On and On

In the Family Court of Australia at Melbourne, Guest J considered the costs arising from two applications filed by the parties in proceedings between Mrs Onslow (applicant) and Mr Onslow (respondent). The substantive applications had previously been dismissed by the court. The wife sought an order that the husband pay her costs of his Form 2 Application on an indemnity basis and her Form 2 Application on a party/party basis.

The court was required to determine whether circumstances justified an order for costs against the husband, and if so, on what basis. Specifically, the court had to consider the wife's claim for indemnity costs in relation to the husband's application, and party/party costs in relation to her own application, having regard to the provisions of section 117 of the *Family Law Act 1975* (Cth) and the relevant Rules of Court.

Guest J reasoned that the general rule under section 117(1) of the Act, that each party bears their own costs, could be departed from if circumstances justified it under section 117(2). The court found that the husband's conduct, particularly his non-disclosure of the sale of a property and his less than helpful affidavit and submissions regarding another property, constituted circumstances justifying an order for costs. The court noted that the wife was wholly successful in relation to contested issues remaining after the husband withdrew his principal application. The court also considered the husband's unsuccessful application for a stay of a previous costs order.

Consequently, Guest J ordered that the husband pay the wife's costs of and incidental to his Form 2 Application filed on 17 July 2006 on an indemnity basis. Further, the husband was ordered to pay the wife's costs of and incidental to her Form 2 Application filed on 7 July 2006 on a party/party basis, with the quantum of costs in both instances to be assessed under the *Family Law Rules 2004* (Cth) in default of agreement.