Beklar and Beklar (No 2)

In *Beklar & Beklar (No. 2)* [2012] FamCA 953, the Family Court of Australia considered an application by the wife for the husband to pay the costs of her interim costs application. The wife had been largely successful in her substantive application, which sought to secure a fund for her legal expenses for an upcoming final hearing.

The primary legal issue before the court was whether the wife should be awarded costs for her interim costs application, despite her success in the underlying application. This required the court to consider the provisions of sections 117(2) and 117(2A) of the *Family Law Act 1975* (Cth), which mandate consideration of justifying circumstances and a balancing of various factors when determining costs.

Justice Ryan noted that while the wife's success in her application constituted a justifying circumstance under s 117(2), it did not automatically entitle her to costs. Applying s 117(2A), the court engaged in a balancing exercise. Although the husband's superior financial circumstances weighed in the wife's favour, and she had made offers to settle for less than she ultimately secured, these factors were outweighed by the wife's significant non-compliance with court orders. Specifically, the wife failed to file her interim costs application within the timeframe directed by the court, necessitating further directions and leading to the preparation of expensive written submissions. This conduct was afforded greater weight by the court.

Consequently, the court dismissed the wife's application for costs of her interim costs application, finding that her non-compliance with orders designed to facilitate an orderly and cost-effective determination of the issue was a decisive factor against awarding costs in her favour.