Boxall and Boxall (No. 2) - [2008] FamCA 587

FAMILY COURT OF AUSTRALIA

BOXALL & BOXALL (NO. 2)

[2008] FamCA 587

FAMILY LAW – COSTS – Conduct of a party in relation to property proceedings – Husband failed to honour his obligations to make a full and frank disclosure; failed to pursue settlement negotiations after the wife made a settlement proposal; gave false evidence – ordered to pay wife’s costs on solicitor/client basis.
FAMILY LAW – COSTS – Conduct of party in parenting proceedings – participation in mediation – Main purpose of rules and mediation is to facilitate resolution of proceedings by the parties – HELD: Husband’s refusal to participate in further mediation was contrary to his obligation under the rules and unreasonable – Husband denied the parties the opportunity to resolve all or some of the parenting issues by mediation in a timely and inexpensive way – By his conduct he insisted the wife be subjected to the expense, delay, inconvenience and stress of having the court determine the parenting issues – Because of his conduct and stronger financial position he should pay the wife’s costs.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) Rules 1.04, 1.05, 1.06, 1.07 and 1.08

APPLICANT:

Ms Boxall

RESPONDENT:	Mr Boxall
FILE NUMBER:	NCC	625	of		2007

DATE DELIVERED:

11 July 2008

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

JUSTICE MULLANE

HEARING DATE:

4 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr C Boyd

SOLICITOR FOR THE APPLICANT:

Boyd Olsen Lawyers

COUNSEL FOR THE RESPONDENT:

Ms D Burns

SOLICITOR FOR THE RESPONDENT:

Mandy Hull & Associates

Orders

The husband must pay the wife’s reasonable costs on a solicitor/client basis incurred in the property and children’s proceedings after 7 November 2005 as agreed by the parties, or in default of agreement as determined under the Family Law Rules or ordered by the Court.

IT IS NOTED that publication of this judgment under the pseudonym Boxall & Boxall is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC625 of 2007

MS BOXALL

Applicant Mother

And

MR BOXALL

Respondent Father

REASONS FOR JUDGMENT

INTRODUCTION

This was a hearing of the wife’s application for the husband to pay her costs after 7 November 2005 in proceedings concerning alteration of property interests of the parties and issues concerning the time spent by the parties’ children with the father.

BACKGROUND

The proceedings were commenced in the Local Court at Nowra in December 2003. In July 2004 they were transferred to the Family Court of Australia at Wollongong. They were subsequently transferred to the Federal Magistrates Court and prepared for hearing. On 19 December 2006 they were transferred to the Family Court at Newcastle. The hearing occurred on 29 and 30 January 2008 and Judgment was delivered and Orders made on 7 May 2007
The outcome was a division of the parties’ property in the ratio of $164,226:$138,399 in the husband’s favour. Taken into account in those figures were the husband’s liability for legal…

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 Boxall and Boxall (No. 2)

Details

AGLC: Boxall and Boxall (No. 2) [2008] FamCA 587
Case: [2008] FamCA 587
Decision Date: 11 July 2008

CaseChat Overview and Summary

In *Boxall and Boxall (No. 2)*, Justice Mullane of the Family Court of Australia considered an application for costs following property and children's proceedings between a husband and wife. The specific dispute before the court concerned the quantum and basis of the wife's entitlement to costs.

The primary legal issue before the court was to determine the extent to which the husband should be ordered to pay the wife's costs, and on what basis, in relation to proceedings that had occurred after a specific date. This involved considering the appropriate scale of costs to be awarded.

Justice Mullane ordered that the husband pay the wife's reasonable costs on a solicitor/client basis. This order applied to costs incurred in the property and children's proceedings after 7 November 2005. The quantum of these costs was to be determined by agreement between the parties, or failing agreement, as determined under the Family Law Rules or by further order of the Court.

Orders

Orders of the court

The husband must pay the wife’s reasonable costs on a solicitor/client basis incurred in the property and children’s proceedings after 7 November 2005 as agreed by the parties, or in default of agreement as determined under the Family Law Rules or ordered by the Court.

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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