Boston & Boston (No. 3) - [2013] FamCA 923

FAMILY COURT OF AUSTRALIA

BOSTON & BOSTON (NO. 3)

[2013] FamCA 923

FAMILY LAW – COSTS – determination of the costs arising out of an Application in a Case and a Response to an Application in a Case – whether the circumstances justify the making of an order for costs – consideration of s 117(2A) factors – consideration of whether an order for indemnity costs is appropriate – orders that the wife pay the husband’s costs of the Application in a Case on a party and party basis.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.08; 19.18; 19.19; 19.34

Penfold v Penfold [1980] FLC 90-800
Tuck & Tuck [1981] FLC 91-021;
Rouse & Rouse [1981] FLC 91-073
Kelly & Kelly (No 2) [1981] FLC 91-108
Greedy & Greedy [1982] FLC 91-250
Marinko v Marinko (1983) FLC 91-307
Mallet v Mallet (1984) 156 CLR 605
Latoudis v Casey (1990) 170 CLR 534
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Kohan & Kohan [1993] FLC 92-340
I & I (No 2) [1993] FLC 92-625
Telfer & Telfer [1996] FLC 92-688
Munday & Bowman [1997] FLC 92-784
Yunghanns & Yunghanns (2000) FLC 93-029
JEL & DDF (No. 2) (2001) FLC 93-083
NMFM Property Ltd v Citibank Ltd (No 11) (2001) 187 ALR 654

Browne & Green [2002] FLC 93-115
Gaudry & Gaudry (No 2) (2004) FLC 93-302
Patrick v Capital Finance Corporation (Australasia) Pty Ltd (2004) 211 ALR 272

Fitzgerald (as child representative for A (Legal Aid Commission (Tas))) v Fish (2005) 33 Fam LR 123
LGM & CAM (Contempt) (No 2) [2008] FLC 93-355
Limousin & Limousin [2008] FamCA 315
Fennessy & Gregorian (2009) FLC 93-399
Lenova & Lenova (Costs) [2011] FamCAFC 141
Donaghey & Donaghey (costs) (2012) 47 Fam LR 306
Hitch & Hitch [2012] FamCAFC 124
Prantage & Prantage [2013] FamCAFC 105
Buckley & Buckley [2013] FamCAFC 150

APPLICANT:

Mr Boston

RESPONDENT:

Ms Boston

FILE NUMBER:

ADC

1946

2012

DATE DELIVERED:

29 November 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

17 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hurley

SOLICITOR FOR THE APPLICANT:

Kelly & Co

COUNSEL FOR THE RESPONDENT:

Mr Eid

SOLICITOR FOR THE RESPONDENT:

Stevanja & Associates

Orders

The wife pay the husband’s costs of the Application in a Case filed on 8 May 2013 as incurred between 8 May 2013 and 31 May 2013 on a party and party basis.
For the purpose of order (1) hereof the costs be determined by agreement between the parties within twenty-one (21) days or failing agreement, as assessed by a Registrar pursuant to Chapter 19 of the Family Law Rules 2004 (Cth).
The question of the costs of both parties incurred before 8 May 2013 and after 31 May 2013 is reserved to the final hearing of these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Boston & Boston (No. 2) has been approved by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boston & Boston (No. 3)

Details

AGLC: Boston & Boston (No 3) [2013] FamCA 923
Case: [2013] FamCA 923
Decision Date: 29 November 2013

CaseChat Overview and Summary

In *Boston & Boston (No. 3)*, Dawe J of the Federal Circuit and Family Court of Australia considered an application concerning costs in ongoing family law proceedings between a wife and a husband. The dispute specifically related to the costs incurred by the husband in relation to an application filed on 8 May 2013, and the costs incurred by both parties both before and after specific dates.

The court was required to determine the appropriate orders regarding the costs of the husband's application filed on 8 May 2013, and to decide whether to reserve the question of costs for the final hearing of the proceedings, specifically for costs incurred before 8 May 2013 and after 31 May 2013.

Dawe J ordered that the wife pay the husband's costs of the application filed on 8 May 2013, as incurred between 8 May 2013 and 31 May 2013, on a party and party basis. These costs were to be determined by agreement within twenty-one days, or failing agreement, to be assessed by a Registrar in accordance with Chapter 19 of the *Family Law Rules 2004* (Cth). The court further ordered that the question of the costs of both parties incurred before 8 May 2013 and after 31 May 2013 be reserved to the final hearing of the proceedings.

Orders

Orders of the court

The wife pay the husband’s costs of the Application in a Case filed on 8 May 2013 as incurred between 8 May 2013 and 31 May 2013 on a party and party basis.

For the purpose of order (1) hereof the costs be determined by agreement between the parties within twenty-one (21) days or failing agreement, as assessed by a Registrar pursuant to Chapter 19 of the Family Law Rules 2004 (Cth).

The question of the costs of both parties incurred before 8 May 2013 and after 31 May 2013 is reserved to the final hearing of these proceedings.

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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