BLEAUCHAMP & WARNOLD

[2012] FamCA 1063

FAMILY COURT OF AUSTRALIA

BLEAUCHAMP & WARNOLD [2012] FamCA 1063

FAMILY LAW – PROPERTY – Process and procedure

APPLICANT: Ms Bleauchamp

RESPONDENT:	Mr Warnold
FILE NUMBER:	CAC	975	of		2007

DATE DELIVERED: 14 November 2012

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 14 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J. Godtschalk

SOLICITOR FOR THE APPLICANT: Kamy Saeedi Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. A Registrar of the Family Court be and is hereby authorised to sign or execute all documents on behalf of Mr Warnold that may be necessary to give effect to Order 9 of Court Orders made on 25 March 2009 as modified by Orders made by the Full Court on 10 August 2010 including but not limited to any authorisation for the retaining of Ms A and B Real Estate Suburb C as the auctioneer and agent for the purposes of the sale and including all contracts, transfers or other documents or authorities necessary to effect the sale, and including signing on behalf of Mr Warnold any retainer of the solicitor or lawyer conducting the conveyancing in relation to the sale of the property.

2. Ms A of B Real Estate Suburb C be appointed as auctioneer and agent for the purposes of these Orders. 

3. Upon completion of the sale in Order 2 do all acts and things necessary on behalf of Mr Warnold to give validity an operation to the deeds or instruments referred to in these orders.

4. The Registrar shall, if Mr Warnold fails to do so prior to the settlement of the sale of the property, authorise the solicitors conducting the conveyance on behalf of the parties to make such payments (to Ms Bleauchamp) pursuant to the orders referred to above and to these orders on behalf of Mr Warnold as may be required.

5. Mr Warnold will pay the costs of Ms Bleauchamp of and incidental to this application including the costs incurred by Ms Bleauchamp in relation to endeavouring to obtain Mr Warnold’ cooperation in the carrying out of the Orders referred to above including but not necessarily limited to the matters that are reflected in the annexures to the affidavit of Ms Bleauchamp filed in this Court on 11 October 2012.

6. The costs will be agreed or assessed in accordance with the Rules of the Family Court.

7. The costs referred to will be paid out of the proceeds of the sale of the property of D Street, Suburb E in accordance with the previous orders set out herein.

8. The matter is removed from the pending cases list. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bleauchamp & Warnold 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 CANBERRA

FILE NUMBER: CAC 975 of 2007

Ms Bleauchamp

Applicant

And

Mr Warnold

Respondent

REASONS FOR JUDGMENT

1. In this matter an order is sought in relation to costs.  The order sought is, formally, for indemnity costs.  However, upon questioning during the course of dialogue between counsel and the Bench the claim for indemnity costs was retreated from. 

2. This is sensible in the circumstances as there is no particular evidence which would enable me to bring it within the standard authorities in relation to indemnity costs. 

3. However, any order for costs must cause my consideration of section 117 of the Family Law Act and in particular a consideration of whether in accordance with 117(2) the Court should in these circumstances as a matter of justice order that there should be costs paid by one party to the other. 

4. In coming to such conclusion, I am obliged to consider the matters set out in section 117(2A). In this regard, I indicate the following matters have been significant to me in arriving at the conclusion that there should be an order for costs that Ms Warnold should pay to Ms Bleauchamp.

5. I have little information about the financial circumstances of each of the parties, but I have no evidence from Mr Warnold in this matter, which would cause me to be concerned about the making of an order particularly in the circumstances where there will be money available as a result of the sale of the property in accordance with property orders. 

6. Legal aid is not relevant. 

7. I am however persuaded in this matter that the conduct of Mr Warnold and those representing him has been such as to invoke the provisions of section 117(2A)(c) and his failure to cooperate in bringing the orders into effect has obviously caused the applicant cost and time and it is appropriate that she should be compensated.

8. The proceedings were necessitated by the failure of Mr Warnold to comply with previous orders of this court and I consider that while technically the application itself does not require the activities of Ms Bleauchamp’s solicitors in trying to enforce the orders, those are matters which are “of and incidental to” this application under section 106(A).  To avoid any semblance of doubt, it seems to me that I should declare that the actions undertaken in part chronicled in the affidavit of Mr F which was filed in support of this application should be the subject of effective costing and reimbursement to Ms Bleauchamp.

1. The matter is removed from the pending cases list.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Faulks delivered on 14 November 2012.

Associate: 

Date:  25 January 2016