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

🔹 Introduction

In Sieglinde & Umay (No 3), the Full Court considered whether costs should be ordered after the mother withdrew her appeal against final parenting orders that had cut off her relationship with her twin sons. The father and the Independent Children’s Lawyer (ICL) sought substantial costs, but the Court emphasised the default principle that each party bears their own costs in family law, and compassionately declined to penalise the mother, despite her wholly unsuccessful appeal.

🔹 Facts and Issues

• Background Orders (April 2025):
• Father given sole parental responsibility.
• Children to live with father, with no time or contact with mother.
• Mother restrained from being within 100 metres of children.
• Appeal (May 2025):
• Mother appealed, challenging seven orders.
• At hearing, her counsel conceded no merit, and the appeal was withdrawn.
• Costs Applications:
• Father sought $31,887 in indemnity costs.
• ICL sought $4,672.80 in scale costs.
• Mother opposed both, arguing hardship and emotional distress.

Key Issue:

Should costs be ordered against the unsuccessful appellant (mother), or should the usual rule that each party bears their own costs apply?

🔹 Rule (Law)

• Family Law Act 1975 (Cth), s 114UB (formerly s 117):
• General rule: parties bear their own costs (s 114UB(1)).
• Exception: Court may order costs if justified (s 114UB(2)), considering factors in s 114UB(3).
• Factors include:
• Financial circumstances of parties (s 114UB(3)(a))
• Whether legally aided (s 114UB(3)(b))
• Conduct in proceedings (s 114UB(3)(c))
• Whether wholly unsuccessful (s 114UB(3)(e))
• Case law:
• House v The King (1936) 55 CLR 499 – discretionary appeals require showing legal error.
• In the Marriage of I & I (No 2) (1995) 22 Fam LR 557 – all s 114UB factors must be balanced.
• Medlon & Medlon (No 6) (2015) FLC 93-664 – no one factor is determinative; costs discretionary.
• Fitzgerald v Fish (2005) 33 Fam LR 123 – costs not automatic even where a party is unsuccessful.

🔹 Application (Court’s Reasoning)

1. Financial circumstances (s 114UB(3)(a)):

• Both parties had limited means.
• Mother reliant on Centrelink; father employed as mechanic on modest income.
• No reliable evidence of significant assets.

1. Legal aid (s 114UB(3)(b)):

• Mother and ICL were legally aided; father privately funded.
• ICL’s grant required seeking costs, but that did not compel the Court.

1. Conduct (s 114UB(3)(c)):

• Father argued appeal was frivolous and vexatious; ICL said it had no merit.
• Court acknowledged legal deficiencies in mother’s case (appeal documents failed to identify error under House v The King).
• However, given mother’s history of trauma, detention, abuse, and loss of children, her conduct was not “vexatious” but a product of emotional distress.

1. Wholly unsuccessful (s 114UB(3)(e)):

• Mother was wholly unsuccessful; appeal withdrawn with no grounds sustained.

Balancing all factors:

• The Court held there were no special circumstances justifying a costs order.
• Compassion, hardship, and the presumption against costs prevailed.
• Applications dismissed.

🔹 Analysis of Judgment & Reasoning

Justice Williams stressed:

• The starting point remains no order as to costs in family law appeals.
• Even though the mother’s appeal was meritless and withdrawn late, it was not frivolous or malicious, but born of deep emotional distress over the severing of her relationship with her children.
• Father’s claim for indemnity costs failed because he gave no legal basis or authority.
• ICL’s claim, though justified under legal aid obligations, was outweighed by broader fairness considerations.

🔹 Take-Home Lesson

In family law, costs orders are exceptional. Even wholly unsuccessful appeals may not attract costs if circumstances—such as financial hardship or emotional distress—warrant compassion. Parties and practitioners must remember:

• Costs arguments must be supported by authority and evidence.
• The presumption of “each pays their own” is difficult to displace.
• Courts will temper strict legal principles with sensitivity to the human realities of family breakdown.