Costs of an appeal cannot be significant and often daunting, even more so if the appeal is later abandoned and a costs order made.  If an appellant is legally represented it can be assumed that he/she has been informed of the costs consequences.  That position is not so clear where the appellant is either self-represented from the start or becomes so during the proceedings.

In Tuff & Cloutier [2025] FedCFamC1A 211, decided on 17 November 2025, their Honours, Austin, Sutherland and Riethmuller JJ, made an Order for costs, on a party/party basis in a fixed sum, against an appellant who had withdrawn her appeal.

On 6 August 2025 the appellant mother filed a Notice of Appeal from Orders of a Judge of the Family Court of Western Australia.  That Notice of Appeal was deficient in that it did not set out any of the facts relied upon by the appellant. 
On 15 September 2025 procedural Orders were made requiring, inter alia, the appellant to file an Amended Notice of Appeal by 13 October 2025.  She did not do so, nor did she file a Summary of Argument or List of Authorities.

On 14 October 2025, the appellant filed an Application in an Appeal seeking an extension of time to comply with the procedural orders.  On 16 October 2025 the respondent filed a response seeking that the appeal be dismissed.  The following day the appellant withdrew her appeal.

However, the matter remained listed for hearing on 5 November 2025 in respect of costs, which were being pursued by the respondent.  At the commencement of that hearing the legal representative sought leave to withdraw but then did continue with her representation of the appellant.

The respondent’s Schedule of Costs had been filed a few days later than was required (ie, 7 days prior to the hearing) and the appellant sought to rely on that non-compliance to resist the application for costs.

Whilst it could not be said that the appellant had been ‘wholly unsuccessful’ having withdrawn her appeal, she nonetheless did not comply with any of the procedural Orders and effectively did not litigate her application.  In those circumstances, their Honours found that it was appropriate to make an order for costs against the appellant.

Key Takeway:  If you are going to file an appeal be sure that you are fully committed from the outset.