Wither and Wither & Anor (Costs) - [2024] FCWA 284

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: WITHER and WITHER & ANOR (COSTS) [2024] FCWA 284
CORAM: TYSON J
HEARD: WRITTEN SUBMISSIONS
DELIVERED : 4 DECEMBER 2024
FILE NO/S: 4906 of 2019
BETWEEN: MS WITHER
Applicant
AND
MR WITHER
First Respondent
AND
MRS WITHER SENIOR
Second Respondent

Catchwords:

COSTS - Where the wife seeks costs against the husband - Where the wife successfully applied to set aside transactions pursuant to s 106B of the Family Law Act, which were opposed by the husband, and subject to a submitting notice by the Second Respondent - Where the husband's conduct as a litigant is a material matter - Where the husband rejected offers of settlement made by the wife - Where the wife claims the rejection of the offers were unreasonable in the circumstances - Where the Court finds the husband's rejection of two offers were unreasonable and imprudent - Where an award of costs in favour of the wife is justified - Where the Court is not satisfied that an order for indemnity costs is warranted - Costs fixed in a sum - Case turns on own facts

Legislation:

Family Law Act 1975 (Cth)
Legal Profession (Family Court of Western Australia) Determination 2020

Category: Reportable

Representation:

Counsel:

Applicant	:	Written Submissions
First Respondent	:	Written Submissions
Second Respondent	:	Did not participate

Solicitors:

Applicant	:	Law Firm A
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Self-Represented Litigant

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

Addison & Lahey [2008] FamCA 248
Alston & Alston [2021] FedCFamC1A 96
Anison & Anison (2019) FLC 93-908
B and B (No 3) [2015] FCWA 65
Braithwaite & Braithwaite [2007] FamCA 468
Collins and Collins (1985) FLC 91-603
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania))
v Fish & Anor (2005) 33 Fam LR 123
Greedy and Greedy (1982) FLC 91-250
I and I (No 2) (1995) FLC 92-625
Kohan and Kohan (1993) FLC 92-340
Luadaka v Luadaka (1998) FLC 92-830
Madin & Palis (Costs) (2016) 55 Fam LR 59
Munday v Bowman (1997) FLC 92-784
Northern Territory v Sangare (2019) 265 CLR 164
Prantage & Prantage (2013) FLC 93-544
Prantage & Prantage (Costs) [2014] FamCA 850
Wither and Wither & Anor [2024] FCWA 16
Wither and Wither & Anor [2024] FCWA 177
Wither and Wither & Anor [2024] FCWA 243
Wither and Wither & Anor [2024] FCWA 244

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 Wither and Wither & Anor has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).
This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r…

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

Case: [2024] FCWA 284
Decision Date: 4 DECEMBER 2024

CaseChat Overview and Summary

In the matter of Wither and Wither, the wife sought costs against the husband following a successful application to set aside transactions under section 106B of the Family Law Act. The husband had opposed the application, and the matter was subject to a submitting notice by the second respondent. The wife argued that the husband's conduct as a litigant was material, particularly his rejection of settlement offers made by her, which she claimed were unreasonable. The court considered whether the husband's rejection of two offers was unreasonable and imprudent, ultimately finding that an award of costs in favour of the wife was justified.

The court examined the reasonableness of the husband's conduct, focusing on the rejection of settlement offers. The wife argued that these rejections were unreasonable, given the circumstances, and the court agreed, finding the husband's actions to be imprudent. The wife's application for indemnity costs was not accepted, as the court found that the wife had not demonstrated that the husband's conduct warranted such an order. Instead, the court fixed costs in a sum that reflected the findings regarding the husband's unreasonable conduct.

The decision was grounded in the specific facts of the case, highlighting the importance of the husband's actions in the context of the litigation. The court's findings were centred on the husband's rejection of settlement offers, which it deemed unreasonable and imprudent. The outcome was a costs order in favour of the wife, reflecting the court's assessment of the husband's conduct, but without imposing the higher burden of indemnity costs.

Orders