Whilst in parenting matters the decision as to whether or not to appeal can bring with it lots of emotion, on financial matters or costs some commercial commonsense is necessary.  On 18 December 2025, in Beroni & Corelli [2025] FedCFamC1A 236, their Honours, Alstergren CJ, Hartnett & Curran JJ determined an Appeal (de facto husband) and Cross-Appeal (de facto wife), solely on the issue of costs orders made in Division 1 proceedings relating to the setting aside of a Binding Financial Agreement (“BFA”).

In those earlier proceedings, with a history stretching back to 2017, the de facto wife (“W”) was the applicant and the de facto husband (“H”) the respondent.  The parties had entered into a BFA approximately nine months after their de facto relationship commenced.  They separated in December 2016 and the applicant commenced proceedings in 2017 to set aside the BFA and for a property settlement.  The determination in relation to the BFA was not until December 2019, three years after separation, and the respondent unsuccessfully appealed the decision to set aside the BFA and was ordered to pay $82,275.36 in costs.  At that time the H was 90 years of age and the W 55 years of age.

The total asset pool was just shy of $160,000,000, almost all of which was owned by the H.  In respect of final property settlement the H was Ordered to pay $4,000,000 to the W, giving her around 2.5% of the total asset pool.

Costs Orders were made in respect of the setting aside and by agreement the sums of $450,000 and $38,034.77 were paid by the H to the W.  The H appeals the making of the costs orders and the W cross-appeals the making of orders on a party/party basis rather than indemnity.  One would imagine that the W had more to lose, money wise, if her cross-appeal was unsuccessful.

The Full Court found no merit in any of the grounds of appeal or cross-appeal which essentially challenge Orders of a discretionary nature and therefore requiring the demonstration of error in reasoning[1].

Both parties were represented by KC in the Division 1 proceedings, proceedings relating to costs and appeal proceedings relating to setting aside the BFA.  Both parties were again represented by KC, with junior barristers, in these appeal proceedings.  Did the end justify the means?  Would the H have not been better off, financially at least, to have made a reasonable offer of settlement and to have avoided proceedings altogether?

[1] Norbis v Norbis (1986) 161 CLR 513 at 519; Coal & Allied Operations v AIRC (2000) 203 CLR 194 at [14]