Wicklow and Wicklow and Anor

In the matter of *Wicklow and Wicklow*, Justice Fowler of the Family Court of Australia considered an application by the husband following his non-compliance, late compliance, or incomplete compliance with court orders and directions. The wife sought costs occasioned by the husband's defaults.

The central legal issue before the court was the appropriate remedy for the husband's non-compliance with court orders and directions, particularly in relation to the wife's costs. The court was required to determine whether the husband's defaults warranted a sanction that would prevent him from further participation in the proceedings, or if a lesser remedy, such as an order for costs, would suffice to ensure justice for both parties.

Justice Fowler's reasoning was guided by the principles articulated in *Zane and Allan*, which emphasised that case management principles are subservient to the paramount consideration of attaining justice. While acknowledging that sanctions are essential to ensure compliance with court orders, the court noted that such sanctions should not be punitive but rather aimed at achieving justice. In this instance, the court found that the husband's failures, while significant, were not as egregious as those in *Zane and Allan*. The court considered the husband's attempts to remedy his defaults and his eventual substantial compliance. Consequently, Justice Fowler concluded that justice could be achieved by allowing the husband to proceed with his application, provided he met the costs incurred by the wife due to his defaults.

The court ordered that Order 2 of the Orders made on 5 June 2008 be discharged. The husband was ordered to pay the wife's costs thrown away by reason of his non-compliance, late compliance, or incomplete compliance with the court's orders and directions. These costs were to be agreed upon or, failing agreement, assessed. Payment of these costs was deferred until the completion of the proceedings and was to be satisfied from the husband's entitlement from any order altering the parties' interests in property, with such entitlement being charged with this obligation. The court also indicated a proposal to order costs on an indemnity basis unless the husband made written submissions within 14 days regarding the basis of assessment, with further time allowed for the wife to respond and for the husband to reply.