Miller and Wati and Anor (No. 2)

In *Miller & Wati and Anor (No. 2)* [2013] FamCA 369, the Family Court of Australia considered an application by the Applicant, Mr Miller (the husband), and the Respondent, Ms Wati (the wife), concerning costs and enforcement of a previous court order. The substantive dispute had been settled, but the issue of costs remained outstanding. The wife had also sought injunctions, which were refused due to insufficient evidence.

The court was required to determine whether the husband should be ordered to pay the wife's costs, and on what basis. Specifically, the court had to consider the wife's application for enforcement of a $80,000 litigation funding order made on 25 March 2013, and whether the husband's proposed method of repayment, by borrowing against the family home, was acceptable to the wife. The court also had to assess whether the wife's pursuit of enforcement and her legal costs were justified, particularly in light of the husband's assertions about her conduct and the financial affairs of various entities.

Justice Cronin found that the wife was entitled to an order for costs. The court applied section 117 of the *Family Law Act 1975* (Cth), which generally requires parties to bear their own costs unless circumstances justify a departure. Here, the court found that the husband's failure to comply with the previous order, despite having access to funds, justified a departure from the usual rule. The wife had to return to court to seek enforcement, and her legal costs were therefore considered necessary. The court noted the husband's control over significant assets, including the family home and corporate entities, and the wife's comparatively weaker financial position and limited English language skills, which necessitated legal assistance. While the wife sought indemnity costs, the court determined that party and party costs were appropriate, as there were no unusual circumstances to warrant a higher order.

The court ordered that the husband pay the wife's costs on a party and party basis, to be agreed between the parties or, failing agreement, as assessed. The wife's application in a case filed on 6 May 2013, seeking the transfer of real property for sale, was otherwise dismissed. The court also certified that it was reasonable to engage counsel to attend the proceedings.