JEWEL and JEWEL - [2013] FCWA 108

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: JEWEL and JEWEL [2013] FCWA 108

CORAM: WALTERS J

HEARD: WRITTEN SUBMISSIONS

DELIVERED : 19 NOVEMBER 2013

FILE NO/S: PTW 5193 of 2011

BETWEEN: CATHERINE JEWEL
Applicant
AND
CARL JEWEL
Respondent

Catchwords:

FAMILY LAW – Costs – Proceedings for property settlement – Application by the wife for costs– Where the conduct of the husband was confrontational and obstructive – Where the husband was wholly unsuccessful, or almost wholly unsuccessful in the proceedings – Where offers were made by the parties – Consideration of dicta from the decision of the Full Court in Prantage & Prantage (2013) FLC 93-545 – Order made for costs to be assessed on a party/party basis

Legislation:

Family Law Act 1975 (Cth), s 117
Family Law Rules 2004 (Cth) ch 19, r 19.01, r 19.18, r 19.34, sch 3
Legal Practitioners (Family Court of Western Australia) Determination 2012

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms G Anderson
Respondent: Self Represented Litigant

Solicitors:

Applicant: David Mizen
Respondent: Self Represented Litigant

Case(s) referred to in judgment(s):

Baker & Darzi [2013] FCWA 84
Cross v Beaumont (2008) 39 Fam LR 386
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 191 FLR 294
Gallo v Dawson (1990) 64 ALJR 458
Hawkins & Roe (2012) 47 Fam LR 526
Hitch & Hitch (2012) 47 FamLR 603
I and I (No 2) (1995) FLC 92-625
Maker & Jets (No 3) [2012] FMCAfam 1104
Marinko & Marinko (1983) FLC 91-307
Nemeth & Nemeth (1987) FLC 91-844
NMFM Property Pty Ltd v Citibank Ltd (No 11) (2001) 109 FCR 77
Penfold & Penfold (1980) 144 CLR 311
Prantage & Prantage (2013) FLC 93-545

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1On 9 August 2013 I published my Reasons for Judgment in the substantive proceedings between Ms [Jewel] ("the wife") and Mr [Jewel] ("the husband"). On the same day, I made orders disposing of the proceedings. The orders gave the wife liberty to apply for costs and directed that the issue of costs be determined on the basis of written submissions (and without any further formal hearing).
2I shall refer to the Reasons for Judgment as “the Judgment”, and to the orders made pursuant to the Judgment as “the final orders”.
3The wife's application for costs is contained in her application in a case filed 10 September 2013. The application is supported by an affidavit sworn by the wife on 5 September 2013, and by written submissions. The husband filed submissions in response 2 October 2013, together with a supporting affidavit sworn the same day.
4In her application in a case, the wife seeks orders that “the [husband] pay the [wife’s] costs in the matter in the sum of $26,000” and that “the [husband] pay the costs of this [costs] application in the sum of $1,500". In her…

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.

Keep reading for free

Create a free CaseChat account to read JEWEL and JEWEL and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] FCWA 108
Decision Date: 19 NOVEMBER 2013

CaseChat Overview and Summary

The case between Jewel and Jewel was heard by the Family Court of Australia, where the primary issue revolved around property settlement following the breakdown of the marriage. The wife, Jewel, applied for costs against her husband, alleging that his conduct during the proceedings was confrontational and obstructive. The husband's actions were found to be largely unsuccessful, with his claims either dismissed or significantly reduced. The wife's application for costs was heavily influenced by the husband's conduct and the overall outcome of the proceedings.

The court was required to determine whether the husband's behaviour justified an award of costs against him. This involved assessing the nature of his conduct throughout the litigation process and the extent to which it affected the proceedings. The court also needed to consider whether the husband's claims had any merit and whether his conduct was unreasonable, given the circumstances of the case. This required a careful analysis of the husband's actions, the offers made by both parties, and the general principles governing costs in family law proceedings.

In considering the husband's conduct, the court noted that his behaviour was marked by confrontation and obstruction, which significantly impacted the proceedings. The husband's lack of cooperation and willingness to engage constructively contributed to the prolongation and complexity of the case. Given that he was largely unsuccessful in his claims, the court found his conduct to be unreasonable and unjustified. The dicta from the Full Court's decision in a previous case further supported the conclusion that such conduct warranted an award of costs against the husband. Consequently, the court granted the wife's application for costs, reflecting the husband's obstructive behaviour and the overall outcome of the proceedings.

The final orders of the court mandated that the husband pay a significant portion of the wife's costs, reflecting the unreasonable conduct and the largely unsuccessful nature of his claims. This decision underscored the importance of cooperative behaviour in family law proceedings and reinforced the principle that obstructive conduct can lead to adverse financial consequences for the party responsible.

Orders