Yanez & Yanez

[2021] FamCA 148

FAMILY COURT OF AUSTRALIA

Yanez & Yanez [2021] FamCA 148

File number(s):

PAC 5502 of 2018

Judgment of:

FOSTER J

Date of judgment:

25 March 2021

Catchwords:

FAMILY LAW – COSTS – where application for of and incidental to enforcement application – where application for indemnity costs – where non-compliance with Rule 19.08(3) – where consideration of applicable principles – where appropriate to order husband to pay costs.

Legislation:

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 19.18

Cases cited:

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160

Bele & Vaughan (Costs) [2012] FamCAFC 198

Collins and Collins (1985) FLC 91-603

Greedy and Greedy (1982) FLC 91-250

Hawkins & Roe [2012] FamCAFC 77

Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23

Luadaka v Luadaka (1998) FLC 92-830

Parke & the Estate of the Late A Parke (2016) FLC 93 748

Penfold v Penfold (1980) 144 CLR 311

Phillips & Hansford [2020] FamCAFC 28; (2020) FLC 93-941

Number of paragraphs:

34

Date of last submission/s:

9 March 2021

Date of hearing:

1 February 2021

Place:

Parramatta

Counsel for the Applicant:

Mr Grew

Solicitor for the Applicant:

Coleman Greig Lawyers

Counsel for the Respondent:

Mr Jackson

Solicitor for the Respondent:

AMG Lawyers & Co

Solicitor for the Independent Children's Lawyer:

The Independent Children’s Lawyer did not appear

ORDERS

PAC 5502 of 2018

BETWEEN:

MS YANEZ

Applicant

AND:

MR YANEZ
Respondent

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	25 MARCH 2021

THE COURT ORDERS THAT:

1.That the husband pay the wife’s costs of and incidental to the Application in a Case filed by her on 17 December 2020 in the sum of $25,000, within two months from this date.

2.That the wife have a charge as against the husband’s entitlement to a distribution from the proceeds of sale of the real estate property at B Street, Suburb C in respect of the sum of $25,000, together with interest accrued, if any, and the husband is hereby restrained from receiving any distribution from the proceeds of sale of the Suburb C property until his compliance with Order 1.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yanez & Yanez has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

FOSTER J:

1. In ongoing property proceedings as between the primary applicant wife and the primary respondent husband, certain interim orders were made by consent on 17 April 2020.  Those orders provided:

   Distribution of funds held in controlled monies account

   1.That Coleman Greig Lawyers (“CGL”)…