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Successful Family law costs appeal

When the appeal was turned down and the first respondent asked for an order for costs, the court looked at section 117 of the Family Law Act 1975 (Cth) and instructed the appellant to pay the first respondent a set amount for their costs.

Please visit the following link for Stokey and Dye (No1)


Stokey & Dye: [2023] FedCFamC1A 38

APPEAL NUMBER: NAA 166 of 2022

THE APPELLANT: Self-represented litigant



THE SECOND RESPONDENT: Self-represented litigant

File number(s): PTW 6165 of 2021

LOCATION: In Chambers

DATE OF HEARING: 7 February 2023




Awattama & Trustee in Bankrupcy [2018] FamCA 1073
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Lenova & Lenova (Costs) [2011] FamCAFC 141

Taken from:


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The appellant is to pay the costs of the first respondent fixed in the sum of $3,420.61. On 31 March 2023 the appeal in this matter was dismissed. 

  1. The first respondent seeks an order that the appellant pay his costs fixed in the sum of $3,420.61 (as calculated in accordance with Schedule 3 to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
  2. The issue of costs is dealt with by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Generally, the parties to proceedings are to bear his or her own costs, but if the court is of the opinion that there are circumstances that justify it, the court may make such order as to costs it considers just. In considering making such a costs order, the court shall have regard to the matters set out in s 117(2) of the Act.
  3. In their written submissions, the appellant and the first respondent raised the following matters. 

Taken from:


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The parties’ financial circumstances

  1. The appellant is currently receiving $680.50 each fortnight as Centrelink benefits.
  2. Both the appellant and the first respondent assert an interest in a property owned by the second respondent but their claims are contested and the value of the property is not known.
  3. The appellant is thus in a poor financial position. However, impecuniosity is not a bar to a costs order (D & D (Costs) (No 2) (2010) FLC 93-435; Lenova & Lenova (Costs) [2011] FamCAFC 141).
  4. The appellant submitted that costs orders should not be made where they would stifle the litigation and referred to Awattama & Trustee in Bankrupcy [2018] FamCA 1073, but that was a case involving an application for security for costs, which is a different thing.

The conduct of the parties in relation to the proceedings

  1. The first respondent submitted, correctly, that the appellant’s written submissions on the appeal were prolix and in many respects, such as the attempt to rely on the Rules of the Supreme Court 1971 (WA), entirely misconceived. I do not accept the appellant’s position that the law was not well-settled.
  2. The appellant relied upon the conduct of the first respondent in the property proceedings, as opposed to the appeal. That can be a relevant consideration under s 117(2A)(g), but not s 117(2A)(c), which is directed to the conduct of the proceedings subject to the proposed costs order – in this case, the appeal.
  3. However, I am not in a position to determine the merits or otherwise of the appellant’s claims, because I do not have the necessary evidence or information and because those proceedings are still underway.

Whether either party was wholly unsuccessful

  1. The appellant was wholly unsuccessful. No novel issues were raised. Indeed, significant aspects of the appeal were incompetent because they sought to challenge procedural orders from which no appeal properly applies (as explained at [9]–[16], [39] and [42] in the original reasons (Stokey & Dye [2023] FedCFamC1A 38)).

Whether any party made an offer in writing to settle the proceedings

  1. The appellant refers to many settlement offers in the substantial property proceedings but the value and import of those offers cannot be determined until they concluded. They do not relate to the appeal.
  2. On 7 October 2022, the first respondent’s lawyers wrote to the appellant pointing out what they saw as the difficulties facing the appeal, many of which were not overcome by the appellant at the appeal. The appellant was invited to discontinue the appeal “with no order as to costs” (First respondent’s written submissions filed on 14 April 2023, paragraph 39.2).
  3. The first respondent’s lawyers wrote to the appellant on 13 December 2022 offering to resolve the appeal on the basis that the appeal be dismissed and accordingly for the appellant to pay costs fixed in the sum of $1,700.
  4. The offers were appropriate and carry significant weight.

Such other matters as may be relevant

  1. The appellant submitted that as he is not a party to the marriage, an order under s 90AE of the Act can only be made in certain circumstances. I do not understand the reference to that section.
  2. It is to be recalled that the appellant has intervened in the property proceedings between the two respondents asserting that he has an equitable interest in the property. A finding that he has such an interest does not require the application of that section.


  1. Taking all these matters into account, particularly the misconceived nature of the appeal and the appropriate offers of settlement, it is just that the appellant should pay the first respondent’s costs in the amount claimed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.

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