HUSBAND ASSERTS JUSTIFYING CIRCUMSTANCES WHICH ENTITLES HIM TO COSTS ORDER
Elden & Jacobs (No.2) [2020] FCCA 2870 (21 October 2020)
This case involves the husband seeking costs asserting justifying circumstances to entitle him to such an order.
Facts:
On 4 November 2019, the wife commenced proceedings seeking a declaration that a de facto relationship existed between the parties from 2005 until 18 January 2018. The respondent sought a declaration that no de facto relationship existed between the parties after 2010. The court made a declaration that no de facto relationship existed between the parties after 2010.
The husband filed an application in a case seeking costs fixed in the sum of $32,795. The wife filed a response seeking an order that the husband’s application be dismissed.
Issue: Should the court award the husband with the costs order sought?
Law:
- Pursuant to subsection 117 (1) of the Family Law Act 1975, each party shall pay his or her costs. Subsection 117 (2) of the FLA provides that the Court may make an order for costs if satisfied there are justifying circumstances.
Analysis:
Pursuant to subsection 117 (2A) (a) of the FLA the wife is in receipt of both rental income after tax of between $6860 and $7860 per month and casual employment income after tax of between $4000 to $5000 per month giving her an annual income after tax of between $130,320 and $154,320 p.a. The husband is currently unemployed.
Pursuant to subsection 117 (2A) (e) of the FLA the husband made a number of offers to the wife prior to the wife commencing proceedings and thereafter offered that she discontinue or withdraw the proceedings otherwise he would seek a costs order against her.
The wife’s evidence regarding the continuation of the de facto relationship was false and time and expense were incurred with the husband being required to disprove that evidence. The court takes into account the parties’ financial circumstances and also take into account the disparity in the parties’ income noting that the husband is unemployed and has incurred significant legal costs.
Conclusion: Taking into account all relevant factors the court orders that the wife pay the husband’s costs fixed in the amount of $25,000 rather than the full amount sought by the husband on an indemnity basis.
