Wellington & Wellington (No 3) [2026] FedCFamC1F 137 (3 March 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 Wellington & Wellington (No 3) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons for judgment explain why the Court has dismissed the Application in a Proceeding filed by the applicant on 23 October 2025 ("the applicant's costs application"), the Application in a Proceeding filed by the respondent on 11 November 2025 ("the respondent's costs application"), and allowed elements of the respondent's Application in a Proceeding filed 15 January 2026 ("the extension application") (collectively "the parties applications").
2. Most of the litigation between the parties, including the present applications, were unnecessary. As will be seen below, the matter settled on 25 September 2025, having been initiated on 2 July 2024. Section 95 of the Family Law Act 1975 (Cth) ("the Act") relevantly states:

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 for 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.

1. Section 96 of the Act relevantly states:

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. In this case, the parties and their legal representatives plainly lost sight of the obligations imposed on them under s 96 of the Act.

1. The parties resolved their substantive disputes under the Act by consent following a Court based Dispute Resolution Conference on 25 September 2025 (Orders of Senior Judicial Registrar Ferreira dated 25 September 2025 ("the 25 September 2025 Orders")).
2. The parties' costs applications arise from September 2025 Orders and allegations surrounding how the parties came to this agreement. It is therefore pertinent to briefly outline the contents of the September 2025 Orders.

1. Regarding parenting issues, the parties broadly agreed that they share parental decision-making responsibility for their children, that the children live with the respondent, that the parties eldest child communicate and spend time with the applicant in accordance with their wishes, and that the youngest child spend time with the applicant during the school holidays, on the fifth weekend of each school term, and on Saturday's and Sunday's via video communication. The parties also agreed to remove their children's names from the Family Law Watchlist and for various personal protection injunctions to be made.
2. Regarding property adjustment issues, the parties broadly agreed that a New Zealand property be sold and the funds distributed to certain debtors and the parties, that the applicant receive superannuation funds from the respondent and that the respondent receive the former matrimonial property in Australia.

1. The applicant's costs application seeks the following:
   1. An Order awarding legal costs in the sum of $38,000 on indemnity basis to the Applicant.
   2. Or in the alternative, an order awarding costs in the sum of $28,097.28 on a party by party basis to the Applicant
2. The respondent's costs application seeks the following:
   1. An Order awarding legal costs in the sum of $48,650 on indemnity basis to the Applicant.
3. Following the filing of the parties costs applications this Court made Orders on 4 December 2025 directing the parties to file further documents in support of their own case, and in reply to the case pressed against them. All material was scheduled to be finalised and filed by 15 January 2026.

1. On 8 January 2026 the Applicant filed written submissions in accordance with my trial directions. At paragraphs one and two of these submissions it was contended that the Court should strike out the respondent's costs application as it was "ipso facto incompetent as it runs afoul of Rule 12.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021... that require[s] costs application to be filed within 28 days after the final orders were given in the matter".
2. The respondent did not cavil with this contention by way of written response, rather she filed the extension application seeking the following:
   1. Pursuant to rule 15.06, the time fixed by rule 12.13(3)(b) be extended to 11 November 2025 (nunc pro tunc).
   2. Alternatively, and/or additionally, pursuant to rule 1.31, compliance with rule 12.13(3)(b) be dispensed with the interests of justice.
   3. Pursuant to rule 15.06(1), the time for service of this application and supporting affidavit be shortened such that service by email to the Applicant's solicitor is sufficient; [...]@[...]
   4. The application be listed and determined urgently on the papers at the chambers hearing listed for 16 January 2026 at 8:00am before Altobelli J (or as soon thereafter as the Court is able).
   5. The Applicant's objection that the application costs are incompetent is incompetent be dismissed.

6. Costs of the urgent application: costs reserved

GROUNDS FOR URGENCY

1. On 4 December 2025 the Court ordered that both parties' costs applications (including my costs application filed 11 November 2025) be determined on the papers and set a timetable for submissions.

2. Under those orders, reply submissions are due by 4:00pm on 15 January 2026 and thereafter judgment is reserved.

3. On 8 January 2026 the Applicant Father filed submissions asserting my costs application is incompetent because it was filed outside 28 days and because no extension application had been filed.

4. I bring this application promptly so that the Court may, if necessary, extend time and/or dispense with compliance and determine the costs applications on their merits without adjournment, additional delay, or additional cost.

C. Listing / determination

This application is sought to be determined on the papers at the chambers hearing listed for 16 January 2026 at 8:00am.

1. Upon receiving the extension application this Court made further orders on 16 January 2026 directing the parties to file short form written submissions in relation to extension sought by the respondent.

1. Before the Court determines the merit of the costs sought by the parties, it must first decide whether the respondent to be permitted to rely upon her costs application and accompanying material.
2. The respondent sought that the Court exercise its discretion in two manners.
   • Firstly, that an order be made pursuant to r 15.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") that would retrospectively extend the time fixed for the filing of costs applications in r 12.13(3)(b) to allow the respondent's costs application to be relied upon; and
   • Secondly, that the Court use its general powers under r 1.31 of the Rules to determine that it is in "the interests of justice" for compliance with r 12.13(3)(b) to be waived such that the respondent would be able to rely upon her costs application.
3. With respect to the parties, both the opposition to the Court relying on the respondent's costs application, and the filing of the extension application itself were misconceived. The Court nonetheless provided an opportunity for the parties to explain their respective positions. Nothing submitted distracts the Court from the following proposition.
4. Rule 1.31 of the Rules states the following:

1.31 Court may make orders or dispense with these Rules

(1) The court may, in the interests of justice, dispense with compliance, or full compliance, with any of these Rules at any time.

(2) If, in a proceeding, the court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the court prevails in that proceeding.

1. This Court made Orders on 4 December 2025 asking the applicant to file an affidavit and written submissions in reply to the respondent's costs application (Order 4). Such direction is an implicit acceptance by the Court of the operative validity of the respondent's costs application. It is a direction inconsistent with the Rules (r 1.31(2) of the Rules). The 4 December 2025 Orders ought to have placed the applicant on notice that this Court took no issue with the date of filing of the respondent's costs application. The respondent is permitted to rely on her costs application.
2. The Court dismisses any claim by the respondent for her costs incurred in the preparation of the extension application to be reserved. The applicant should have known that it was futile to press any objection to the respondent's costs application in his written submissions filed 8 January 2026. The respondent did not need to respond to this, either in her own written submissions in reply, and certainly not within a separate filed Application in a Proceeding. The respondent's choice to pursue relief against an allegation she should have known was doomed to fail vitiates any relief she may seek regarding the costs of the extension application. Indeed, the respondent's course of conduct in filing the extension application likely caused the applicant further unnecessary costs.
3. The remaining balance of the extension application is dismissed.

1. Having determined the extension application, the scope of material before the Court is clear.
2. In support of the applicant's case, he relies upon:

(a) The applicant's costs application;

(b) Affidavit of the applicant dated 23 October 2025 ("the applicant's 23 October 2025 affidavit");

(c) Affidavit of the applicant dated 18 December 2025 ("the applicant's 18 December 2025 affidavit");

(d) Affidavit of the applicant dated 8 January 2026 ("the applicant's 8 January 2026 affidavit");

(e) Affidavit of the applicant dated 30 January 2026;

(f) Written Submissions filed 18 December 2025 ("the applicant's written submissions");

(g) Written Submissions filed 8 January 2026;

(h) Written Submissions filed 16 January; and

(i) Written Submissions filed 30 January 2026.

1. In support of the respondent's case, she relies upon:

(a) The respondent's costs application;

(b) The extension application;

(c) Affidavit of the respondent filed 11 November 2025 ("the respondent's 11 November 2025 affidavit");

(d) Affidavit of the respondent filed 8 January 2026 ("the respondent's 8 January 2026 affidavit");

(e) Affidavit of the respondent filed 15 January 2026 ("the respondent's 15 January 2026 affidavit");

(f) Written Submissions of the respondent filed 18 December 2025 ("the respondent's written submissions");

(g) Written Submissions of the respondent filed 8 January 2026;

(h) Written Submissions of the respondent filed 15 January 2026;

(i) Written Submissions of the respondent filed 20 January 2026; and

(j) Written Submissions of the respondent filed 30 January.

1. The amendments to the Act brought into effect by the Family Law Amendment Act 2024 (Cth) on 10 June 2025 apply to these competing applications. Section 114UB the Act is the central provision concerning costs orders and replaces the now repealed s 117 of the Act. Section 114UB is in materially the same terms as the repealed s 117. Neither party contended otherwise. I am satisfied that the body of authority decided under s 117 remains applicable.

1. Section 114UB(1) (formerly s 117(1)) makes clear that ordinarily there will be no costs orders in family law proceedings. The reason for this is obvious: the applicant will almost always "succeed" in the sense that some orders will be made in parenting or property settlement proceedings and if the applicant obtaining orders were the test, then parties would race to be the first to file. More fundamental is that costs consequences are not generally appropriate for parties who are litigating the difficult issues surrounding the breakdown of spousal or parenting relationships.
2. As was stated by Riethmuller J in Tekla & Tekla [2025] FedCFamC1A 245 at [51] ("Tekla"):

It is important to be mindful of the reality that litigants in family law matters are not sophisticated litigators. They often have low incomes and limited assets. Family law litigation concerns highly emotive issues and is often the only litigation that litigants will have in their lives. There is little market information on family law legal services that enables unsophisticated litigants to compare fee rates or quality of services.

1. The Court must ensure that real regard is had to the repeated statements that require costs to be proportionate to the importance and complexity of the matters in dispute (see the s 95(2)(e) of the Act; Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67(2)(e) and s 190(2)(e); Central Practice Direction: Family Law Case Management Schedule A, paragraph 2(a)(v) and paragraph 7(a)), and that costs be "fair, reasonable and proportionate" (r 12.08 of the Rules")).

1. The Court has a wide discretion, which is to be exercised judicially (Parke & The Estate of the Late A Parke [2016] FamCAFC 248; (2016) FLC 93-748; Atkins & Hunt and Ors (Costs) [2017] FamCAFC 131). When considering what, if any, order for costs should be made, the Court must have regard to the factors set out in s 114UB(3):

(3) In considering what costs order (if any) should be made, the court must have regard to the following:

(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;

(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. Although the Court is required to consider each of the abovementioned factors, it is plain that their relevance to a particular matter will depend upon the circumstances of that case and they should be considered in that light. That is, no one factor prevails over another and it is a question of the weight that is to be afforded to each of the relevant factors depending on the circumstances of the matter (Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) FLC 93-664 at [24]). There is also "nothing to prevent any factor being the sole foundation for an order for costs" (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish & Another [2005] FamCA 158; (2005) 33 Fam LR 123 at [41]).
2. Whilst an applicant must establish the circumstances justifying the making of a costs order, the Court is not limited to making such an order only in what has been described as a "clear case" (Penfold v Penfold (1980) 144 CLR 311).

1. The costs discretion is a broad one (particularly when fixing modest sums for costs). The provision relating to the calculation of costs is governed by r 12.17(1) of the Rules which is as follows:

(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.

(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 cases;

(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; and

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

1. The bases are not limited by the Rules (Sfakianakis & Sfakianakis [2019] FamCAFC 54; (2019) 59 Fam LR 419 ("Sfakianakis") at 420-421). It is even open to the Court to make a special costs order that sets the amount without specifically choosing a particular basis for assessment. However, a costs order must lead to an assessment of costs that is just (s 114UB(2)).
2. Although the Rules do not limit the bases upon which costs may be assessed, they specifically identify three bases of assessment:

(1) Party and party costs;

(2) Solicitor and client costs; and

(3) Indemnity costs.

1. The traditional definition of "party and party" costs is the costs "necessary or proper for the attainment of justice or for maintaining or defending the rights of a party" (see High Court Rules 2004 (Cth) r 55.01 and Family Law Rules 2004 (Cth) (repealed) r 19.34 ("the 2004 Rules")). In the current Rules, there is no general definition of the "party and party" basis of assessment, however r 12.47(3) imposes these restrictions by prohibiting costs that are "incurred because of improper, unnecessary or unreasonable conduct by a party". Rule 12.18(2) specifically limits the costs that may be recovered on a party and party basis to those set out in the scales contained in the schedules to the Rules.
2. The category of "party and party" costs in the Rules is best understood as the hourly rates and the number of hours which would be necessary or proper for the attainment of justice or for maintaining or defending the rights of a party for the average case in Division 1.

1. There is no definition of "solicitor and client" costs in the Rules. However, it is clear that the reference to "solicitor and client" in r 12.17 is not a reference to "solicitor and own client" costs, which would include all costs the client incurred with the solicitor regardless of the reasonableness of those costs (Bouras v Grandelis [2005] NSWCA 463; (2005) 65 NSWLR 214 ("Bouras v Grandelis") at [18]-[20] per Giles JA).
2. In Bouras v Grandelis at [126], Santow JA said that "[a]n order for solicitor and client costs will allow all reasonable costs or all costs as fair justice to the other party will allow. The onus of proving that the costs are reasonable falls on the receiving party" (cited with approval in Hand & Bodilly [2013] FamCAFC 98 at [102]). The distinction between "party and party" costs and "solicitor and client" costs (both with respect to the items of work done and the charging rates) is between "necessary or proper" and "reasonable". It is not difficult to imagine items or rates where a fee higher than the "necessary" fee may still be "reasonable".

1. The definition of "indemnity" costs can be gleaned from r 12.47 of the Rules, which says:

12.47 Assessment principles

(1) A Judicial Registrar must not allow costs that, in the opinion of the Registrar:

(a) are not fair and reasonable; or

(b) are not proportionate to the issues in the proceeding.

(2) If the court has ordered costs on an indemnity basis, the Judicial Registrar must allow all costs reasonably incurred and of a reasonable amount having regard to, among other things:

(a) the scale of costs in Schedule 3; and

(b) any costs agreement between the party to whom costs are payable and the party's lawyer; and

(c) charges ordinarily payable by a client to a lawyer for the work.

(3) In assessing costs as between party and party, a Judicial Registrar must not allow:

(a) costs incurred because of improper, unnecessary or unreasonable conduct by a party or a party's lawyer; or

(b) costs for work (of a kind or amount) that was not reasonably required to be done for the proceeding; or

1. As "indemnity" costs are limited to costs "reasonably incurred and of a reasonable amount" the relevance of the costs agreement is that it is some evidence of the rate that the person seeking a costs order alleges is "reasonable".
2. Indemnity costs, as defined in the Rules, are not "solicitor and own client" costs; that is, indemnity costs are not simply the amount paid by the client pursuant to their costs agreement with their own solicitor because the Rules impose a test of reasonableness. As the Full Court said in Sfakianakis at [36]:

... An indemnity costs order is not a blank cheque permitting the successful party to pay his or her lawyers the amount they, or the lawyers, see fit.

1. The difference between "solicitor and client" costs and "indemnity" costs (both being based upon reasonableness) is nuanced. Rule 12.47(1) provides that a Registrar "must not allow costs that ... are not fair and reasonable", and r 12.47(2) provides for a Registrar to "allow all costs reasonably incurred" when assessing indemnity costs. The difference in wording is best understood as reflecting a different onus of proof on an assessment. When "solicitor and client" costs are ordered, the onus of persuading the Court or Registrar that a rate or item is "reasonable" is upon the person seeking costs; in the case of "indemnity" costs, the person challenging the costs must persuade the Court or Registrar that the rate or item is not "reasonable". The effect of the difference in onus will commonly result in greater amounts being allowed on an "indemnity basis".

1. As a preliminary point, this Court's direct involvement in this matter was minimal. Indeed, the last time this Court made contested orders between the parties was in relation to a Notice of Objection - Subpoena on 7 April 2025. Further, the last substantive parenting orders made by this Court occurred on 5 December 2024, where only certain discrete issues were unable to be resolved by consent. It is apparent that the Court has heard no fresh evidence in some time, and what evidence that was previously before the Court is almost certainly stale.
2. The above matters pose a fundamental difficulty when determining certain aspects of the current proceedings, especially where material is only lead 'on the papers'. To the extent relied upon by both parties, assertions made within written submissions cannot be used as a basis for factual findings, as written submissions themselves are not 'evidence' (Quen & Chen [2025] FedCFamC1A 39; (2025) FLC 94-242 at [56]; Randwick City Council v Fuller [1996] NSWCA 444; (1996) 90 LGERA 380 at [382]). Naturally, where annexed evidence allows, independent third-party accounts provide, or natural inferences permit, findings will be made. However, where competing allegations are made in the parties' affidavit evidence, without other support, the Court will not make definitive findings.
3. The absence of certain findings will greatly impact the Court's exercise of discretion based on the factors listed in s 114UB of the Act.

1. The Court further pauses to note at the outset of any substantive consideration of this case that the evidence lead by the parties to substantiate their costs sought are manifestly deficient.
2. It is understood that the applicant asserts his party-party costs to be $30,615, and his solicitor-client costs to be $38,000 (the applicant's 8 January 2026 affidavit, paragraph 7). This Court struggles to accept these propositions by the applicant. The errors committed by the applicant's legal representative aligns with that identified recently in Tekla. Annexure C2 of the applicant's 8 January 2026 affidavit is entirely deficient in expressing a mathematical rationale for how such a figure of costs was calculated, and, in proving that such costs were reasonable in the circumstances of the case.
3. The applicant does not provide an itemised schedule of costs with reference to specific items billed against categories identified in Schedule Three of the Rules. In this absence, the Court would only be guessing if it attempted to suggest whether the costs supposedly incurred were reasonable, as is a pre-requisite to any order for party-party or solicitor-client costs in this jurisdiction. As Campbell J observed in Hazan v The Manager, Costs Assessment [2023] NSWSC 1587 at [31]:

Even in good faith, a case might be overworked by diligent lawyers so that more work than is reasonably necessary, even performed at a reasonable rate of renumeration, might produce an overall result which is disproportionate...

1. Whilst it is open for this Court to calculate costs for the applicant on a lump sum scale for Division 1. Arguably it should not do so for fear of rewarding poor practice by way of precedent. As stated by Riethmuller J in Tekla at [43], "The primary judge could have calculated the costs... however ought not to have been put to that process: the solicitor for the [applicant] ought to have provided the calculation to the primary judge". The Court will stand reserved on this issue until analysis of the s 114UB factors has occurred.
2. Regarding the respondent's evidence as to the proof of her costs incurred, she asserts that her party-party costs incurred in these proceedings were $48,650 (the respondent's 8 January 2026 affidavit, paragraph 2(a)). She attempted to provide a schedule in conformance with Schedule Three of the Rules, however, failed to properly do so. This schedule appears as Annexure A1 to the respondent's 8 January 2026 affidavit. Issues with this schedule are as follows.
   • The schedule is not impartial. It contains a column titled "Father conduct trigger (costs causation)". This is argumentative and ought to be struck out pursuant to r 8.18(1) of the Rules. It is for the Court to find, if the evidence permits, what conduct lead to the generation of certain legal costs. Such a finding is an integral part of any justification of reasonableness under the Rules and s 114UB of the Act.
   • The schedule is not specific. Such specifics would have been available from any invoices sent to the Respondent by her solicitors; as was the respondent's right to request under s 187 of the Legal Profession Uniform Law 2014 (NSW). The Court is unable to determine what costs were incurred on what dates. Further, the Court is unable to determine how long the respondent's solicitor spent on the tasks outlined. Merely listing item codes from Schedule Three of the Rules and stating that, pursuant to these codes, costs were incurred in a lump sum amount across multiple month-long periods is unacceptable.
   • The schedule contains impermissible costs. The respondent's legal representatives filed a Notice of Ceasing to Act on 30 June 2025. The respondent managed her own proceedings in this Court since at least 18 June 2025; when she filed a Notice of Address for Service. It is therefore entirely impermissible to allow the mother to claim legal costs for the period of "Nov-Dec 2025" as sought. The mother is not a lawyer, nor if she were, would she be able to claim costs for running her own litigation (Bell Lawyers Pty v Pentelow (2019) 269 CLR 333).
3. As expressed regarding the applicant's deficient proof of costs, it is open to this Court to fix some lump sum amount for costs, based upon judicial experience or comparison to the costs sought by the other party. Whether the Court chooses to do so in these circumstances will be guided by its analysis of the s 114UB factors as they relate to the parties. As will be seen below, the Court will decline to do so.

Section 114UB(3)(a): Financial circumstances of the parties

1. Both parties claim financial circumstances to be a factor acting in their favour in consideration of any award of costs. Neither, however, in the view of this Court take the matter beyond mere aspersions at how the other is financially better or worse off than the other. That is not the point of these proceedings, nor does it form any part of a proper legal claim for costs in this jurisdiction.
2. As an example, in the applicant's 23 October 2025 affidavit he states the following:
   1. The Respondent earns a up to $222,743 plus 17% superannuation as [an educator]. Evidence of this is attached as Annexure I. In addition to her [income], she also earns a rental income of not less than $29,640 per annum. The Respondent has a minimum annual income of $250,374 excluding superannuation benefits.
   2. I only earn an annual income of $120,000 which is less than 50% of the Respondent's income.
   3. I have incurred a total sum of $38,000 in legal fees from the commencement of this action in July 2024 till date.
3. Regardless of the accuracy of any of the figures presented, this can only be seen as the airing of longstanding grievances between the parties. It does not suggest that the applicant is impecunious, nor does it recognise that the higher income earner has the majority care of the children, and in turn, likely bears the bulk of the costs of raising the parties' children. Indeed, the focus of 114UB(3)(a) of the Act is broad contextual regard to the financial circumstances of the parties, a matter not recognised by the applicant. Nonetheless, if the applicant sought to contend that he was without financial means to satisfy any order for costs, this should have stated so with greater specificity.
4. To the extent that the applicant seeks to rely on the principle espoused In the Marriage of Kelly v Kelly [1996] FamCA 70 at paragraph 2 of his written submissions, this must be given little weight. The Court does not deny that the respondent has more financial means, however, she too would have incurred legal fees and currently supports the parties' children. In such circumstances, any surplus in her income, if there is indeed any, would likely benefit the children, either directly or indirectly. A mere comparison between the income of the two parties is unlikely to illuminate much. Indeed, it does little to rebut the general principle in favour of parties bearing their own costs under the Act.
5. The respondent claims at paragraphs 19-25 of her 11 November 2025 affidavit:

I am currently struggling financially and have to depend on family and friends to support me financially. I set out my present financial position truthfully and to the best of my knowledge. My income for the 2024-25 year was $196,00. My current net monthly income is $9,400. Currently our outgoing expenses is more than my income. My vehicle is a family vehicle of modest value in 2025.

Currently the children's expenses are approximately $16,349.92 per annum (see Exhibit 6)

Future extraordinary expenses for the two dependent children until age 18 are projected at $120,436 (Exhibit 7).

The father has refused to contribute beyond the basic child support assessment and has threatened legal action when approached for additional support (See Exhibit 8)

I have no substantial liquid assets and outstanding unsecured debts of approximately $38,000.

Supporting Financial documentation is annexed as Exhibit 9 - Financial Statement.

The Respondent's income and asset position are likely comparable or higher, but his incomplete disclosure obscures his true financial capacity.

1. The mother further particularised her financial position at paragraphs 17-22 of her 8 January 2026 affidavit:

I pay for the children's education, extracurricular activities, specialist medical appointments, medication, therapy, and health insurance (Annexure B4).

I am experiencing financial hardship and have relied on loans from family and friends to meet essential expenses.

I have a mortgage of approximately $1.108 Million with monthly repayments of about $6,500 (Annexure B5).

I have unsecured debts of approximately $38,000.

My monthly expenses are approximately $11,500 and exceed my net monthly income of approximately $9,400 (Annexure B1).

The children's expenses were $16,349.92 in 2024 and $18,675 in 2025, with projected expenses of $120,436 until Emmanuel turns 18 (Annexure B4).

1. The Court accepts that quantum and veracity of the mother's mortgage, and that fact that the mother currently spends more than she earns, in part, because of the children. No evidence is proffered to substantiate the mother's unsecured debts. This existence of these liabilities are outside the scope of the Court's fact-finding powers.
2. The Court does not accept the respondent's evidence of the children's future costs at Annexure B4 to her affidavit filed 8 January 2026. Although supplying the underlying proof of the costs identified at Annexure A4 to the respondent's 15 January 2026 affidavit, her evidence about this issue is inadmissible. Pursuant to r 8.18 of the Rules the opinion rule (s 76 of the Evidence Act 1995 (Cth) ("Evidence Act")) is enlivened in certain proceedings under the Act. It appears to the Court that the Annexure A4 to the respondent's 15 January 2026 affidavit attempts to summarise the expenses in a manner akin to s 50 of the Evidence Act. It however does not do so. The Court has no information about whether the schedule was served on the applicant, nor does the Annexure contain the name of the person who prepared the schedule (Evidence Act s 50(2)(a)). By virtue of the operation of the opinion rule, the Court does not accept as admissible the mother's evidence of the children's future costs.
3. The Court, nonetheless, accepts the possibility that the mother's costs outstrip her income at present. Especially given the medical conditions of the parties' children (the respondent's 8 January 2026 affidavit, paragraph 15). Even so, impecuniosity is no basis for resistance to a costs order if circumstances permit.
4. On balance, the parties' financial circumstances do not persuade this Court to dispense with the default rule on costs.

Section 114UB(3)(b): Whether the parties are in receipt of legal aid

1. The Court does not view this factor is relevant. The applicant is privately legally represented, and the respondent chose to represent herself.

Section 114UB(3)(c): The conduct of the parties

1. The main thrust of the parties' respective case for costs surrounds cross-allegations of conduct that unnecessarily extended the substantive proceedings and caused wasted costs. It is unnecessary to engage with every single allegation made one party against the other. To do so would give most allegations unwarranted credence and distract from the central issue in this case; that both parties behaviour in the litigation was less than optimal.
2. The applicants conduct contentions can be broadly summarised as follows:
   • That the respondent took the parties children on an international trip to which the applicant did not consent (the applicant's 23 October 2025 affidavit, paragraph 2);
   • That the respondent deliberately altered settlement terms frustrating an in-principal agreement between the parties on financial matters (the applicant's 23 October 2025 affidavit, paragraphs 5-6);
   • That the respondent failed to declare certain monies received during the proceedings (the applicant's 23 October 2025 affidavit, paragraph 8); and
   • That the respondent improperly reduced the total equity within a property owned by the parties in New South Wales (the applicant's 23 October 2025 affidavit, paragraph 9).
3. The respondent's conduct contentions can be broadly summarised as follow:
   • That the applicant withdrew from mediation on 10 October 2024 without reasonable cause (the respondent's 11 November 2025 affidavit, paragraph 9);
   • That the applicant filed redundant material causing the respondent delay and further costs (the respondent's 11 November 2025 affidavit, paragraph 9);
   • That the applicant did not comply with his duty of disclosure (the respondent's 11 November 2025 affidavit, paragraph 9);
   • That the applicant engaged in "pattern of coercive and controlling behaviour after separation, directed at both me and the children, aimed at maintaining intimidation and control despite physical separation" (the respondent's 11 November 2025 affidavit, paragraph 29); and
   • The applicant amended his proposal on the day of an interim hearing scheduled to commence 5 December 2025 causing further preparation time and costs (the respondent's 8 January 2026 affidavit, paragraph 27);

1. The Court declines to make particular findings as sought by the parties in the present context of a costs application arising out of consent orders, dealt with on the papers, where many of the allegations are vague, insufficiently particularised, and are plainly inconsistent with the settlement of the case by way of consent orders.
2. A strong impression may nonetheless be formed based the allegations made, the material adduced by each party, and the Court's experience during the period when the Court was directly involved with the parties. That strong impression is that each party's conduct of the litigation was completely disproportionate to the issues in dispute. Both parties, and their lawyers, simply lost sight of their statutory duty under s 96 of the Act to act consistently with the overarching purpose set out in s 95 of the Act.

Section 114UB(3)(d): Failure to comply with orders of the Court

1. Both parties allege that the other has not complied with orders. In the context of the present proceeding the Court again declines to make any dispositive findings.
2. Even if the material before the Court were suggestive of possible non-compliance, the litigation behaviour of both parties would contraindicate making a costs order under this subsection.

Section 114UB(3)(e): Whether a party has been wholly unsuccessful in the proceedings

1. On the words of the Act alone, this Court is to consider whether a party has been wholly unsuccessful in the proceedings; not whether a party has been relatively successful in prosecuting varying applications within the proceedings.
2. To be "unsuccessful" an application must be dismissed without merit (In the Marriage of S R Higginbotham and G M Robinson (1991) FLC 92-209; Anison & Anison (2019) Fam LR 581 at [37]). To be wholly unsuccessful is a higher bar. As stated by the Full Court in Peake v Benedict (Costs) [2014] FCCA 2723; (2014) 53 Fam LR 476 at [138]:

...wholly unsuccessful means there was no justified basis for the position adopted having regard to the outcome of the proceedings. Being "wholly unsuccessful" must look not just at the outcome but the position adopted by the party as well.

1. Given that the parties settled the substantive parenting and property proceedings by consent on a final basis without any form of final contested hearing, this Court is not of the view that this consideration is relevant. Clearly the positions adopted by the parties were amendable to mutual resolution. The parties ought not have agreed to orders that they were not prepared to be bound by. In this sense, whilst certain parties may have viewed the outcome of certain orders either more, or less favourable, on balance the suite of orders produced must have been palatable. No party was wholly unsuccessful.

1. The applicant suggests in his 18 December 2025 affidavit the following:
   1. In December 2024, I made an offer for the settlement of the financial matter to the Respondent which she rejected. Evidence of the settlement offer is attached is attached as Annexure D.
   2. In June 2025 following a conciliation conference where the Respondent and I agreed that I would receive $77,000 from the Respondent's Australian superannuation and 72.5% of the total amount realized from the sale of the New Zealand property, the Respondent subsequently unilaterally introduced new terms varying the terms of the settlement such that the Applicant would only receive $38500(AUD) from the Australian super and $38500 (NZD) from her [G Company] account in New Zealand thereby reducing my overall share of the family pool. Evidence of this is annexed as Annexure E.
   3. I accepted this only for the Respondent to ask for a further 10% reduction in my share of the sum realised from the sale of the New Zealand property. Evidence of this is attached as Annexure F.
2. The respondent suggests in her 8 January 2026 affidavit the following:

Reasonable offers and avoidable litigation

1. I made four formal parenting offers on 18 August 2024, 29 August 2024, 18 November 2024, and 22 November 2024 (Annexure C1).

2. Each of the offers referred to in the previous paragraph was rejected by the Applicant Father through his solicitor (Annexure C2).

...

1. The final parenting outcome was broadly consistent with the positions in my earlier offers, as compared in Annexure C4...

...

1. I made three settlement offers in the financial proceedings on 23 January 2025, in March 2025, and on 14 July 2025 (Annexure D1).
2. Each offer referred to in the previous paragraph was rejected by the Applicant Father, and his counteroffers are in Annexure D2.

1. It therefore seems that both parties seek to rely on s 114UB(3)(f) of the Act as a justification for a costs order. In order to persuade the Court of any merit in these claims the alleging party "bears the onus of demonstrating the offer was reasonable, or that it was not reasonably accepted by the [other]" (Penner & Conroy [2022] FedCFamC1F 283 at [37]).

1. For much the same reasons as rejecting the respondent's evidence of the children's future costs, this Court reject the respondent's evidence surrounding the parenting offers she made as identified in Exhibit C3 at page 72 to her 8 January 2026 affidavit.
2. The issues with this are as follows:
   • Despite suggesting that she made four formal offers to settle the parenting proceedings on 18 August 2024, 29 August 2024, 18 November 2024, and 22 November 2024, this does not appear to be accurate. The first offer to settle parenting proceedings provided to the Court was sent by the respondent's legal representatives on 19 August 2024 (the respondent's 8 January 2026 affidavit, page 120);
   • Within Exhibit C3 the respondent does not make any reference to an offer made by the applicant on 31 July 2024, despite this being included in her 8 January 2026 affidavit at pages 129-136; and
   • The respondent does not provide any documentary evidence about the actual terms of the offers allegedly sent on 29 August 2024, 18 November 2024, and 22 November 2024.
3. Further, Annexure C3 contains three columns that are argumentative and ought to be struck out, "Key Terms of Offer", "Departure From Final Agreement" and "Notes on Reasonableness/Movement". These are matters of which the Court retains sole dominion of fact finding within. It is inappropriate for the respondent to enter the arena in the manner attempted.
4. Finally, Annexure C3 does not procedurally conform with s 50 of the Evidence Act. The Court has no information about whether the schedule was served on the applicant, nor does the Annexure contain the name of the person who prepared the schedule (Evidence Act s 50(2)(a)).
5. The applicant, however, gains no benefit in this regard.
6. The applicant does not attest to making any formal offers to settle the parenting proceedings. The Court notes that the Act and the Rules place an obligation on him to make such offers both at the outset of the proceedings and before any interlocutory orders are sought, so it would be plainly implausible for him not have made any such offers. Notwithstanding this, it appears from the respondent's own material that the applicant did make at least one offer to settle parenting matters (the respondent's 8 January 2026 affidavit, pages 129-136). On this basis, the Court is left to infer that either the applicant sent an offer and deliberately not included it in his material, or, that the applicant has sent an offer and inadvertently not included it in his material. Either way, the manner in which the applicant pled this aspect of his case is deficient and weighs against him in any exercise of the Court's discretion as to costs.

1. The Court views that there is little import in analysing financial offers in circumstances where the parties settled the matter by consent. Clearly offers were made, and at least one of those offers were acceptable to both parties.
2. The Court has had regard to the offer of the applicant attached as Annexure D to his 18 December 2025 affidavit. The offer was sent on 23 December 2024, is headed "Financial Matter Settlement Offer Without Prejudice" and was identified to conform to the principles in Calderbank v Calderbank [1975] 3 All ER 333 ("Calderbank v Calderbank"). Offers made pursuant to Calderbank v Calderbank are "undoubtedly a relevant authority in claims in this jurisdiction for indemnity costs" (Cotter & Eggers-Cotter (No 2) [2015] FamCA 1008 at [25] ("Cotter & Eggers-Cotter (No 2)"); see also Messiter v Hutchinson (1987) NSWLR 525).
3. Offers made in accordance with Calderbank v Calderbank are "useful in establishing that the rejection of an offer was unreasonable rather than that the offer was reasonable" (Cotter & Eggers-Cotter (No 2) at [26]). In Cotter & Eggers-Cotter (No 2) at [27] Cronin J further added that:

To be unreasonable, the response to an offer must take into account the recipient's perception of the sense of the outcome. It would be unreasonable to continue on with litigation after an offer was made if the intention of the recipient was to just make life unpleasant or to run up legal costs for the other party. A court can take into account that the recipient has legal advice and even though the exercise of the s 79 power is highly discretionary, making the outcome uncertain, lawyers are trained to make predictions within parameters.

1. The applicant provided little evidence of the surrounding context to the offer and why it would have been unreasonable for the respondent to reject it. The offer is dated 10 months earlier than the final settlement. Much can change in that period. Prima facie there is little wrong with the offer at Annexure D, but that is not the test.
2. The respondent directs the Court to Annexure D1 to her 8 January 2026 affidavit which assertedly contains three offers she made to settle the financial cause between the parties. Despite identifying the annexure within the body of the affidavit, and again identifying the annexure in a list at page 119 of the respondent's 8 January 2026 affidavit, the Court cannot locate the material referred to be the respondent. The Court repeats its earlier disappointment about the preparation of the material in the present proceedings and the seemingly intractable conflict that continues between the parties. Nothing more can come from this.
3. This factor does not weigh in favour of any costs order.

Section 114UB(3)(g): Any other relevant matters

1. The applicant suggests that the respondent deliberately frustrated an in-principal agreement reached between the parties during their attendance at a conciliation conference on 11 June 2025. The respondent does not deny that she prevented the in-principal agreement from reaching finality. Indeed, in an email addressed to the Judicial Registrar Ferreira and the applicant, she asserted that she withdrew "from the proposal in accordance with legal precedent (see Brisbane & Brisbane [2009] FamCAFC 126 [sic]) (the respondent's 8 January 2026 affidavit, annexure D3). She further referred to that authority at paragraph 100 in her 8 January 2026 affidavit. The Court notes that it cannot find such authority within any publicly available database, nor any private database maintained by the Court. The citation provided aligns with a separate case; Seigel & Crofton [2009] FamCAFC 126, a Full Court decision of Warnick J sitting alone. That matter contains no point of principle that supports the mother's contention. It is a six-paragraph judgment determining who should bear the costs of a failed appeal.
2. The Court views that the respondent mislead the Court. Whether this was through the inappropriate use of Artificial Intelligence to provide misleading authority in support of statements made to a judicial officer, through deliberate, or through inadvertent misrepresentation of legal authority. The reliance on incorrect authority by the self-represented respondent further demonstrates the lack of care in preparation of the parties' material for the present proceedings, and other proceedings before this Court. It deepens the Court's existing resistance to making findings based solely on the evidence of the parties alone.

1. The Court has further concerns about the manner in which the respondent prepared her evidence justifying her withdrawal from the 11 June 2025 in-principal agreement.
2. The respondent states that she made a revised offer on 14 July 2025 (the respondent's 8 January 2026 affidavit, paragraph 56). The supposed effect of this offer is presented in the respondent's written submissions:
   1. In-Principle Financial Agreement culminated into overall Property Pool Settlement resulted into 58.4% to the mother and 41.6% to the father (TER-14).
   2. Final Financial Agreement culminated into overall Property Pool Settlement of 57% to the mother and 41.6% to the father (TER-15).
   3. The final financial orders did not produce a substantially better outcome for either father or mother because Pool shrink/growth effects and Share (%) shift effects. Hence, percentage variance is negligible (TER -16).
3. She does not evidence these claims in her written submissions. All that she provides the Court with is a 'schedule of effect' for the in-principal agreement and a copy of the respondent's email withdrawing from the in-principal agreement (respondent's written submissions, pages 59-62). The Court cannot accept this evidence. The percentages ascribed by the respondent at paragraph 24 of her written submissions do not even total 100%.
4. The Court is otherwise provided with some form of financial comparison produced by the respondent as to the net difference in result between the in-principal agreement and her later offer (the respondent's 8 January 2026 affidavit, annexure D4). This again, is not adequately evidenced, nor laid out in a manner that would assist the Court to understand this evidence. Even if the Court accepts the respondent's contention that the "final financial orders did not produce a substantially better outcome for either [party]" this does not ameliorate her actions. If the result was so similar, why did the respondent feel the need to delay proceedings and incur further legal costs to achieve this materially alike outcome?
5. These passages solidify the Court's resolve against making unnecessary factual findings on deeply flawed, and often unproven matters lead in the parties evidence.

1. After a detailed consideration of the s 114UB factors the Court concludes that, on balance, there are insufficient circumstances to justify any costs order under the Act. Even if this were not that case, there is insufficient persuasive evidence to convince the Court to use its discretion to fix a sum for costs given the deficiencies in the parties' costs pled raised earlier within these reasons for judgment.
2. Each party is to bear their own costs of these proceedings and the costs of the substantive parenting and property proceedings settled by consent.

I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.