Steele and Steele & Anor

In *Steele & Steele and Anor* [2013] FamCA 451, the Family Court of Australia considered an application by the Second Respondent, Ms H, for an order that the Applicant, Ms Steele, pay her costs. The dispute arose from an Application in a Case filed by Ms Steele on 10 May 2012, which sought interim orders against both the First Respondent, Mr Steele, and Ms H. Ms H was included as a party to these proceedings, and an order was sought restraining her from dealing with certain Indonesian property.

The primary legal issue before the Court was whether circumstances justified an order for costs in favour of the Second Respondent, pursuant to section 117 of the *Family Law Act 1975* (Cth). This required the Court to consider the conduct of the parties and determine if the Applicant had abandoned proceedings against Ms H in a manner that warranted a costs order. The Court also had to consider the Second Respondent's submission that she had actively participated in the proceedings and incurred costs in preparing for and attending a hearing, despite the Applicant's subsequent withdrawal of the application against her.

Justice Aldridge found that the Applicant had commenced proceedings against the Second Respondent, who was not a party to the marriage, and subsequently abandoned these proceedings. The Court reasoned that the Applicant's conduct in abandoning the proceedings was neither prompt nor clear. Ms H had actively engaged with the proceedings after being served, including filing a Notice of Address for Service and preparing for a hearing. The Applicant’s subsequent equivocation regarding whether she would proceed against Ms H, followed by the eventual removal of Ms H as a party without clear explanation, led the Court to conclude that the Applicant had been wholly unsuccessful in her claims against Ms H.

The Court ordered that the Applicant pay the Second Respondent’s costs of and incidental to the Application in a Case filed on 10 May 2012. This decision was based on the Applicant's failure to promptly and clearly abandon the proceedings against Ms H, despite Ms H having actively participated in the litigation and incurred costs in her defence.