Pencious and Searle (Formerly Pencious)

In *Pencious and Searle (Formerly Pencious)*, the Family Court of Australia considered an application by the husband for costs associated with two previous hearing days and the costs of the costs application itself. The husband sought these costs on the basis that the trial had been extended by two days due to the wife's counsel seeking to re-open her case to admit evidence concerning a DVD. The wife opposed this application.

The primary legal issue before the court was whether there were sufficient circumstances to justify making a costs order against the wife, pursuant to section 117 of the *Family Law Act 1975* (Cth). This required the court to consider the general rule that each party bears their own costs, and the exceptions provided by the Act, particularly section 117(2A), which mandates regard to various factors including the financial circumstances of the parties, their conduct in relation to the proceedings, and whether any party was wholly unsuccessful.

Justice Benjamin dismissed the husband's application for costs. The court found that while the wife's counsel sought to re-open the case regarding the DVD, this did not, in the overall context of the proceedings, constitute conduct that warranted a costs order against the wife. The court noted that the admission of the DVD without formal proof had not been agreed, and the husband had objected to its admission without such proof, necessitating an adjournment. However, the court also observed that it would have been necessary to reconvene in any event due to the breadth of submissions and the involvement of a company. The court applied the principles of section 117 of the *Family Law Act 1975*, emphasizing that costs orders are discretionary and require consideration of all relevant factors under section 117(2A), including the conduct of the parties. In this instance, the court determined that the circumstances did not justify departing from the general rule that each party bears their own costs.