Can an order for costs be made in family law matters?

by Andrew Lind on 30 September, 19

The general rule is that in proceedings under the Family Law Act 1975 (Cth) each party bears his or her own costs (s 117(1) Family Law Act). The court may depart from this rule and make an order for costs if it is of the opinion that there are circumstances that justify it in doing so (s 117(2) Family Law Act). In deciding this, the court will have regard to:

  • the financial circumstances of the parties
  • whether either party has a grant for legal aid
  • the conduct of the parties
  • whether the proceedings were necessary because of the failure of one party to comply with previous orders
  • whether either party has been wholly unsuccessful
  • whether either party has made an offer to settle
  • other matters that the court considers relevant (s 117(2A) Family Law Act)

In the recent decision of Anison & Anison (2019) FLC 93-908 the Full Court of the Family Court considered the meaning of “wholly unsuccessful” (s 117(2A)(e) Family Law Act).

The case concerned an appeal by the husband against an order for costs made in the Family Court.

The order for costs was made following property orders dividing the assets of the parties 77.5% in favour of the husband and 22.5% in favour of the wife. The wife had sought to join the corporate trustee of a trust controlled by the husband’s son to the proceedings. The husband successfully had the trustee removed as a party to the proceedings. The trial judge found that the husband was otherwise wholly unsuccessful and ordered him to pay the wife’s costs. The husband appealed.

The issue was whether or not the trial judge exercised the discretion to make an order for costs on wrong principle, that is, by incorrectly interpreting and applying s 117(2A)(e) in finding that the husband was wholly unsuccessful.

Kent J noted that it is well-settled that the Full Court of the Family Court should be reluctant to interfere with the exercise of discretion by a trial judge to make a costs order: [10]. His Honour cited the case of Robinson and Higginbotham (1991) FLC 92-209 in which it was said (at 78,417) by Nygh J: “… this Court should be very reluctant indeed to interfere with the exercise of discretion in respect of costs… but that does not mean that this Court should never interfere with the exercise of that discretion. The same principles hold true and if the result is plainly unjust or if the discretion was exercised on wrong principles then this Court must interfere…”:

Kent J considered the meaning of “wholly unsuccessful”. His Honour found that it is aimed at “a situation in which the proceedings as a whole have been unsuccessful. In other words, in which an application which was without merit has been dismissed” (see Robinson and Higginbotham (1991) FLC 92-209 at 78,417).

It was found that this interpretation of “wholly unsuccessful” did not apply to the husband’s case. Kent J stated at [43]: “In the substantive property and spousal maintenance proceedings the husband had to meet a claim by the wife for 50 percent of the property pool, plus capitalized maintenance, plus an order for weekly spousal maintenance of $500 for an indefinite period. In the result, the husband contained the wife’s claim to 22.5 percent division of property interests and the wife’s respective claims for spousal maintenance were dismissed. Given the husband’s relative success, and apparently greater success than the wife (comparing each party’s starting positions or aims with the ultimate outcome) the husband plainly has not been “wholly unsuccessful in the proceedings”.”

His Honour was satisfied that the trial judge incorrectly interpreted and applied s 117(2A)(e) and acted on wrong principle in making a costs order against the husband. His Honour allowed the appeal in part.

Written by the Corney & Lind Family Law Team


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Case Note: Keating & Keating [2019] FamCAFC 46

by Andrew Lind on 30 September, 19

Is a Court entitled to consider family violence in assessing a party’s contributions based entitlements during a property settlement? The answer is yes, in a limited range of cases. The rationale for this was explained in the case of Kennon & Kennon (1997) FLC 92-757 where it was said that (at 84-294):

 “… where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79…”

(emphasis my own)

These considerations apply in only a limited range of cases. To be relevant, it must be shown that the conduct had a “discernible impact” on the contributions of the other party (84,295).

In the recent decision of Keating & Keating [2019] FamCAFC 46 the wife asked the Court to make an adjustment to her entitlement at property settlement on the basis that family violence had a significant adverse impact on her ability to contribute to the marriage.

She gave evidence that she had been exposed to significant family violence by the husband during their relationship and after their relationship had ended. The husband admitted one incident of family violence some ten years before trial but otherwise denied all allegations of family violence.

The primary judge said that the wife provided insufficient evidence to satisfy him that the family violence made her contributions more onerous.

The wife appealed the decision. The Full Court of the Family Court of Australia did not express a view about whether the primary judge was wrong in his approach, but the majority took the opportunity to clarify the law on this point.

Their Honours referred to the case of Spagnardi & Spagnardi [2003] FamCA 905. The Full Court in that case, in discussing Kennon & Kennon, said that it is necessary to provide evidence to:

  • establish the incidence of domestic violence
  • establish the effect of domestic violence
  • enable the Court to quantify the effect of family violence upon the capacity of a party to contribute

In Keating & Keating, Ainslie-Wallace and Ryan JJ criticised the third point. Their Honours felt that the reference to “quantification” suggests that the evidence of the victim spouse must be corroborated by expert evidence. They confirmed that it is well settled that evidence of the victim spouse is not required to be corroborated before it can be accepted (at [42]).

It was noted that perhaps the reference to “quantification” was simply confirming that there does need to be evidence to show that there was a discernible impact on the ability of the victim to contribute although that evidence does not need to quantify that impact.

In summary, the Full Court in Keating & Keating found that in family violence cases involving a Kennon & Kennon argument, the focus should be on the “discernible impact” of the family violence rather than any lack of evidence allowing “quantification” of that impact.

Should you need advice regarding property settlement and experienced family violence, set up an appointment with one of our family law team. Call (07) 3252 0011.

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It is not uncommon for churches to find themselves in a scenario where they need to consider removing a person from the church membership or board. A relatively recent decision of the New South Wales Supreme Court is particularly instructive on this matter whether your church has a corporate structure or is an unincorporated association.

This case concerned the expulsion of a member, Mr Subeski, from the membership and board of a company limited by guarantee and his subsequent application for that decision to be reversed. The key issue in this case was whether Mr Subeski was extended natural justice in respect of the resolution that proposed to expel him as a member, which in turn expelled him from the church board. It was a pre-requisite for all board members to also be members of the company.

In this case the church had given a written notice to Mr Subeski to provide him with an opportunity to attend an upcoming board meeting and also respond to an intention to remove him as a member. This notice also provided a very detailed narrative about the sorts of things that the council/ board would be considering in their decision, and that Mr Subeski could make written submissions for their consideration. Importantly, the notice also specified that Mr Subeski was to give three days notice in writing if he intended to attend the meeting in person. This was to allow the church to arrange appropriate security measures in light of Mr Subeski’s  aggressive, abusive, and at times violent behaviour on a previous occasion relating to the same matter. Mr Subeski decided to make various written submissions, then personally arrived at the board meeting without having given any prior notice of his intention to attend. When he arrived, the board called the police who removed him from the property.

The court decided that there was no denial of natural justice in the way the board meeting was conducted. It was viewed that the church had been eminently reasonable in their request for notice from Mr Subeski, and that he had decided to forfeit his right to be heard orally at the meeting by not providing notice of his intention to attend.

As a result, it was decided that Mr Subeski had been effectively removed as a member. The court also declared that he was not a board member and that he was permanently restrained from representing that he was a board member or representing that he was a member.

This case highlights the importance of correctly drafting and particularising a notice to persons such as Mr Subeski, because the courts are clearly willing to involve themselves in church governance matters where it is in the interests of justice.

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In the 2009-10 Budget, the former Government announced that it would amend the ‘in Australia’ special conditions for tax concession endorsements as found in the Income Tax Assessment Act 1997 (ITAA 97).

Since that announcement, the following steps have taken place:

  • July/August 2011 – First exposure draft & public consultation period;
  • April/May 2012 – Second exposure draft & public consultation period;
  • 23 August 2012 – Tax Laws Amendment (Special Conditions for Not-for-profit Concessions) Bill 2012 (the 2012 Bill) introduced to Parliament;
  • 29 June 2013 – Some of the provisions of the 2012 Bill were enacted in the Tax Laws Amendment (2013 Measures No. 2) Act 2013 with effect from 29 June 2013. From that time, for an entity to be exempt from income tax, it must (a) comply with all the substantive requirements in its governing rules; and (b) apply its income and assets solely for the purpose for which the entity is established;
  • 5 August 2013 – the 2012 Bill lapsed at the dissolution of Parliament;
  • 14 December 2013 – the present Government announced that it would proceed with reforming the “in Australia” requirements. (It also announced that it would not proceed with defining ‘not-for-profit’ throughout the tax laws, which had been a part of the 2013 Bill.)

The latest development

On 12 March 2014 new draft legislation, draft regulations and explanatory material was released – Restating and Centralising the Special Conditions for Tax Concession Entities. We enter a new consultation period. The Government is inviting submissions from all interested individuals and organisations, with submissions closing on 7 April 2014.

The Government has indicated that improvements have been made to the exposure drafts to address concerns raised by the not-for-profit sector in relation to the 2012 Bill.

Full details of the exposure drafts and explanatory materials may be found here.

Summary of the new special conditions for tax exempt entities

Under the latest draft, for an entity to be exempt from income tax it must satisfy the following special conditions:

1. be a non-profit entity; and

2.(a) operate principally in Australia; and

(b) pursue its purposes principally in Australia; and

3. (a) comply with all the substantive requirements in its governing rules; and

(b) apply its income and assets solely for the purpose for which the entity is established.

No substantive change from the new special conditions as expressed in the 2012 Bill.

The “in Australia” requirement

As has been noted previously, the re-stated “in Australia” special condition (refer 2 (a) & (b) above) moves away from the expenditure based test in the current “in Australia” requirement. This will allow the Commissioner to consider a wider range of circumstances in determining if the condition is satisfied. The explanatory material notes, at para 1.59:

            … the Commissioner is expected to consider all surrounding circumstances: including factors such as where the entity incurs its expenditure; where it undertakes its activities; where the entity’s property is located; where the entity is managed from; where the entity is resident or located; where its employees or volunteers are located; and who is directly and indirectly benefitting from its activities.

“Principally” means mainly or chiefly. Less than 50% is not considered principally. (Explanatory Material Para 1.60)

As is currently the case, tax exempt entities have an obligation to self-assess their ongoing entitlement to exemption. The wider range of circumstances that must now be considered in relation to the “in Australia” requirement will potentially make this self assessment more difficult.

“Tracing” of money given to another entity

As was the case with the 2012 Bill, if a tax exempt entity provides money, property or benefits to another entity, and the other entity is not tax exempt, then the use of that money, property or benefit by the receiving entity (or any other entity that it is subsequently passed on to) must be taken into account when determining whether the original tax exempt entity has satisfied the “in Australia” requirement.

This requirement to trace gifted monies was a cause for concern with the 2012 Bill. The Government has responded to these concerns by inserting an additional clause into the latest draft that limits the tracing requirement as follows:

…take into account the use of the money, property or benefits by an entity outside Australia only to the extent that it would be reasonable to expect the first-mentioned entity to have knowledge of, or to obtain knowledge of, the use of the money, property or benefits outside Australia.

We welcome this addition although what “reasonable” means may cause some concern and will take some time to be clear. What is “reasonable” would no doubt be greater the greater the value of the benefit moving overseas.

While the explanatory materials make the point that the tracing requirement ‘should present no greater an obligation on entities than already exists under charity law and the existing ATO endorsement framework’ (para 1.81), it is a wake up call to entities to be vigilant about how their funds are used, and where they ultimately end up. Your obligations don’t end when the funds go out of your bank account.

Disregarded amounts

Under the current “in Australia” requirement, money or property received by a tax exempt entity by way of  gift or government grant, and which the entity distributes overseas, can be disregarded in determining whether the entity satisfies the current “in Australia” requirement. (Section 50-75 ITAA 97)

When the first exposure draft re-stating the “in Australia” special condition came out in July 2011, the ‘disregarded amounts’ provision was completely removed. It re-appeared in the next draft and was included in the 2012 Bill, but significantly changed from its current form. The latest draft is virtually identical to the 2012 Bill in this regard, but the Government has now released draft regulations, which were really essential to be able to give full meaning to the re-stated disregarded amounts provision.

Essentially, an entity will only be able to disregard money it has received by way of gift or government grant in determining if it satisfies the re-stated “in Australia” requirement, if it complies with the regulations as set out below.

Also, to be able to rely on the disregarded amounts provision, the provider of the gift to the tax exempt entity must not be entitled to a DGR receipt, and must not itself be a tax exempt entity.

The draft regulations setting out conditions to be complied with in order to make use of the disregarded amounts provision:

  (2)  The entity must take reasonable steps to obtain evidence showing that:

                     (a)  the activities it conducts outside Australia are a genuine attempt to give effect to its purposes; and

                     (b)  the use by the entity of money or property outside Australia is effective in achieving the entity’s purposes.

[Our note: Your “Purposes” need to be carefully examined to ensure that they extend to advancing your charitable purpose overseas or at least are not limited to Australia.]

             (3)  If the entity works with another person (however described) that:

                     (a)  is located in a country in which the entity conducts an activity; and

                     (b)  works with the entity on the activity;

the entity must take reasonable steps to obtain evidence showing that it effectively interacts and coordinates the conduct of the activity with that person.

             (4)  The entity must not have engaged in conduct, or failed to engage in conduct, in circumstances in which the conduct or failure may be dealt with under an Australian law:

                     (a)  as an indictable offence (whether or not the law also permits it to be dealt with as a summary offence); or

                     (b)  by way of a civil penalty of at least 60 penalty units.

Note 1:       The entity is always expected to comply with all Australian laws. An infringement of an Australian law that is serious enough to attract a penalty mentioned in subregulation (4) means that the entity cannot obtain the benefit of subsection 50?50(5) of the Act.

Note 2:       Section 4AA of the Crimes Act 1914 explains the current value of a penalty unit.

Note 3:       The operation of some Australian laws has been extended to overseas jurisdictions. Subregulation (4) is not intended to extend the operation of any Australian law to an overseas jurisdiction.

             (5)  If the entity is a registered entity under the Australian Charities and Not?for?profits Commission Act 2012, it must be in compliance with the governance standards under that Act:

                     (a)  to which it is subject; or

                     (b)  to which it would be subject but for any provision of that Act limiting the application of those standards to it.

             (6)  If the entity is not a registered entity under the Australian Charities and Not?for?profits Commission Act 2012, it must have reasonable processes in place:

                     (a)  to ensure that it is giving effect to its purposes as set out in its governing rules; and

                     (b)  to manage the risk of a breach of its governing rules; and

                     (c)  to manage the risk of fraud or misconduct by an entity responsible for the management or administration of the entity.

(emphasis added)

The draft regulations are not as onerous as what had been hinted at in earlier material; however it is clear that a considerable compliance burden will fall upon those entities wanting to rely upon the disregarded amounts provision, and this will be felt most by smaller, less resourced entities.

We also note that the effect of draft item (5)(b) above, is to require a Basic Religious Charity (as that term is used under the Australian Charities and Not?for?profits Commission Act 2012) that wishes to make use of the disregarded amounts provision, to comply with the ACNC governance standards, which it is otherwise exempt from.

The final and important point to note is that if you are confident that you can satisfy the re-stated “in Australia” condition without relying upon the disregarded amounts provision, this would clearly be the preferred course, as then you will not be burdened by the additional regulatory requirements.

For many entities whose operations are Australia focused, and whose overseas involvement is minimal, the re-stated “in Australia” special condition should not be problematic.

For those entities which have a strong overseas focus, and for people contemplating establishing a new entity with an overseas focus, the compliance burden, and the resourcing required to meet that burden, will need to be carefully considered.

We note that our above commentary is limited to addressing the draft changes for tax exempt entities, and does not address the draft changes for deductible gift recipients.

As noted at the beginning of our commentary, the latest released materials are only exposure drafts, and we have entered another consultation period. There is still a long way to go before we have new legislation in place. We will be continuing to monitor developments.

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In March 2017, the Supreme Court of Victoria heard a Family Provision Application in an estate where the Deceased passed away without a Will.

Davison v Kempson & Ors [2017] VSC 173

The Deceased passed away on 13 April 2014 leaving an estate with a net value of $1.43 million.

Under the default intestacy rules, the estate was to be distributed equally between her three surviving children: Marc, Remy and Pascale.

Notwithstanding that the three siblings each had an equal entitlement to the estate under the default intestacy rules, Marc successfully applied for further and better provision from the estate under Part IV of Administration and Probate Act 1958 (Vic).

Marc was awarded an additional $125,000 from the estate, with the remainder to be divided equally between the Deceased’s three children.

Similarly in Queensland, under Part IV of the Succession Act 1981, an eligible applicant can apply to the Court for further and better provision out of a deceased estate in the event adequate provision is not made from the estate for their proper maintenance and support.

Alleged Disentitling Conduct

One argument raised against Marc was that his conduct, both before and after the Deceased passed away, disentitled him from further provision.

Marc, who had lived with the Deceased for a number of years, had refused to vacate the Deceased’s home after the Deceased passed away.

This had, in turn, prevented the Administrator from selling the property, thereby delaying the due administration of the estate and causing the Administrator to commence legal action to have Marc removed from the property.

Upon application by the Administrator, the Court found that Marc had continued to frustrate the orderly administration of the estate, causing additional costs to be incurred.

Accordingly, the Court ordered Marc vacate the property as well as bear the Administrator’s legal costs for the application which were to be paid out of Marc’s share of the estate.

It was also argued that Marc was disentitled from further provision from the estate on the basis that he had allegedly:

  • withdrawn $500,000 from a bank account of the Deceased prior to her death in the form of a bank cheque (before later returning the money);
  • failed to maintain the property;
  • failed to pay rates for the property; and
  • denied the estate rental income for a 2.5-year period while he refused to vacate the property.

Notwithstanding this alleged conduct, Marc was successful in his family provision application.


In deciding the case, some key considerations of the Court were that:

  • Marc had lived with Deceased for most of his adult life in what appeared to largely be a loving relationship;
  • Marc had sacrificed his career to support the Deceased, who was legally blind and required care, which Marc provided;
  • Marc was in financial need, with limited income and no assets, and despite numerous job applications was unlikely to be gainfully employed;
  • Marc’s conduct before the Deceased’s death did not have a detrimental impact on the Deceased or the estate;
  • Marc’s conduct after the Deceased’s death was only relevant insofar as it may have:
    • demonstrated his need was as a result of his own default; or
    • caused a negative impact of the value of the estate.
  • In the circumstances, Marc’s conduct postdating the Deceased’s death was not disentitling and there was no evidence that it had caused a decrease in the value of the estate.

Lessons From Davison v Kempson

Davison v Kempson demonstrates some key features of Family Provision Applications, including that:

  • Family Provision Applications can be brought in circumstances where there is no Will;
  • A successful applicant can obtain an order for more than an equal share of the estate, depending on the circumstances of the case;
  • Ultimately, the amount of provision in a successful application is decided at the discretion of the Court having regard to all the circumstances of the case;
  • Disentitling conduct is misconduct towards the Deceased (as opposed to inconvenience caused to other people, such as carers of the Deceased);
  • Conduct of an applicant after a person passes away has limited relevance to the issue of whether a person has engaged in disentitling conduct.

If you feel you have not been adequately provided for out of a Deceased person’s estate, and would like us to consider whether you are eligible to make a Family Provision Application, please don’t hesitate to contact our team of Wills and Estate professionals.

We can assist you by advising on the application process and, where appropriate, acting in the application.

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