Varnum and Logan

In *Varnum & Logan* [2012] FamCA 1138, the Family Court of Australia considered an application for costs made by Ms Varnum, the respondent in earlier undefended proceedings. The original proceedings concerned the division of assets between Ms Varnum and her former de facto partner, Mr Logan. Ms Varnum sought costs arising from those proceedings, which Mr Logan opposed.

The court was required to determine whether there were any justifying circumstances, pursuant to section 117 of the *Family Law Act 1975* (Cth), to depart from the general rule that each party bears their own costs. In doing so, the court had to consider various factors, including the financial circumstances of the parties, whether they received legal aid, the conduct of the parties, whether any party was wholly unsuccessful, and any offers to settle made by the parties.

Cleary J reasoned that Ms Varnum was substantially unsuccessful in her claim, which had been entirely unrealistic. The court noted that Ms Varnum had not responded to a written offer to settle made by Mr Logan in December 2010, nor had she made any offer herself. Furthermore, Ms Varnum had opposed the appointment of a case guardian for Mr Logan, despite his significant health issues following a stroke, which would have facilitated the proceedings continuing on a defended basis. The court found that Ms Varnum's stance had been obstructive and did not justify an award of costs. The court also observed that Ms Varnum had the advantage of the proceedings being heard undefended by her former partner.

Consequently, the court found no basis to compensate Ms Varnum for expenses incurred in litigation, as costs are not punitive in nature. Ms Varnum's application for costs was dismissed.