BROXHAM & BROXHAM AND ORS (NO. 2)

In *Broxham & Broxham and Ors (No. 2)*, the Family Court of Australia considered an application by the second and third respondents (the husband's parents) for costs against the applicant wife. The wife had been wholly unsuccessful in her application for injunctions, which had been dismissed. The second and third respondents sought their costs on an indemnity basis, arguing that the wife had access to sufficient funds and that her claims were doomed to fail.

The primary legal issue before the court was whether the wife should be ordered to pay the costs of the second and third respondents, and if so, whether those costs should be on a party/party or indemnity basis. The court was required to consider the wife's complete lack of success, her financial circumstances, the conduct of the proceedings, and the absence of any settlement offers, in light of the principles outlined in section 117 of the *Family Law Act 1975* (Cth).

Justice Murphy noted that while the general rule is that parties bear their own costs, the court has a discretion to award costs. The wife's application was dismissed because the court was not satisfied that there was any risk of dissipation of assets. Despite the wife being wholly unsuccessful and having access to significant funds, the court declined to order costs on an indemnity basis. This decision was primarily influenced by the unusual circumstances of the case, particularly the husband's withdrawal from related Supreme Court proceedings, which created a difficult position for the wife and impacted the subsequent litigation. The court found that these circumstances did not warrant the "very great departure" from the normal standard that an indemnity costs order represents.

Consequently, the court ordered that the applicant wife pay the costs of the second and third respondents for her applications filed on 21 June 2012 and 11 October 2012. These costs were to be agreed between the parties or, failing agreement, assessed on a party/party basis. The court also ordered that the wife pay the costs of the second and third respondents in relation to the instant application for costs.