Recent Cases on Costs (After the June 2025 Amendments to the Family Law Act 1975 (Cth))

The Family Law Amendment Act 2024 (Cth) came into effect on 10 June 2025 and had the effect of replacing the former section 117 costs provision with Part XIVC of the FLA (see sections 114UA–114UE). The provisions most often engaged in practice since commencement are section 114UB (general costs power and mandatory considerations) and section 114UC (ICL costs).

Decisions Applying the New Costs Framework 

Appellate Jurisdiction 

• Tekla & Tekla [2025] FedCFamC1A 245 (“Tekla”) (Riethmuller J, 23 Dec 2025). Tekla is a seminal decision on the issue of costs, determined after the introduction of section 114UB of the FLA. The appeal from a lump‑sum costs order was allowed. At [8], [38] - [40] and [44] the Court explains the issue with the Respondent’s evidence in relation to the ability to properly calculate Costs, there was no itemised schedule or short form bill of costs adduced as evidence to enable an assessment of whether the items claimed were reasonably incurred, the Trial Judge’s approach to quantification was also erroneous.

  
  

  At [38] the Court said “There was no explanation as to why a short form bill of costs prepared by a costs assessor would not have been provided, as is the common practice in other courts when lump sum costs orders are sought. Nor was there even an itemised schedule of the costs incurred (which must have been available to enable the solicitor to calculate the amounts in the affidavit and to calculate the amounts in the invoices sent to the client).” At [39] “The conduct of the case left the primary judge with no evidence at all as to the party and party costs or solicitor and client costs.”At [44] the Court found “The primary judge made efforts to determine a costs figure in order to avoid the litigation continuing. However, the process of dividing the total amount sought in half, in the absence of some understanding of how it was calculated (in order to make some assessment of a “reasonable” amount), was not sufficient to convert the bare claim into an evidentiary basis for the finding (nor was it based upon court scales, comparison to the other party’s costs, or judicial experience) to explain a costs order of over $78,000.”    

  
  

  The Respondent obtained an order following the final hearing that he receive a payment of $717,000, whereas at the conciliation conference he had been prepared to accept $700,000. At [31] the Court notes “The effect of the appellant’s failure to enter into orders reflecting the agreement at the conference is that the legal costs incurred thereafter were a waste of the parties’ very limited financial resources.” And at [32] “The appellant made a number of offers to the respondent following the conference. The first two offers reduced the amount proposed, first to $350,000, then $200,000. Her third offer then raised the amount to $400,000. At the final hearing she proposed that the payment be $550,000 (at [74]). There was no rational basis for the appellant to make decreasing offers. Her conduct in making decreasing offers was, at best, evidence of a lack of any genuine attempt to reach a settlement, and at worst an attempt to bully the respondent into settling for less than an appropriate amount.”    

  
  

  The Court provides an extremely helpful and detailed discussion of the difference between party and party costs, solicitor and client costs and indemnity costs from [52]. At [70] the Court said “For the reasons identified by the primary judge, I am persuaded that the appellant ought to pay costs from the date of the conciliation conference either on a “party and party” basis or “solicitor and client” basis. The judgment was only slightly better than the offer. Had the appellant’s conduct of the proceedings appeared to be a genuine disagreement with the offered settlement (albeit in error), represented by a reasonable approach to the litigation thereafter, party and party costs would have been appropriate. This can be distinguished from cases where there is not a genuine disagreement or worse an improper purpose to the litigation. The appellant’s approach to the litigation after the conciliation conference was, in many respects, unrealistic in ways that caused considerable additional costs in the context of an appropriate offer having been made. As such, she ought to pay that part of the costs caused by such conduct (in the face of a reasonable offer) on a “solicitor and client” basis.” (Writer’s emphasis)

  
  

  From [71] “On a costs assessment under the Rules, a registrar would be able to identify the various items of work that were required as a result of the appellant’s unreasonable approach to the litigation separately from the other items of work.[72] As both parties have specifically requested that I fix the costs, I can only make a broad estimate based upon the reasons for judgment in the matter and the findings of the primary judge on the costs application. Around 2/3 of the costs ought to be assessed on a “solicitor and client” basis and 1/3 on a “party and party” basis (other than the costs for receiving judgment which would not have been affected by the appellant’s conduct).[72] In the absence of an itemised list of the work done, I can only rely upon the scale for Division 2 cases contained in Schedule 1 of the Division 2 Rules.”

  
  

• Mertz & Mertz (No 3) [2025] FedCFamC1A 222 (“Mertz”) (Aldridge, Carew & Behrens JJ, 28 Nov 2025). Costs were ordered on a party and party basis after the appellant discontinued two days before hearing; the Court treated the lateness of discontinuance as “relevant conduct under s 114UB(3)(c)” and also dealt with practitioner conduct concerns arising from use of AI. The judgment is an early illustration of the Court’s application of section 114UB(3) conduct factors post‑commencement.

• Pantoja & Pantoja [2025] FedCFamC1A 151 (McClelland DCJ, Gill & Carter JJ, 26 Aug 2025). The Full Court refused an application for appeal costs, expressly stating at [4] that “The starting point for the consideration of costs, pursuant to s114UB(1) of the Act, is that each party will bear their own costs. Where there are circumstances justifying it, a court may, on consideration of the matters contained at s114UB(3), make an order for costs. Although conditioned, it is a broad discretion.” Costs certificates were instead granted under the Federal Proceedings (Costs) Act 1981 (Cth).

• Rathi & Rathi [2025] FedCFamC1A 238 (22 Dec 2025). Costs appeal dismissed; no order as to costs. From [74] the Court said “In the event the appeal was dismissed, the respondent sought an order for costs against the appellant on a party/party basis, in accordance with his Schedule of Costs filed 1 December 2025, fixed at $ 5,443.98” and at [75] “The appellant opposed any order for costs. I do not propose to make an order for the appellant to pay the respondent’s costs incurred in the appeal, although in general impecuniosity is no bar to ordering costs (see for example: Lenova & Lenova (Costs) [2011] FamCAFC 141. However, in the particular circumstances of this matter, I am cognisant that the appellant is of limited financial resources, has to provide for the needs of the party’s child (at [30] of the reasons) and she will likely face difficulty paying the extant costs order. I consider there is little utility in ordering the appellant to pay further costs which are unlikely ever to be paid.”

• Beroni & Corelli [2025] FedCFamC1A 236 (18 Dec 2025). Appeal and cross‑appeal on costs dismissed; the Full Court found no error in the primary judge’s discretion to order party/party costs and to refuse indemnity costs. This sits consistently with section 114UB(2)–(3) (discretionary, factor‑based analysis).

• Partington & Partington (No 2) [2025] FedCFamC1A 229 (12 Dec 2025). The Appellate husband appealed from interlocutory parenting orders contending apprehended bias and discrimination by the primary judge. The Court determined that none of the grounds had merit, the appeal was dismissed with costs to be paid to the Respondent and ICL. Section 114UB is discussed from [55]. At [60] the Court determined “The above factors justify the making of an order for costs. I propose to fix the costs of the respondent in the sum of $4,000 and the costs of the ICL in the sum of $2,387.”

First‑instance decision

• Raskob & Motta [2025] FedCFamC1F 668 (“Raskob”) (24 Sep 2025). Application by the Independent Children’s Lawyer (ICL) for costs succeeded; the Court considered section 114UC and fixed the ICL’s costs in a lump sum. This is an early instance of section 114UC being expressly applied and is consistent with the new Part XIVC structure (including the carve‑outs in section 114UC(2) for legally‑aided or hardship‑affected parties).

What the cases collectively tell us about “section 114UB” after commencement

• Continuity of principle with clearer drafting: Courts are treating section 114UB as a renumbered and integrated successor to the old section 117, not a departure in policy. The general rule, that each party bears their own costs (section 114UB(1)) remains, with discretion to depart where circumstances justifying doing so exist, assessed against the statutory list (section 114UB(3)). Tekla provides practical guidance regarding the methods for calculating different types of costs and what is required as evidence for costs sought other than pursuant to the scale.

• Conduct‑based departures: Mertz illustrates reliance on section 114UB(3)(c) (conduct causing delay/cost) where proceedings are discontinued late, with the Court also dealing with professional conduct aspects.

• ICL costs under section 114UC: Raskob provides an example of the application of section 114UC (ICL’s lump‑sum costs ordered after consideration of the section). The structure of section 114UC(2) (legal‑aid and hardship carve‑outs) aligns with the policy described when the reforms were introduced.

  
  

Important Change within Section 114UC of the FLA

Section 102NA of the FLA aims to shield victims of alleged family violence from being directly cross-examined by the perpetrator in family law proceedings. Where certain conditions exist, such as a conviction or charge for violence, a final family violence order (not an interim ADVO), or a personal protection injunction, personal cross-examination is automatically prohibited. In cases that do not meet those automatic triggers (for example, no Apprehended Domestic Violence Order in place), the Court retains a broad discretion under section 102NA(1)(c)(iv) to make orders that prohibit direct cross-examination.

Section 114UC of the FLA states:

“Costs of independent children's lawyer and limitations on costs relating to intervening officer or litigation guardian etc.

 (1)  In proceedings in which an independent children's lawyer for a child has been appointed, the court may make a costs order, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in relation to the proceedings.

 (2)  However, if:

 (a)  a party to the proceedings is receiving assistance by way of legal aid in respect of the proceedings; or

 (b)  the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;

the court must not make a costs order against that party in relation to the costs of the independent children's lawyer.” (Writer’s emphasis)

And since the June 2025 changes came into effect the following is now specified in section 114UC:

“(3)  For the purposes of paragraph (2)(a), assistance by way of legal aid does not include assistance provided to a party in accordance with a Commonwealth scheme operating for the purpose of applying the requirements of subsection 102NA(2).” (Writer’s emphasis)

The type of legal aid grant is therefore relevant when assessing the applicability of ICL costs.

Conclusion 

At [18] of Tekla the Court explains that section 114UB of the FLA is set out in “substantially the same terms” as section 117 of the FLA. Cases determined prior to the June 2025 changes on costs are therefore still helpful and applicable, noting the new section 114UB of the FLA should be referenced in current cases when addressing costs. In relation to section 114UC, take note of the type of legal aid grant (if applicable) noting a grant in response to section 102NA is not an exception to the application of the ICL’s costs in the same way as a general legal aid grant.

1 March 2026