FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Edelson & Wadding (No 2) [2024] FedCFamC2F 1669
File number: MLC 2712 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 25 November 2024 Catchwords: FAMILY LAW – Costs – enforcement application – where some but not all orders made – costs power engaged – whether circumstances justify indemnity costs – whether conduct occurring after the enforcement application relevant to costs assessment – where costs are compensatory and not punitive – fixed costs order made Legislation: Family Law Act 1975 (Cth), ss 4 and 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Sch 1 and Sch 3; rr 12.13, 12.17, 12.18
Cases cited: Browne v Green (2002) FLC 93-115; [2002] FamCA 791
Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801
Hopkins & Elliot (No 4) [2023] FedCFamC1F 532
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105
Roydon & Roydon [2024] FedCFamC1A 105
Stephens v Stephens and Anor (2010) 44 Fam LR 117; [2010] FamCAFC 172
Warbrick and Warbrick (No. 2) (2021) FLC 94-030; [2021] FedCAFC 101
Edelson & Wadding [2024] FedCFamC2F 1113
Worth & Worth (No. 2) (2019) FLC 93-910; [2019] FamCAFC 126
Division: Division 2 Family Law Number of paragraphs: 61 Date of last submissions: 18 November 2024 Date of hearing: 18 November 2024 Place: Melbourne Counsel for the Applicant: A Metherell Solicitor for the Applicant: Nicholes Family Lawyers Counsel for the Respondent: R Teicher Solicitor for the Respondent: Davies Moloney ORDERS
MLC 2712 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS EDELSON
Applicant
AND: MR WADDING
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
25 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The respondent pay the applicant’s costs of and incidental to her enforcement application filed on 19 April 2024 fixed in the sum of $29,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS
INTRODUCTION
On 15 August 2024, I made orders (Enforcement Orders) and published reasons in a proceeding brought by the applicant wife to enforce final property orders made…
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- AGLC
- Edelson & Wadding (No 2) [2024] FedCFamC2F 1669
- Case
- [2024] FedCFamC2F 1669
- Decision Date
CaseChat Overview and Summary
Judge Symons addressed the legal issues by first examining the authority to award costs under Part XIVB of the Family Law Act 1975. The court noted that the costs power was engaged due to the enforcement application being necessary to compel Mr Wadding to comply with prior orders. The judge then considered the principle that indemnity costs could be awarded if the circumstances warranted it, but found that the conduct did not reach the threshold for such an award. The conduct occurring post-enforcement application was deemed relevant only insofar as it demonstrated compliance issues that necessitated the enforcement application in the first place. Ultimately, the court determined that the appropriate costs were compensatory, and fixed the sum at $29,000, reflecting the nature of the application and the efforts required to secure compliance.
The reasoning and outcome of the court were grounded in a balanced approach to the principles of family law and the practicalities of enforcing court orders. The court recognised the necessity of the enforcement application while ensuring that the costs awarded were fair and proportionate to the efforts required. The fixed costs order was intended to compensate Ms Edelson for the legal work undertaken, without imposing a punitive financial burden on Mr Wadding. This decision underscores the importance of proportionality in family law cost orders, ensuring that the financial implications of enforcement actions are managed in a manner that is equitable to both parties.
Orders
Orders of the court
MLC 2712 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS EDELSON
Applicant
AND:
MR WADDING
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
25 NOVEMBER 2024
THE COURT ORDERS THAT:
1. The respondent pay the applicant’s costs of and incidental to her enforcement application filed on 19 April 2024 fixed in the sum of $29,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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