DEBONO & DEBONO

The Family Court of Australia considered an application by the wife for costs arising from enforcement proceedings related to property orders previously made by Young J. The wife sought indemnity costs, while the husband opposed any costs order. The dispute centred on the husband's alleged non-compliance with the earlier property orders, which the wife contended necessitated the enforcement application.

The primary legal issue before the Court was whether the circumstances justified a departure from the usual rule that parties bear their own costs, and if so, on what basis. Specifically, the Court had to determine if the husband's conduct warranted an order for costs in favour of the wife, and whether those costs should be awarded on an ordinary or indemnity basis, considering the wife's claim of exceptional circumstances. The Court also considered the husband's submissions that he had already faced significant punitive orders and that the wife's own conduct was not without fault.

Cronin J reasoned that the husband's obfuscation and failure to comply with the orders of Young J, as well as his positive steps to remove the wife as a director of the parties' company, were factors that precipitated the wife's enforcement application. The Court found the wife's actions to be reasonable in the circumstances, noting that the husband had been substantially unsuccessful in the contentious issues. While acknowledging the wife's financial position and the husband's superior financial circumstances, the Court found that neither party was impecunious. The Court determined that the husband's conduct, while unpleasant and unnecessary, did not meet the threshold for exceptional circumstances required for indemnity costs, referencing principles from *Kohan and Kohan* and *Prantage and Prantage*.

Consequently, the Court ordered that the husband pay the wife's costs of the enforcement proceedings, to be assessed by the Registrar in default of agreement between the parties. The Court found that an order for costs was justified due to the husband's non-compliance, which put the wife in a position where she had no choice but to litigate to obtain the fruits of her judgment. However, the wife's request for indemnity costs was refused as the circumstances were not deemed exceptional.