BLANCHE & EDGER

FAMILY COURT OF AUSTRALIA

BLANCHE & EDGER [2013] FamCA 829

FAMILY LAW – COSTS – application made by applicant seeking the respondent pay her legal costs associated with enforcement proceedings on an indemnity basis – whether costs should be ordered –  on what basis should costs be ordered.

Colgate-Palmolive Company v Cussons Pty Limited (1993) 118 ALR 248

Kohan and Kohan (1993) FLC 92-340
Prantage & Prantage [2013] FamCAFC 105

Family Law Act 1975 (Cth): s 117

Family Law Rules 2004 (Cth): rr 19.08, 19.18, 19.19, 19.33, 19.34, Schedule 3

APPLICANT: Ms Blanche

RESPONDENT: Mr Edger

FILE NUMBER: MLC 3559 of 2010

DATE DELIVERED: 29 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 3 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mimmo

SOLICITOR FOR THE APPLICANT: Plaza Legal

THE RESPONDENT: In person

Orders

1. The father pay the mother’s costs on a party/party basis fixed in the sum of $5,206.00.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Blanche & Edger has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3559  of  2010

Ms Blanche

Applicant

And

Mr Edger

Respondent

REASONS FOR JUDGMENT

Introduction

1. The mother in her Application in a Case sought to enforce an earlier indemnity costs order against the father.  She also sought an order that the father pay her costs of that application on an indemnity basis.

2. This costs application was opposed by the father. 

3. The father in his Application in a Case sought to pay the earlier costs by instalments. 

4. I heard the applications on the papers and submissions from the solicitor for the mother, and the father in person.  The mother relied upon her own affidavit sworn 29 May 2013 and the affidavit of her solicitor sworn 9 July 2013. The father relied upon his affidavits sworn 2 and 23 September 2013.

5. Both parties were provided by the Court with a copy of the decision in Prantage & Prantage [2013] FamCAFC 105 (“Prantage”). The Full Court of the Family Court in that case, in part, dealt with s 117AB of the Family Law Act1975 (Cth) (“the Act”). Although this section was repealed, the principles outlined in that case remain a useful guide.

Background

1. On 30 January 2013, Macmillan J made an order for indemnity costs in the sum of $7,936 to be paid by the father by 4.00 pm on 30 April 2013.  The father was present and represented by counsel on that date.

2. The amount remained unpaid and the mother’s Application in a Case filed 31 May 2013 sought that the father pay the costs of $7,936 plus interest from 30 April 2013 within seven days, together with the costs of that application.

3. On 5 September 2013, her Honour Macmillan J ordered that the mother serve a sealed copy of her Application in a Case and affidavit filed 31 May…