Category Archives: Family Law

Family Court

ON 5 JANUARY 1976, the Family Court was established.

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Calderbank v Calderbank [1975] All ER 333

ON 5 JUNE 1975, the English Court of Appeal delivered Calderbank v Calderbank [1976] Fam 93;[1975] 3 WLR 586; [1975] 3 All ER 333; (1975) FLR Rep 113.

At the completion of court proceedings, costs usually follow the event (ie are awarded to the successful party).  However, a party may make an application for a special order for costs in circumstances where, before the completion of the proceedings, that party makes an offer without prejudice save as to costs and the other party unreasonably fails to accept the offer.

A successful party who has made a Calderbank offer may apply for an order for indemnity costs (ie full costs incurred on a lawyer/client basis, instead of the ordinary party/party costs).

An unsuccessful party who has made a Calderbank offer may apply for an order for costs (possibly indemnity costs), contrary to the rule that costs follow the event.

In determining such an application, the court is to exercise it’s general discretion as to costs. Such discretion is wide.

The practise developed in Australia has been for Calderbank offers to:

  • be in writing.
  • be marked “without prejudice, save as to costs”.
  • be in clear, precise and certain terms capable of being accepted.
  • specify a time for acceptance.
  • be a genuine compromise.
  • separate the issue of costs from the principal offer.
  • state that the party intends to bring to the court’s attention the letter or it’s contents in any application for special orders as to costs.
  • indicate that the offer is made in accordance with the principles enunciated in Calderbank v Calderbank.

http://www.nadr.co.uk/articles/published/MediationLawReports/CalderbankvCalderbank1975.pdf

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Pettit v Pettit [1970] AC 777

ON THIS DAY in 1969, the House of Lords delivered Pettit v Pettit [1970] AC 777.

A husband claimed a beneficial interest in a property solely owned by his wife.  The basis of the claim was that he had made improvements to the property during the course of the marriage.

The husbands claim was unsuccessful on the facts. However, modern principles of implied trust can be traced back to this case and the subsequent Gissing v Gissing [1971] AC 886.

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Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4

Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4; (1969) 121 CLR 432 (5 March 1969).

http://www.austlii.edu.au/au/cases/cth/high_ct/121clr432.html

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Sydney, Australia

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Storie v Storie [1945] HCA 56

Storie v Storie [1945] HCA 56; (1945) 80 CLR 597 (27 July 1945).

http://www.austlii.edu.au/au/cases/cth/HCA/1945/56.html

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Briginshaw v Briginshaw [1938] HCA 34

ON 30 JUNE 1938, the High Court of Australia delivered Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938).

http://www.austlii.edu.au/au/cases/cth/HCA/1938/34.html

Where serious or grave allegations are made in a civil case, the court must, when making findings of fact, apply the civil standard of proof but, depending on the nature of the issue, give serious consideration as to whether or not it has reached the necessary degree of reasonable satisfaction or persuasion that the alleged facts are more likely than not to exist.

Per Dixon J at 362:

[R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. …

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Sydney, Australia

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