WOOTON & HILLIER

In the matter of *Wooton & Hillier*, Watts J of the Family Court of Australia considered an application for costs following the finalisation of a trial by consent order on its sixth day. The dispute primarily concerned the binding nature of a financial agreement and whether it should be set aside due to allegations of systemic family violence. The wife sought costs, excluding certain parts of the proceedings where she conceded costs orders were inappropriate, while the husband opposed any costs order in her favour.

The court was required to determine whether it was entitled to make a costs order despite the matter being resolved by a consent order without a determination on the merits. A significant factor for the court's consideration was the husband's concession that the financial agreement was not binding. The court also had to assess whether the evidence, as it stood at the time of the consent order, strongly indicated the wife would have succeeded in setting aside the financial agreement under s 90K(1)(b) and (e) of the *Family Law Act 1975* (Cth), and whether aspects of the husband's conduct warranted a costs order in the wife's favour.

Watts J reasoned that the court was indeed entitled to consider costs orders in such circumstances. The husband's concession regarding the financial agreement was a weighty consideration. Furthermore, the evidence presented strongly suggested that the wife was highly likely to have established a course of conduct by the husband sufficient to succeed in setting aside the agreement under the specified provisions of the Act. Aspects of the husband's conduct during the proceedings also weighed in favour of the wife. Consequently, the court found it just to make an order for party/party costs, with specific exclusions.

The court ordered that, subject to certain exceptions, the husband pay the wife's costs of and incidental to the proceedings on a party/party basis within 28 days. These exceptions included costs related to an application to prevent the wife's former lawyer from acting, an application for the disqualification of a Federal Magistrate and the subsequent appeal, any claim to set aside the financial agreement under s 90K(1)(a) of the Act, work done in respect of the husband's Application in a Case, and any work concerning parenting issues. The court also certified the reasonableness of the wife engaging senior and junior counsel and dismissed the husband's applications for costs. Finally, the husband was ordered to pay 85 per cent of the wife's costs in respect of her application for costs made on 17 May 2016 and the husband's cross-application for costs.