Tesar & Szep (No 2) [2026] FedCFamC1F 26 (21 January 2026)

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

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

1. On 7 August 2025, the Court delivered Reasons for Judgment to support the Order that the Third Respondent, Ms Anuki be removed as a party to asserted de facto property proceedings between Mr Tesar and Ms Szep (see Tesar & Szep [2025] FedCFamC1F 526 ("the Reasons for Judgment")).
2. On that date, I also ordered how the Third Respondent could exercise her right to pursue an order for costs against a party.
3. On 22 August 2025, the Third Respondent (who hereafter I shall call "the Applicant") filed:

(a) a case outline, which included "contentions", supported by an affidavit of the Applicant's solicitor, Mr K; and

(b) no further submissions in response or otherwise have been filed by the Applicant.

1. On 10 September 2025, Mr Tesar (who I will call "the Respondent") caused to be filed a case outline which included the outline of contentions as to why no order for costs should be made as sought by the Applicant.
2. The Respondent relied upon his affidavit and Financial Statement filed in 2023, to support his response to the costs application - which was curious when the Court had considered, as appropriate that material, when making its Order on 7 August 2025.

1. The principles applicable to costs applications under the Family Law Act 1975 (Cth) ("the Act") are well settled and, although the general rule is that each party bear their own costs (s 117(i)), if circumstances exist to justify an order for costs (after considering factors set out in s117(2A)), then the Court is empowered to make such order as to costs as it deems is just. I rely upon, as necessary, findings made in the Reasons for Judgment.
2. The principles to be applied in costs applications had, for many years, been prescribed by s 117 of the Act, however from 10 June 2025, s 114UB of the Act applies to proceedings heard after that date. At paragraph 8(b) of the Respondent's submissions, reference is made to s 114UB of the Act. As the substantive hearing occurred on 17 November 2023; Judgment was delivered on 7 August 2025 and the costs application was made by submissions filed on 22 August 2025, the Court accepts that s 114UB may apply. The transitional arrangements under sch 4, div 3, s 15 of the Family Law Amendment Act 2024 (Cth) provide that the application of amendments relating to costs shall apply:

(a) to "proceedings instituted on or after the day this Division commences" - being 10 June 2025 as set by the Family Law Amendment Act 2024 (Cth) commencement; or

(b) to "proceedings instituted before, and not finally determined before, the day this Division commences, other than proceedings in respect of which a final hearing has commenced before that day".

1. The substantive proceedings/joinder/removal proceedings were the subject of an interlocutory hearing heard on 17 November 2023, with judgment being reserved that day. Judgment on the joinder/removal issue was delivered on 7 August 2025. As a result, these proceedings had been instituted before the subject amendments commenced, were not finally determined, albeit a hearing had commenced (sch 4, div 3, s 15(b) of the Amendment Act).
2. Section 4 of the Act defines "proceeding" as "...a proceeding in a court, whether between the parties or not, and includes cross-proceedings or an incidental proceeding in the court of or in connection with a proceeding". Under the above circumstances, it can be found that such application for costs is indeed an incidental proceeding in connection with a proceeding. As discussed by Altobelli J in Dajani & Dajani (No 3) [2025] FedCFamC1F 432 (albeit in relation to stay proceedings) (see [63] and [64]), the subject application for costs flows from the substantive proceedings, as but for the substantive proceedings occurring, the costs application would not have occurred.
3. In the circumstances outlined above, I am satisfied that s 117 applies.

1. Somewhat unhelpfully, neither of the contentions of the parties as to costs seemed to follow the legislative pathway set out in s 117 of the Act. It seems more transparent if I attempt to categorise the submissions to the relevant s 117(2A) factors as follows:

(a) There is little information about the Applicant, save that she is the adult married daughter of Ms Szep; has one child and lives with her husband in Brisbane. The Respondent's Financial Statement reveals at that time he was unemployed, with his only asset being superannuation. As many authorities have held, impecuniosity is not a complete answer to an application for costs. Neither party had the benefit of legal aid;

(b) It is the strong contention of the Applicant that she should never have been joined in the alleged de facto property proceedings of her mother and that at the "first call of the Application on 13 September 2023" the Applicant's solicitor raised with the Respondent's solicitor that there was no basis to join the Applicant. Subsequent to the amendment by the Respondent of the claim against the Applicant, on 17 October 2023, the solicitors for the Applicant sent a detailed submission to the Respondent, replying to submissions on the need for joinder;

(c) Faced by the assessment of the Court as set out in the Reasons for Judgment, it is surprising that most of the contentions in the case outline document of the Respondent actually deal with the basis for seeking joinder originally, seeking to assert (at paragraph 9 of the contentions) that the Court did not consider "relevant authorities" in making its decision, to support that no order for costs should be made. This borders on questionable advocacy. The decision has been made, and leave to appeal (as would be required in an interlocutory decision) was not sought;

(d) The Respondent has been entirely unsuccessful in maintaining his joinder of the Applicant. It does not assist the Respondent to contend, as he does at paragraph 20 of his contentions, that paragraph 10 of the Reasons for Judgment (although I assume reference is meant to [21] of the Reasons for Judgment) made the obvious point that a future application might be made if more persuasive evidence were to emerge;

(e) The Applicant, at paragraph 16 of the contentions, says that:

The point here was that there is no reason that this question required a hearing, and the matters found and identified in the decision were both obvious and uncontroversial. It is submitted that the Applicant has elected to prosecute the conduct of its litigation in the most inefficient and contentious way, which is to say nothing, not respond to detailed correspondence, refuse to answer any questions, and then take every point to put before the court without any substantive basis and thus be as difficult as possible.

1. I am satisfied that circumstances exist that justify an order for reasonable costs in favour of the Applicant. I agree with the Respondent's submission however that there are no special circumstances to justify an order for indemnity costs (see Kohan & Kohan [1992] FamCA 116; (1993) FLC 92-340). Further, the solicitor for the Applicant has not, as required, provided details of:

(a) any costs agreements; and

(b) any estimation of costs.

1. The narrow issue and the hope that the issue of what costs are reasonable, are persuasive of trying to fix costs (as the Rules permit), rather than submitting to the extra costs and delays of taxation. However, the Applicant, as is usual in this jurisdiction, has provided no estimate or basis for understanding what the costs award should be.
2. Accordingly, I am satisfied that I should order that Mr Tesar shall pay the costs of Ms Anuki of the application for removal, as agreed, and failing agreement as assessed on scale on a solicitor and own client basis.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.