Sieglinde & Umay [2025] FedCFamC1A 169 (18 September 2025)

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 17 April 2025, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders ("the April 2025 orders") under Part VII of the Family Law Act 1975 (Cth) ("the Act") pertaining to the parenting arrangements for the parties five-year-old twin boys ("the children").
2. By a Notice of Appeal filed 12 May 2025 ("the Notice of Appeal") the appellant appealed against orders 1, 2, 3, 4, 6, 7 and 9 of the April 2025 orders.
3. Order 1 of the April 2025 orders discharged all previous parenting orders, orders 2, 3 and 4 provide for the respondent to have sole parental responsibility for the children, the children to live with the respondent and for no time between the children and the appellant. Orders 6, 7 and 9 respectively restrain the appellant from being within 100 metres of the children, permit the Independent Children's Lawyer to provide the reasons for judgement to child protection and otherwise dismiss all outstanding applications.
4. During the hearing the appellant's counsel conceded the appeal lacked merit and leave was therefore granted to the appellant to withdraw the Notice of Appeal.
5. Therefore, the only outstanding issue for determination is the applications of the respondent and Independent Children's Lawyer for the appellant to pay their costs of the appeal in accordance with their respective Schedules of Costs filed 8 September 2025. The appellant resisted both applications for costs.
6. Because the appeal hearing was brought forward by a week, leave was granted to both the respondent and the Independent Children's Lawyer to rely on their Schedules of Costs, notwithstanding the late filing. The respondent sought an order for costs fixed at $31,887 in accordance with the indemnity costs set out in his Schedule of Costs. Despite seeking indemnity costs, counsel for the respondent was unable to articulate any reasons why indemnity costs should be contemplated, nor did she refer to any relevant authority or principles.
7. The Independent Children's Lawyer sought costs fixed at $4,672.80 in accordance with the scale costs set out in his Schedule of Costs.
8. For the reasons that follow, there will be no order for costs and the oral costs applications of both parties will be dismissed.

1. Because the appeal was heard after 10 June 2025, the costs application falls to be determined under the amendments to the Act brought about by the Family Law Amendment Act 2024 (Cth). I observe the considerations in s 114UB of the Act are substantially in the same terms as the previous s 117 of the Act.
2. Parties to proceedings under the Act generally bear his or her own costs (s 114UB (1)), although if there are circumstances which justify doing so (s 114UB (2)), a court may make a costs order. In considering whether to make a costs order, the court must have regard to certain mandated factors (s 114UB (3)).
3. 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 (In the Marriage of I & I (No 2) [1995] FamCA 80; (1995) 22 Fam LR 557).
4. No one factor under s 114UB (3) of the Act prevails over any other factor. Rather, it is a matter of weight that is accorded to each of the relevant factors in the judge's discretion (Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) FLC 93-664 at 80,400). 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 (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another [2005] FamCA 158; (2005) 33 Fam LR 123 at 124).
5. The matters set out in s 114UB (3) of the Act which are relevant to costs in this matter are as follows.

1. There was no objective evidence about the respective financial circumstances of the appellant and the respondent, and none can be gleaned from the reasons of the primary judge, other than observations about the appellant's past impecuniosity at [71], [103] and [258].
2. Counsel for the appellant submitted his client was wholly reliant on Centrelink benefits arising from her care of their teenage daughter, as referred to throughout the reasons. He did not address whether the appellant had any capital assets or other financial resources.
3. Counsel for the respondent submitted the respondent was engaged in employment as a mechanic and earned approximately $700 per week. His income was augmented by Centrelink benefits arising from the care of the children and his older son. She did not address whether the respondent had any capital assets or other financial resources.
4. According to his counsel, the respondent privately funded his own costs of the appeal via personal loans, but no documentary evidence was produced or tendered to support that submission. The respondent's counsel sought to impugn the asserted financial circumstances of the appellant, via vague and unspecified accusations that she had additional financial resources. The source of the asserted information was the respondent. Because of the highly conflictual and acrimonious relationship of the parties, which finding permeates the entirety of the reasons of the primary judge, and the unreliable, conflictual and inconsistent evidence of the parties, as identified by the reasons, I place no weight on that bald allegation.
5. Counsel for the Independent Children's Lawyer, appropriately, did not make any submissions about the financial circumstances of either the appellant or the respondent.
6. I accept each party has limited income and probably extremely modest assets and resources, if at all.

Whether any party is in receipt of legal aid (s 114UB(3)(b))

1. Both the appellant and the Independent Children's Lawyer were legally aided, whereas the respondent was privately funded for the appeal. There were no submissions about the terms of the appellant's grant of assistance. Counsel for the Independent Children's Lawyer submitted his grant of legal aid mandated him to apply for a costs order against an unsuccessful party.

The conduct of the parties in relation to the proceeding (s 114UB(3)(c)

1. Counsel for the respondent was critical of the appellant's conduct throughout the appeal proceedings and submitted the appeal was without merit and conducted in a frivolous and vexatious manner. The grounds, as specified in the Notice of Appeal, were doomed to fail from the outset and the sole remaining ground relied upon via the Summary of Argument was an attempt to raise a fresh argument on appeal, contrary to accepted principles (Metwally v University of Wollongong (1985) 60 ALR 68)
2. The appeal hearing could have been avoided had the appellant withdrawn the appeal prior to the actual hearing. Because the appellant did not do so, the respondent incurred costs responding to the Summary of Argument, which was difficult because the appellant's document did not identify any error and was confusing.
3. Counsel for the Independent Children's Lawyer submitted, in accordance with his Summary of Argument, the appeal had no prospect of success and furthermore the grounds of appeal and the Summary of Argument had no correlation.
4. Counsel for the appellant accepted the late withdrawal of the appeal and the consequences for the other parties. However, he submitted the appellant's conduct was not vexatious or frivolous, but rather her emotionally charged conduct should be viewed in the context of severe emotional distress arising from the final severing of the children's relationship with her.
5. I accept the obvious legal deficiencies in both the Notice of Appeal, as drawn by the appellant and the Summary of Argument prepared by her legal representatives. The Notice of Appeal clearly failed to identify any error of the type required to be established when challenging a discretionary decision, as articulated in House v The King (1936) 55 CLR 499. The Summary of Argument was erroneously predicated on a finding in the reasons of unacceptable risk, when there was no such finding.
6. Notwithstanding the deficiencies in her appeal documents, the appellant, subject to identification of error on the part of the primary judge, had a fundamental right to seek to appeal the primary judge's decision and to prosecute her appeal. Having regard to the personal circumstances of the appellant, as articulated by the reasons of the hearing below, I do not consider the appellant's conduct in the appeal could properly be characterised as vexatious or frivolous. Those personal circumstances include her time in Country B in 2013 and her travel to Australia via Christmas Island with an infant (at [8]), her two and a half years in detention centres, including a transfer 11 times between City C, City D, City E and City F at [9], her experiences of detention (at [10]), removal of her baby (at [12]), an alleged assault or rape by her then partner (at [18] and [20]), removal of her daughter for three months (at [23]), her relinquishing the children into the father's care on three occasions because of lack of housing and inability to feed them, ongoing conflict and tenson between the parents (at [46]) and the ultimate decision reached whereby the children are not to have any future relationship with their mother. I accept the appellant's conduct was not motivated by malevolence, or a desire to be vexatious or frivolous and accept the submission of her counsel in that regard.

Whether any party to the proceedings has been wholly unsuccessful (s 114UB(3)(e)

1. It is evident the appellant was wholly unsuccessful in the appeal.

1. Having weighed and balanced the relevant considerations, and in the exercise of my broad discretion, I am not satisfied there are circumstances warranting departure from the usual principle that each party bear his or her own costs and there will be no order as to costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice William.