Parenting Costs After Non-Participation: When Does a Respondent’s Conduct Justify a Costs Order Under s 117 of the Family Law Act 1975 (Cth), and Why Not Indemnity Costs?

Based on the authentic Australian judicial case Hewson & Hewson [2020] FCCA 2886, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds. :contentReference[oaicite:0]{index=0}

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing

Federal Circuit Court of Australia, at Parramatta.

Presiding Judge

Judge Obradovic.

Cause of Action

Application for costs under s 117 of the Family Law Act 1975 (Cth) arising out of parenting proceedings.

Judgment Date

23 October 2020.

Core Keywords

Keyword 1: Authentic Judgment Case
Keyword 2: Family law costs
Keyword 3: s 117 discretion
Keyword 4: Self-represented litigant
Keyword 5: Indemnity costs principles
Keyword 6: Non-compliance with Court orders

Background

The proceedings concerned parents of a very young child. The Applicant, who ultimately became the child’s primary carer, commenced parenting proceedings after an earlier attempt at Family Dispute Resolution did not produce participation by the Respondent. The parenting matter progressed in a context where the Respondent did not engage with key steps in the litigation process, including the filing of required material and attending the hearing. Against that procedural background, the Applicant pressed for a costs order, seeking to recover a substantial figure said to include legal fees, filing fees, and service costs.

This costs decision sits in a familiar but important space in family law: the Court’s starting point is that each party bears their own costs, yet the Court retains a broad discretion to depart from that starting point where circumstances justify it. The dispute, therefore, was not about whether the Court had power to order costs, but about whether the procedural and litigation conduct in this particular matter crossed the line where an order should be made, and if so, how far that order should go.

Core Disputes and Claims

The legal focus between the parties, in practical terms, was the costs consequence of litigation conduct.

The Applicant sought relief that the Respondent pay all costs associated with the proceedings, advanced in a manner that, in substance, amounted to seeking indemnity costs.

The Respondent sought no relief in the costs application process and did not appear to contest the claim, but the Court was still required to determine the correct outcome under s 117, because costs orders in family law are not automatic and are not awarded as punishment.

The Court was required to determine:

1. Whether there were circumstances justifying a departure from the default position that each party bears their own costs under s 117.
2. If so, what costs order was appropriate, including whether indemnity costs were warranted.
3. Whether the evidence properly proved the costs claimed, and whether the amount sought was proportionate to the nature of the litigation steps actually taken.

Chapter 2: Origin of the Case

The origin of this case is best understood as a sequence of ordinary, real-world parenting conflict turning into a formal legal process, then turning into a costs dispute.

The parties had one child, born in 2018. Over time, the child came to live with the Applicant, and the Applicant became the full-time carer. That fact matters because parenting litigation is rarely just about abstract rights. It is about who is doing the day-to-day care, what stability the child has, and whether arrangements are agreed or contested.

Before commencing proceedings, the Applicant attempted to engage the Respondent through Family Dispute Resolution. The evidence included a certificate indicating an attempt was made but the Respondent refused or failed to participate. That certificate is often a hinge point in family law practice because it functions as a gateway for litigation where parties cannot resolve parenting issues by agreement.

Once litigation began, the relationship between the parties moved from personal conflict into procedural obligations. The Court expects parties to do certain basic things, even if they disagree about everything else: attend, file documents, and comply with orders. In this matter, the Respondent’s non-participation did not merely make the case unpleasant. It directly shaped the path of the proceedings, including whether the matter became undefended, what evidence the Court could consider, and how much cost and effort the Applicant had to incur to obtain parenting orders.

The Applicant initially had legal representation and incurred legal fees. However, the Applicant later became self-represented. That is a common experience in family law, where financial pressure and the intensity of litigation can cause representation to cease partway through proceedings. When that happens, the costs question becomes more complicated: what costs were reasonably incurred, what steps were actually performed by lawyers, and whether the remainder of the case involved costs that are not recoverable because the party represented themselves.

The decisive moment, procedurally, was the Respondent’s failure to engage with the Court’s timetable and hearing. The case then shifted into its final phase as an undefended matter. That factual setting laid the groundwork for the Applicant’s argument that the Respondent’s conduct caused unnecessary litigation expense and should attract a costs consequence.

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

1. Affidavit filed after the hearing, as directed by the Court, setting out the costs sought and the reasons the Applicant contended a costs order should be made.
2. Annexed statements from former legal representatives, said to reflect amounts incurred and outstanding in relation to the proceedings.
3. Evidence that Family Dispute Resolution was attempted, supported by a certificate indicating the Respondent refused or failed to participate.
4. Evidence of service of the initiating documents on the Respondent, demonstrating the Respondent had notice of the proceedings.
5. Evidence that the Respondent did not comply with filing directions and did not participate at key stages, leading to an undefended hearing.
6. Submissions that the Respondent’s failure to attend mediation, failure to file documents by the ordered date, and failure to attend Court drove the necessity and cost of the proceedings.
7. Additional contention that the Applicant had not received child support payments as assessed, used as contextual support for financial strain and unfairness.

Respondent’s Main Evidence and Arguments

No substantive evidence or submissions were advanced by the Respondent in the costs determination process. The Court therefore approached the question by reference to:

1. The procedural history recorded on the Court file.
2. The Applicant’s evidence and what could properly be inferred from it.
3. The legal framework governing costs, which requires independent judicial assessment even where one party does not contest the application.

Core Dispute Points

1. Justifying circumstances: whether the Respondent’s non-participation and non-compliance justified a costs order under s 117.
2. Indemnity basis: whether the conduct reached the level of “special or unusual feature” required for indemnity costs, applying principles from authorities such as Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 and later family law applications.
3. Proof and proportionality: whether the Applicant properly proved the quantum claimed, and whether the claimed figure aligned with the actual work evidently performed in the proceeding.
4. Self-representation impact: what costs can reasonably be recovered where the Applicant was self-represented for much of the matter, and where legal work appears limited to early initiating steps.

Chapter 4: Statements in Affidavits

Affidavits are the spine of many family law proceedings, especially where a matter proceeds without oral evidence or becomes undefended. They do more than list facts. They translate lived events into legally usable proof.

In the costs phase here, the affidavit served two functions at once:

First, it attempted to prove the Applicant’s out-of-pocket exposure to costs, including amounts paid and amounts said to remain owing.

Second, it attempted to frame the Respondent’s conduct as causative of unnecessary litigation expense, which is the practical narrative that can move a Court from the default position of no costs order to ordering costs.

The difference between a persuasive affidavit and a vulnerable one often turns on detail and documentary corroboration. In this matter, the Applicant’s affidavit described costs figures and attached statements, but it did not annex invoices or a costs agreement. That gap is not merely technical. In costs disputes, Courts commonly look for reliable records, because the Court must be satisfied that costs were incurred in connection with the proceedings and in an amount that is appropriate to order against the other party.

From a strategic perspective, the Court’s direction that the Applicant file an affidavit and submissions and that the application would be determined “on the papers” reflects a procedural decision to contain the costs dispute. Costs issues can easily metastasise into a second case if parties start cross-examining each other about invoices, lawyer decisions, and settlement correspondence. The Court’s method here preserved proportionality: the case concerned costs in a parenting matter, and the Court managed the costs dispute in a way designed to avoid an additional contested hearing.

This is an important lesson in litigation self-agency: procedural directions are not just administrative. They determine what kind of proof you must produce and what you will not have a second chance to explain orally.

Chapter 5: Court Orders

Before the final costs determination, the Court’s key procedural steps included:

1. Directions requiring service of initiating process and the Court being satisfied service occurred.
2. Interim parenting orders at an early return date, including that the child live with the Applicant and spend time and communicate with the Respondent as agreed in writing.
3. Filing directions for the Respondent to file and serve a Response, Affidavit, and Notice of Risk by a specified time and date.
4. Listing for further directions and then proceeding to final determination on an undefended basis due to non-compliance and non-participation.
5. Direction after the parenting hearing for the Applicant to file an affidavit and submissions in support of the costs application within 14 days, with determination to occur on the papers.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

Process Reconstruction: Live Restoration

This was not a classic cross-examination battle. The defining feature of the hearing environment was the Respondent’s absence and non-participation. The practical consequence was that the Applicant’s evidence stood largely unchallenged, subject to the Court’s independent obligation to assess whether orders were appropriate.

The Applicant pressed for costs at the hearing. The Court did not treat that request as a formality. Instead, the Court required the Applicant to properly articulate and prove the basis for the costs order, including by filing a dedicated affidavit and submissions after the hearing.

In an undefended hearing, the logical “showdown” occurs differently. Rather than witness-to-witness contradiction, the contest becomes one between:

1. The Applicant’s narrative of necessity and causation, and
2. The legal safeguards that prevent costs becoming a punishment for absence.

The Court scrutinised what could be inferred from the procedural history, including non-participation in Family Dispute Resolution, failure to comply with filing directions, and failure to appear. Those facts can constitute justifying circumstances, but they do not automatically translate into indemnity costs or an order for everything claimed.

Core Evidence Confrontation

The decisive “confrontation” in the evidence lay in the costs proof itself. The Applicant sought a large figure said to include multiple payments and an outstanding balance to lawyers, as well as filing and service costs. Yet the material did not include invoices or the costs agreement, and the Court had to reconcile:

1. The claim that substantial legal fees were incurred, with
2. The procedural reality that the Applicant’s lawyers ceased acting early, and the Applicant was self-represented at all later Court appearances.

This led the Court to focus on what costs were properly connected to initiating an application, and what costs were not appropriate to order where the Applicant was self-represented and where legal work beyond early steps did not appear to have occurred.

Judicial Reasoning

The Court applied the orthodox family law costs framework: start from the default rule, identify whether circumstances justify departure, then determine the appropriate scope and basis of any order, including whether indemnity costs are warranted.

“… in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant… costs are not awarded by way of punishment… They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.”

This statement mattered because it anchored the reasoning away from moral outrage about non-participation and toward the correct function of costs: compensation for necessary expense caused by litigation, not punishment for procedural failure. The Court then accepted that justifying circumstances existed, but held that indemnity costs required something more, and the evidence did not show the type of special or unusual feature that would justify that escalation.

Chapter 7: Final Judgment of the Court

The Court made a costs order requiring the Respondent to pay the Applicant’s costs in the amount of AUD $2,802, payable within six months of the date of the orders.

The Court declined to order costs on an indemnity basis. The Court determined that a costs order was justified due to the Respondent’s failure to engage in Family Dispute Resolution and the proceedings, including non-compliance with orders and non-participation, but that the circumstances did not warrant indemnity costs. The Court also took the view that the claimed costs appeared disproportionate to the nature of the proceedings and the work evidently performed while the Applicant was legally represented.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This judgment is valuable not because it announces a new costs principle, but because it demonstrates judicial discipline in a scenario where it would be easy to slide into punitive thinking.

When a Respondent does not show up, does not file, and does not comply, the successful party often feels the system has forced them to spend money simply to achieve a safe, workable parenting outcome. That emotional and financial reality is real. Yet the Court’s role is to translate that reality into lawful orders through the architecture of s 117.

The jurisprudential value is the Court’s insistence on two separations:

1. Separation between justifying circumstances for some costs, and the higher bar for indemnity costs.
2. Separation between the Applicant’s asserted quantum and what the rules and evidence support as proportionate and properly recoverable.

This is a self-agency lesson: legal victory is not merely being right; it is proving your case in the way the law requires, including proving costs.

Judgment Points

1. The default rule is not decorative
   The Court began from s 117’s starting position that each party bears their own costs. This is not a rhetorical flourish. It is a statutory instruction. A party seeking costs must therefore do more than say the other party behaved badly. They must point to circumstances that justify moving away from the default.

2. “Justifying circumstances” is a threshold, not a punishment tool
   The Court relied on authority confirming that it is necessary to find circumstances justifying a costs order. The judgment demonstrates that the threshold is satisfied where litigation was necessitated by the other party’s conduct, including refusal or failure to engage in Family Dispute Resolution and subsequent non-participation. Yet the Court’s reasoning stayed anchored in causation and necessity, not in moral condemnation.

3. Indemnity costs requires a special or unusual feature
   Applying principles associated with Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 and family law applications of indemnity costs reasoning, the Court emphasised that indemnity costs is not the default response to non-compliance. It requires something more, such as a special or unusual feature warranting departure from party and party costs. The Court found that even though costs were justified, the case did not have the special feature required for indemnity.

4. Proof of costs matters as much as proof of facts
   The Applicant did not annex invoices or a costs agreement, though statements were provided. The Court inferred the costs were associated with the proceedings, but still scrutinised the claim. This demonstrates a practical point: costs evidence should be prepared with the same discipline as substantive evidence. Without the most reliable documents, the Court may limit recovery.

5. Proportionality operates as an invisible judicial filter
   The Court described the claimed costs as appearing disproportionate. That judicial observation performs real work. It signals the Court’s assessment that the case, in its procedural reality, did not justify the scale of fees claimed, particularly where legal representation ended early and later work was done by a self-represented party.

6. Self-representation changes recoverability
   The Court determined it was not appropriate to award certain costs, such as hearing fees for later dates, because the Applicant was not legally represented after the proceedings commenced and there appeared to be limited lawyer-prepared documents beyond initiating material. This point matters for practitioners advising clients: if a client becomes self-represented, costs recovery may narrow to particular allowable items rather than the client’s overall burden.

7. Schedule-based assessment provides certainty
   The Court ordered costs in accordance with item 2 of Schedule 1 of the Federal Circuit Court Rules 2001, setting a fixed amount. This approach promotes certainty and avoids costly taxation processes. It is a model of proportionate dispute resolution within a costs dispute.

8. Time to pay is part of the justice of costs
   By allowing six months to pay, the Court incorporated a practical recognition that immediate payment may be unrealistic, particularly where parties in family law may have limited resources. This is not leniency. It is an aspect of crafting workable orders in the real world.

Legal Basis

The Court’s legal basis included:

1. Family Law Act 1975 (Cth) s 117 as the central statutory framework for costs, including the default rule and the discretionary power to depart.
2. The requirement to consider the matters in s 117(2A) as relevant considerations for the exercise of discretion.
3. Federal Circuit Court Rules 2001 (Cth) r 21.02(2), permitting the Court to set the amount of costs, set a method of calculation, or refer costs for taxation.
4. Authorities supporting the breadth of the costs discretion, including Collins & Collins (1985) FLC 91-603 and Penfold & Penfold (1980) 144 CLR 311.
5. Authorities reinforcing that costs are compensatory rather than punitive, including Latoudis v Casey (1990) 170 CLR 534 as applied in family law contexts.
6. Authorities and principles relevant to indemnity costs, including Kohan & Kohan (1993) FLC 92-340 and Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, as reflected in later family law applications such as Sala & Habner (No 2) [2018] FCCA 2738.

Evidence Chain

Conclusion = Evidence + Statutory Provisions operated here in a tight chain.

1. Evidence of attempted Family Dispute Resolution and a certificate indicating the Respondent refused or failed to participate supported the inference that litigation was reasonably necessary.
2. Evidence of service and procedural history supported that the Respondent had notice but did not comply with filing directions.
3. The Respondent’s failure to file and appear led to an undefended hearing, reinforcing that the Applicant’s costs burden was connected to the Respondent’s litigation conduct.
4. The Applicant’s evidence of costs exposure was partially documented, but not at the highest level of proof expected for the full sum claimed, leading the Court to prefer a schedule-based fixed amount.
5. The Applicant’s self-representation after an early point in the proceedings supported limiting recoverable costs to initiating steps rather than broader claimed legal fees.

Judicial Original Quotation

“The Court finds… that there are circumstances justifying the making of a costs order, but not an order for costs on an indemnity basis.”

This was determinative because it encapsulated the Court’s core legal distinction. The Court accepted the threshold for departure from the default rule, but refused to convert that threshold finding into the much stronger remedy of indemnity costs. It is the judicial expression of discipline: the Court did not treat non-participation as an automatic ticket to indemnity costs.

Analysis of the Losing Party’s Failure

The Respondent’s failure operated on multiple levels:

1. Procedural failure created vulnerability
   Non-compliance with filing directions and non-participation meant the Respondent did not place alternative evidence or explanations before the Court. That left the Court to infer necessity and causation from the Applicant’s evidence and the procedural record.

2. Strategic failure removed the ability to influence the costs narrative
   Costs decisions depend heavily on the Court’s assessment of whether litigation expense was necessary and whether a party’s conduct caused it. Without engagement, the Respondent could not argue that litigation was avoidable, that offers were made, that non-compliance was excusable, or that costs claimed were unreasonable.

3. However, the Court still refused to punish
   Even with these failures, the Court did not treat costs as retribution. The Respondent “lost” in the costs dispute to the extent a costs order was made, but the Court still protected the integrity of the costs jurisdiction by limiting the order to an amount supported by the rules and the evidence.

Reference to Comparable Authorities

Latoudis v Casey (1990) 170 CLR 534
Ratio: Costs are compensatory, not punitive; the discretion should be exercised by reference to indemnifying the successful party for expense reasonably incurred.

Penfold & Penfold (1980) 144 CLR 311
Ratio: A finding of justifying circumstances is an essential preliminary to making a costs order, supporting the structured approach to discretion.

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Ratio: Indemnity costs require a special or unusual feature warranting departure from ordinary practice; even where justified, the order remains discretionary.

Implications

1. You do not need to be a lawyer to act with legal strength
   Self-agency begins with understanding that Courts respond to evidence and procedure. If you keep records, comply with directions, and present your case clearly, you can protect your position even in stressful parenting disputes.

2. Non-participation is not neutral
   Choosing not to attend, not to file, and not to engage tends to be legally costly. Even if a person is overwhelmed, silence often leaves the Court with only one side of the story and the procedural record.

3. Costs is a tool for fairness, not revenge
   If you want costs, frame your request around necessity and causation, not anger. The Court is more likely to order costs when it can see how the other party’s conduct forced you to spend money to secure workable orders.

4. Proportionality is power
   A focused, measured case can be more persuasive than an expansive one. If the dispute is narrow, keep your litigation steps and your costs claim aligned with what was actually required. Overreach tends to be discounted.

5. Build your case like a chain, not a feeling
   Every claim should connect: what happened, what documents show it, what orders were required, and why the law supports the outcome. That is how you turn personal hardship into legally effective protection.

Q&A Session

Q1: If the other party does not show up to Court, will I automatically get all my costs?

No. In family law, the default position is that each party bears their own costs. The Court can order costs if circumstances justify it, but the Court still assesses the evidence, proportionality, and the correct basis for costs. Non-participation tends to support a costs order, but it does not automatically justify recovery of everything claimed.

Q2: Why did the Court refuse indemnity costs when the Respondent did not comply with orders?

Indemnity costs is a higher level of costs recovery and typically requires a special or unusual feature justifying departure from ordinary party and party costs. The Court accepted that costs were justified, but determined the circumstances did not meet the additional threshold for indemnity costs, and also viewed the claimed fees as disproportionate to the procedural reality of the case.

Q3: What should I do if I am self-represented and want a costs order?

Act like a careful record-keeper. Keep proof of filing fees, service costs, and any legal invoices or cost agreements. Tie each claimed amount to a necessary step in the proceedings. Focus your submissions on how the other party’s conduct made the litigation necessary and increased the expense, and be realistic about what costs are recoverable where you represented yourself.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Parenting proceedings costs application under s 117 of the Family Law Act 1975 (Cth), involving non-participation and non-compliance.

Judgment Nature Definition: Final Judgment on costs following final parenting orders.

2. Self-examination of Core Statutory Elements

① De Facto Relationships & Matrimonial Property & Parenting Matters (Family Law)

Core Test: Existence of De Facto Relationship, Section 4AA

Duration of the relationship: The Court examines the length of the relationship and whether it meets the general statutory expectation of duration, which tends to be at least 2 years unless exceptions apply.

Nature and extent of common residence: The Court considers whether the parties lived together, whether cohabitation was continuous or intermittent, and whether the living arrangements reflected a shared domestic life.

Whether a sexual relationship exists: The Court considers whether a sexual relationship existed, recognising that its presence or absence is not necessarily determinative but may inform the character of the relationship.

Degree of financial dependence or interdependence: The Court examines whether one party depended on the other financially, whether finances were pooled, and whether there were patterns of shared financial commitment.

Ownership, use and acquisition of property: The Court considers whether assets were owned jointly or separately, how property was acquired, and how each party used property during the relationship.

Degree of mutual commitment to a shared life: The Court considers whether there was a mutual commitment to a shared life, including long-term planning, shared responsibilities, and the overall structure of the relationship.

The care and support of children: The Court considers whether the parties had children, and the extent to which they jointly cared for and supported children.

Reputation and public aspects of the relationship: The Court considers how the relationship was presented to the public, including whether family and friends regarded the parties as a couple.

Additional contextual evaluation: The Court evaluates the totality of circumstances as a composite picture, recognising that no single factor is necessarily decisive and the assessment is holistic.

Property Settlement: The Four-Step Process

Identification and Valuation: Determine the net asset pool by identifying assets and liabilities, valuing them as at the relevant time, and establishing the net figure to be divided.

Assessment of Contributions: Consider financial contributions at the start, during the relationship, and post-separation; non-financial contributions such as renovations or business work; and contributions to the welfare of the family including homemaking and parenting.

Adjustment for Future Needs, s 75(2) Factors: Consider age, health, income earning capacity, care of children, financial resources, and the practical realities of each party’s future needs, noting that adjustments are discretionary and fact-specific.

Just and Equitable: Conduct the final check whether the proposed division is fair in all the circumstances, recognising the Court must not make an order unless it is just and equitable to do so.

Parenting Matters, Section 60CC of the Family Law Act 1975

Primary Considerations: The benefit to the child of having a meaningful relationship with both parents versus the need to protect the child from physical or psychological harm, with the protection consideration given greater weight where relevant risk is established.

Additional Considerations: The views of the child, depending on maturity and understanding; each parent’s capacity to provide for the child’s needs; and the practical difficulty and expense of arrangements, including whether orders are workable in real life.

3. Equitable Remedies and Alternative Claims

In a family law costs context, the primary pathway is statutory under s 117. However, parties sometimes reach a point where statutory avenues do not fully address perceived unfairness, and they look for alternative legal framing. The key is to identify what legal problem remains unsolved and whether another doctrine can realistically address it.

Promissory or Proprietary Estoppel

Did the other party make a clear and unequivocal promise or representation: For example, an assurance about parenting arrangements, relocation, schooling, or financial support which induced a party to act.

Did you act in detrimental reliance on that promise: For example, changing employment, moving residence, incurring legal expense, or reorganising caregiving responsibilities on the strength of the assurance.

Would it be unconscionable for the other party to resile from that promise: The Court may consider whether it would be against conscience for the party to back away where the other party relied in a serious and foreseeable way.

Result Reference: Even without a written agreement, Equity may tend to prevent a party from resiling from a clear representation in circumstances where reliance and unconscionability are established, though outcomes remain fact-dependent and relief can be discretionary.

Unjust Enrichment and Constructive Trust

Has the other party received a benefit at your expense: This may arise where one party’s contributions, labour, or payments materially improved an asset or reduced liabilities.

Is it against conscience for them to retain the benefit without payment: The analysis focuses on whether retention would be unjust in the circumstances.

Result Reference: Equity may order restitution or recognise a beneficial interest via a constructive trust where the factual matrix supports it, though these pathways can involve relatively high evidentiary burden and may not always be the most efficient route compared with statutory family law claims.

Procedural Fairness

In parenting and costs litigation, procedural fairness most commonly arises as a practical principle rather than a separate claim: parties must be served, given the opportunity to be heard, and the Court must proceed on a fair basis. Where a party fails to participate despite notice, the Court may proceed, but will still maintain safeguards against unfairness, including careful assessment of evidence.

Ancillary Claims

If a costs application is limited by the statutory framework, parties sometimes explore alternative relief such as:

Applications for enforcement of child support assessments through the appropriate statutory mechanisms, noting that child support enforcement has its own processes and may be distinct from Court-ordered costs.

Applications for case management orders that reduce future costs exposure, such as streamlined timetables, limits on evidence, or paper-based determinations where appropriate.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

Family Dispute Resolution gateway: Parenting proceedings commonly require a Family Dispute Resolution certificate, with recognised exceptions depending on urgency, risk, or other statutory grounds.

Compliance obligations: Parties are required to comply with filing directions and Court orders, and failure to do so tends to increase litigation risk, including costs risk.

Costs default rule: The default position under s 117 is each party bears their own costs, and a party seeking costs must establish justifying circumstances.

Exceptional Channels

Less than 2 years of cohabitation in de facto contexts: Exemption may be available pursuant to s 90SB if there is a child of the relationship or if the applicant has made substantial contributions and a failure to make the order would result in serious injustice.

Parenting urgency and risk: Where a child is very young or circumstances indicate vulnerability, litigation may be justified even where agreement has not been reached, particularly if delay tends to increase risk or instability.

Costs discretion flexibility: Even where justifying circumstances exist, the Court may still tailor the order, set a fixed amount, allow time to pay, or decline indemnity costs depending on proportionality, proof, and the interests of justice.

Suggestion: Do not abandon a potential claim simply because you do not meet the standard time or conditions. Carefully compare your circumstances against the exceptions above, as they are often the key to successfully filing a case.

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in legal submissions or debate involving:

The distinction between circumstances justifying costs under s 117 and the higher threshold for indemnity costs.

Schedule-based cost setting under the Federal Circuit Court Rules 2001 (Cth) as a proportionate response where claimed legal fees appear disproportionate or insufficiently proved.

The compensatory, non-punitive purpose of costs, particularly where one party does not participate.

Citation Method

As Positive Support: When your matter involves a party’s failure to comply with orders or participate, citing this authority can strengthen an argument that justifying circumstances exist for a costs order, while acknowledging the Court may still limit the amount and basis.

As a Distinguishing Reference: If the opposing party cites this case to resist indemnity costs, emphasise factual differences such as clearer proof of costs, a documented refusal of a reasonable offer, or litigation misconduct that tends to be more extreme or strategic, noting the indemnity threshold remains discretionary and fact-specific.

Anonymisation Rule: Do not use the real names of the parties; strictly use professional procedural titles such as Applicant and Respondent.

Conclusion

This case demonstrates a disciplined path to legal fairness: the Court will respond to non-participation and non-compliance, but it will do so through lawful discretion, careful evidence assessment, and proportional remedies rather than punishment. The golden sentence is this: Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia (Hewson & Hewson [2020] FCCA 2886), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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