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Court Dismisses Appeal Against Costs Order in Family Law Property Settlement

Baker & Bond (No 3) [2023] FedCFamC1A 88 (7 June 2023)

Case Introduction:

In the case of Baker & Bond, the Federal Circuit and Family Court of Australia Division examined an appeal by the husband against a costs order made in relation to financial proceedings between the parties. The court ultimately dismissed the husband's appeal, finding that his complaints were baseless and that he was not denied natural justice.


The parties separated in July, and the husband commenced proceedings seeking financial relief under the Family Law Act. The property settlement orders divided the parties' property equally but ensured they retained their own superannuation entitlements.

The wife applied for costs against the husband, alleging that his conduct throughout the litigation unnecessarily increased her costs and frustrated negotiations. The primary judge awarded costs in favor of the wife, partly on an indemnity basis from July onwards due to the husband's refusal to accept reasonable offers of settlement.

IRAC Analysis:

Issue: The main issue in this case is whether the primary judge erred in ordering the appellant husband to pay the respondent wife’s costs in property settlement proceedings. The appellant argues that the primary judge denied him natural justice and miscarried discretion.


The relevant legislation governing this case is the Family Law Act 1975 (Cth):

  • Pt VIII, s 117, which provides for costs orders in family law proceedings.

The Federal Circuit and Family Court of Australia Act 2021 (Cth)

  • ss 136, 188, 190, 191, 192 and;

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

  • rr 1.31, 5.13, 12.17 are also applicable.

According to established case law principles, a decision is strongly presumed to be correct if it is discretionary in nature (Australian Coal and Shale Employees’ Federation v The Commonwealth). Furthermore, both “natural justice” and “procedural fairness” are concerned with the fairness of the hearing process rather than the fairness of the outcome (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam; SZBEL v Minister for Immigration and Multicultural Affairs).

Application: In applying these rules to this case, it appears that the appellant's complaints are baseless. The primary judge exercised discretion under s 117 of the Family Law Act by considering factors such as each party's financial circumstances, their conduct throughout proceedings, and offers made by the wife that were refused by the husband.

The primary judge did not deny the appellant natural justice as he was given opportunities to respond to submissions but chose not to do so. Furthermore, procedural fairness was not breached as there was nothing unfair about how the costs dispute was conducted.

The appellant's argument that there were insufficient reasons for awarding indemnity costs from July 2021 is also baseless as the primary judge gave detailed reasons for this decision based on established legal principles.

Conclusion: Therefore, according to established legal principles and legislation, it appears that there was no error or denial of natural justice in how the primary judge decided to award costs against the appellant. Consequently, his appeal was unsuccessful.

Parties Details:

Appellant (Husband): Mr. Baker

Respondent (Wife): Mr. Bond

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