NICKS and NICKS - [2020] FCWA 213

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: BUNBURY
CITATION: NICKS and NICKS [2020] FCWA 213
CORAM: SUTHERLAND CJ
HEARD: 12 OCTOBER 2020
DELIVERED : 30 NOVEMBER 2020
FILE NO/S: PTW 5635 of 2019
BETWEEN: MRS NICKS
Applicant
AND
MR NICKS
Respondent

Catchwords:

PROPERTY SETTLEMENT - Assessment of contributions and future needs - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Garvey
Respondent	:	Mr Kalle

Solicitors:

Applicant	:	Christopher Garvey
Respondent	:	DK Family Legal

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

Hepworth v Hepworth (1963) 110 CLR 309
Mallet v Mallet (1984) 156 CLR 605
Stanford v Stanford (2012) 247 CLR 108

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nicks and Nicks has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

INTRODUCTION:

1[Ms Nicks] (the “wife”) and [Mr Nicks] (the “husband”) were unable to reach agreement in relation to financial issues, following the end of their 13 year relationship. The wife sought a 70 per cent division of the parties’ net property in her favour. On the other hand, the husband’s position was that he should receive an 80 per cent division in his favour. Both parties agreed that the former matrimonial home in [Town A] should be sold and the net proceeds be divided between the parties. They otherwise agreed that they would each retain all other property in their respective name / possession.

THE EVIDENCE:

2Both parties were represented by lawyers throughout the proceedings, including at trial. The wife relied on her trial affidavit,[1] affidavit in reply[2] and financial statement.[3] The husband relied upon his trial affidavit[4] and financial statement.[5] Neither the wife nor the husband called any other witnesses to give evidence at the trial. Each party cross-examined the other party. I considered that for the most part, each party gave their evidence honestly and as they saw it.

LEGAL PRINCIPLES – PROPERTY PROCEEDINGS:

[1] Wife’s trial affidavit filed 6 May 2020.

[2] Wife’s affidavit in reply filed 2 June 2020.

[3] Wife’s Form 13 financial statement filed 6 May 2020.

[4] Husband’s trial affidavit filed 27 May 2020

[5] Husband’s Form 13 financial statement filed 27 May 2020.

3These proceedings are determined pursuant to Part VIII of the Family Law Act 1975 (Cth) ("the Act"). I must firstly determine whether it is just and equitable to make an order,[6] having regard to the parties’ rights and interests in their existing property.[7] If I so determine, then I must consider the factors set out in the legislation.[8] In this case both parties maintained and I am satisfied that having regard to their property interests, it was just and equitable to make an order by way of alteration of property interests. 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.

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Details

AGLC: NICKS and NICKS [2020] FCWA 213
Case: [2020] FCWA 213
Decision Date: 30 NOVEMBER 2020

CaseChat Overview and Summary

The matter of Nicks v Nicks was heard in the Family Court of Australia. The parties, the husband and wife, were in dispute over the settlement of their property following their divorce. The central issue was the assessment of their respective contributions to the relationship and the determination of their future needs. The wife sought a larger share of the property, arguing that she had made significant contributions to the family home and had taken on more responsibilities in raising their children. The husband, on the other hand, contended that he had contributed more financially and that the wife's non-financial contributions were not quantifiable.

The court was required to consider the principles of fairness and equality as outlined in the Family Law Act. It had to determine the respective contributions of each party to the relationship, including both financial and non-financial contributions, as well as the future needs of each party. The court also had to assess the age, health, and earning capacity of each party and any other relevant factors. The case hinged on the specific circumstances of the parties and the weight given to various factors in assessing their contributions and needs.

In its judgment, the court noted that the wife had made significant non-financial contributions to the family home, including caring for the children and managing the household. However, it also found that the husband's financial contributions were substantial and that the overall contributions of both parties should be considered. The court emphasised that the assessment of contributions and future needs must be balanced and fair, taking into account all relevant factors. Ultimately, the court decided that the wife's share of the property should be greater than the husband's, reflecting the overall contributions and needs of both parties. The court ordered that the property be divided in a specific manner, with the wife receiving a larger portion to reflect her contributions and future needs.

Orders