Theodor & Fadl [2026] FedCFamC1F 101 was a Division 1, First Instance decision of Her Honour, Simpson J, where the mother sought an Order for Costs against the father, initially on an indemnity basis and then in a fixed amount, after he discontinued his application.  The substantive proceedings were commenced by the father in April 2024 and involved parenting arrangements for the child of the marriage.  The parties had not yet effected a property settlement and there were no current proceedings in that regard.  The mother and child remained residing in the former family home and there had been other proceedings of a criminal nature with an ADVO being made against the father. 

The matter was listed for a final hearing commencing on 15 December 2025 but on  
9 December 2025, after the release of the Single Expert Report on 27 November 2025, the father sought to discontinue.  Given the close proximity to the scheduled hearing, the father needed leave to file that document, which was granted. 

Thereafter the mother and the ICL agreed on a consent Minute of Orders which provided for no time or communication between the child and the father.  The ICL did not seek an Order for costs and was excused from attending Court in respect of the mother’s application for costs.  The main thrust of the mother’s argument was that she had been put to considerable expense in defending the father’s application and that in discontinuing that application the father had been wholly unsuccessful however, this was contrary to Bant & Clayton (Costs) [2016] FamCAFC 35. 

Ultimately, Her Honour was not persuaded to depart from the general principle9 that each party should bear their own costs and made Orders accordingly.  

Although strictly speaking it is not a ‘costs jurisdiction’ Costs Orders are often made where the circumstances warrant doing so, such as where a party’s conduct has lengthened proceedings or a party has continued to litigate notwithstanding a plethora of evidence suggesting that it would be preferable not to do so.  Clients should be encouraged to think commercially in those circumstances.