Slattery and Slattery

In this matter before Cohen J, the wife sought an order that the husband provide security for costs in relation to his application to discharge their child support agreement and associated arrears. The husband opposed this, claiming he had no assets, relied on friends and relatives, and that a Departure Prohibition Order would prevent him from returning to the United Kingdom to seek work if he could not provide security. The wife contended that the husband possessed substantial assets, concealed through expert financial manipulation, and that he owed significant sums for child support and prior legal costs.

The court was required to determine whether to grant the wife's application for security for costs, and subsequently, whether to order the husband to pay the wife's costs on an indemnity basis. Central to these determinations were the husband's alleged financial circumstances, his conduct in previous litigation, and the prospects of success of his application to discharge the child support agreement.

Cohen J found against the husband on the issue of security for costs, ordering him to provide $30,000.00. In reaching this decision, the court considered the husband's claims of indigence against the wife's assertions of his financial sophistication and the existence of hidden assets. The court also noted the husband's failure to prosecute a prior, similar application, which had been dismissed. Subsequently, in relation to the costs of the proceedings, the court reasoned that exceptional circumstances justified departing from the usual rule that parties bear their own costs. These circumstances included the husband's lack of representation versus the wife's significant legal expenses, his history of unpaid costs orders, his failure to provide up-to-date financial statements, his earning of substantial income without making child support payments, his transfer of funds out of Australia, and the diminished prospects of his current application due to the prior dismissal. The court also considered the husband's failure to disclose his financial position adequately, his overseas residency, and the fact that his primary application was unlikely to succeed.

Consequently, Cohen J ordered that the husband pay the wife's costs of and associated with the whole of the proceedings on an indemnity basis within one month of service of an itemised bill of costs. The court also made orders regarding the method of service of the bill and granted the wife leave to seek a hearing date for her outstanding applications.