Bronson and Bronson (No 2)

The Family Court of Australia considered an application for costs in the matter of Bronson and Bronson. The dispute arose following final property settlement orders made in substantive proceedings between the Applicant Husband and the Respondent Wife. The Husband sought an order for costs incurred from 28 July 2010, based on an offer of settlement made by him on that date.

The primary legal issue before the Court was whether to make an order for costs against the Wife, and if so, on what basis and to what extent. This involved considering the discretion afforded to the Court under section 117 of the Family Law Act 1975 (Cth), including the financial circumstances of the parties, their conduct, and importantly, any offers of settlement made in writing. The Court also had to determine the relevance of the Husband's initial claim for indemnity costs and his subsequent modification to seek party and party costs.

Justice Kent found that the Husband's offer of settlement made on 28 July 2010 was highly relevant. This offer, which proposed the Wife receive a minimum of $1,000,000.00 or 44 per cent of the net proceeds from the sale of a property, was considered significantly more favourable to the Wife than the final property orders ultimately made. The Court noted that while the offer did not include spousal maintenance, its acceptance would have resulted in a better financial outcome for the Wife and avoided further litigation costs for both parties. However, the Court also took into account the Husband's conduct in persisting with the contention that the Wife was employable, despite medical evidence to the contrary, which it deemed a factor against awarding the full extent of his costs.

Consequently, the Court ordered that the Respondent Wife pay 80% of the Applicant Husband's party and party costs from 28 July 2010. The costs were to be agreed or assessed. The Court further ordered that each party bear their own costs for the application itself, excluding these from the aforementioned costs order, and directed the Applicant to provide an assessment of his costs within twenty-eight days.