Warszawski & Warszawski (No 2) [2025] FedCFamC1A 203 (11 November 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 the pseudonym Warszawski & Warszawski has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The appellant (hereafter "husband") seeks costs of the appeal, including, separately costs of his application for costs. The respondent/cross-appellant (hereafter "wife") resists the making of an order for costs. Both parties seek alternate orders in the event their primary relief is refused.
2. The wife did not file a formal response to the husband's Application in an Appeal seeking costs within time but has done so out of time. I am satisfied that there is no prejudice to the husband by the late filing and I grant the wife leave to rely on her Response to an Application in an Appeal filed 3 November 2025.
3. Applications for costs are governed by the provisions of s 114UB of the Family Law Act 1975 (Cth) ("the Act"). The usual rule is that each party meets his or her own legal costs. There may be a departure from the usual rule if the Court finds that there are justifying circumstances.
4. A non-exhaustive list of the matters which may be taken into account in the exercise of the Court's discretion is contained in s 114UB(3) of the Act.
5. The matters which are relevant to determination of this matter are:

(a) The financial circumstances of the parties;

(b) The fact that the wife was wholly unsuccessful in her cross-appeal;

(c) The husband's offers of settlement prior to filing the appeal;

(d) The conduct of the parties to the proceedings.

1. The wife's financial circumstances are superior to those of the husband.

1. The wife filed a Notice of Cross-Appeal. I dismissed the cross-appeal as lacking merit. The husband was required to respond to the cross-appeal.

1. On 20 May 2025 the solicitors acting for the husband wrote to the solicitors acting for the wife to identify "several mathematical errors". In fact, the husband alleged two specific errors. One related to the exclusion of the monies ($803,270) in the wife's Company D account in circumstances where it was not controversial that they existed, their quantum and, that they were in the wife's name. The husband was mistaken about the second asserted error, a fact he acknowledged.
2. In correspondence between the parties' lawyers, the husband proposed that the orders made by the primary judge be amended under the slip rule.
3. The solicitors for the wife accepted, by letter dated 21 May 2025, that the Company D account had been omitted but did not agree to amendment under the slip rule. They argued (as they ultimately did for the purpose of the cross-appeal) that the primary judge's failure to include those funds resulted in an undervaluation of their client's contributions such that the slip rule would be not available. As I indicated in Warszawski & Warszawski [2025] FedCFamC1A 165, I do not accept that the primary judge's exclusion of the monies in the account led to any further error.
4. The husband's solicitors, by letter dated 22 May 2025, said a "change to these Orders needs to occur by consent or alternatively there will be an Appeal." This is not accurate. Rule 10.13(1)(e), (g) and (h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) are available methods by which an order may be varied. They do not require the consent of both parties and may be made on application by one party.
5. On 22 May 2025 the husband made another offer of settlement which provided that the wife pay him $1,002,147 and that otherwise the final orders remain in force.
6. The orders which were made on re-exercise provided that the husband received an amount in excess of that which he offered to accept by way of the offer of 22 May 2025.
7. These offers of settlement are relevant justifying circumstances.

1. Two factors arise: The first is the husband pursuing until the day of the hearing of the appeal two grounds of appeal and only, for the first time in oral argument, abandoning his second ground. The second is the husband failing to seek an order under the slip rule from the primary judge. It is of no moment that the wife did not consent since her consent was not determinative of the merits of the proposed application.
2. Neither of the above matters persuade me that there should not be a costs order in the husband's favour, but they are relevant to my assessment of quantum.

1. The husband sought $22,446 by way of costs of the appeal itself. I am satisfied that there should be an order but that having regard to the matters listed at [15] - [16], it should be for half of the husband's costs. Accordingly, I will make an order that the wife pay the husband's costs in the sum of $11,223 within 21 days. The wife has funds available to her to make the payment, so I see no need to provide that the funds await settlement of the sale of the Suburb B property.

1. The husband sought an order that the wife pay his costs of the costs application in the fixed sum of $10,000.
2. The husband's affidavit says "my estimated costs associated with this application will be approximately $5,000 - $10,000." It is not open to estimate a range and then ask for an order at the top of the range. The husband quite properly set out his costs of the appeal providing an evidentiary basis upon which to determine that application. The same is not true of this application. I accept that husband has incurred legal fees on this application. Absent evidence, doing the best I can, the wife should pay the husband's costs of the costs application in the fixed sum of $2,500.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.