

(3) The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party's lawyer to give the party an estimate of:

(a) the likely duration of the proceeding or part of the proceeding; and

(b) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:

(i) the costs that the lawyer will charge to the party; and

(ii) any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.

(4) In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 2) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).

(5) Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 2) or a Judge may order a party's lawyer to bear costs personally.

(6) If the Federal Circuit and Family Court of Australia (Division 2) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer's client.

1. The overarching purpose is also, and has at all material times, been set out in rule 1.04 of the Rules.
2. Much of the Mother's conduct over the course of the proceedings, as I have already described, was contrary to her obligations with regard to the overarching purpose.
3. I also have regard to paragraph 1.4 of the Court's Central Practice Direction, which reads as follows:

The Courts expect parties and their lawyers to have in mind, at all times, the cost of each step in the proceedings and whether it is necessary, and to avoid unnecessary process-driven costs and unjustified use of court resources. In everything they do, parties and lawyers are expected to approach proceedings in a manner directed towards identifying the issues in dispute and ascertaining the most efficient, including cost efficient, method of resolution or determination. This includes giving proper consideration to identifying the issues in dispute, complying with their obligation to provide full and frank disclosure in a timely manner (see Part 6.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (the Family Law Rules)), engaging in productive and resolution-focused communication with other parties, making appropriate admissions and pressing only issues of genuine significance. Ambit claims should be avoided and aggressive and unnecessarily adversarial conduct will not be tolerated. At all stages in the proceedings, parties must avoid filing evidence that is unnecessarily lengthy or only of limited relevance to the issues genuinely in dispute. Parties should limit the number of witnesses they rely on to those necessary to prove or disprove those issues truly requiring determination.

1. Paragraph 1.5 of the Central Practice Direction provides that any failure to comply with these requirements may attract costs orders against parties.
2. Furthermore, Core Principle 6, as outlined in the schedule to the Central Practice Direction provides that non-compliance with orders, practice directions, the Rules, or the obligations imposed on parties and their lawyers to conduct proceedings in a manner consistent with the overarching purpose will be taken seriously by the Courts, and non-compliance may lead to serious consequences for parties and for their lawyers, including costs orders being awarded against them and/or their lawyers.
3. The conduct of the Mother throughout these proceedings, as outlined throughout the trial judgment and as summarised herein, constituted a persistent and flagrant disregard for her obligations and responsibilities as a litigant as outlined in the Act, the FCFCOA Act, the Rules, the Central Practice Direction and numerous orders and directions.
4. The Mother's contumelious conduct was repeated and ongoing, despite her being legally represented and despite her having been warned numerous times about the seriousness of her conduct by the Court. The Mother can have been under no misapprehension that her behaviour was entirely unacceptable, and yet she took no steps to cease or even moderate it.

Reserved costs relating to interim applications

1. As to each of the hearings in relation to which costs were reserved and are now sought by the Father and the ICL, I observe as follows.
2. On 13 September 2024, the Father successfully prosecuted an Application in a Proceeding seeking school holiday time with the children after his reasonable proposal was resisted by the Mother without any proper or reasonable proposal being put by her. In this regard, I refer to paragraphs 332 to 334 of the trial judgment, which provided as follows:
   1. Further issues in the same vein arose during the second period of adjournment of the trial. In August 2024, the Father attempted to negotiate arrangements for the September 2024 school holidays and the long summer holidays. Despite sensible proposals having been put by the Father and encouragement from the ICL for the children's time with him not to be restricted, the Mother persistently and unreasonably refused to agree to the children spending appropriate and meaningful time in the care of their father during the relevant school holiday periods.
   2. She proposed via correspondence between the parties' respective solicitors that the Father have [Z] from 24 September 2024, which was not during the school holidays, to be joined by the other children on the last day of school term. Her evidence made clear that she made this proposal for her own convenience, to avoid the need for her to make arrangements for the care of [Z] while the parties attended a mediation. This proposal ignored the obvious fact that the Father would also need to participate in the mediation. The Mother's willingness to arrange for [Z] to be in the Father's care for an extended period without the other children when it suited her own needs clearly demonstrated her lack of any genuine concern for the Father's capacity to provide safe and appropriate care.
   3. The Mother otherwise proposed that the children spend only three nights over a weekend with the Father during the September holidays, being another proposal for a reduction in their school holiday time with him. It is not clear how the Mother could have thought this would benefit the children. She also made a proposal that involved the children spending Christmas in her care, despite this also having occurred the previous year. The Father was once again left with no realistic option but to bring an interim application. It was only after he had done so that the Mother's position changed and she adopted appropriate proposals.
3. On 14 October 2024, the Mother failed to attend a court hearing, despite not having been excused from attendance, contrary to her obligations pursuant to the Rules.[16] That was not the only occasion during the proceedings in which she did so.
4. The Father's evidence was that this hearing had been necessitated by the Mother having reneged on a previous agreement as to school holiday time, only for her to agree again once he had incurred the costs of and associated with the hearing. Irrespective of whether the Mother had previously agreed or not, she certainly could have done so and avoided the costs of the hearing. The Mother suggested during the course of her submissions that she had a different recollection of the circumstances leading up to that hearing, but the only evidence before the Court with respect to such events is that of the Father, the Mother having failed to avail herself of the opportunity to file evidence with respect to the present application.
5. The Mother's conduct in relation to the applications culminating in the hearings on 13 September 2024 and 13 October 2024 was part of a broader pattern of behaviour on her behalf which was deliberately obstructive and can only have been designed to make it as difficult as possible for the children to spend time with and develop their relationship with their father, as discussed at length in the trial judgment.

Costs thrown away as a result of adjournment of trial

1. On 14 February 2025, being the date of resumption of the trial after its third part-heard adjournment, the Mother's representatives successfully sought a further adjournment. The events of that day are described at paragraph 22 of the trial reasons, which provided as follows:

1. When the matter resumed on 14 February 2025 after the third adjournment, the following occurred:

(a) Counsel who had appeared on behalf of the Mother the previous week (not her original trial counsel), again appeared on her behalf. The Mother's original trial counsel was excused from further involvement. > > (b) Counsel for the Mother sought a further adjournment on the dual bases that: > > > (i) The Mother had disclosed information about her conduct which was relevant to the proceedings, but which the Mother was refusing to disclose to the Court. As a consequence, Counsel was of the view that both he and his instructing solicitor may be ethically compromised. Although he had taken preliminary advice, he sought the opportunity to obtain further professional advice; and > > > > (ii) He had formed concerns based on the Mother's presentation as to whether she had capacity to continue to provide instructions and sought time to enable a psychological assessment to be undertaken. > > (c) For reasons that were given ex tempore, the adjournment was granted, based predominantly on the latter of these concerns. The remainder of the trial was adjourned to a date to be fixed, and orders were made with respect to the filing of any applications for a litigation guardian or the withdrawal of the Mother's legal representatives.

1. The Father and his representatives and the ICL were taken by surprise by these developments, not having been advised of either of the issues raised by Counsel for the Mother prior to 14 February 2025. As a consequence, they were deprived of the opportunity to take action to avoid incurring the costs of that hearing day, which were ultimately thrown away when the hearing was adjourned.
2. Had the costs of that day been thrown away solely as a result of the issue regarding the Mother's refusal to comply with her disclosure obligations and the consequent uncertainty as to whether her lawyers could continue to act for her, that would certainly have warranted order as to costs. However, that was not the case. As the reasons for judgment delivered that day[17] make clear, the adjournment was granted solely on the basis of the issue raised with respect to the Mother's capacity, and the Mother would not have been granted the indulgence of an adjournment had the issue as to her conduct been the only basis upon which an adjournment had been sought.
3. I have regard to the fact that the capacity issue was not raised by the Mother herself and nor was it raised on her instructions. I note also that although the trial itself was not progressed further, the hearing was used productively from the perspective of the Father's case, in that orders were made which had the effect of consolidating the arrangements for the children remaining in his care on an interim basis, including the making of an order for sole parental responsibility which enabled him to enrol the children in school in the Canberra region. This was a development which was also sought by the ICL.

1. In relation to the costs sought by the ICL, the affidavit of the ICL filed on 30 April 2025 sets out a number of requests made by the ICL for contributions from each of the parties during the course of the proceedings.
2. The Father has made the contributions requested by the ICL.
3. The Mother has failed to make any contribution, despite repeated requests that she do so. The Mother has unsuccessfully sought a waiver from the Legal Services Commission but still has not made the contributions.
4. In relation to the ICL's costs application, I have regard to the following:

(a) The total costs of the ICL have far exceeded the contributions that were sought from the parties.

(b) It would be unjust if the Father made contributions towards the costs of the ICL and the Mother did not, in circumstances in which the duration and cost of the proceedings and the amount of work required to be done by the ICL were increased by the Mother's extremely poor conduct in relation to the parenting aspects of the proceedings, as found in the trial judgment and as already described.

(c) I am not satisfied that the Mother will suffer hardship if a costs order is made in favour of the ICL, noting in particular the impending property settlement payment from which any costs order can be met, and her capacity for gainful employment as outlined in the trial judgment.

(d) The amount sought by the ICL with respect to the hearings where costs had been reserved and the present application are the amounts of the legal aid grants provided to the ICL and are lower than the amounts provided for in the scale with respect to the charges incurred.

1. Having regard to these considerations, I am satisfied that the circumstances justify an order for costs in favour of both the Father and the ICL.

1. To the extent that the costs sought by the Father are sought in accordance with the scale, including where this is sought as his alternative position, detailed calculations were provided, and the Father relied on invoices demonstrating that the costs in question had actually been incurred.
2. I was not pointed to, and nor have I detected, any difficulty or discrepancy with respect to the scale items identified or the calculations made by the Father and his representatives, nor with respect to the nature or appropriateness of any of the work undertaken as reflected in the invoices rendered.
3. I am satisfied that the circumstances justify orders for costs in the sums sought by the Father with respect to the hearings on 13 September 2024 and 14 October 2024, both of which were necessitated by what I have previously found to be the Mother's obstructive and unreasonable approach to facilitation of the children's relationship with the Father when they were in her care.
4. I am not so satisfied with respect to the hearing on 14 February 2025 for the reasons I have given.
5. I will order the costs as sought by the Father with respect to the applications determined on 13 September 2024 and 14 October 2024, which total $4,281.39.
6. As to the Father's application for indemnity costs, the ordinary rule is that where the Court orders the costs of one party be paid by another party, the order is for the payment of those costs on the scale as set out in the Rules. If indemnity costs are to be ordered, exceptional circumstances are required, as set out in cases including but not limited to Colgate-Palmolive Co v Cussons Pty Ltd,[18] Kohan & Kohan[19] and Munday & Bowman.[20]
7. Although the Mother's conduct in relation to the proceedings was very poor, I have regard to the fact that the majority of her unacceptable conduct related to the parenting aspects of the proceedings and the indemnity costs application relates only to financial matters. Although there certainly was poor conduct exhibited by the Mother in relation to the financial aspects of the proceedings as well, I am not satisfied that it rises to the level of exceptional circumstances required to sustain an indemnity costs order. As a consequence, any costs order made with respect to the financial aspects of the proceedings will be made in accordance with the scale.
8. The Father's application insofar as it related to the financial aspects of the proceedings was appropriately limited to the costs incurred by him from the date of the settlement offer that was imprudently refused by the Mother, being 2 June 2023; and it excluded hearing dates, including days of the trial, at which property matters were not dealt with.
9. I am satisfied that the circumstances justify an order for costs in accordance with the scale, for the property-related costs incurred by the Father following the making of his settlement offer. Costs will be ordered in accordance with the Father's application according to the scale in the sum of $87,078.30.
10. Finally, with respect to the costs of the present application, the Father's evidence, which is supported by an annexure to his affidavit, is that on 29 April 2025, he caused his solicitors to write to the Mother's then solicitors, pointing out the fact that the orders of the Court ultimately made had been significantly more favourable to him than the offer that had been made by him and which had been ignored by her, and foreshadowing the present application. That letter contained an offer to resolve the costs dispute by way of an order in the sum of $90,000. I have already determined that the Mother is to pay costs to the Father exceeding that amount.
11. Had the Mother accepted that offer, the present application and hearing could have been avoided, at least insofar as the Father's involvement was concerned. She did not do so and indeed failed to provide any substantive response at all, so the Father was required to go to the additional expense of pursuing this application. I am satisfied that these circumstances warrant an order for costs. Costs will be ordered in relation to that aspect of the Father's application in the sum of $5,651.94.
12. The total amount of costs payable by the Mother to the Father is therefore $97,011.63. That sum can be offset against the sum payable by the Father to the Mother pursuant to the orders of 16 April 2025.
13. In relation to the ICL, the amounts sought are modest and proportionate.
14. To the extent that the ICL seeks the costs of the present application, I take into account the ICL's success in the present application and the fact that the Mother has been on notice since at least 8 April 2025 that the ICL was seeking an order for costs, yet still made no contribution towards the cost of the ICL, thus necessitating the application.
15. The total amount of costs payable by the Mother to the ICL will therefore be $11,673.70. The orders will provide that the Father's solicitor direct that sum to the ICL from the funds that would otherwise have been payable to the Mother pursuant to the orders of 16 April 2025.

1. For all of the reasons outlined above, I make the orders as set out at the commencement of those reasons.

I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Parker.

[1] Saidov & Saidov (No 5) [2025] FedCFamC2F 715.

[2] Saidov & Saidov (No 4) [2025] FedCFamC2F 495.

[3] [1980] HCA 4; (1980) 144 CLR 311.

[4] Davis & Peterson [2023] FedCFamC1A 13; (2023) FLC 94-130 at [75]; D & D (Costs) No 2 [2010] FamCAFC 64; (2010) FLC 93-435 at [21]; Nada & Nettle (Costs) [2014] FamCAFC 207; (2014) FLC 93-612; Lenova & Lenova (Costs) [2011] FamCAFC 141; Daines & Daines (Costs) [2014] FamCAFC 170.

[5] Stephens & Stephens & Anor (Enforcement) (Costs) [2010] FamCAFC 172.

[6] Such conduct having been recognised as a relevant factor in cases such as Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311 and Menz & Menz [1980] FamCA 29; (1980) FLC 90-852.

[7] Being a breach of her obligation pursuant to rule 15.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

[8] See Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Part 6.1.

[9] For example, Oriolo & Oriolo [1985] FamCA 54; (1985) FLC 91-653, Briese & Briese [1985] FamCA 23; (1986) FLC 91-713, Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311.

[10] [1982] FamCA 57; (1982) FLC 91-263.

[11] [1997] FamCA 39; (1997) FLC 92-774.

[12] Roydon & Roydon [2024] FedCFamC1A 105.

[13] [1991] FamCA 124; (1991) FLC 92-254.

[14] [1998] HCA 76; (1998) 197 CLR 172.

[15] Such as Re P (A Child) [1993] FamCA 40; (1993) FLC 92-376; McDonald & McDonald [1994] FamCA 110; (1994) FLC 92-508; Telfer & Telfer [1996] FamCA 26; (1996) FLC 92-688; S & S [1997] FamCA 19; (1997) FLC 92-762; Re David (No 2) (Costs) [1998] FamCA 40; (1998) FLC 92-809; Lyris & Hatziantoniou [1998] FamCA 1311; (1999) FLC 92-840.

[16] Rule 15.15.

[17] Saidov & Saidov (No 3) [2025] FedCFamC2F 226.

[18] [1993] FCA 801.

[19] [1992] FamCA 116; (1993) FLC 92-340.