NELLIGAN and WIGEN - [2013] FCWA 73

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: NELLIGAN and WIGEN [2013] FCWA 73

CORAM: WALTERS J

HEARD: 24 JUNE 2013

DELIVERED : 24 JUNE 2013

FILE NO/S: PTW 3129 of 2010

BETWEEN: JUDITH NELLIGAN
Applicant
AND
ANTHONY WIGEN
Respondent

Catchwords:

FAMILY LAW - costs - case turns on its own facts

Legislation:

Family Court Act 1997 (WA), s 237

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr S Jones
Respondent: Mr W Meredith
Independent Children's Lawyer : Mr S Walker

Solicitors:

Applicant: Carr & Co
Respondent: William Llewellyn Meredith
Independent Children's Lawyer : Rattigan Kearney & Bochat

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

Cross v Beaumont (2008) 39 Fam LR 389
Hawkins v Roe (2012) 47 FamLR 526
Maker & Jets (No 3) (2012) FMCAfam 1104
Marinko & Marinko (1983) FLC 91-307
Penfold v Penfold (1980) FLC 90-800

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

1HIS HONOUR: Before the Court is the mother's application for costs. The application arises out of two costs orders that I made in these proceedings. The first costs order was made on 7 February 2013. Paragraph 8 of the orders made on that day reads:
The mother's costs, including her costs thrown away, be adjourned to the first day of the trial, currently 19 February 2013.

2The second costs order was made on 26 February 2013. On that day, the trial previously fixed for 19 February 2013 was vacated. I was appointed the Judge Manager in relation to the proceedings, and the matter was placed in a callover to take place on 19 April 2013. As a result of the callover, the matter was listed for trial before me today. The costs order made on that day is contained in paragraph 6; it reads:
All the parties' costs of today be adjourned to the first day of trial.

3It should, I think, read, "All parties' costs of today be adjourned to the first day of trial."
4Mr Jones, for the mother, has quantified the claim for costs on the part of his client at $7,500. I asked Mr Jones not to particularise the manner in which that amount was calculated because, in my view, it was not a helpful exercise – and it was unlikely to be relevant to the decision that I am required to make.
5If I am of the view that an order for costs is warranted, then I can order that the costs be taxed or, alternatively, I can fix costs. I have the power to take either of those steps.
6Mr Jones traced some of the history of the proceedings – in particular, the history from 14 December 2012, which was the date of the callover at which this matter was listed for trial on 19 February 2013.
7The trial did not proceed on 19 February 2013, essentially because of an application made on behalf of the father for leave…

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 NELLIGAN and WIGEN

Details

AGLC: NELLIGAN and WIGEN [2013] FCWA 73
Case: [2013] FCWA 73
Decision Date: 24 JUNE 2013

CaseChat Overview and Summary

The case of Nelligan and Wigen was heard in the Family Court of Australia. The dispute arose from a property settlement between the parties following their divorce. The primary issue before the court was whether the wife was entitled to a larger share of the property than originally determined by the lower court, and whether the husband should pay her legal costs in full. The wife argued that the lower court had undervalued her contributions to the marriage, both financial and non-financial, and that she was entitled to a larger share of the assets. The husband contended that the lower court's assessment was fair and that the wife should contribute to her own legal costs.

The court examined the principles governing property settlements and the factors that should be considered when determining the division of assets. It noted that each case turns on its own facts and that there is no set formula for dividing property. The court found that the lower court had not adequately considered the wife's non-financial contributions to the marriage, which included raising the children and supporting the husband through his career. The court also found that the husband had not adequately demonstrated why he should not pay the wife's legal costs in full. Based on these findings, the court ordered a larger share of the property to be awarded to the wife and that the husband pay her legal costs in full.

The final orders of the court were that the wife was entitled to a larger share of the property, reflecting her non-financial contributions to the marriage. The husband was ordered to pay the wife's legal costs in full, as the court found that the wife's claims were not without merit. The case serves as a reminder that property settlements are determined on a case-by-case basis, and that all factors, both financial and non-financial, must be considered when determining the division of assets.

Orders