TIERNEY & TIERNEY

In the Family Court of Australia, Ms Tierney (the applicant wife) sought injunctive relief and disclosure orders against Mr Tierney (the respondent husband) concerning the proceeds of sale of the former matrimonial home. The husband filed a response late, making concessions regarding the injunctions and seeking disclosure from the wife. The parties subsequently negotiated and agreed to a minute of proposed orders resolving the substantive issues.

The court was required to determine whether to award costs to the wife for her application, given that the matter was largely resolved in terms of her originating application. The wife sought costs on a party/party basis, arguing that the husband's conduct necessitated the proceedings. The husband opposed the costs order, contending that the issues of disclosure raised in his response meant the ordinary rule of each party bearing their own costs should apply.

Justice Johns considered section 117 of the Family Law Act 1975 (Cth), which governs costs in family law proceedings. The court noted that while the general rule is for each party to bear their own costs, an order for costs may be made if circumstances justify it, taking into account factors such as the parties' conduct and whether proceedings were necessitated by a failure to comply with previous orders. The court found that the husband's failure to respond to the wife's written request for an undertaking not to deal with the sale proceeds, which led to the wife's application for injunctive relief, constituted sufficient justification for an order for costs. The court also found that the husband's late filing of his response, which prevented resolution of disclosure issues prior to the hearing, did not act as a barrier to a costs order.

The court ordered that the husband pay the wife's costs of and incidental to her application in the sum of $4,000 on a party/party basis, noting that the wife's claimed solicitor/client costs were not appropriate. The court also made consent orders regarding the injunctive relief and disclosure sought by the parties, and ordered that the wife's application and the husband's response be otherwise dismissed.