Late Withdrawal, Costly Consequences: Father Ordered to Pay Mother’s Legal Fees After Unmeritorious Application

In Whittaker & Whittaker [2025] FedCFamC2F 955, Judge O’Shannessy of the Federal Circuit and Family Court (Division 2) considered whether a father, who discontinued his post-final parenting application seeking to release a family report for unrelated state proceedings, should pay the mother’s costs. The judgment reinforces the principle that while parties ordinarily bear their own costs under s 117(1) of the Family Law Act 1975 (Cth), the Court retains broad discretion to make a costs order when a party’s conduct causes unnecessary expense. The Court found that the father’s late discontinuance—after the mother had filed responsive material—was unreasonable and caused her avoidable costs.

Facts

• Final parenting orders were made by consent in September 2024.
• In February 2025, the father applied for leave to use parts of a family report in Magistrates’ Court intervention-order proceedings.
• Before the hearing, the father learned his IVO case was unlikely to proceed but did not promptly withdraw his family-law application.
• He finally filed a Notice of Discontinuance a week before the interim defended hearing.
• The mother, who had already filed a response, affidavit, and costs notice, sought her legal costs of $4,000 (indemnity) or $3,409.07 (scale).
• The father, self-represented, opposed any costs order, citing financial hardship and good faith.

Issues

1. Does the general rule under s 117(1) that each party bears their own costs apply, or do “justifying circumstances” exist under s 117(2)?
2. Was the father’s conduct—filing and late withdrawal of an unmeritorious application—unreasonable so as to warrant a costs order?
3. Should costs be assessed on an indemnity or party/scale basis?

Law

Statutory Framework

• Family Law Act 1975 (Cth) –
• s 117(1): default rule that parties bear their own costs.
• s 117(2A): mandatory factors—financial circumstances, conduct, failure to comply, success, offers, and other relevant matters.
• Evidence Act 1995 (Cth) s 140 – standard of proof: balance of probabilities.
• FCAFCOA (Div 2) Rules 2021 rr 12.06 & 12.17 – procedural requirements and cost-calculation bases.

Precedents Cited

• Northern Territory v Sangare (2019) 265 CLR 164 [25] – parties must act consistently with the Court’s overarching purpose.
• Plaza & Ricos [2025] FedCFamC1A 83 [15] – costs may follow unmeritorious or unreasonable applications.
• Bant & Clayton (Costs) [2016] FamCAFC 35 [22] – discontinuance does not automatically equal “wholly unsuccessful.”
• Caffyn & Caffyn [2018] FamCAFC 259 [11] – prospects of success may still be relevant.
• Colgate-Palmolive Co v Cusson (1993) 46 FCR 225 – exceptional circumstances required for indemnity costs.
• Munday & Bowman (1997) FLC 92-784 – applied Colgate categories.
• Vang & Chung [2024] FedCFamC1A 25 – Court may fix specific-sum costs to avoid taxation.

Application

1. Ordinary Rule and Exceptions (¶¶ 16–21)

The Court reaffirmed that under s 117(1), each party bears their own costs unless “justifying circumstances” exist. However, those factors are discretionary, giving the judge wide latitude to respond to conduct that increases litigation expense.

2. Conduct and Reasonableness (¶¶ 34–42)

Judge O’Shannessy found the father’s late discontinuance unreasonable.

• He knew his IVO case was doomed “in early 2025” after the magistrate’s comments, yet he waited until mid-May 2025 to withdraw the family-law application.
• That delay forced the mother to prepare and file documents and attend a directions hearing, incurring unnecessary cost.
• This behaviour breached the overarching purpose under r 1.04 to resolve matters quickly and cheaply.

“If the Father had discontinued these proceedings in a timely manner following his IVO appearance… the Mother would not have incurred the costs associated with filing material and attending the hearing.” (¶ 41)

3. Financial Circumstances (¶¶ 27–32)

The father claimed financial hardship but provided no documentary proof. The Court accepted he was likely impecunious but held that hardship does not bar a costs order where conduct justifies it (¶ 32).

4. Wholly Unsuccessful? (¶¶ 44–49)

Following Bant & Clayton, discontinuance does not automatically equal “wholly unsuccessful,” yet it remains a relevant factor where the opposing party has incurred costs because of the discontinued case. The father’s withdrawal rendered the mother’s costs “thrown away.”

5. Indemnity vs Scale Costs (¶¶ 56–61)

The Court refused indemnity costs, citing Colgate and Munday & Bowman:

• There was no evidence of fraud, ulterior motive, or misconduct.
• The father’s application, though misguided, was filed for a bona fide reason—to seek release of the family report.

“I am not satisfied that there are exceptional circumstances that warrant an order for costs on an indemnity basis.” (¶ 61)

6. Quantum and Final Orders (¶¶ 62–70)

Costs were assessed on the scale (Schedule 1)—$2,854.75—covering preparation and the first court date only.

Payment was deferred five months to accommodate the father’s finances.

Judgment and Reasoning

Judge O’Shannessy concluded that:

1. The father’s delay and lack of candour led the mother to incur avoidable costs (¶¶ 41–42, 52–53).
2. His conduct justified a costs order under s 117(2A)(c).
3. There were no exceptional circumstances for indemnity costs.
4. The amount was fixed to prevent further expense (¶ 63).

Key Citations

• Misconduct causing unnecessary costs – ¶¶ 34–42, 52–54
• Indemnity principles – ¶¶ 56–61
• Quantum and discretion – ¶¶ 62–70
• Orders – ¶ 70

Take-Home Lesson

“Withdraw early—or pay later.”

Even without malice, a party who drags out an unmeritorious or abandoned application risks a costs order. The family law cost regime aims to deter inefficiency and reward procedural fairness, not punish poverty. Prompt discontinuance and transparent communication remain the surest shields against liability for costs.