Schurman & Zahra (No 2) [2025] FedCFamC2F 1685 (28 November 2025)

(a) The order made on 10 February 2025.

(b) The reasons for judgment delivered on 10 February 2025 in Schurman & Zahra [2025] FedCFamC2F 273.

(c) A copy of these orders.

(d) A copy of these reasons for judgment.

1. Pursuant to s 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), this proceeding is transferred to the Federal Circuit and Family Court of Australia (Division 1).

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. These proceedings are about X, who was born in 2022. She is nearly 4 years old. The child's mother died in 2022.
2. On 10 February 2025, the first day of the seven-day trial in Alice Springs, I granted leave to Ben Koziol of BK Legal to file a notice of ceasing to act for Ms C Moss, the child's paternal aunt. I also made orders vacating the trial and for any application for costs to be made within 14 days.
3. The circumstances in which I granted leave are set out in Schurman & Zahra[1].
4. All of the parties and the Independent Children's Lawyer have applied for an order that Mr Koziol pay indemnity costs. The child's father, Mr B Moss has also applied for an order referring Mr Koziol to the Legal Practitioners Conduct Commissioner of South Australia and an order transferring these proceedings to the Federal Circuit and Family Court of Australia (Division 1). The application for costs made by the paternal aunt, Mr Koziol's former client, has been resolved by consent.
5. Mr Koziol was added as a party to the costs applications on 4 April 2025. He is legally represented. He opposes the applications.
6. The parties agree that the proceedings should be transferred to the Federal Circuit and Family Court of Australia (Division 1).
7. Accordingly, the three central issues to be determined are:

(a) Is the child's cultural aunt Ms Schurman, the child's maternal cultural grandmother Ms Zahra, the father Mr B Moss and/or the ICL entitled to an order for costs thrown away against Mr Koziol?

(b) If so, what is the appropriate basis for the costs order, including whether costs should be ordered on an indemnity basis, and the quantum of costs to be specified?

(c) Should Mr Koziol be referred to the Legal Practitioners Conduct Commissioner of South Australia?

WHAT ARE THE BACKGROUND CIRCUMSTANCES TO THESE PROCEEDINGS?

1. The applications for costs arise in the following context. The child has lived with the cultural aunt for most of her life, including before her mother passed away, in the community of Town D, approximately 150 km west of Alice Springs.
2. The father was previously in a relationship with the child's mother. They have another child together, E, who is five years old. E lives with the paternal aunt in Adelaide. E has lived with the paternal aunt since she was very young. The father is a professional. He operates his own business. He lives between Adelaide and Region F.
3. The cultural aunt commenced parenting proceedings on 5 June 2023 seeking orders that the child live with her. The proceedings were commenced in urgent and controversial circumstances. The cultural aunt applied for a recovery order, alleging that the child had not been returned to her and that the child may have been living with the paternal aunt in Adelaide, and was unsafe.
4. The child was returned to the cultural aunt in June 2023, after the South Australian Department for Child Protection removed the child from the paternal aunt. On 27 June 2023, interim orders were made for the cultural aunt to have sole parental responsibility for the child and for the child to live with her. The other parties were restrained by injunction from causing the child to be removed from the care of the applicant.
5. The child continues to live with the cultural aunt in Town D.
6. The child's maternal cultural grandmother lives between Town G, in South Australia, and Town D. The maternal cultural grandmother has had children in her care removed by the South Australian Department for Child Protection. She says generally that false allegations about her were made to the Department.
7. The parties have remained in dispute about the parenting arrangements for the child, where the child lives, the time that the child spends with each of them, and parental responsibility.
8. The cultural aunt seeks orders that the child lives with her in Town D, spends regular and overnight time with the maternal cultural grandmother and the father when they are in Town D, and that the child maintains contact with the paternal aunt and E via FaceTime. The cultural aunt will also take the child to Adelaide during the school holidays.
9. The maternal cultural grandmother seeks orders that the child live with the paternal aunt and that the child spend time with the maternal cultural grandmother and the father from time to time as agreed. The maternal cultural grandmother also seeks orders that she, the father, and the paternal aunt have parental responsibility for the child. While she seeks orders that the child spend time with the cultural aunt in Town D, the maternal cultural grandmother seeks an order restraining the cultural aunt from permitting her partner, Mr H, to come into contact with the child.
10. The father seeks orders for sole parental responsibility for the child. He also seeks orders that the child lives with him, E, and the paternal aunt in Adelaide. The father proposes that the child spends time with the maternal cultural grandmother and with the cultural aunt in Town D as agreed between the parties. The father seeks an alternative order that the child live with the maternal cultural grandmother.
11. The paternal aunt's proposal for the child is unclear. She has never filed a response, despite being ordered to do so. In the addendum family report dated 29 July 2024, it is recorded that the paternal aunt proposed that the child be returned to her care in Adelaide. On 26 November 2024, the paternal aunt filed an affidavit broadly stating that she would like to see the child if possible and that she agreed with the father's interim proposal for the child to spend time with her and E from 10 December 2024 to 31 January 2025.
12. The ICL's preliminary view about the proper parenting orders for the child was subject to the inspection of subpoenaed material from child protection authorities in the Northern Territory and South Australia. The ICL's preliminary view was that the father, and the person the child is living with, shared decision-making authority for the child.
13. On 29 August 2024, orders were made listing the matter for trial in Alice Springs. On 27 November 2024, the parties and the ICL were required to attend a family dispute resolution conference on a date to be fixed between 20 January 2025 and 7 February 2025. That took place on 23 January 2025, but did not finally resolve the proceedings. No agreement could be reached.
14. On Friday, 7 February 2025, the matter was urgently listed on the application of the ICL. That took place in circumstances where Mr Koziol had written to the parties and foreshadowed that he would be applying for leave to file a notice of ceasing to act for the paternal aunt. The email was sent at 11:43am and stated:[2]

Dear All

I intend to file a request ot [sic] appear by electronic means in this matter.

Could you all please advise whether there is any objection to this.

I confirm that I will be seeking leave to cease acting as I have been unable to finalise instructions for this matter.

1. In the circumstances, the matter was brought before the court in the afternoon on 7 February 2025 by the ICL. The notations to the order of 7 February 2025 record that:

The solicitor for the third respondent has foreshadowed an application to seek leave to file a notice of ceasing to act, and to appear by AVL / MS Teams, as a result of not receiving funding and not being able to take instructions.

Any application in a proceeding to withdraw from these proceedings be filed and served by close of business today and will be heard on Monday.

1. Mr Koziol did not file and serve an application to file a notice of ceasing to act by close of business on 7 February 2025.
2. At 7.13pm on 9 February 2025, a Sunday, Mr Koziol filed an application seeking the following orders:

(a) The application be heard on 10 February 2025 at 10.00am.

(b) That he be given leave to appear by audio-visual link or other electronic means on 10 February 2025.

(c) That he be granted leave to cease acting for the paternal aunt.

1. The application was supported by an affidavit made on 9 February 2025. In the affidavit, Mr Koziol gave evidence, including:

(a) Throughout the proceedings he has had some difficulty in obtaining instructions from the paternal aunt.

(b) On reflection, he "could or should have followed up [the paternal aunt] more" than he did, with attempts to obtain instructions.

(c) He met with the paternal aunt on 17 January 2025 to take instructions for the purpose of the family dispute resolution conference on 23 January 2025 and for preparing a trial affidavit.

(d) He prepared a trial affidavit for the paternal aunt. He did not hear from her and re-sent it on 5 February 2025, together with a text message, but had no response.

(e) On 7 February 2025, he spoke with the paternal aunt on the phone, who was on her way to Alice Springs for the trial. He could have been more proactive about contacting the paternal aunt in this regard.

(f) He has been unable to obtain funding through legal aid and has been representing the paternal aunt on a pro bono basis. Despite not having funding, he remained on the file in an attempt to assist the paternal aunt.

(g) He regrets that he did not make it clear earlier to the paternal aunt that he had no funding and would be unable to represent her at the trial. He was embarrassed that he would be seen as letting her down.

(h) In delaying "the inevitable," he has no doubt let the paternal aunt down even more.

(i) He does not have the means or ability to fly or travel to Alice Springs on a pro bono basis for the length of the proposed trial.

(j) He should have brought the application sooner to cease to act and to appear electronically. He became indecisive and hesitant about making an application after attending the FDR.

(k) He thought he could be of assistance to the paternal aunt and the court, however he has "likely made things more difficult and problematic." For that, he apologised to the paternal aunt, the court, the other parties and their representatives.

1. In his affidavit, Mr Koziol also provided an overview of what orders the paternal aunt was seeking, indicating that her position was to support the father's application, and that the father have sole parental responsibility for the child, and that child lives with him.
2. Mr Koziol went on to say that in the alternative, the paternal aunt supports the maternal cultural grandmother's position and that his instructions do not encompass prosecuting a positive case for orders that the child live with the paternal aunt, or that the paternal aunt be allocated decision-making authority for the child.
3. In Jennings & Barrese,[3] Kari J said of an email sent at 10:00 pm:

Importantly, the custom of sending emails and electronically filing and serving documents at all hours of the early morning and/or night is one that ought be reconsidered by the profession more broadly; but particularly in this jurisdiction where it seems to have become a habit. This is because the legal profession, and importantly the Court, other than in circumstances of genuine urgency is not a 24/7 service industry.

Moreover, the sending of communications electronically outside business hours, is disruptive, discourteous and inconvenient, not least of which because it assumes that the recipient will receive the email when it is sent and in that regard in the present circumstances the communication sent by Ms B assumed that:

in the case of the other legal practitioners in the proceedings, that they would have the opportunity to consider it, advise, take instructions, and respond in this instance in a time frame of at best, no more than two working hours prior to the hearing; and

in the case of the Court, that there would be an opportunity for the judge to consider and deal with the email communication prior to Court commitments commencing for the day.

Secondly, there should have been no assumption on the part of Ms B, whatsoever (and particularly in light of the timing of the communication), that arising from the communication there would either have been:

An exemption from a requirement that she as the legal practitioner on record, or counsel briefed in her stead, would be excused from attending the adjourned hearing for the mother; and/or

A further adjournment of the First Day Hearing would be administratively granted "to a date later in April".

Implicit, however, in the tenor of the communication sent by Ms B, and her failure to appear or instruct counsel to appear, was an assumption that that Court would accede to her request to be excused and/or an adjournment granted.

1. On 10 February 2025, Mr Koziol failed to appear in person at the Federal Circuit and Family Court of Australia (Division 2) in Alice Springs. He appeared remotely, by audio-visual link and made submissions in support of his application, filed and served with effect that morning.
2. As I have set out, the circumstances in which I considered the application in a proceeding with effect on the same day are set out in Schurman & Zahra.

1. Parties to proceedings under the Family Law Act 1975 (Cth) generally bear their own costs.[4] However, if there are circumstances which justify doing so, a court may make a costs order.[5] In considering what costs order, if any, should be made, the court must have regard to the factors set out in s 114UB(3). These are:

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

(b) whether any party to the proceedings is receiving assistance by way of legal aid in respect of the proceedings and, if so, the terms of the grant of the assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting paragraphs (a) and (b), 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, and in relation to their duty of disclosure under subsection 71B(1), 90RI(1) or 90YJA(1);

(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 a party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;

(g) such other matters as the court considers relevant.

1. No one factor prevails over any of the other factors. Rather, it is up to the discretion of the judge in the circumstances of the matter.[6] It is not necessary for each of the factors listed in s 114UB(3) of the Act to be met for the court to make a costs order, and there is "nothing to prevent any factor being the sole foundation for an order for costs."[7] Whilst s 114UB(2) requires a finding of justifying circumstances for the making of a costs order, there is no additional or special onus on an applicant who seeks an order for costs.[8]
2. The relevant factors in s 114UB(3) must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of a costs order.[9]

1. An order for indemnity costs is a significant departure from the normal standard and requires something exceptional. In Harris & Dewell (No 2),[10] the Full Court said:

In Kohan and Kohan, the Full Court held, in applying the principles expounded by Sheppard J in Colgate-Palmolive, that an order for indemnity costs represents a "very great departure from the normal standard". In the later decision of the Full Court in Prantage & Prantage, Thackray and Ryan JJ referred to Kohan and other authorities in the Full Courts of both this Court and the Federal Court of Australia as well as the state appeal courts. Their Honours concluded (at [86]) that the "usual rule" continued to apply in respect of awards of costs in this Court notwithstanding the Full Court accepting that the difference between party/party costs and a party's actual costs has continued to grow significantly.

That proposition also derives support from what Callinan J said in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation. His Honour said that an order for indemnity costs should "be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers".

The rarity of an order for indemnity costs can also be seen illustrated by the comments of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 2), referred to by their Honours in Prantage (at [102] - [103]). Lindgren J said that there is no rule that indemnity costs will be ordered "where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation."

(Footnotes omitted)

1. In Colgate-Palmolive Company v Cussons Pty Limited,[11] Shepherd J set out examples of circumstances that might justify the awarding of indemnity costs. In Munday v Bowman,[12] Holden CJ summarised the circumstances as:

(a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts...

(b) Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud...

(c) Evidence of particular misconduct causing loss of time to the court and to other parties...

(d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions...

(e) An imprudent refusal of an offer to compromise.

1. That said, the categories of circumstances which enliven the discretion to award indemnity costs are not closed.[13]
2. Pursuant to rule 12.13(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), a party applying for order for costs on an indemnity basis must inform the court if the parties bound by a costs agreement or costs agreements in relation to those costs and, if so, the terms of the costs agreement or costs agreements.
3. In Vader & Dantes (No 3),[14] Curran J noted the mandatory terms of rule 12.13(4) and said:

I was not informed at the final hearing of the existence or otherwise of any costs agreement, either in the material relied upon by the mother or in oral submissions. Nor was I informed of the terms of any such costs agreement. Generally, such an omission is fatal to an application for indemnity costs,[15] however given that costs is an area in which the Court has a wide discretion I am of the view that the circumstances of this case permit me to dispense with compliance with Rule 12.13(4).

The Full Court in the decision of SCVG v KLD [2017] FamCAFC 95 determined that a failure to provide a costs agreement in accordance with the rules does not invalidate an order for indemnity costs. This was so in circumstances where the trial judge had a close familiarity with the litigation, seeing as the purpose of the Rule is to ensure that the Court is aware of the extent of the costs that will be payable, and where the costs ordered by the trial judge did not fully indemnify the wife (costs were ordered on an indemnity basis for half the amount of total costs incurred by the wife). I am satisfied that the features of SCVG & KLD are analogous here in that, despite not having a costs agreement, I am able to discern the extent of the costs incurred by the wife by considering all of the evidence.

1. Rule 12.15 provides that the court may make an order for costs against a lawyer. Rule 12.15 provides:

(1) The court may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs to be incurred by a party or another person, or to be thrown away, because of:

(a) a failure to comply with these Rules or an order; or

(b) a failure to comply with a pre‑action procedure; or

(c) improper or unreasonable conduct; or

(d) undue delay or default.

(2) A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:

(a) to attend, or send another person to attend, the hearing; or

(b) to file, lodge or deliver a document as required; or

(c) to prepare any proper evidence or information; or

(d) to do any other act necessary for the hearing to proceed.

(3) An order under subrule (1) may be made on the initiative of the court, or on application by a party to the proceeding or by another person who has incurred the costs or costs thrown away.

(4) An order under subrule (1) may include an order that the lawyer:

(a) not charge the lawyer's client for work specified in the order; or

(b) repay money that the client has already paid towards those costs; or

(c) repay to the client any costs that the client has been ordered to pay to another party or another person; or

(d) pay the costs of a party; or

(e) repay another person's costs found to be incurred or wasted.

1. In Venter & Venter (No 2),[16] Carew J set out:

A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has, among other things, failed to do any act necessary for the hearing to proceed (r 12.15(2)).

In Cassidy v Murray,[17] the Full Court considered several authorities in various jurisdictions relating to the circumstances in which a court might order costs against a lawyer and identified the following principles:

The discretion to order costs against a lawyer should be exercised with caution;

There is a need to balance the competing public interests involved, namely, the concern that lawyers should not be deterred from pursuing their clients' interests for fear of being made personally subject to orders for costs, and the principle that innocent parties should not be occasioned costs, for which they would not otherwise be liable, as a result of the inappropriate conduct of lawyers;

The Court may make an order for costs against a lawyer without the necessity to establish that the lawyer has been guilty of serious professional misconduct;

The lawyer has a duty to the Court to promote the interests of justice whilst at the same time attending to the needs of the lawyer's client;

A mistake or error of judgement would not justify an order for costs against a lawyer. However, misconduct, default, or negligence, any of which are found by a Court to be of a serious nature, may be sufficient to justify an order; and

The jurisdiction is compensatory not punitive.

In Z (A Solicitor) & Limousin,[18] the Full Court dismissed a solicitor's appeal against a personal costs order. The case provides a comprehensive overview of the jurisprudence in this and other jurisdictions and considers the substantial amendments made to the Rules in 2004 including the addition of objects, principles, and responsibilities imposed on parties to litigation as well as their lawyers. The Full Court noted that the amended Rules included a 'main purpose', namely, "to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case". The same observations are equally applicable to the 2021 Rules and the 'overarching purpose' set out in the FCFCOA Act. The Full Court adopted the principles extracted from several cases by French J (as his Honour then was) in Ex Christmas Islanders Association Inc and Others v Attorney-General (Cth) (No 2)[19] including the following:[20]

The need for caution when legal professional privilege has not been waived and the Court does not know the details and circumstances of a client's instructions;

While no comprehensive definition of 'unreasonable' conduct is possible it must be more than acting for a client who has little or no prospect of success. There must be something akin to an abuse of process e.g., having an ulterior motive for the proceedings or commencing or pursuing proceedings without any, or any proper, consideration of the prospects of success;

Lawyers have a duty to their client and to the Court to be "competent in their conduct of legal business".

The Full Court also adopted the following further observations of French J at [30]:

A solicitor or counsel may conceive of himself or herself as advancing the public interest or some moral cause in pursuing particular proceedings. Whether acting in the public interest or to advance a moral purpose, whether charging the highest fees or acting pro bono and whether counsel or solicitor, legal practitioners have a duty to the client and to the court to be competent in their conduct of legal business.

In Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5),[21] Dixon J in the Supreme Court of Victoria provides a helpful summary of the matters to be considered where costs have been wasted as a result of the alleged conduct of a lawyer:

[57] ... the following matters need to be considered in the exercise of the wasted costs jurisdiction:

(a) The court's jurisdiction to make a wasted costs order against a solicitor is founded on breach of the duty owed by the legal practitioner to the court to perform his duty as an officer of the court in promoting, within his own sphere, the cause of justice.

(b) 'Negligent' should be understood in an untechnical way to denote failure to act in a way no reasonably well-informed and competent ordinary member of the profession would have done.

(c) The jurisdiction to order a legal practitioner to pay the costs of legal proceedings in respect of which he or she provided legal services must be exercised with care and discretion and only in clear cases.

(d) The wasted costs jurisdiction discloses a tension between two important public interests, one that the wasted costs orders should not become a back-door means of recovering costs not otherwise recoverable against a legally-aided or impoverished litigant, and that the remedy should not grow unchecked to become more damaging than the disease and, two, that litigants should not be financially prejudiced by the unjustifiable conduct of litigation by their or their opponents' lawyers.

(e) A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he or she acts for a party who pursues a claim or a defence that is plainly doomed to fail.

(f) The legal practitioner is not the judge of the credibility of the witnesses or the validity of the argument.

(g) A judge considering making a wasted costs order arising out of an advocate's conduct of court proceedings must make full allowance for the exigencies of acting in that environment; only when, with all allowances made, an advocate's conduct of court proceedings is quite plainly unjustifiable can it be appropriate to make a wasted costs order.

(h) A legal practitioner against whom a claim for a costs order is made must have full and sufficient notice of the complaint and full and sufficient opportunity of answering it, and a legal practitioner should not be called on to reply unless an apparently strong prima facie case has been made.

(i) Where a legal practitioner's ability to rebut the complaint is hampered because the client maintains client legal privilege, full allowance must be given for the practitioner's inability to tell the full story and he or she should be given the benefit of the doubt. In such circumstances, the court should not make an order against a practitioner without satisfying itself that it is in all the circumstances fair to do so, or, put the other way, it is only when, with all allowances made, a practitioner's conduct of proceedings is quite plainly unjustifiable that it can be appropriate to make a wasted costs order.

(j) The procedure to be followed in determining applications for wasted costs must be fair and as simple and summary as fairness permits.

1. Additionally, ss 95 and 96 of the Family Law Act relevantly provide:

95 Overarching purpose of the family law practice and procedure provisions

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

(a) in a way that ensures the safety of families and children; and

(b) in relation to proceedings under this Act in which the best interests of a child are the paramount consideration - in a way that promotes the best interests of the child; and

(c) according to law; and

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

Note: For family law practice and procedure provisions, see subsection (4).

(2) Without limiting subsection (1), the overarching purpose includes the following objectives in relation to proceedings under this Act:

(a) the just determination of all such proceedings;

(b) the efficient use of the judicial and administrative resources available or the purposes of courts exercising jurisdiction in such proceedings;

(c) the efficient disposal of the overall caseload of courts exercising jurisdiction in such proceedings;

(d) the disposal of all such 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.

...

96 Duty to act consistently with the overarching purpose

Duty of parties

(1) The parties to proceedings under this Act must conduct the proceedings (including negotiations for settlement of the dispute to which the proceedings relate) in a way that is consistent with the overarching purpose of the family law practice and procedure provisions.

(2) A party's lawyer must, in the conduct of proceedings under this Act on the party's behalf (including in the conduct of negotiations for settlement of the dispute to which the proceedings relate):

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

(b) assist the party to comply with the duty.

(3) In proceedings under this Act a court 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 proceedings or part of the proceedings; and

(b) the likely amount of costs that the party will have to pay in connection with the proceedings or part of the proceedings (including the costs that the lawyer will charge to the party).

(4) In exercising the discretion to award costs in proceedings under this Act, a court 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, a court may order a party's lawyer to bear costs personally.

(6) If a court 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. Section 223 of the Federal Circuit Court of Australia Act 2021 (Cth) provides that the rules of the Court may make provision for, or in relation to costs. Chapter 12 of the Rules applies to costs in connection with proceedings under the Act.
2. Rule 12.17 provides:

(1) The court may order that a party is entitled to costs:

(a) of a specific amount; or

(b) as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or

(c) to be calculated in accordance with the method stated in the order; or

(d) for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.

(2) If costs are payable under the Family Law Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party and party basis.

(3) In making an order under subrule (1), the court may consider the following:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness of each party's behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);

(c) the rates ordinarily payable to lawyers in comparable proceedings;

(d) whether a lawyer's conduct has been improper, unfair, unreasonable or disproportionate;

(e) the time properly spent on the proceeding, or in complying with pre‑action procedures;

(f) whether expenses (paid or payable) are fair, reasonable and proportionate.

1. The court may also direct that costs be calculated pursuant to the scale of costs in family law and child support matters set out in rule 4.01 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth). That rule provides that in applying Chapter 12, the court may apply the events-based cost system detailed in Schedule 1.
2. Schedule 1 enables the calculation of costs on a ready basis by reference to events in the stages of a proceeding. In this case, each applicant seeks indemnity costs, not costs according to the scale. As set out, rule 12.17(3) sets out that the court may have regard to, amongst other things, the reasonableness of each parties' behaviour in the proceedings, whether a lawyer's conduct has been improper, unfair, unreasonable or disproportionate and whether expenses paid or payable are fair, reasonable and proportionate.
3. Rule 12.08 provides a list of criteria for the court to apply as to whether costs have been incurred fairly, reasonably and proportionately_._ Rule 12.08(2) sets out:

In considering whether a party's legal costs have been fairly, reasonably and proportionately incurred, regard must be had to all relevant matters including, but not limited to, whether a lawyer representing the party, a lawyer representing any other party, or any self‑represented litigant has:

(a) complied with all relevant rules and orders of the court, including requirements that documents be filed or provided to other parties by a given date; and

(b) acted reasonably in raising, pursuing or contesting a particular allegation or issue; and

(c) made reasonable efforts, subject to the client's instructions, to resolve the dispute through negotiation, mediation or arbitration; and

(d) made reasonable efforts to narrow the issues in dispute; and

(e) filed no more interlocutory applications than are reasonably necessary in the circumstances of the proceeding; and

(f) filed no more affidavits or other documents than are reasonably necessary in the circumstances of the proceeding.

1. In respect of costs applications in family law matters, the court must make the order it considers just_._ In Carson & Colt (No 3),[22] McClelland DCJ adopted and applied the following principles when considering the court's power to make an order that a party is entitled to costs of a specific amount:

... Those principles include:

1. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation;...

2. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable;...

3. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available;...

4. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place;...

5. the gross sum "can only be fixed broadly having regard to the information before the Court";...

...

1. Where a court orders a party to pay costs, it may be appropriate for the court to fix a lump sum, including to avoid further delay and inconvenience being occasioned by the requirement to tax a bill.[23]

1. Section 114UC(1) sets out that the court may make a costs order, whether by interlocutory order or otherwise, to the effect that each party bears the costs of the ICL in such proportion as the court considers just. The court must not make an order under s 114UC in relation to the costs of the ICL if a party to the proceedings is receiving assistance by way of legal aid in respect of the proceedings or the Court considers that a party to the proceedings would suffer financial hardship if the party had to be a proportion of the costs of the ICL.
2. Further, when considering an order for costs of the ICL in relation to the proceedings, the court must disregard the fact that the ICL is funded under a legal aid scheme.[24]

IS THE CULTURAL AUNT, THE MATERNAL CULTURAL GRANDMOTHER, THE FATHER AND/OR THE ICL ENTITLED TO AN ORDER FOR COSTS THROWN AWAY AGAINST MR KOZIOL AS A RESULT OF HIS CONDUCT IN THE PROCEEDINGS?

1. In broad measure, the applicants for costs say that Mr Koziol caused costs to be incurred by them for the duration of the hearing in Alice Springs. The trial could not proceed because Mr Koziol failed to appear in person for the hearing, was not otherwise in a position to conduct the hearing and applied for leave to file a notice of ceasing to act on the day of the hearing.
2. The applicants for costs say that the costs of the hearing days were costs thrown away and that although the parties were able to informally confer and consider subpoenaed material, Mr Koziol's conduct was improper or unreasonable and directly caused the hearing to be unable to proceed.
3. The applicants point to the paternal aunt's non-compliance with court orders, but they principally say that her solicitor, Mr Koziol's conduct, within the scope of s 114UB(3)(g) and rule 12.15(1)(c), is improper or unreasonable conduct that warrants not only a costs order to be made against Mr Koziol, but that it be made on an indemnity basis.
4. Mr Koziol opposes the applications. The primary (but not only) submission made on behalf of Mr Koziol was that the various applications for costs should be dismissed because if orders were made for costs, it would contravene the indemnity principle. Counsel for Mr Koziol submitted that because the parties had not incurred costs, a costs order could not be made.
5. It is also submitted that the applicants have not complied with rule 12.13(4) to inform the court if they are bound by a costs agreement in relation to the costs and if so, the terms of the costs agreement.
6. It is conceded on behalf of Mr Koziol that the application to file a notice of ceasing to act was made late. It is however submitted that had Mr Koziol filed a notice of ceasing to act earlier and before he required leave, it cannot be said what newly instructed legal representatives, if any, would have done in conducting the proceedings and if the hearing would have been ready to proceed. It is effectively submitted that Mr Koziol's conduct is not the reason that the hearing did not take place as listed and that the parties' time in Alice Springs with their legal representatives at the hearing was not wasted.
7. It is also contended that if any costs order is to be made, it should be made at scale. Submissions were made about the broad way in which costs were quantified and the court was cautioned against over-estimating the calculation of costs, with reference to the evidence led on behalf of the parties.
8. Counsel for Mr Koziol directed me to Sandison & Thornhill (No 3)[25] and the principles summarised by Henderson J.[26] That detailed summary is consistent with the principles I have set out and which I have regard to. I accept that a legal practitioner should be given the benefit of the doubt when the practitioner's ability to rebut the complaint is hampered by the duty of confidentiality to the client and that the court should not make an order against a practitioner restricted by legal professional privilege unless it is fair to do so in all the circumstances.
9. In his case outlines filed on 10 June 2025, Mr Koziol relied on his affidavit made on 9 February 2025 in support of his application for leave to file a notice of ceasing to act. A submission was made in writing that:

10. Mr Koziol's application seeking to withdraw from acting for the Third Respondent was, admittedly, late.

11. However, the Court does not know all of the circumstances which led to Mr Koziol's late withdrawal.

12. It does know that Mr Koziol had difficulty obtaining instructions from the Third Respondent: Affidavit of Koziol at [13] - [20].

13. It does know that the Third Respondent had not filed a trial affidavit and had not filed an Application in a Proceeding identifying what orders she was seeking, before trial.

14. Mr Koziol is precluded from disclosing his account of matters due to his obligations of confidentiality and privilege owed to his former client. The Third Respondent has not waived privilege over her communications with Mr Koziol.

1. At the hearing of the costs applications, counsel for Mr Koziol did not seek to rely on the affidavit made on 9th February 2025. However, I received the affidavit into evidence on the application of the other parties.
2. In admitting the affidavit into evidence, I formed the opinion that it was relevant to the costs applications. It was the evidence that underpinned Mr Koziol's application for leave to file a notice of ceasing to act. It was the evidentiary basis upon which I granted that leave. As such, I received the affidavit into evidence in the hearing of the applications for costs.
3. My assessment of the matters set out in s 114UB(3) of the Act which are relevant to costs in this matter are as follows. It is to be noted that the matters in s 114UB(3) are directed to the parties to the proceedings, not Mr Koziol. Mr Koziol's conduct and the relevant circumstances for the purposes of the costs applications are matters to be taken into account as such other matters that the court considers relevant.

The financial circumstances of each party to the proceedings

1. There is limited evidence of the financial circumstances of the parties.
2. The cultural aunt is unemployed. From early-2021 to February 2024 she worked as a community worker. She plans to return to work at J Store.
3. The maternal cultural grandmother's usual occupation is in home duties.
4. The father is a professional.
5. The paternal aunt's usual occupation is in home duties.

Whether any party to the proceedings is receiving assistance by way of legal aid in respect of the proceedings and, if so, the terms of the grant of the assistance to that party

1. The cultural aunt is in receipt of a grant of legal aid. On 14 October 2024, aid was extended effective from 26 September 2024. The cultural aunt led evidence of the relevant extensions of aid and grants for work performed by counsel and instructing solicitor in preparation for the trial and appearance at the trial.
2. The maternal cultural grandmother is represented by the Aboriginal Legal Rights Movement. ALRM is funded by the Commonwealth Attorney-General's Department to act for Aboriginal people who live in South Australia. ALRM has internal processes for the briefing of counsel on behalf of its clients and also for funding solicitors to act for Aboriginal clients where ALRM is unable to act due to conflict and where those clients otherwise have merit and cannot secure funding from any other source. Public funding provided to ALRM is limited and assignments are carefully considered by the Briefing Committee.
3. ALRM's Briefing Committee utilises the Family Law Cost Scale used by the Legal Services Commission of South Australia, with a 15% uplift. ALRM briefed Margaret Ross of Campbell Chambers in Adelaide to represent the maternal cultural grandmother.
4. Similarly, the father is funded for the trial by ALRM, upon the application made by his solicitor, Ruth Morley. Some time after 21 January 2025, having been acting on a pro bono basis, Ms Morley applied to the Briefing Committee of ALRM for funding for the father at trial. On 24 March 2025, an assignment in the sum of $1,521 was raised in respect of solicitor and counsel's work that Ms Morley had previously undertaken on a pro bono basis.
5. Further, an assignment was raised for the father to be represented by counsel, David Fryer, of the South Australian Bar. Mr Fryer was briefed by Ms Morley. Pursuant to that assignment, ALRM paid Mr Fryer's preparation and appearance for trial costs, travel costs, additional baggage costs and accommodation costs.
6. As I have observed, I must disregard the fact that the ICL is funded under a legal aid scheme.
7. Mr Koziol has submitted that a distinguishing feature in the proceedings is that the applicants for costs have not incurred any liability personally. In Gallegos & Berntsson,[27] Behrens J said:

One of the matters to which the Court is required to have regard in considering what (if any) order should be made under s 117 of the Act is "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" (s 117(2A)(b)). The reference to "legal aid" in this subsection is: "... a reference to the commonly understood notion of a legal aid body or other assistance organisation, usually but not necessarily, funded by the government, which provides financial support to enable a lawyer to act for the recipient of the grant" (Legal Aid ACT & Westwell [2021] FamCAFC 50; (2021) FLC 94-013 at [18]). The Full Court made clear that the term should not be "... read more widely to include any legal assistance at all including pro bono assistance or the attendance of a 'McKenzie' friend" (at [29]). Legal Aid schemes are statutory creatures, and relevant legislation provides that funds recovered by a legally aided client must be paid in full to the relevant legal aid fund. This might be seen as a statutorily based exception to the indemnity principle (in the sense that a costs order is made in favour of an individual, notwithstanding they have not incurred costs). It is one of the examples dealt with by Gray J in Trevorrow. Its inclusion in s 117 does not tell against the application of the indemnity principle generally.

1. In Gallegos,[28] Behrens J said that:

Expressed another way, a party should not profit from a costs order, or should not receive a "bonus".

1. Counsel for Mr Koziol further submitted that Trevorrow v State of South Australia (No 7)[29] was distinguishable from parenting proceedings.
2. In assessing counsel's submissions, I observe that Gallegos was a costs application arising from a discontinued application for a stay made in property and parenting proceedings. The issue was what her Honour described as a novel one in the jurisdiction, being whether a costs order can be made in favour of a party where their legal representatives have acted on a pro bono basis. The central issues before the court were first, whether the indemnity principle applies to applications for costs under the Act, which her Honour concluded it does. The second issue was whether the indemnity principle allows the making of an order where there has been a cost to the applicant by reason of the use of her entitlement to pro bono services, such that the applicant may, in future, be liable for professional legal costs which she otherwise would not have been. For the reasons set out in the reasons for judgment, her Honour concluded that the indemnity principle does not permit this and the applicant in that case could only recover cost actually incurred.
3. In reaching this conclusion, her Honour applied the summary of the indemnity principle explained by Gray J in Trevorrow. Her Honour summarised:

Justice Gray explores various scenarios in which the indemnity principle will not exclude an application for costs, including: where there is no costs agreement excluding liability; where another person or organisation has agreed to pay the costs; where it is unlikely costs will be recovered; where litigants are to be indemnified; and where legal aid is obtained. Justice Gray also deals with the conflicting authorities about whether the existence of a conditional costs agreement which creates a liability for costs in the event a costs order is made (or, in some cases, a payment received) means that the indemnity principle is not offended by the making of an order for costs. In this context, his Honour at [15] refers to the authority that "[t]he indemnity principle is not immutable, and should be applied flexibly rather than made into a rigid rule" (per Santow JA in Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 at [50]).

1. When seen in this way, in my opinion the submissions made on behalf of Mr Koziol that firstly, the indemnity principle precludes a costs order - that there have been no costs incurred in which to compensate - and secondly, that Trevorrow ought to be distinguished from parenting proceedings, cannot be accepted.
2. In my view, costs may be awarded to a legally aided party even where the costs were not personally borne by that party. I also accept that the public nature of legal aid funding does not undermine the compensatory rationale of costs orders.

The conduct of the parties to the proceedings in relation to the proceedings and whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of court

1. As non-compliance with orders is relevant to the conduct of parties in relation to the proceedings, I will consider these factors together. As I have already observed, it is also important to recognise that the consideration of these matters goes to the conduct of the party, not Mr Koziol.
2. The paternal aunt was in breach of orders to file and serve a response. Her affidavit filed on 26 November 2024 is not a trial affidavit. Mr Koziol gave evidence on affidavit on 9 February 2025 about his meeting with the paternal aunt on 17 January 2025 for the purpose of the family dispute resolution conference and the preparation of a trial affidavit. Mr Koziol said that he could have been more proactive in contacting his client.
3. The focus on the parties' submissions was on Mr Koziol's conduct, as opposed to any party, including the paternal aunt.
4. As I have observed, in addition to the obligations under the Act, parties have a duty to conduct the proceedings in a way that is consistent with the overarching purpose,[30] to facilitate the just resolution of disputes according to law, and as quickly, inexpensively, and efficiently as possible. The obligation on a party's lawyer is different. Under rule 1.04(3), the party's lawyer must take account of the duty and assist the party to comply with the duty.
5. Mr Koziol's conduct is, as I have said, relevant to a different matter for consideration than this one.

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

1. This factor is not relevant to the applications and no submissions were made about it.

Whether any 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. The maternal cultural grandmother made submissions about an open offer of settlement of the costs application dated 12 June 2025, however the letter was not tendered. I have no regard to that matter.
2. On 5 May 2025, Mr Koziol's lawyers sent each of the parties a letter setting out the basis of his opposition to the applications for costs. That letter invited the applicants to withdraw their applications for costs, including on the basis that Mr Koziol was at all times acting on a pro bono basis, that one of the reasons he was not able to continue to represent the paternal aunt was the inability to obtain clear instructions from her, that legal professional privilege precludes him from providing a full answer to the allegations against him, that the applications breach the indemnity principle and that the applications threatened to become a form of satellite litigation, cautioned against in the authorities, including Sandison.

Such other matters as the court considers relevant

1. The applications for costs focus on Mr Koziol's conduct between 7 and 12 February 2025.
2. In my opinion, the relevant circumstances about the conduct commences earlier, on 29 August 2024, at which time Mr Koziol had been representing the paternal aunt in the proceedings for approximately 10 months. It is appropriate to observe that it is not necessary for a legal practitioner to be paid for there to exist a solicitor-client relationship.[31] The fact that Mr Koziol was acting for the paternal aunt on a pro bono basis had no material bearing on his professional obligations to her and to the court. Once he accepted instructions from the paternal aunt, he was required to meet these obligations.
3. Mr Koziol appeared for the paternal aunt on 29 August 2024 when an order was made listing the matter for trial in Alice Springs to start on 20 February 2025. Trial directions were also made, including directions for the respondents to file and serve an amended response, a consolidated affidavit of evidence in chief, and affidavit of any witness by no later than 5 December 2024.
4. At this time, Mr Koziol made no submission that he was not able to comply with these orders, nor any submission that he was experiencing difficulties in communicating with the paternal aunt, nor any submission that he may not be able to represent the paternal aunt at the trial in Alice Springs early in the following year.
5. Mr Koziol also appeared for the paternal aunt at the directions hearing on 27 November 2024, after the trial date was brought forward to commence on 10 February 2025, as a result of court availability in Alice Springs. Orders were also made extending the time for compliance with the procedural directions made on 29 August 2024. Mr Koziol made no submission that he was not able to comply with these orders as extended, nor that he was experiencing any ongoing difficulties in obtaining instructions from the paternal aunt, nor that there was any impediment to him representing the paternal aunt at the upcoming trial, funding or otherwise.
6. As I have set out, the paternal aunt did not comply with the order that she file and serve an amended response, a consolidated affidavit of evidence in chief and affidavit of any witness by 23 December 2024. Mr Koziol did not make any application in respect these failures.
7. On 21 January 2025, Ms Morley became increasingly concerned about Mr Koziol's lack of communication and non-compliance with orders. She sent Mr Koziol an email. The email was sent at 12:12pm. It stated:

Good afternoon Ben

I am seeking confirmation that you are providing legal representation to [Ms C Moss](sic) [...].

I note that you have not filed a Response or other required documentation in these proceedings for her.

As I have previously stated to you, I need to know if you are because otherwise, I will need to rethink my client's case in time for the Trial.

I am acting pro bono.

I would greatly appreciate it if you could please let me know if you are providing legal representation to her.

1. There is no evidence about whether Mr Koziol acknowledged or replied to this email.
2. The family dispute resolution conference took place two days later on 23 January 2025. Mr Koziol participated by MS Teams and represented the paternal aunt, having met with her on 17 January 2025. The FDR commenced at 10:00am and concluded at approximately 4.00pm.
3. On 28 January 2025, five days after the FDR Ms Valentine, solicitor for the maternal cultural grandmother, became sufficiently concerned about Mr Koziol's lack of communication and compliance with orders that she sent him an email asking him whether he was having difficulty securing funding for the trial. Ms Valentine is employed by the ALRM.
4. Ms Valentine's email to Mr Koziol was sent at 12:52pm and stated:

Dear Ben

I'm not sure whether you are experiencing any funding issues regarding counsel's attendance for trial in this matter and attach our application documents which would then be sent to the Briefing Committee should you seek funding from ALRM.

1. Mr Koziol did not reply to Ms Valentine.
2. The paternal aunt did not comply with the order made on 29 August 2024 that she file and serve a case outline no later than 3 February 2025, one week prior to the trial. No application was made in respect of this failure.
3. In my opinion, Mr Koziol has failed to take account of the duty imposed upon the paternal aunt to conduct the proceeding in a way that is consistent with the overarching purpose. He also failed to assist her to comply with the duty. This is consistent with Mr Koziol's evidence that there have been times when these proceedings were not his top priority and that:

As a result, I accept I have not managed this file as could be expected.

1. Additionally, Mr Koziol's evidence was that he was not able to participate meaningfully at the dispute resolution conference on 13 August 2024 due to not being able to communicate with the paternal aunt. This is consistent with the notations to the orders on that day. From that time, including after trial directions were made 16 days later, to the extent that Mr Koziol had difficulties communicating with and taking instructions from the paternal aunt, he has also recognised that he could or should have followed up with her more than he did to obtain instructions.
2. Further, to the extent that Mr Koziol's conduct concerns his inability to obtain funding for the proceeding, Mr Koziol failed to engage with correspondence sent by Ms Valentine and Ms Morley about the potential alternative funding option at ALRM. It is entirely unsatisfactory for Mr Koziol to take no steps in this regard in the knowledge that without funding he would not be able to represent the paternal aunt at trial. It is not satisfactory for Mr Koziol to give evidence on the morning the trial was set to commence that he does not have the means or ability to appear at the trial.
3. These are matters that go squarely to Mr Koziol's conduct in the proceedings and which sit entirely apart from any inability to obtain instructions.
4. Further, Ms Koziol's evidence that because the child is not in South Australia, he has been unable to obtain funding for the matter through legal aid is vague and unclear. I received emails sent between the Women's Legal Service (SA) and the Legal Services Commission of South Australia indicating that grants has no record of the paternal aunt having made an application for legal aid family law.
5. This conflict in the evidence gives some cause for concern about Mr Koziol's affidavit, but I am not able to resolve that conflict at this hearing. I consider it more relevant to take into account the uncontroverted evidence that Mr Koziol failed to engage with his colleagues, he failed to pursue the potential opportunity to apply for funding from ALRM, and that he formed the view at some time before the trial was to commence that he could not represent the paternal aunt on a pro bono basis, but did nothing about it, in breach of his duties to the paternal aunt and to the court.
6. Over this time, Mr Koziol did not communicate with the paternal aunt. He did not make any application to the court. He also failed to communicate with the lawyers for the other parties. If Mr Koziol was experiencing untenable difficulties with his ongoing representation of the paternal aunt, then the time for him to take steps such as filing a notice of ceasing to act, or making an application to vary the trial directions was when the paternal aunt fell into breach of those directions. Mr Koziol did not do so. He instead took no action.
7. Mr Koziol's conduct on 7 February 2025 is also inadequate. Mr Koziol did not make an application to the court. He wrote a short email to the legal representatives for the other parties one business day before the trial was due to commence in Alice Springs.
8. The only reason the matters were brought to the attention of the court was because the ICL contacted the court to see if the matter could be called on urgently. Even then, Mr Koziol did not comply with the orders made on that day.
9. In considering Mr Koziol's conduct and whether there has been a failure to comply with the Rules, any improper or unreasonable conduct, or undue delay or default that has caused costs to be incurred, I am required to consider non-compliance and other conduct that is serious, and not matters that are trifling or inadvertent.
10. In my opinion, Mr Koziol's conduct is serious. I find that he has failed to comply with the positive obligation under the Rules to take account of his client's duty and to assist her to comply with that duty. Further, he engaged in conduct that caused costs to be incurred because of improper or unreasonable conduct, and undue delay or default.
11. As I have pointed out, by remaining on the record for the paternal aunt, Mr Koziol was bound to comply with his duties to his client and to the court. I have considerable difficulties with Mr Koziol's evidence that he knew he would not be able to represent the paternal aunt at trial without funding, but was embarrassed to inform her of that because he would be seen as letting her down.
12. Mr Koziol has accepted in his evidence that in delaying the inevitable, he has no doubt that he has let the paternal aunt down even more.
13. Mr Koziol also acknowledged in his evidence that he should have made the application sooner.
14. I recognise that Mr Koziol attempted to summarise the paternal aunt's trial position in his affidavit made on 9 February 2025, but this is also inadequate. It cannot remedy the failures and non-compliance that I have set out.
15. Mr Koziol's failure to make an application until effectively the day of the trial, his failure to appear in person in Alice Springs at the trial, and his failure to represent the paternal aunt at the trial, including his conduct at directions hearings in late-2024, and his failure to engage with correspondence in 2025 while representing the paternal aunt at the FDR in January 2025, is all conduct that is relevant to considering what order, if any, should be made.

Are there are justifying circumstances to make an order for costs?

1. In all the circumstances, in my assessment there are justifying circumstances under s 114UB(2) for an order for costs in favour of the cultural aunt, the maternal cultural grandmother, the father and the ICL.
2. In reaching this conclusion, I take into account, as justifying circumstances, the paternal aunt's failure to comply with orders and failure to conduct the proceedings in a way that is consistent with the overarching purpose. I also take into account the deficiencies in Mr Koziol's conduct of the proceedings, including his failures to take account of the duty imposed on the paternal aunt and assist her to comply with it.
3. I also take into account Mr Koziol's breach of orders and his conduct of the proceeding in and around January and February 2025. He failed to engage with correspondence sent by Ms Valentine and Ms Morley, which was sent as a result of concerns they each held as a result of his lack of communication in breach of orders.
4. Mr Koziol points to the fact that the parties were able to utilise the time in Alice Springs on the day of the trial to conduct negotiations and view returned subpoena material. He says that the time and costs were not in that sense lost.
5. I do not agree with this submission. The fact that the parties had discussions on the day of the trial does not alter the fact that Mr Koziol's conduct prevented the trial taking place. It prevented the conclusion of the process that had been set in place in order to result in final orders being made for the child's parenting arrangements.
6. I accept that subpoenaed documents were produced the day before the trial and that inspection was required on the day of the trial. A large volume of documents were returned. The orders of 29 August 2024 provided that any subpoena be filed, served and made returnable to the Court by no later than three (3) weeks prior to trial and that inspection on the day of the hearing is not permitted, noting that there are no facilities in Alice Springs for inspection of subpoena documents.
7. In these circumstances, the inspection of subpoenaed material on the day of the trial was not in accordance with the trial directions that were made. However, I granted leave to inspect on 7 February 2025, in all of the circumstances and inspection was able to take place. Whilst inspection on the day of a trial is somewhat exceptional, I do not accept that the late return and inspection of documents meant that the trial was not able to proceed on that basis. In fact, Mr Koziol not appearing in court in person in Alice Springs prevented him from also inspecting the subpoenaed material, as the legal representatives for the other parties were able to do. It was one of a number of factors that created an insurmountable impediment to Mr Koziol continuing the represent the paternal aunt at trial remotely.
8. Additionally, it is not unusual that the ICL's position on final parenting orders is a reserved and otherwise preliminary one, pending consideration of all of the evidence, including cross-examination. I do not accept that Mr Koziol's inability to view the subpoena material reasonably prevented him from setting out the paternal aunt's position in a response. Indeed, he attempted to do so in his affidavit of 9 February 2025.
9. In considering these matters, I also accept that the paternal aunt not waiving privilege has restricted Mr Koziol's ability to fully present his defence in these proceedings. I apply the strong cautions and benefits to his favour in these circumstances.
10. However, taking into account uncontentious or less controversial facts, the chronology as it relevantly exists, and Mr Koziol's own evidence about these matters, I am satisfied that Mr Koziol's conduct is improper or unreasonable.
11. The central matters that the application to file a notice of ceasing to act was based upon were within Mr Koziol's control. He did not prioritise or manage the proceedings he should have. Any funding issues are irrelevant to this obligation. In these circumstances, Mr Koziol's inactivity is improper or unreasonable conduct.
12. I consider it appropriate that there is an order for Mr Koziol to pay, in each instance, the costs of the party and the ICL.

WHAT IS THE APPROPRIATE BASIS FOR THE COSTS ORDER, INCLUDING THE QUANTUM OF COSTS TO BE SPECIFIED?

1. It was submitted on behalf of Mr Koziol that there is insufficient information before the court for a lump sum order to be made and that if an order was to be made, an order that costs be paid as agreed, or taxed is more appropriate.
2. In Venter, Carew J said:

[52] In Parke & the Estate of the Late A Parke, Murphy J quoted with approval the observations made by Einstein J in Idoport Pty Ltd v National Australia Bank Limited, Idoport Pty Ltd v Donald Robert Argus when that court was considering an analogous provision to that contained in r 12.17(1)(a) of the Rules:

1. If the court is to fix a sum it should be "fixed broadly having regard to the information before the Court" (Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, at [24] cited in Idaport [sic] at [9]). The process does not "by its very nature ... envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place". (Idaport [sic] at [9](v), citing Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738).
2. Obviously enough, the court must act judicially in fixing or specifying a sum of costs, but:

...the requirement that the power to award a gross sum should be exercised judicially does not mean that it must be exercised in any scientific or formulaic manner; At the heart of the judicial function is the responsibility to weigh up competing factors and considerations, many of which might conflict, to reach a determination. Acting judicially carries with it an obligation to apply the rules of natural justice, to act impartially and to apply the law to the facts. ...

[53] Not only does this Court have the power to order a specific amount for costs, it is generally the preferred approach for a specific amount to be ordered rather than requiring an assessment of costs. This is because the latter approach will inevitably involve the parties in yet further conflict, delay, and cost. In finding it appropriate to make an order that costs be paid in a fixed sum, the Full Court in Warbrick & Warbrick (No 2) said that it did "not intend to permit the costs question to become, in effect, satellite litigation".

1. In my assessment, each of the applicant for costs has put evidence before the court of the costs incurred in preparing the matter for trial and connected to the attendance at the court in Alice Springs. The reality is that each of the parties was required to incur costs, including travel costs, directly connected with the trial in Alice Springs that they would not otherwise have incurred.
2. I do not accept Mr Koziol's submission that the court is left with assessing costs according to the scale. I do not consider that an order for costs to be taxed is in the interests of the parties or the proceedings. I accept the submission made by the parties and the ICL that a taxation would be a disastrous outcome. Generating bills in taxable form would not only be further costly for the parties, but it would potentially lead to further dispute and proceedings.
3. In my opinion, the circumstances of this matter are such that an order for costs in a fixed lump sum should be made. The delay and inconvenience that would be caused by a taxation, particularly in the circumstances of the proceedings, the adjourned trial and the agreement for the proceedings to be transferred to Division 1, is not in the interests of the child, the parties, or justice. I will make orders for lump sum costs.

1. It was also contended on behalf of Mr Koziol that the applicants were not compliant with rule 12.13(4). To the extent that the applicants may not be compliant with rule 12.13(4), I am satisfied that it is appropriate to dispense with compliance. Each applicant has led detailed evidence about the costs incurred, and the basis upon which costs were authorised and paid.
2. I accept that where the court orders costs, costs are payable on a party-party basis, and the court should not lightly depart from this ordinary rule. However, I accept that the circumstances justify doing so in this instance.
3. I accept the evidence led by each applicant that in the various categories set out, funds were applied for, approved, allocated and spent. I also accept the spending of the funds was lost through the vacating of the trial.
4. It was urged on behalf of Mr Koziol that the lack of information before the court ran the risk that the court would be guessing. Inconsistencies in the evidence about the incurring and calculation of costs was also highlighted.
5. In Sprule & Mollis,[32] Judge Shoebridge summarised:

The task of generating bills in taxable form would visit yet further significant expense upon the parties and, potentially, further proceedings (see Sparnon v Apand Pty Limited [1998] FCA 164 per Von Doussa J at 4; Hadid v Lenfest Communications Inc [2000] FCA 628 ("Hadid")).

When considering fixing the amount of costs it is appropriate for the Court to apply a "much broader brush" than would be applied on a taxation (see Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228; (2005) 215 ALR 788 at [197]-[200]; Hadid at [35]).

In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23, the Court said at [10] that the Court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any "scientific or formulaic manner".

Murphy J observed in Parke & the Estate of the Late A Parke [2016] FamCAFC 248; (2016) 314 FLR 322 at 341[130]:

If the court is to fix a sum it should be "fixed broadly having regard to the information before the Court" ... The process does not "by its very nature ... envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place".

(Citations omitted).

The Court may fix the amount of the costs payable rather than order that they be taxed. The purpose of fixing costs is to avoid the expense, delay and aggravation involved in taxation (see Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162; In Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 at 743 [22] per Giles JA). Consistent with that objective, in fixing the sum the Court will not subject the costs to the detailed scrutiny often applied on a taxation.

1. Whilst I also accept Mr Koziol's submission that there is a need for caution and of over-estimation, I am satisfied that the evidence led by each applicant ought to be accepted. The inconsistencies pointed to in, for example, Ms Valentine's evidence of expenses actually incurred against what is set out in the Family Law Cost Scale do not lead me to conclude Ms Valentine's evidence of the costs incurred should not be accepted.
2. Apart from some exceptions, I consider that the evidence given on behalf of each applicant is sufficiently detailed and provides a sound basis for a logical, fair and reasonable assessment of the quantum of costs to be made.
3. The disparity between those costs and Mr Koziol's pro bono status is not a matter that I consider to be relevant to the determination. Equally, I do not consider the aggregate quantum of costs to be a relevant matter. The more directly relevant point is that the costs incurred were wasted, and they were wasted because of Mr Koziol's failures to comply with his obligations, some of which are acknowledged in his affidavit notwithstanding the opposing position he takes in the applications.
4. The evidence led on behalf of the cultural aunt is that costs incurred for preparing and attending the trial are as follows:

Preparation for final hearing by instructing solicitor (2 days)

Additional preparation for instructor for the 7-day trial

Counsel's appearance at the final hearing on 10 February 2025

Appearance by instructor at final hearing on 10 February 2025

Flights for instructor and counsel, including change fee and fee credit

Accommodation for one night for Counsel and instructor

1. I consider the amounts set out in the affidavit in support, by reference to the work done and the costs incurred in this matter to be logical, fair and reasonable.
2. In the case of the cultural aunt, I am satisfied that this is an appropriate and rare case to exercise my discretion and order costs against Mr Koziol on an indemnity basis, in the fixed sum sought. I will order $14,343.69 as sought by the cultural aunt.
3. The evidence led on behalf of the maternal cultural grandmother as to the quantum of costs incurred in preparing for and attending the trial is as follows:

- Attendance at second day of trial for negotiations

- Counsel was unable to be briefed in any other matter

1. I consider the amounts set out in the affidavit in support, by reference to the work done and the costs incurred in this matter to be logical, fair and reasonable. $4,512.60 of the costs sought are on account of cancellation fees. Rule 12.08(5) is instructive in my view, as it provides that in relation to an application for costs by one party against another, a cancellation fee levied by a barrister or solicitor advocate is not taken to be reasonable. I will allow $8,680.90 in respect of counsel's fees. I do not consider that the cancellation fee component should be ordered.
2. In the case of the maternal cultural grandmother, I am otherwise satisfied that this is an appropriate case to exercise my discretion and order costs against Mr Koziol on an indemnity basis in the fixed sum that accords with my analysis.
3. The total sum of costs I will order for the maternal cultural grandmother is $12,191.87.
4. The evidence led on behalf of the father is that costs have been incurred, pursuant to an assignment raised by ALRM in the following sums:

1. In the case of the father, I consider the amounts set out in the affidavit in support, by reference to the work done and the costs incurred in this matter to be logical, fair and reasonable.
2. However, the preparation and appearance costs of counsel is not particularised and no invoices are in evidence. It is not clear whether the preparation and appearance costs of counsel include cancellation fees. If they do, then I consider those amounts should not be recoverable. In my opinion, the ambiguity in the evidence in this respect requires me to err on the side of caution and reduce the sum of counsel's fees. On the evidence as I have it, I take note of the relative disparity between the fees incurred by counsel for each of the parties. In performing an analysis of fairness and reasonableness, I will reduce the sum to be awarded to fall more in line with the counsel's fees ordered for the other parties. I will order $9,310.58 in respect of counsel's fees.
3. The total sum of costs I will order for the father is $10,831.58.
4. The ICL's costs are:

1. In the case of the ICL, I consider the amounts set out in the affidavit in support, by reference to the work done and the costs incurred in this matter to be logical, fair and reasonable. However, I do not consider that the amount sought for subpoenas and the costs of the application for costs should be allowed. In the latter instance, the costs of the application were not the subject of any real argument or submissions. I am also not satisfied that the costs of the subpoena are thrown away.
2. In the case of the ICL, I will order the sum of costs fixed at $9,205.14.
3. In each instance, I will make an order for the payment of the costs in accordance with my assessment and that Mr Koziol be required to pay them. The circumstances in which the costs were incurred were highly unusual. I accept the submission that they were incurred as a result of the paternal aunt's failure to comply with orders, her failure to conduct the proceedings in a way that is consistent with the overarching purpose and the general unreasonableness of her behaviour in the proceeding in these respects. However, the paternal aunt's failures were compounded by Mr Koziol's improper and unreasonable conduct. I also consider that Mr Koziol's conduct was the reason that the trial was not able to proceed as listed on 10 February 2025, and in the days that followed.

1. Rule 12.13(5) provides that in making an order for costs in a proceeding, the court may set a time for payment of the costs, which may be before the hearing is concluded. There is no evidence of Mr Koziol's capacity to pay a costs order, noting that in any event, impecuniosity is not of itself a bar to making an order.[33]
2. I consider that in the circumstances of this matter, I should set a time for payment. The parties have taken a different approach to this aspect of the matter. The ICL seeks payment within 30 days. The father seeks no specified time for payment. The maternal cultural grandmother does not seek any order for a time to pay. The cultural aunt seeks no order as to time to pay.
3. Mr Koziol has made no submission about that aspect of the matter. The evidence in his affidavit of 9 February 2025 was that he did not have the means or the ability to travel to Alice Springs to represent the paternal aunt on a pro bono basis. In weighing up the circumstances, I consider it appropriate to set a time for payment of 90 days.
4. In addition, the cultural aunt and the maternal cultural grandmother have both sought an order that Mr Koziol and BK Legal be jointly and severally liable for the costs order. No application was made for the paternal aunt to be jointly and severally liable for costs.
5. No party led any evidence of the legal identity of BK Legal. In the letter sent to the parties on behalf of Mr Koziol on 5 May 2025, it was pointed out that Mr Koziol operates as a sole trader and that his business name is BK Legal. A business name extract was attached.
6. I accept that there is no proper basis in these circumstances to make any order for joint and several liability.

Referral to the South Australian Legal Profession Conduct Commissioner

1. Notwithstanding Mr Koziol's position on costs, in his affidavit made on 9 February 2025, Mr Koziol acknowledged certain shortcomings and, gave evidence accepting his conduct had likely made things more difficult and problematic. He gave evidence as I have observed:

There have also been times when these proceedings have not been my top priority. As a result I accept I have not managed this file as could be expected.

1. In Venter, Carew J considered it appropriate to refer the legal practitioners to the relevant professional regulatory bodies "for consideration of what, if any, investigations or disciplinary or educational process should be undertaken for those legal practitioners."
2. I consider the same approach should be taken here, particularly in light of my findings and from what is apparent in evidence given by Mr Koziol.
3. In Jennings & Barresse,[34] Kari J said, albeit in the context of a solicitor's failure to appear in court on three separate occasions:

The South Australian Legal Practitioners Conduct Rules govern the conduct of legal practitioners in the South Australia ("the SALPC Rules").

On any view, by failing to appear at the three hearings identified, Ms B has principally breached r 3 which provides:

PARAMOUNT DUTY TO THE COURT AND THE ADMINISTRATION OF JUSTICE

3.1 A legal practitioner's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.

In addition, by failing to appear at hearings for her client, and by failing to comply with orders for the filing of documents Ms B also appears to be in breach of r 4 and r 5 which provide:

OTHER FUNDAMENTAL ETHICAL DUTIES

4.1 A legal practitioner must also:

4.1.1 act in the best interests of a client in any matter in which the practitioner represents the client;

4.1.2 be honest and courteous in all dealings in the course of legal practice;

4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible;

4.1.4 avoid any compromise to their integrity and professional independence; and

4.1.5 comply with these Rules and the law.

STANDARD OF CONDUCT - DISHONEST OR DISREPUTABLE CONDUCT

5.1 A legal practitioner must not engage in conduct, in the course of legal practice or otherwise, which:

5.1.1 demonstrates that the practitioner is not a fit and proper person to practise law; or

5.1.2 is likely, to a material degree to:

5.1.2.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or

5.1.2.2 bring the profession into disrepute.

(Emphasis added)

In addition, by failing to complete tasks required of her as the solicitor on record for the mother in the proceedings, and where the mother was beholden to Ms B pursuant to the grant of legal aid in her favour, Ms B additionally appears to be in breach of r 13, which provides:

13. COMPLETION OR TERMINATION OF ENGAGEMENT

13.1 A legal practitioner with designated responsibility for a client's matter must ensure completion of the legal services for that matter UNLESS:

13.1.1 the client has otherwise agreed;

13.1.2 the law practice is discharged from the engagement by the client;

13.1.3 the law practice terminates the engagement for just cause and on reasonable notice; or

13.1.4 the engagement comes to an end by operation of law.

1. In my opinion, it is appropriate for the court to make the referral and for the Commissioner to determine what if any action and investigation ought to follow.
2. To that end, it is appropriate for the Commissioner to be supplied with the orders that I made on 10 February 2025, the reasons for judgment in Schurman & Zahra [2025] FedCFamC2F 273, a copy of these orders and a copy of these reasons for judgment.

1. The maternal cultural grandmother has also applied for an order that the proceedings be transferred to the Federal Circuit and Family Court of Australia (Division 1).
2. Section 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that this court may transfer a proceeding on the application of a party or on its own initiative.
3. In deciding whether to transfer a proceeding, the court must have regard to:

(a) Any Rules of Court;

(b) Whether proceedings in respect of an associated matter are pending in the Federal Circuit and Family Court of Australia (Division 1);

(c) Whether the resources of the Federal Circuit and Family Court of Australia (Division 1) are sufficient to hear and determine the proceeding; and

(d) The interests of the administration of justice.

1. No party spoke against the transfer. For the reasons I have set out, I am satisfied it is in the interests of the administration of justice, having regard to the overarching purpose, for the proceedings to be transferred.

1. I will make orders as set out at the commencement of these reasons.

I certify that the preceding one hundred and seventy-four (174) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris.

[1] [2025] FedCFamC2F 273.

[3] [2025] FedCFamC1F 257 at [27] - [31].

[6] Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at [24].

[7] PBF (as child representative for AF (Legal Aid Commission of Tasmania)) v TRF [2005] FamCA 158; (2005) 33 Fam LR 123 at [41].

[8] Penfold v Penfold (1980) 114 CLR 311 at [13].

[9] In the Marriage of I & I (No 2) [1995] FamCA 80; (1995) 22 Fam LR 557.

[10] [2018] FamCAFC 180; (2018) FLC 93-863 at [23] - [25].

[11] [1993] FCA 536; (1993) 46 FCR 225.

[13] Yunghanns v Yunghanns [2000] FamCA 681; (2000) FLC 93-029 at [31].

[14] [2023] FedCFamC1F 461 at [323] - [324] (footnote omitted).

[15] Gabaldon & Gabaldon [2015] FamCAFC 59 at [150]- [16]; Senfl & Blee [2017] FamCA 901 at [137]- [139]; Gaber & Akhtar (No 2) [2021] FamCA 147 at [23], [29]; Yanez & Yanez [2021] FamCA 148 at [22]; Albert v Plowman [2022] FedCFamC1F 243 at [46].

[16] [2024] FedCFamC1F 862 at [37] - [41] (citations as per original).

[17] Cassidy & Murray (fn 5) at 82,359 and 82,365.

[18] Z (a solicitor) & Limousin (fn 5).

[19] [2006] FCA 671; (2006) 233 ALR 97.

[20] Z (a solicitor) & Limousin (fn 5) at 84,704.

[21] [2014] VSC 400; (2014) 48 VR 1.

[22] [2025] FedCFamC1A 186 at [16] - [17], citing Stoian v Fiening (Costs) [2014] FamCA 944 at [91].

[23] Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51].

[25] [2023] FedCFamC1F 981.

[27] [2025] FedCFamC1F 125 at [32].

[29] [2008] SASC 5.

[31] Legal Services and Complaints Committee v Hardie [2025] WASAT 50 at [104].

[32] [2025] FedCFamC2F 458 at [107] - [111].

[33] Venter & Venter (No 2) at [45].

[34] At [22] - [25] (emphasis as in original).