Essington Breen v Essington Breen

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Thomas Essington Breen, sought to challenge an order made by the Family Court. The respondent, Beatrice Lynne Essington Breen, opposed the application.

The central legal issue before the High Court was the extent of the Family Court's power to order one party to pay the costs of the other party in proceedings under the *Family Law Act 1975* (Cth). Specifically, the applicant argued that the Family Court's power to award costs was limited by section 117 of the Act, and that the order made in this case, requiring a substantial advance payment of $45,000 to the wife's solicitors for the preparation of her case, exceeded those statutory limitations.

The applicant contended that the historical basis for ordering husbands to provide security for their wives' costs, rooted in an era where women could not hold property, was no longer relevant. He argued that the Family Court's power to order costs was now exclusively governed by section 117 of the *Family Law Act 1975*, which generally stipulates that each party shall bear their own costs unless circumstances justify otherwise. The applicant distinguished the order in question from a traditional security for costs, asserting it was an advance payment of costs that had effectively been spent, rather than a fund held to be paid out at the conclusion of the proceedings.

The High Court granted special leave to appeal.