Dinci and Smith

In *Dinci & Smith*, the Family Court of Australia considered an application by the Husband (Mr Dinci) pursuant to s 79A of the *Family Law Act 1975* (Cth) to set aside consent property orders made on 8 April 2013. The Wife (Ms Smith) sought the dismissal of the Husband's application and an order for her costs on an indemnity basis. The Husband failed to appear at the hearing and had not complied with previous directions and orders of the Court.

The primary legal issue before the Court was whether the Husband's application under s 79A should be dismissed due to his non-compliance with court orders and directions, and whether the Wife should be awarded costs on an indemnity basis. The Court was required to consider the provisions of Rule 11.02 of the *Family Law Rules 2004* (Cth) regarding a party's failure to comply with procedural orders, and the principles governing costs orders under s 117 of the *Family Law Act 1975* (Cth), including the circumstances justifying an award of indemnity costs.

Justice Kent found that the Husband had manifestly failed to comply with numerous directions and orders of the Court in managing the s 79A proceedings. Applying Rule 11.02, the Court determined that dismissal of the Husband's application was warranted. Regarding costs, the Court noted the general rule that parties bear their own costs but that s 117(2) grants a broad discretion to make such orders as are just. His Honour considered the principles of finality in litigation and the Husband's conduct, including his failure to participate and comply with court processes, as justifying an order for costs. The Court further found that the circumstances justified departing from the usual order for costs and awarding indemnity costs to the Wife, citing the Husband's lack of cooperation and the Wife's entitlement to finality.

The Court ordered that the Husband's application pursuant to s 79A of the *Family Law Act 1975* (Cth) be dismissed. The Husband was also ordered to pay the Wife's costs of and incidental to the proceedings, including the application for indemnity costs, on an indemnity basis to be assessed. The Wife was granted liberty to apply to satisfy the costs order from funds held in trust by her solicitors, with any remaining balance to be released to the Husband, subject to a notice to pay child support arrears.