Costs of enforcement proceedings in family courts

Wherea party applies for an order for costs of enforcement proceedings, the family courts will as a starting point consider the terms of s.117 (1) of the Family Law Act 1975 (Cth) (“FLA”). That section provides that each party to family law proceedings bears his or her own costs, subject to s. 117 (2) FLA.

Section 117(2) FLA  provides that, if the court is of opinion that there are circumstances that “justify” it doing so,
then it may make such order for costs as it considers “just”.

The relevant considerations for a court in deciding whether there are circumstances that “justify” the making
of a costs order are set out in s.117(2A) FLA.

The Federal Circuit Court of Australia in Magnus & Watkins & Anor [2018] FCCA 3703 (10 December 2018) made orders for the Second Respondent to pay fixed costs on an application for costs of enforcement proceedings. In that case, the Applicant was the joint executor of the estate of his father, Mr. B.  Magnus. The First Respondent was the Applicant’s sister and the Second Respondent was her former de facto partner, Mr. Manning.

The Applicant brought an application for costs of enforcement proceedings as Mr. Manning had failed to comply with court
orders which had required that he pay certain monies to Mr. B. Magnus and his late wife as ell as making payment of other monies to the Applicant’s sister.

Mr. Manning had further failed to list a property for sale in accordance with those court orders when he failed to make payment of the monies as required under the court orders.

The solicitors for the Applicant had written to Mr Manning requiring that he pay the monies owing under the court orders to
Mr. B Magnus together with interest. However, Mr. Manning failed to provide any substantive response.

The Court considered in relation to the application for costs of enforcement proceedings that Mr Manning comprehensively failed to comply with the orders.  He had also been wholly unsuccessful in the enforcement proceedings.

There were no settlement offers before the Court whereas mr. Manning had made a profit from his failure to comply with orders. The property had gone up in value and he had received some rental income from the property whereas thee orders had required that he sell it where he failed to make payment of the monies that he had been ordered to pay.

The Court considered  that the circumstances justified that costs of enforcement proceedings be awarded against Mr. Manning on a party party basis.

If you would like some practical legal advice and the options available to you, contact our experienced divorce
lawyers Brisbane or our divorce lawyers Brisbane Northside.
 We can assist you in all areas of family law, including regards parenting arrangements, family law property settlement and any application that you may wish to make for costs of enforcement proceedings. We will advise you regards likely outcomes for your particular circumstances. This will allow you to make an informed decision and to retain control over how your family law issue is resolved.

Our goal is to assist our clients to reach an amicable agreement with their former partner, whether concerning parenting arrangements for their children or family law property settlement. If however court action becomes necessary, we have the
experience to represent you at Court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from our Brisbane divorce lawyers or our divorce lawyers North Brisbane.