Agusalim and Agusalim

The applicant wife sought costs in relation to a divorce application filed in the Federal Magistrates Court and subsequently transferred to the Family Court of Australia. The central dispute revolved around the validity of a purported religious divorce obtained by the respondent husband in Indonesia in December 1995. The wife had initiated divorce proceedings in Australia in June 2005, which the husband initially sought to dismiss on the grounds of this prior Indonesian divorce.

The court was required to determine whether the husband's conduct in relation to the Indonesian divorce proceedings and his defence of the Australian divorce application warranted an order for costs in favour of the wife. Specifically, the court considered the husband's actions in asserting the validity of the Indonesian divorce, the subsequent inquiries into its status, and the delays and costs incurred by the wife as a result of the husband's defence.

Justice Cohen reasoned that while the husband was ultimately unsuccessful in defending the divorce application, the circumstances did not justify ordering him to pay all of the wife's costs. The court noted that there was no evidence suggesting the husband was responsible for the original misleading certificate regarding the Indonesian divorce. However, the husband's actions in pursuing the Indonesian divorce and defending the Australian proceedings, despite significant uncertainty about the validity of the divorce in Australia, caused the wife to incur costs she should not have. The court found that the husband should have accepted from the outset that either he was not divorced or that any divorce obtained would not be recognised in Australia, thereby making his defence of the wife's application unnecessary.

Consequently, the court ordered that the husband pay 25 per cent of the wife's costs, as assessed or taxed.