Trotter & Payne (No 2)

This matter concerned an application by the wife for the husband to pay her costs of and incidental to her application for enforcement of a child support agreement, filed on 28 November 2011. The wife sought these costs on an indemnity basis. The husband opposed this application. The Family Court of Australia, by Justice Macmillan, heard the matter by way of written submissions.

The primary legal issue before the Court was whether the circumstances of the case justified a departure from the general rule that each party bears their own costs, and specifically, whether an order for indemnity costs was warranted. The Court was required to consider the provisions of section 117 of the *Family Law Act 1975* (Cth) and relevant case law, including *Colgate – Palmolive v Cussons Pty Ltd*, in determining the appropriate costs order.

Justice Macmillan found that the circumstances justified a departure from the general rule and warranted an order for indemnity costs. This conclusion was based on the fact that this was the second time the wife had been required to issue enforcement proceedings due to the husband's failure to comply with the child support agreement. The Court noted the husband's prior non-compliance, including a previous court order for payment in 2008, and his failure to meet his obligations despite the children living with the wife full-time since February 2010. The husband's conduct was described as demonstrating a blatant disregard for his obligations, with his evidence being evasive and disingenuous. The Court also considered the husband's superior financial position compared to the wife, who had borne the children's expenses since February 2010.

The Court ordered that the husband pay the wife's costs of and incidental to her application for enforcement filed on 28 November 2011, including the costs of the submissions in support of the application for costs, fixed in the sum of $4,935. These costs were to be paid on an indemnity basis within 28 days of the order. The wife's application in a case filed 28 November 2011 was otherwise dismissed.