Drew & Drew

In the Family Court of Australia at Newcastle, Mrs Drew (the applicant wife) sought costs of recovery proceedings against Mr Drew (the respondent husband). The matter came before the court following the execution of a recovery order for a child, which had been made on 22 May 2007. The court noted that the husband had failed to comply with the earlier order to return the child, necessitating the execution of the warrant and incurring community costs and potential embarrassment to the child.

The primary legal issues before the court were whether to proceed with the costs application on an undefended basis, given the husband's apparent inability to instruct his legal representative, and whether to order the husband to pay the wife's costs of the recovery proceedings. The court also considered the husband's solicitor's application for leave to withdraw and the wife's application for leave to serve the orders on the husband.

The court reasoned that the wife had taken all reasonable steps to avoid the recovery proceedings and the associated costs. Despite reservations about the husband's capacity to instruct, the court decided to proceed on an undefended basis, taking into account the husband's solicitor's inability to obtain instructions and the wife's assertions of the husband's recent employment. The court was satisfied that an order for the husband to pay the wife's costs of the recovery proceedings was appropriate.

The court made several orders: waiving compliance with the rule requiring a Notice of Ceasing to Act and granting the husband's solicitor leave to withdraw, conditional on filing the notice within seven days. The husband was ordered to pay the wife's costs of the recovery proceedings, to be agreed or taxed. The husband was granted leave to file an application to set aside these orders within 14 days, supported by an affidavit addressing his capacity to instruct, inability to attend, and the merits of the costs issue. Finally, the wife was granted leave to serve a copy of the orders on the husband by post by a specified date.