HUSBAND SEEKS FOR COSTS ORDER AGAINST THE WIFE FOR DISCONTINUING THE DIVORCE PROCEEDINGS FILED BY HER
Perez & Molina [2021] FCCA 87 (27 January 2021)
This is an Application for costs in respect of a discontinued application for divorce filed by the wife.
Facts:
In December 2016, the husband filed for a divorce in Country A. Wife’s Country A lawyers, who remained acting for the wife in respect of the parenting proceedings, refused to accept service of the husband’s divorce application which had been filed in Country A.
The proceedings for divorce were commenced by the wife in this Court on 29 May 2018. The wife’s divorce application indicated that the father retained both children and did not allow them to return to Australia with the mother. The wife completely omitted to include any details of the consent orders she had entered into with the husband about the children, or the fact that there was an order restraining her from removing the children from Country A, in proceedings where she remained a party (or had been a party).
The husband filed a Response to Divorce on 28 August 2018. The application ultimately was discontinued by the wife on 25 October 2019 after the matter had been on foot for over 12 months.
The husband now seeks costs of those divorce proceedings.
Issue: Should the court grant the costs order sought by the father?
Law:
Analysis:
The wife was aware of the proceedings commenced by the husband for a divorce in Country A in early 2017 and that she had participated in family law proceedings in Country A prior to her departure to Australia in May 2017. This does not mean that the wife did not have standing to commence proceedings in Australia for a divorce. Whether Australia was the appropriate forum was never determined as she withdrew her application for divorce, following the granting of a divorce by the Country A Court.
Furthermore, there is no explanation as to why it took the wife from 22 May 2019 when she was served with the Country A Divorce Order until 25 October 2019 to file a Notice of Discontinuance in these proceedings, or indeed what steps she had taken in the Country A divorce proceedings, after being served with that application in October 2018.
The husband has incurred all cost in these proceedings unnecessarily. He has been entirely successful in these proceedings.
Conclusion: The court hereby grants the costs order sought by the father.