Catlin & Catlin (No 2) [2026] FedCFamC1F 10 | Case summary

[2017] FamCA 228Catlin & Catlin (No 2) [2026] FedCFamC1F 10 | Case summary | Zoe

[113]

The wife was born in 1969 and is aged 56. The husband was born in 1969 and is also aged 56.
The husband and the wife (collectively "the parties") were married in 1994 and commenced cohabitation upon their marriage. They separated on 12 April 2013.
There are three children of the marriage, all of whom are now adults.
The wife has at all material times been employed in the financial services profession. The husband also holds financial services qualifications and is engaged by B Pty Ltd.
During their marriage, the parties established a self-managed superannuation fund known as the Catlin Superannuation Fund ("the superannuation fund"). Both parties are members of the superannuation fund and directors of its corporate trustee.
During the parties' marriage, the husband, together with Mr Q and Mr T, formed a partnership through which a practice known as S Pty Ltd was operated ("[S Partnership]"). The partners of S Partnership were the husband in his own capacity and as director of O Pty Ltd (as trustee for the O Trust), Mr Q in his own capacity and as director of P Pty Ltd (as trustee for the P Trust), and Mr T in his own capacity and as director of R Pty Ltd (as trustee for R Trust).
In 2014, approximately a year after the parties separated, the husband exited the S Partnership and a partnership dispute arose.
In November 2014, the husband and the other S Pty Ltd partners participated in a mediation and entered into a Heads of Agreement ("the Heads of Agreement") which provided, inter alia, for the distribution of work in progress ("WIP") between them. Although the acronym "WIP" usually refers only to unbilled fees, it has been used throughout these proceedings, and is therefore used in these reasons, to refer collectively to unbilled, billed and collected fees associated with the S Partnership.
The relevant terms of the Heads of Agreement as follows:
1. Notwithstanding those matters set out in paragraphs 2 to 7 above, all WIP that is realised and paid into [Mr Catlin's] NAB WIP account and all WIP that is realised and paid into [Mr Q's] and [Mr T's] NAB WIP account is realised and paid on behalf of the old partnership. The parties agree that there will be monthly reporting to each of them of all WIP that is realised and a reconciliation as between [Mr Catlin], [Mr Q] and [Mr T] as at 31 December 2016 or at such other times as the parties may agree.
2. The reconciliation is on the basis of one-third each and old partnership accounts will be struck on that basis as at 31 December 2016. The parties will agree any adjustments by 30 April 2017 or such other time as agreed to by the parties. Thereafter those accounts will be further reconciled bi annually, and agreed within 60 days of each six month period. Any negative adjustments will be paid by that party.
The parties were engaged in litigation with respect to financial matters (and later parenting matters) from March 2014. On 22 July 2016, in the days leading up to a trial listing in the Family Court of Australia (as this court was then known), the parties entered into consent orders resolving all of the proceedings between them. The consent orders relevantly provided as follows:
1. The husband shall pay or cause to be paid to the wife 60% of the net funds received by the husband in his own capacity and/or as a director of [O Pty Ltd] from the partnership [S Pty Ltd] pursuant to clause 10 of the Heads of Agreement dated 07/11/2014 between the husband and his former [S Pty Ltd] partners or otherwise, after the payment of the following:

[120]

On 11 July 2023, the wife filed an Application - Enforcement ("enforcement application"). That application sought, inter alia, that the husband provide disclosure, that there be a declaration as to the amount payable by the husband pursuant to order 17 of the consent orders, the sale of the Suburb G property so as to facilitate payment to the wife of the amount owing to her, and orders directed to implementation of the superannuation split provided for at paragraph 36 of the consent orders.
On 22 December 2023, the husband filed a Response seeking that the enforcement application be dismissed.
On 31 May 2024, an order was made by consent providing for a separate hearing and decision with respect to specified aspects of the relief sought in the enforcement application, namely determination of the amounts (if any) owing to the wife pursuant to orders 17 and 36 of the consent orders.
That separate hearing proceeded before Berman J on 24 and 25 July 2024 and was then adjourned part heard at the wife's request following the husband's evidence, on the basis of a foreshadowed application pursuant to section 79A of the Act, which was not ultimately filed.
On 16 August 2024, the wife filed an Initiating Application in which she sought a variation of orders 17 and 18 of the final orders pursuant to rule 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") on the basis that those orders did not reflect the intention of the Court. This was pressed before Berman J as an alternative position only, the wife's primary position remaining the orders sought in the enforcement application.
The hearing before Berman J continued on 9 and 11 December 2024.
As set out above, order 17 of the consent orders made reference to clause 10 of the Heads of Agreement. The S Pty Ltd partners did not ultimately implement that clause, and no ongoing reconciliations of the fees collected by the S Pty Ltd partners pursuant to their respective WIP accounts took place after the date upon which the consent orders were made.
The husband's position before Berman J was effectively that the reconciliation provided for in the Heads of Agreement was a condition precedent to the emergence of any liability owed by him to make a payment to the wife pursuant to order 17 of the consent orders. He argued that because there had been no such reconciliation, no such liability had arisen.
In relation to the superannuation split provided for at order 36 of the consent orders, the husband contended before Berman J that the calculation of the wife's entitlement should be determined using an amount of $130,623 together with 6 per cent interest calculated from 18 November 2015 to the date of the rollover, less the wife's member entitlement as at 30 June 2018. The wife disputed the suggestion that the order required the deduction of her member balance.

[129]

at settlement of the sale of the Property.

2.5 The Property shall be marketed for sale as soon as reasonably practicable after completion of the Approved Works. The Property shall be marketed for sale in accordance with the Agent's recommendations (in writing or otherwise) including but not limited to in relation to any advertising, marketing, works, improvements or remedial works to prepare the property for sale, the method of sale, the marketing campaign save for as provided for in these orders;

2.6 The Property shall be marketed for sale for a sale period of four (4) weeks unless otherwise agreed between the Applicant and the First and Second Respondents in writing or in accordance with the recommendations of the Agent;

2.7 The listing and reserve price shall be based upon the advice and recommendations of the Agent;

2.8 The parties are to co-operate in every way with the Agent in relation to the marketing of the Property for sale including making the key readily available, allowing inspection of the Property at all times reasonably requested by the agent and ensuring that the Property is clean, neat and in good order at the time of inspection by any prospective buyer;

2.9 The Agents fees, including any amounts for advertising and sale expenses shall be paid at settlement of the sale of the Property;

2.10 The First and Second Respondents shall instruct and authorise the Agent;

2.11 The First and Second Respondents shall do all such acts and sign all such documents necessary to complete the sale of the property including signing the Contract of Sale and all other transfer documentation forthwith upon its submission to them by the Agent or conveyancer or solicitor;

2.12 The First and Second Respondents shall provide to any conveyancer or solicitor engaged in connection with the sale of the property a copy of these orders; and

2.13 In the event that the Property has not been sold pursuant to these orders by 30 April 2026 the Applicant is at liberty to apply to the Court for further orders in relation to the manner and timing of sale of the property.

The Applicant, First Respondent and Second Respondent shall receive all communications and correspondence from the Agent notwithstanding the property is owned by the First and Second Respondents to the exclusion of the Applicant, and this order stands as authority from the First and Second Respondents for the Agent to provide all communications and correspondence to the Applicant during the sale process.

Except where the sale of the Property proceeds by way of auction, the First and Second Respondents shall instruct and authorise the Agent to notify the Applicant, in writing by email to an address notified to the Agent in accordance with this order:

4.1 Of each offer received for the Purchase of the Property, subject to such offers being above the listing or reserve price; and

4.2 Where the First and Second Respondents intend to accept an offer for the sale and purchase of the Property, the First and Second Respondents' intention to accept an offer made for the purchase of the Property, subject to the offer being above the listing or reserve price.

Upon the sale of the Property, the proceeds of sale shall be paid in the following manner and in order of priority:

5.1 To discharge any registered mortgage/s against the Property;

5.2 To discharge the caveat, or other security, registered against the Property by the Funder;

5.3 Any other encumbrance affecting the property including rates and taxes;

5.4 To meet all reasonable costs of sale, including payment of the agent's commission and advertising or other expenses, if any, payable on the sale;

5.5 Payment of the conveyancing costs and outlays relating to the sale;

5.6 The balance thereafter to be divided as follows:

[167]

(a) As observed by the Full Court,[10] the enforcement application is a "financial proceeding" as defined in the Rules, and it therefore attracts the obligations contained in rules 6.01, 6.03 and 6.06, the contents of which are outlined above. Despite this fact and despite the wife having consistently sought disclosure from the husband of details of his financial circumstances and copies of documents relevant thereto, Berman J found that the husband had not complied with his obligations in this regard.

(b) On 21 August 2023, an order was made requiring the husband to file (inter alia) a Financial Statement. By 15 December 2023, the husband had not complied with that order. A further order was made on that day requiring (inter alia) that a Financial Statement be filed by him. He did not comply and yet another order was made on 14 February 2024 requiring the Financial Statement to be filed. The husband was ultimately relieved of the obligation to file a Financial Statement by order made on 31 May 2024, at which time it was determined that the issues ultimately determined by Berman J were to be determined by way of separate hearing.

(c) An order was made on 15 December 2023 requiring the parties to provide disclosure of information and documents relevant to the proceedings. A further order was made on 14 February 2024 requiring the parties to exchange disclosure, including but not limited to the documents set out in rule 6.06 of the Rules. The husband did not comply with these orders.

(d) The husband gave evidence that he had instructed an accounting firm to assist him with the reconciliation provided for at clause 10 of the Heads of Agreement. He conceded under cross-examination during the hearing before Berman J that a range of documents would either have been provided to the accounting firm by him or brought into existence by them arising from his instructions to them and that they had shown him a draft report they had been working on. No such documents were produced by the husband in these proceedings.[11]

[187]

On behalf of the husband, it was submitted that the wife's application for interest was "an attempt to reopen issues already considered and disposed of by Berman J." The husband submitted that by paragraphs [146] and [147], Berman J had addressed and rejected the wife's claim to "pre-judgment interest" on the non-superannuation component (the WIP payment). He further submitted that Berman J had declared the amount of superannuation owed to the wife to be $130,623 notwithstanding that her case was advanced on the basis of that amount plus interest.[20]
The husband submitted that the comments made by Berman J at paragraph [147] expressly rejected the proposition of the wife that interest was payable, and that this foreclosed any claim for pre-judgment interest.
As a consequence, the husband submitted, the only question conceivably left open by Berman J's judgment was whether default interest should accrue prospectively following the declaration of the non-superannuation debt, or alternatively, from the bringing of the enforcement application in 2023, being the point in time at which the wife's delay, as identified by Berman J at [147], ceased to be a discretionary barrier.
It was submitted on behalf of the wife that the husband's submissions proceeded on the fundamentally wrong basis that the "judgment" in respect of which interest falls to be calculated is the 2025 orders of Berman J rather than the 2016 consent orders. Although I agree that such an interpretation would be incorrect, I do not accept that this is an accurate characterisation of the husband's submissions.
I interpret the husband's submissions not as mischaracterising Berman J's judgment as having created the relevant payment obligations, but as interpreting his Honour's judgment as having (in addition to declaring the amounts owing pursuant to the consent orders) expressly determined the issue of interest for the period between the payment obligations created by the consent orders falling due and the date of his Honour's orders, with the expressions "pre-judgment" and "post-judgment" simply being convenient temporal descriptors. In case of any doubt, the obligations to which an entitlement to interest may or may not attach arose pursuant to the consent orders and existed prior to the determinations of Berman J (which quantified those existing obligations). Were it otherwise, any payer in default of a payment obligation could evade years of liability for interest simply by taking an oppositional position to interpretation of the order with which they had failed to comply, no matter how unmeritorious, and would be incentivised to do so.
It was submitted on behalf of the wife that by paragraph [178], Berman J "expressly decided that the question of interest arising from the husband's defaults was to be determined at a subsequent hearing." The husband submitted that these words were prospective only and should be interpreted as contemplating, at most, the possibility of default interest accruing from the date of his Honour's declarations (ie 7 February 2025). The wife submitted that the husband's position that the issue of interest has already been decided "flies in the face of the express words of Berman J reserving that issue to further hearing."
I accept the submission made on behalf of the wife that Berman J did not address the wife's position with respect to the date from which interest was payable because his Honour expressly determined to stand that issue over for further hearing.
In my view, had his Honour determined that a temporal limitation was to imposed upon the question of any interest payable by the husband with respect to the obligation contained in order 17 of the consent orders, this would have been reflected in his Honour's orders and reasons for judgment.
The conclusion that his Honour did not conclusively determine the question of interest is consistent with the husband's own lack of certainty as to whether Berman J's words should be interpreted as precluding interest from the date of his Honour's orders or from the date upon which the wife filed her enforcement application. It is difficult to see how his Honour's observations could be taken as precluding the payment of interest after the date upon which that application was filed, even if it had been his Honour's intention to preclude the payment of interest during a period of delay on the part of the wife, but the more significant issue is that the husband's own resort to guesswork in this regard is consistent with the issue not having been conclusively determined.
Whilst his Honour certainly expressed some reservations at [147] with respect to the wife not having acted promptly in bringing her enforcement application, in my view, these observations constituted obiter dicta. I do not accept that his Honour's observations in this regard indicate that his Honour determined any part of the question of the interest (if any) that would accrue pursuant to section 117B or otherwise. Rather, as submitted by the wife, his Honour expressly decided and ordered that such a determination would be left to a later date.
With respect to the superannuation split, the husband submitted that Berman J's declaration that the wife's entitlement in the fund was $130,623 was definitive as to her entitlement at that point, such that the declared figure was "final and exhaustive" and thereby precluded the recovery of interest. I do not accept this submission. Had Berman J intended to extinguish the wife's entitlement to interest over and above the base amount, which entitlement was expressly contained within subparagraph 36.1 of the consent orders, it would be expected that his Honour's orders and reasons would both expressly have said so. Neither did.
Order 36 was not varied so as to remove the entitlement to interest expressly contained therein. As discussed later in these reasons, such a variation would have required an application under section 79A of the Act.[21] No such application was made to his Honour and accordingly, his Honour did not address the requirements of that section. I do not accept that that entitlement has been extinguished.
Nor do I consider that his Honour's orders or reasons can be interpreted as constituting a determination that the discretion to enforce the interest entitlement created by that order (and/or by subsection 117B(1)) should not be exercised. In my view, properly construed, his Honour's declaration with respect to superannuation dealt only with the quantum of the base amount and left the wife's entitlement to interest thereon untouched.
It was not necessary for his Honour's declarations as to the amounts owed to the wife pursuant to orders 17 and 36 of the consent orders to specify that interest was payable upon those sums in order to make it so. Nor was the wife required to make out or even express a "claim" for interest. Indeed, the reverse is true. The operation of subsection 117B(1) and the express provision conferring an entitlement to interest contained within order 36 operate such that the wife already had such an entitlement.[22] If that entitlement was to be removed or reduced, such removal or reduction was required to be expressly ordered, which did not occur.
I do not accept that any part of the question of the interest payable with respect to the obligations created by orders 17 and 36 of the consent orders was determined by Berman J.

[189]

It was submitted on behalf of the wife that the imposition of interest pursuant to subsection 117B(1) is not discretionary.
In this regard, the wife relied upon the judgment of Cronin J in Wohen & Wohen,[23] where his Honour said: "[i]t is quite clear, when you read that particular provision, that there is no need for court intervention and interest automatically applies on the particular judgment [subject to subsection 117B(2)]." Similarly, Finn J (sitting as a member of the Full Court) in Matthews & Matthews ("Matthews")[24] observed that "the right to interest in respect of monies due and unpaid under an order made under the Act for the payment of money, is a right conferred by the Act itself..."
Subsection 117B(2) clearly confers a discretion with respect to the payment of interest, including as to whether interest is payable, the rate at which interest is payable, and the date from which interest is payable. What is less clear form the terms of the subsection itself is whether that discretion can only be exercised at the time of the making of the order for the payment of money (in this case, on 22 July 2016, when the consent orders were made), or whether it can be exercised at a later time, such as the present.
In Matthews, Finn J expressly left open the question of whether an order under subsection 117B(2) varying the operation of subsection 117B(1) can be made at any time other than the time at which the order for the payment of money referred to in subsection 117B(1) is made.[25]
In Stephens & Stephens and Anor (Enforcement) ("Stephens"),[26] the Full Court held as follows:
1. In our view, where a property settlement order provides for the payment of money, then in the absence of an order to the contrary, interest is payable at the rate prescribed by the Rules from the date on which the order is made, or the date on which the order takes effect, whichever is later, on so much of the money as is from time to time unpaid. However, the court that made the property settlement order may order that interest is not payable or may order that interest is payable at a rate specified in the order, being a rate different from the rate prescribed by the Rules, or that interest is payable from a date specified in the order. The Wife was entitled as from the date of the judgment of Strickland J to the benefit of s 117B(1) of the Act and the Husband did not appeal against that outcome.
2. In our view, the discretion conferred by s 117B(2) of the Act is to be exercised by the court that made the order for the payment of money and cannot be exercised by any other court.

[195]

In Elrod & Elrod,[28] Riethmuller J confirmed, by reference to Stephens, that there is no discretion pursuant to section 117B of the Act to vary the amount of interest payable after the final orders have been made. His Honour said as follows:
1. Whilst s 117B(2) of the Act makes provisions for the Court to order that interest is not payable or is payable at a different rate other than what is specified in the relevant rules, the wording of the section indicates that such orders must be made at the time of making the original order. To find otherwise would undermine the finality of the orders (see Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240; (2009) FLC 93-425). The purpose of the rate of interest set out in the Rules was explained in Perot v Perot [2013] FamCA 137 at [27], where it was said that:
  1. The rate set in the Rules, by the body of Judges, is not simply a compensatory rate. It is also a rate aimed at providing some level of encouragement to litigants to comply with orders that require them to pay money within certain periods. Adopting the same public policy underpinning, namely the encouragement of litigants to comply with money orders made by the court, the rate selected is uniform across most superior courts.
The wife submitted that the husband ought to have filed a formal application for an exercise of the discretion under subsection 117B(2) if he sought a departure from the application of interest as provided for in subsection 117B(1). The husband submitted that the Court, in determining the present application, was already seised of that issue, and that the power to make an order relating to interest was part of the exercise of power undertaken by Berman J. In my view, the upshot of the authorities outlined above is that neither position is entirely correct. The appropriate time for any application and any exercise of discretion with respect to the payment of interest is neither now nor at the time of the determination undertaken by Berman J, but in 2016 when the consent orders were made.
I do not consider that there remains any discretion pursuant to subsection 117B(2) to vary or dispense with the entitlement to interest which is conferred upon the wife by subsection 117B(1).

[199]

Whilst the terms of subsection 105(1) refer specifically to enforcement of "decrees," it is likely that enforcement of an obligation to pay interest arising upon the making of an order constitutes an aspect of enforcement of that order. Indeed, the discretion under section 105 has been recognised in a number of cases regarding the payment of interest.[30] Furthermore, it is indisputable that enforcement of the interest obligation expressly provided for in order 36 of the consent orders would constitute enforcement of a decree and would therefore attract the discretion incorporated in section 105.[31]
Furthermore, whilst as the law presently stands, I am bound by the Full Court's decision in Stephens, I have regard to the fact that the members of the Full Court in Stephens themselves considered the possibility that their interpretation may not be correct,[32] and that subsection 117B(2) has been interpreted in a number of cases as permitting the discretion to be exercised at a time later than the time at which the order imposing the obligation to pay money has been imposed.[33]
As a consequence, I will consider whether the discretion not to enforce the interest entitlements attaching to the orders in question should be exercised; and in an abundance of caution, I will also consider whether, to the extent that there remains any discretion to order that interest is not payable or to vary the rate of interest or the date from which such interest should be payable, that discretion should be exercised such as to effect such a variation to the wife's existing entitlement to interest.
Returning to the issue raised on behalf of the wife regarding the lack of a formal application made by the husband with respect to interest, I do not accept that such an application is required in the current circumstances. In my view, the orders made on 8 December 2025 permit the ventilation of issues relating to the question of interest by way of written submissions without the need for any further formal application and there can be no question that the wife has had proper notice of what it is that the husband seeks in this regard.
As to the question of the exercise of the discretion not to enforce an order, the relevant authorities require consideration of whether the party seeking that the order not be enforced has established that it would be inequitable to enforce it, with what is inequitable to be determined by notions of general fairness.[34] Prima facie, a party is entitled to the benefit of a court order that has been made in their favour.[35]
In the context of the exercise of discretion with respect to enforcement of an obligation to pay interest, in Chiodo & Shaw,[36] Ryan J said as follows:
1. ...I see no reason to decline to enforce the interest component due in relation to the property settlement orders. Firstly, the applicant provided no evidence as to why in the interests of justice the interest rate prescribed in the Rules should not be enforced. Next, the purpose of interest is not merely compensatory and is imposed at a rate designed to ensure compliance with orders. As their Honours in Stephens explained a commercially low rate of interest may result in a recalcitrant party liable to pay an amount of money taking advantage of an interest rate which is less than the prescribed rate. ...
Similarly, in Dewell & Harris,[37] Rees J held that the onus lay with the payer to demonstrate that it was in the interests of justice not to enforce an obligation to pay interest in accordance with the rate provided for in the Rules. The husband in that case had not discharged that onus in circumstances in which he had kept and invested the funds and potentially earned income from them and had deprived the wife of the same opportunity.
In Arlington & Buzzotti,[38] Hogan J declined to exercise the discretion not to enforce an obligation to pay interest, saying "I am simply not persuaded that, in the circumstances which have arisen since the order was made, it is inequitable to enforce this obligation."
As to the exercise of the discretion contained within subsection 117B(2), the Full Court in Stephens gave consideration, in the event that their Honours' determination that the rate of interest could only be varied at the time of the making of the order imposing the payment obligation was wrong, to the considerations applicable to the exercise of that discretion. Their Honours said as follows:
1. Section 117B(2) allows the court, by order, to vary some of the consequences which otherwise flow automatically from s 117B(1), namely by ordering that no interest be paid or by varying the rate, or the date from which it becomes payable. The wording suggests that s 117B(2) offers a divergence from the effect of s 117B(1) and thus limits its operation by working as an exception. We are also of the view that as an exception, s 117B(2) shifts the onus onto the party seeking to take advantage of the exception: see Rural Export & Trading (WA) Pty Ltd v Hahneuser [2007] FCA 1535; (2007) 243 ALR 356 per Gray ACJ at [65].
2. The discretion conferred by s 117B(2) of the Act is extremely wide. However, in our view it "enables such lower or higher rate of interest to be determined as the interests of justice in a particular case may require": see Gould and Another v Vaggelas and Others [[1985] HCA 75; (1985) 157 CLR 215].
3. We would not seek to prescribe the considerations that may be relevant to the exercise of the discretion conferred by s 117B(2) of the Act. We are of the view that a purpose of interest on a judgment debt is to compensate the party entitled to the benefit of the judgment until it is satisfied. However, we do not accept that this is the only purpose and are of the view that another purpose is to ensure compliance with orders. For example, there may be circumstances where a recalcitrant party liable to pay an amount of money may seek to take advantage of an interest rate which is less than the prescribed rate.

[201]

In this case, it is the husband who bears the onus of demonstrating either that it would be in the interests of justice to vary or dispense with the requirement for the payment of interest, or that it would be inequitable to enforce that aspect of the orders.
Save to the extent that he submitted that Berman J had determined the question of interest adversely to the wife as a consequence of delay on her part in bringing the enforcement application (a proposition I have rejected), the husband did not submit that any delay on the part of the wife should lead to the exercise of the discretion not to enforce the interest-related components of the consent orders. For the sake of completeness however, I shall consider this issue.
Delay has been recognised as a factor relevant to the exercise of discretion to enforce an order.[39] In Yilmaz & Yilmaz,[40] Le Poer Trench said:
1. Failure to press for enforcement of a court order is a matter which, in my view, could justify the court in exercising its discretion not to enforce an order requiring interest to be paid on the unpaid portion of the principal sum during the period the order was not actively being pursued. ...
I note, however, that the wife's evidence is that between 2 June 2018 (at or around the time the husband ceased complying with the order relating to the ASIC forms) and 17 April 2023 (shortly prior to the filing of the enforcement application), she contacted the husband (both directly and through his solicitors) on no fewer than 16 occasions regarding his failure to comply with the orders. In such circumstances, it cannot be said that the wife was doing nothing with respect to enforcement of her entitlements, and the husband cannot reasonably have been under any misapprehension that she acquiesced in his breaches or accepted his assertions as to the proper interpretation of the consent orders.
Furthermore, I note that Berman J recorded[41] that the husband had not, prior to the hearing before his Honour, advised the wife of the true nature of his position that the reconciliation and finalisation of S Partnership was a condition precedent to any payment to her, and indeed, had presented her with a different position.
The husband was under an ongoing obligation to keep the wife properly informed of relevant facts and circumstances after the making of the consent orders and he wilfully failed to do so. This misconduct on the part of the husband plainly presented difficulties for the wife and her advisors with respect to the determination of whether and when enforcement proceedings should be brought and hindered her ability to make an informed decision in this regard.
Moreover, there is no evidence before the Court to suggest, and nor was it submitted, that the delay in the commencement of the enforcement proceedings caused any prejudice to the husband.
In such circumstances, I do not accept either that the timing of the wife's application renders it inequitable for the husband's obligation to pay interest to be enforced in full, or that the delay renders it in the interests of justice to vary the requirement for the payment of interest for the period to 8 December 2025.
No other basis for satisfaction of the onus borne by the husband in this regard was advanced on his behalf, and nor have I identified any. To the contrary, the evidence before the Court as to the husband's blatant disregard of his obligations suggests that failure to enforce them in full would be to reward the husband's poor conduct and thereby visit injustice upon the wife.
It was submitted on behalf of the wife that interest should be payable in circumstances in which the husband had enjoyed the benefit of the full amount he had withheld from the wife from her entitlements pursuant to the consent orders, with the result that the wife had been deprived of the use of the funds for investment or other purposes. It was further submitted that the husband should not gain the windfall of the use of the sums of $724,426 in non-superannuation funds and $130,623 in superannuation at the expense of the wife from his own deliberate and ongoing breaches of the orders. I accept those submissions.
The husband has not discharged the onus of demonstrating that it would be contrary to the interests of justice or inequitable for the wife's entitlement to interest pursuant to subsection 117B(1) and (in the case of the superannuation splitting order) the express terms of the consent orders, to be enforced in full and without alteration. Neither the discretion as to enforcement nor any remaining discretion as to the quantum of interest payable shall be exercised in the husband's favour.

[210]

These principles were in part referred to and applied by Berman J,[49] and the Court's extreme disapproval of the husband's non-compliance with his disclosure obligations could not have been made clearer by the Full Court's judgment. If the husband was at any time under any misapprehension as to the likelihood that his poor conduct with respect to his disclosure obligations would result in negative consequences for him, there could not conceivably have been any lingering uncertainty following the Full Court's judgment. Yet the husband has remained obdurate and his non-compliance has not been rectified.
It was submitted on behalf of the wife that the husband cannot be heard to complain about a lack of precision in the calculation of interest when it is his own ongoing and egregious breaches of orders (and the Rules) which prevents greater precision. I agree.
It was not only open to the husband but incumbent upon him to adduce such evidence as would enable the wife and the Court to make more precise calculations than those proposed by the wife. He elected not to do so. Nor did he proffer any proposal for an alternative method of calculation.
The Court's inability to assess the interest payable by the husband with greater precision than is set out in the proposal of the wife is a circumstance entirely of the husband's own making. In those circumstances, the balance of risk of detriment arising from the lack of precision should favour the wife and not the husband. I am satisfied that the calculation methodology proposed by the wife presents a fair and appropriate means of calculating the interest owed to her by the husband in the circumstances presented by the husband's recalcitrance.
Senior counsel for the wife produced detailed schedules[50] setting out the calculation of the interest payable to her using her at the rate provided for in the Rules (as applicable from time to time). No issue was taken with those calculations, nor have I been able to identify any error therein.
The interest payable by the husband to the wife with respect to the obligation imposed by order 17 of the consent orders for the period to 8 December 2025 (which is to be paid in accordance with subparagraph 5.6.1(c) of the orders made on 8 December 2025) is assessed at the sum of $487,229.94.

[211]

With respect to the superannuation split provided for at order 36 of the consent orders, subparagraph 36.1 provided that the amount to be paid to the wife was to be calculated using a base amount of $130,632 "plus 6% calculated from 18 November 2015 to the date of the rollover referred to in paragraph 36.7.3...".
Subparagraph 36.7.3 provided that the wife "as soon as practicable after 30/06/2018 then rollover her member entitlements into a Superannuation Fund of her choice." That obligation was expressed (at the commencement of subparagraph 36.7) to arise "[f]orthwith upon the preceding orders 36.1 to 36.5 having been carried out in full," which did not occur because of the position taken by and inaction on the part of the husband with respect to the superannuation order.
The wife's primary position was that pursuant to subparagraph 36.1 she was entitled to interest at six per cent from 18 November 2015 to 30 June 2018, and interest pursuant to section 117B thereafter, which she calculated to be a total of $110,874.08.
In the alternative, the wife sought interest at the rate of six per cent (being the rate provided for at subparagraph 36.1 of the consent orders) for the entire period, being a total interest amount calculated by her to be of $78,889.13.
The husband submitted that Berman J's declaration was not an order for the payment of money by the husband personally and therefore did not attract the operation of subsection 117B(1). It is in fact order 36 of the consent orders, and not Berman J's declaration, which imposes the relevant obligation to pay money. Berman J's declaration quantified the obligation but did not create it.
In Jones & Jones ("Jones"),[51] the Full Court considered the meaning of the phrase "an order for the payment of money" in section 117B. Their Honours held as follows:
1. We are of opinion that on its proper construction section 117(B) [sic] when it refers to "an order for payment of money" prima facie means an order for the payment of money by one party to the other. Ordinarily it would not refer to a situation such as the one here, where jointly owned property is to be realized by the parties and where the proceeds of such realization are to be distributed between the parties. In the present case each of the parties was required by the order to join in the sale of the home and the distribution of the proceeds. To order the husband to pay interest on monies payable to the wife, the bulk of which had to be raised by the wife herself out of her own share in the home, was quite unjust and not a result which was intended by section 117(B) [sic].
2. There may be cases where one party has the sole use of the property to the exclusion of the other until a sale takes place and in such a case it might be appropriate to order the payment of interest or to make some other adjustment pending the completion of the sale. Similarly, it might be appropriate to order the payment of interest where one party unreasonably delays or frustrates the ordered sale. However, this was not such a case. In our opinion the order for the payment of interest by the husband to the wife cannot be justified.
In my view, whilst a superannuation splitting order might similarly not ordinarily be considered an order "for the payment of money," the husband's conduct in the present proceedings may well justify a departure from the general approach of the type referred to by the Full Court in Jones.
The fact that the payer pursuant to order 36 of the consent orders is not the husband in his personal capacity is immaterial. There is nothing in the terms of subsection 117B(1) to suggest that its application is limited to orders directed against spouses (or other payers) personally.[52] The effect of subparagraph 7.2 of the orders made on 8 December 2025 is that any interest payable with respect to order 36 of the consent orders will be paid from the same source as the underlying obligation, being the superannuation fund. It is not suggested that the requirement to pay interest will be visited directly upon the husband in his personal capacity.
In any event, in my view, the reference in subparagraph 36.1 of the consent orders to interest at the specified rate of six per cent being payable "from 18 November 2015 to the date of the rollover" should be interpreted as meaning that the interest rate specified in that order applies until the rollover actually occurs, and not merely until the date upon which the rollover was expected to occur. This is particularly so in circumstances in which the time specified in the orders for the implementation of the rollover was not a precise date, but "as soon as practicable after" the date referred to therein.
In Carchar & Hbenum,[53] the parties had fixed a rate of interest as part of consent orders made nearly 20 years prior to the conclusion of the enforcement proceedings. Cronin J said as follows:
1. It was common ground that enforcement of the order was a discretionary matter. The range of options open include dismissing the application, staying the application and enforcing the order on terms and conditions. The power to enforce orders lies in s 105(1) of the Family Law Act 1975 (Cth) ("the Act").
2. Enforcing the order but imposing terms and conditions sounds simple but once the jurisdiction in s 79 is exhausted, save as to the confined circumstances in s 79A, a review of a decision of a delegated officer or an appeal, the Court cannot alter the substantive entitlements of the parties (see Mullane (1983) FLC 91-373). Any suggestion that the capital payment or the 18 per cent interest rate could be altered would require a finding that the order or part of it to be altered was a machinery provision rather than a substantive entitlement of the parties. As explained in Ravasini and Ravasini (1983) FLC 93-312, the Court has power to vary machinery or consequential provisions of a property order. However, the power to vary machinery provisions is limited and can only be implemented to allow the intention of the order to be effected. In varying such a provision, a court must have regard to issues of justice and equity between the parties. The test of whether a provision is consequential or substantive is whether the change concerns a part of the substantive order or whether it is simply a change to give efficacy to the substantive order.
3. In this case, there is no power for me to alter the provisions of the order by way of a term or condition without affecting the substantive right of the wife and ultimately, the husband.

[222]

The husband's persistent and ongoing recalcitrance with respect to his disclosure obligations limits the ability of the Court to ascertain his financial circumstances with any degree of certainty. The uncertainty as to his financial circumstances includes, but is not limited to, the extent of the WIP which Berman J found was "likely" to have been received by him after 2020,[60] 60 per cent of the net value of which ought to have been paid to the wife. As submitted by the wife, it also includes lack of disclosure as to how he applied the large sums of money received by him from S Pty Ltd (including both the funds he was entitled to retain for his own benefit and those he was not). For the reasons already discussed, the uncertainty as to the husband's financial circumstances arising from the husband's contemptuous conduct will not be interpreted in his favour.
Senior counsel for the wife pointed to the fact that the husband has had the full benefit of the use of the funds which ought to have been paid to the wife, though this fact will be addressed by the order for interest which is to be made. The husband has also had the full benefit of his own 40 per cent share of the WIP received by him, which, even if limited to the amount disclosed by him, has been a substantial total sum.
The wife also emphasised that the husband has had the use of the former matrimonial home which was transferred to him pursuant to the consent orders (noting that his financial circumstances permitted him to transfer a 50 per cent interest in that property to his current wife for nil consideration). This is accurate, though I note that that property is to be sold and the proceeds applied to payment of the husband's extant obligations to the wife pursuant to the orders made on 8 December 2025.
The wife otherwise points to her evidence of entities under the control of the husband through which he holds other real property holdings, including a holiday house which has been renovated and which is used to generate income.
A Financial Statement ultimately filed by the husband indicates that he earns a gross income $190,008 per annum. It discloses significant expenses, but I note that those expenses include superannuation contributions which would appear to be voluntary in circumstances in which the husband is not an employee, and mortgage payments with respect to the former matrimonial home, being an expense of which the husband will soon be relieved. The husband will also soon be relieved of liability for the mortgage encumbering the former matrimonial home, being the major liability disclosed by him. Some of the other liabilities asserted by the husband are contingent in nature, being in the form of guarantees. The husband will retain the balance of the proceeds of sale of the former matrimonial home after the wife's entitlements pursuant to the orders of the Court are paid to her.
The husband's Financial Statement disclosed a liability of $99,902 relating to legal fees. The wife submitted, and I accept, that it cannot count in the husband's favour that he chose to waste money on futile appeals from Berman J's reasons. I would add to that that the husband's expenditure on his own legal fees for the enforcement proceedings themselves, his position throughout which took the form of a futile attempt to avoid meeting his obligations pursuant to the consent orders, to the extent that this has affected his current financial circumstances, ought not count in his favour when it comes to the question of costs payable to the wife.
It was submitted on behalf of the wife, and I accept, that the husband could not be heard to submit that he had limited assets or income in circumstances in which it had been found that he had failed to make proper disclosure in relation to his financial circumstances and where he had continually and wilfully prevented any proper understanding of his financial affairs. I give limited weight to the husband's evidence of his financial circumstances in light of the serious and ongoing deficiencies with respect to his compliance with his disclosure obligations.
The wife has deposed to residing in a property which was formerly wholly owned by her parents, a one-third interest in which has been transferred to her by them for no consideration. She has no other assets of substantial value. She earns a gross income of just under $110,000 per annum. The wife's Financial Statement discloses that she owes a debt to her parents of approximately $420,000 pursuant to a personal loan.
It was submitted on behalf of the husband that his financial circumstances are not favourable compared to those of the wife. I could not possibly accept such a proposition as accurate in the absence of full disclosure. In any event, it is not a precondition to an order for costs that there be a disparity in the parties' financial circumstances[61] or that the party against whom costs are sought be in financial circumstances more favourable than those of the party seeking costs.[62]

[224]

The conduct relevant to this consideration is conduct as a litigant.[63] The relevant authorities are replete with examples of the kinds of conduct which will ordinarily justify an order for costs and which are representative of the kinds of conduct in which the husband in these proceedings has persistently engaged. Those examples include obstructiveness causing the proceedings to be unduly prolonged or made unduly expensive to the other party,[64] failure to make proper information available (either in affidavits or documents) or being obstructive in the collection of relevant material,[65] and failure to provide proper disclosure as to a party's financial circumstances.[66] It must, however, be borne in mind that the purpose of a costs order is to compensate the person in whose favour it is made, not to punish the person against whom the order is made.[67]
Consistently with the applicable authorities, rule 6.17 of the Rules outlines the potential consequences of non-disclosure and expressly warns that if a party does not disclose a document as required by the Rules (as has been the case of the husband in the present proceedings with respect to numerous documents), that party may be ordered to pay costs.[68] As identified by Keane J in Rozenblit v Vainer,[69] litigation conducted in "sheer disregard of the rules" is oppressive to the other party.
I have discussed the husband's failures to comply with his disclosure obligations and the various other obligations imposed on him by orders of the Court, together with the observations of both Berman J and the Full Court in this regard, at length earlier in these reasons. Notwithstanding the clear indications contained in those judgments, the husband's recalcitrant behaviour has persisted.
In addition to the conduct already discussed, the wife points to failures on the part of the husband to comply with procedural directions including filing documents in response to the enforcement application over 15 weeks late, failing to file a Response to an Initiating Application, failing to file a summary of argument when directed to do so, and repeatedly failing to file costs notices.
The husband also failed to keep the wife and the Court properly informed of his position in the proceedings. For example, as Berman J recorded, the husband had failed to inform the wife (and plainly therefore also the Court) prior to the commencement of the hearing before his Honour of his position that the reconciliation of WIP was a condition precedent which had not yet taken place.[70]
The husband attempted to justify his continued failure to comply with the consent orders following the delivery of Berman J's judgment on the basis that he was exercising his appellate rights, and on the basis that he did not wish to sell the former matrimonial home before determination of the Full Court appeal or the application for special leave. In the absence of a stay, neither of these reasons constitutes any kind of justification whatsoever for his ongoing failure to comply with binding court orders. Rather, this approach is simply emblematic of the husband's ongoing high-handed attitude towards orders of the Court, which takes the form of a belief that his own wishes and desires should be placed ahead of the need to comply with binding orders. Plainly, it is not for a litigant to determine the time at which they will choose to comply with orders that are binding upon them according to their wishes.
There can be no doubt that the costs incurred by the wife have been impacted by the need to address the husband's ongoing non-disclosure, to meet his unmeritorious excuses for his failure to comply with his obligations, and to continue to pursue her entitlements in the face of the husband's resistance to acceptance of binding obligations imposed upon him.
Senior counsel for the wife submitted, and I accept, that the husband's conduct in connection with the enforcement proceeding had gone beyond the unreasonable and uncommercial, though I observe that it was undoubtedly both of those things. The husband is a sophisticated and experienced litigant. He has been legally represented throughout these proceedings, including by King's counsel. He has also had the benefit of two separate judgments expressly denouncing his serious and unacceptable conduct with respect to the proceedings. There can be no suggestion that his ongoing contumelious and egregious behaviour has been anything other than a knowing and wilful disregard for his obligations and for the authority of the Court.
The husband referred to Berman J's observation that the proceedings had been "left to linger" and submitted that it had been open to the wife to bring the proceedings at an earlier time. Assuming that submission were accepted, it is not clear how that goes to the question of costs, as there is no evidence or even suggestion that the proceedings would have been less costly to either of the parties had they been commenced earlier in time.
The husband otherwise scrambled to point to perceived transgressions in the manner in which the wife had presented her case, alleging a failure on the wife's behalf to disclose to the Court communications made to her by the husband of assertions which were ultimately rejected (including that no monies were owed to her), and criticising her for refusing to participate in mediation despite the fact that she already had binding orders in her favour.
The husband also complained that it was not until the commencement of the hearing before Berman J that he had become aware of the amount claimed against him. This complaint entirely fails to grapple with the fact that it was the husband, and not the wife, who was subject to a binding obligation to provide disclosure of the very information that would have revealed the amount owed by him to the wife. As submitted by senior counsel for the wife, the Court and the Full Court have unequivocally said that it was as a result of the husband's breaches of court orders that the wife was unable to quantify her claim. I note also that it was the husband, and not the wife, who was found by Berman J to have failed to make his position clear prior to the hearing before his Honour.[71]
The triviality of the transgressions alleged by the husband (even if any such minor wrongdoing on behalf of the wife had in fact been demonstrated, which it has not), stands in stark contrast to the overwhelming and persistent recalcitrance of the husband. His attempt to malign the conduct of the wife, who has diligently prosecuted her application, serves only to throw his own egregious misconduct into sharp relief.
The husband further asserted that the adjournment application made by the wife, which led to a part-heard adjournment during which she had intended to file an application pursuant to section 79A of the Act but had not ultimately done so, had increased the costs of the hearing before Berman J. It is not at all apparent that this assertion is accurate, but in any event, it is clear from Berman J's judgment that the basis for that adjournment application and the source of the need for the wife and her advisors to consider a section 79A application, was evidence given by the husband indicating that he had not discovered and produced documents relevant to the issues in the proceedings.[72] In those circumstances, pointing to lost costs arising as a consequence hardly assists the husband.
Furthermore, as the wife submits, in circumstances in which the entire enforcement proceeding arose from the husband's blatant breaches of orders of the court, the wife should not be criticised for simply seeking to enforce her rights and running her case as carefully as she could in the face of the "shifting sands" of the husband's position and his ongoing lack of disclosure.
The husband's submissions with respect to this factor conspicuously largely ignored his own egregious conduct with respect to the conduct of the proceedings. This observation is by no means a criticism of the author of those submissions. This simply reflects the inescapable reality that the husband's conduct is indefensible.
I give significant weight to the husband's persistent egregious and recalcitrant conduct when considering the question of costs.

[229]

The husband was wholly unsuccessful before Berman J, who rejected the husband's interpretation of the consent orders and made declarations in the terms sought by the wife.
It was submitted on behalf of the husband that the wife's Initiating Application filed on 16 August 2024 had been wholly unsuccessful. I do not agree. Although that application was dismissed, it merely represented the wife's alternative position in the event that the husband succeeded with respect to the primary issue of interpretation of the consent orders. As submitted on behalf of the wife, when the husband's arguments failed in their entirety, her alternative case fell away with them. The dismissal of that application in such circumstances is indicative of success on the part of the wife, not the husband.
In any event, this factor deals with the case where a party is wholly unsuccessful in the proceedings themselves, not with respect to specific issues or applications.[73]
It is true, as pointed out on behalf of the husband, that what remained of the enforcement proceeding was ultimately resolved by consent on 8 December 2025. However, it is of significance that the consent orders made on 8 December 2025 reflected the outcome sought by the wife and effectively represented capitulation on the part of the husband. Furthermore, the husband's consent to those orders came only after several years of costly litigation in which he sought unsuccessfully to challenge the underlying obligations, causing the wife to incur the costs now under consideration, and occurred only at the very end of the proceedings in circumstances in which he was faced with an application to proceed undefended. The making of an order by consent does not, in any event, preclude an order for costs.[74]
The wife has succeeded in relation to her alternative position rather than her primary position with respect to the interest on the superannuation component of the consent orders, but the husband was wholly unsuccessful with respect to his position that there should be no interest payable.
As Finn J (with whom O'Ryan and Ainslie-Wallace JJ agreed) said in Davida & Davida (Costs):[75]
1. ...True it is that the relevant paragraph in section [114UB(3)] refers to a party being "wholly unsuccessful", but I think it fair to say that the practice has been to look at what one might term the relative merits of success or lack of success between the parties, even if necessary doing that under the last matter mentioned in section [114UB(3)], being any "other" matter.
Whether it be said that the husband has been wholly unsuccessful within the meaning of subsection 114UB(3)(e) or almost wholly unsuccessful such that the applicable subsection is 114UB(3)(g), the wife has been overwhelmingly successful when compared to the husband and that is a significant consideration in the context of this matter.

[239]

The wife seeks that the order for costs be made on an indemnity basis, or in the alternative, on a party/party basis. The husband proposed that if there were to be an order for costs, the quantum of costs be assessed.
The ordinary rule is that where the Court makes an order for costs, the order is for the payment of those costs in accordance with the scale as set out in Schedule 3 to the Rules.
There is nothing in the Act which inhibits an order for indemnity costs.[77] The power to award indemnity costs is in fact expressly provided for at subrule 12.17(1)(b) of the Rules.[78] If indemnity costs are to be ordered, however, exceptional circumstances are required, as set out by the Full Court in Kohan & Kohan ("Kohan")[79] and other authorities including, in particular, Prantage & Prantage ("Prantage").[80]
The husband emphasised that the Full Court in Kohan held that "the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges." I accept that that is a very important consideration, and I give it due regard.
It cannot be doubted that an order for indemnity costs represents "a very great departure from the normal standard,"[81] and that "the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind." [82] There should be "some special or unusual feature in the case to justify the court in departing from the ordinary practice"[83] and "indemnity costs should only be awarded in an "exceedingly rare situation."[84] The question then, is whether such exceptional circumstances exist in the present case.
The husband referred to the Full Court's decision in Munday & Bowman,[85] in which Holden CJ drew from the well-known decision in Colgate-Palmolive Company & Anor v Cussons Pty Ltd ("Colgate-Palmolive"),[86] in providing examples of circumstances that may warrant the exercise of discretion to award indemnity costs. It was submitted on his behalf that those examples did not apply to the present matter. In my view, at least two of the examples provided do in fact apply to the circumstances of the present case, including:

[241]

In any event, the examples of conduct likely to warrant an order for indemnity costs as outlined in Colgate-Palmolive are merely examples. They do not represent an exhaustive list, and as Sheppard J confirmed in that case, the categories in which the discretion may be exercised are not closed and it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established.[90]
In Ruhani v Director of Police,[91] Kirby J, drawing on established authorities, described circumstances in which departure from the usual award of party/party costs might be justified. Several of the examples given apply to the circumstances of the present case, including where the opponent's conduct has been "plainly unreasonable," undertaken in an "unmeritorious, deliberate or high-handed" way or where that opponent has been shown to be guilty of "unreasonable conduct, albeit that it need not rise as high as vexation."
Wilful disregard for a party's disclosure obligations, "sheer disregard for the rules"[92] and failure to comply with the overarching purpose have all led or contributed to the making of orders for indemnity costs in past cases.[93] All are features which have not only been present in this case but have actively undermined the ability of the Court to do justice as between the parties. In my view, this case falls within the recognised category of cases in which an indemnity costs order may properly be made to compensate a successful party for the consequences of delinquency on the part of an unsuccessful party.[94]
It was submitted on behalf of the husband that although his interpretation of the consent orders had ultimately been found to be wrong, his position had been bona fide. It was further submitted that it had given rise to "arguable factual and legal questions"[95] and had not been "doomed to fail" or a hopeless case. The husband's position was not simply found to be "wrong." His position with respect to WIP was found not to be credible,[96] and his argument with respect to superannuation was described by the Full Court as "particularly weak."[97]
Furthermore, any prospect the husband may otherwise have had of satisfying the Court that there was any merit in his case or even that the basis upon which he was pursuing it was bona fide, was comprehensively stymied by the husband's own conduct in failing to comply with his obligations and thereby facilitate comprehensive evidence being put before the Court. The manner in which the husband conducted his case undermines the suggestion that it was pursued bona fide.
The husband submitted that the adjournment application made by the wife during the hearing before Berman J and the Initiating Application ultimately filed by her on 16 August 2024 indicated that she herself had identified potential flaws in her enforcement application. Senior counsel for the wife disputed this, pointing out that the wife had merely responded to the position advanced by the husband by putting forward an alternative position; and that her primary position, which has been fully vindicated, was at all times that the consent orders were clear and enforceable. I accept that submission and do not accept that there were any identified "potential flaws" in the wife's ultimately wholly successful enforcement application. Comprehensively and diligently taking all reasonably available steps to meet all aspects of the case put by the other is appropriate and proportionate conduct on the part of a litigant. It does not signify that, and cannot be taken as a concession that, the case of the other has merit.
The husband relied on Stephens & Stephens and Anor (Enforcement) (Costs) ("Stephens (Costs)")[98] as being analogous to the facts of the present matter, noting that that case involved an unsuccessful appeal from a first instance decision on an enforcement application and had also involved an unsuccessful application for special leave. Indemnity costs were not ordered in that case. However, this decision can be distinguished on at least two bases. Firstly, it was a judgment with respect to the costs of an appeal, not with respect to the underlying enforcement proceedings. Not only does this mean that it was an application with respect to a fundamentally different stage of the proceeding, but it has the consequence that the conduct of the husband in that matter with respect to the underlying application was not canvased in detail in the judgment, limiting the extent to which the circumstances of the two cases can be compared. Secondly, the husband's non-compliance with his obligations in the present matter was so serious and so egregious that the Full Court declined to allow him to prosecute his appeal at all, which circumstance was not a feature of Stephens (Costs).
Moreover, while the Full Court in Stephens (Costs) was not satisfied that the husband's conduct in those proceedings warranted an indemnity costs order in the appeal, their Honours expressly indicated that this did not preclude such conduct being raised with respect to a pending costs application in relation to the underlying enforcement proceedings.[99]
In my view, an example of a more analogous case is LGM & CAM,[100] in which an appeal against an order for indemnity costs was unsuccessful (notwithstanding the fact that the underlying finding of contempt had in fact been overturned on appeal) in circumstances where it was found that the appellant's conduct had justified the enforcement proceedings, where the Full Court was satisfied that it could be inferred that had such proceedings not been taken, the appellant would have continued to be in breach of the Court's orders, and where the Full Court held that any order other than indemnity costs would, in the circumstances, have resulted in the respondent unfairly being visited with the costs of proceedings, the necessity for which rested and remained with the appellant.
The wife in the current proceedings annexed to her written submissions as to costs detailed schedules of the costs sought be her, calculated both on an indemnity basis and on a party/party basis. A copy of the costs agreement entered into between the wife and her solicitors was annexed to her affidavit filed on 28 February 2025.[101]
The husband took issue with some relatively minor aspects of the calculation of the party/party costs claimed by the wife. I note also that although the schedule of party/party costs relied on by the wife appears to reflect changes in the amounts provided for in the scale pursuant to amendments to the Rules made from time to time over the relevant period, it does not appear to reflect the fact that from 11 July to 15 December 2023, these proceedings were pending in the Federal Circuit and Family Court of Australia (Division 2). That court has its own separate scale of costs,[102] though rule 4.01 of the rules of that court[103] does allow for the application of the scale applicable in this court to family law proceedings pending in that court, and this may well be a matter in which it that course would be appropriate.
Despite these issues, the schedules relied upon by the wife allow at least a general comparison between the applicable party/party costs and the indemnity costs sought. The total amounts sought by the wife were $145,176.85 in party/party costs and $190,594.39 in indemnity costs. Even allowing for the potential need for some variation to account for the identified issues with respect to the calculation of party/party costs, the difference between these sums is not, in my view, sufficient to weigh significantly against the making of an order for indemnity costs.[104]
In Prantage,[105] in considering the importance of the increasing disparity between scale costs and the costs being charged by lawyers, the Full Court referred to the judgment of Cooper and Merkel JJ of the Full Court of the Federal Court of Australia in Re Wilcox, Ex parte Venture Industries Pty Ltd, ("Re Wilcox")[106] in which their Honours identified the "two seemingly irreconcilable objectives" of "relieving a successful litigant from the burden of costs which that litigant should not have been required to incur" and "protecting access to justice by only exposing an unsuccessful litigant in the usual course to an order for scale costs on a party and party basis."
In my view, in the present matter, not only is it of importance that there is not in fact a significant disparity between the scale costs and the costs charged by the wife's lawyers, but the husband is not merely an "unsuccessful litigant" but also a recalcitrant litigant whose ongoing breaches of orders and other obligations have been held to have been "calculated, deliberate and significant."[107] In such circumstances, there is less cause for concern than would ordinarily be the case about the latter of the objectives identified in Re Wilcox, and greater weight can be given to the former_._
Had the husband merely failed to persuade Berman J and the Full Court of his interpretation of the consent orders and otherwise complied in full with his obligations as a litigant, this would not likely be a case where indemnity costs would be warranted. That, however, is not what occurred, and a comparison to such a scenario is entirely inapt. It is the husband's ceaseless and wilful misconduct, and not merely his lack of success (comprehensive as it was), that marks the present matter as exceptional.
Save for some minor adjustments as discussed below, I have not identified anything apparently unnecessary, unreasonable or disproportionate with respect to the work undertaken by, or the rates charged by, the wife's lawyers as represented in the schedule relied upon by her with respect to her application for indemnity costs which would weigh against an order for the costs she seeks.[108] I am satisfied that the costs charged to the wife, and now sought from the husband, have been appropriate,[109] particularly having regard to the significant forensic challenges that have been faced by the wife and her legal representatives as a consequence of the husband's conduct.
A costs notice filed on behalf of the husband on 5 December 2025 indicates that his own costs and disbursements for the same proceeding have been slightly higher than those claimed by the wife (even allowing for lack of clarity in that notice as to the extent to which outstanding counsel's fees relate to the enforcement proceedings as distinct from the appeal and/or the special leave application). This enhances the ability of the Court to be satisfied as to the reasonableness, appropriateness and proportionality of the costs claimed by the wife.
A further relevant consideration with respect to an order for indemnity costs is the likely impact on the financial position of each of the parties and the actual financial significance for them of a departure from the usual approach.[110] I refer in this regard to my earlier observations with respect to the financial circumstances of the parties and note again that the husband's failure to comply with his disclosure obligations has created a circumstance where the Court is entirely unable to conclude that there is any realistic prospect of an unjust impact upon him of making the order sought by the wife.
It was submitted on behalf of the wife that in the circumstances of this case, she should not be required to remain out of pocket to any degree whatsoever for her reasonable legal costs, which arise exclusively from the husband's breaches of multiple orders and persistent and unjustified refusal to accept the reality of his position. I accept that submission. If the wife is left responsible for the payment of legal costs in enforcing the orders by which she was entitled to the receipt of funds, the value of those orders is diminished by the sum of legal fees paid by her. In the circumstances of this case, to allow that to occur would occasion injustice upon the wife.
I am satisfied for the reasons outlined above that this falls into the category of "exceptional" cases as referred to in the relevant authorities in which an order for indemnity costs is both justified and just.

[242]

The husband took issue with the fact that the costs sought by the wife dated back to 2019 in circumstances in which the enforcement proceeding was not commenced until 2023. Senior counsel for the wife submitted that this was "hardly surprising" in circumstances in which the husband had been in breach of his obligations since 2016. I agree. No particular issue was otherwise raised by the husband with respect to the specific costs sought by the wife to the extent that they were sought on an indemnity basis.
Orders made on 31 May 2024 and 11 July 2025 provided that there would not be orders for costs of the hearings on those days. The costs sought by the wife appropriately reflected the terms of those orders.
Several of the items claimed in the wife's schedule as to indemnity costs assumed that the hearing listed for 8 December 2025 would proceed for the two days for which it was listed, when in fact the matter resolved (save for the issues dealt with in this judgment) on 8 December 2025, with the result that no hearing day took place on 9 December 2025.
This included solicitors' work for the trial (item 260 of the solicitors' work section of the wife's schedule of indemnity costs), in the sum of $5,600 excluding GST ($6,160 including GST); and counsel's hearing fee (item 5 of the counsel section of the wife's schedule of indemnity costs) in the sum of $9,500 excluding GST ($10,450 including GST). Half of each of these amounts (a total of $8,305 including GST) will be deducted from the amount sought by the wife to reflect the fact that the hearing proceeded only for one day. A daily hearing fee for the second hearing day of $1,070 (to which GST does not apply) was included in the schedule but was also not ultimately payable, and that will also be excluded.
As to the husband's application that should any costs be ordered, the quantum be assessed, it was submitted on behalf of the wife that the Court should be slow indeed to subject the wife to yet further delay and disputation from husband. Having regard to my conclusions above as to the reasonableness of the costs sought by the wife, and the relevant authorities outlining the circumstances in which it is appropriate that costs be fixed rather than referred for assessment,[111] I accept that submission.
I am otherwise satisfied that it is just to make the costs order as sought by the wife and will order that the husband pay the wife's costs in the sum of $181,219.39.

Catlin & Catlin (No 2) [2026] FedCFamC1F 10 (13 January 2026)

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