Edelson & Wadding (No 2)

Case [2024] FedCFamC2F 1669


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

  1. 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

In the matter of Edelson & Wadding (No 2), the applicant, Ms Edelson, sought an order for the respondent, Mr Wadding, to pay her costs associated with an enforcement application filed on 19 April 2024. The application was heard by Judge Symons in the Federal Circuit and Family Court of Australia (Division 2). The dispute centred around the enforcement of previous court orders, specifically those pertaining to financial support and property division. The central legal issues revolved around whether the circumstances justified awarding indemnity costs to Ms Edelson, and if conduct occurring after the enforcement application was relevant to the costs assessment. Additionally, the court had to determine the appropriate quantum of costs, considering that the costs were compensatory rather than punitive.

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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