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:
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”)…
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CaseChat Overview and Summary
The court was required to determine whether it was appropriate to order the husband to pay the wife's costs, particularly in light of a non-compliance with Rule 19.08(3) of the Family Law Rules 2004 (Cth).
Foster J considered the applicable principles for awarding costs in family law proceedings. The court found it appropriate to order the husband to pay the wife's costs of and incidental to her application filed on 17 December 2020. The husband was ordered to pay the wife's costs in the sum of $25,000 within two months. Furthermore, the wife was granted a charge over the husband's entitlement to a distribution from the proceeds of sale of a specified real estate property to secure the payment of this sum, with interest, and the husband was restrained from receiving any distribution until compliance with the costs order.
Orders
Orders of the court
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).
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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