Kannis & Kannis

[2002] FamCA 1150

[2002] FamCA 1150

FAMILY LAW ACT 1975

IN THE FULL COURT      

OF THE FAMILY COURT OF AUSTRALIA               Appeal Nos WA6L of 2000
AT PERTH  & WA9 of 2002
  File No PT5812 of 1998

BETWEEN:

THEODORE JOHN KANNIS
(By his next friend
JOHN THEODORE HULIN KANNIS)

Appellant Husband
- and -
YVONNE CONSTANCE KANNIS
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  Nicholson CJ, Buckley and Kay JJ
DATE OF HEARING:                 11 November 2002
DATE OF JUDGMENT:             24 December 2002

APPEARANCES:  Mr Ackman QC with Ms Crisford of Counsel, instructed by Butlers, Solicitors, 83-85 Stirling Highway, Nedlands WA 6090, appeared on behalf of the Appellant Husband.

Mr Metaxas of Counsel and Ms Vernon of Counsel, instructed by Metaxas & Vernon, Barristers and Solicitors, Level 5, 37 St George’s Terrace, Perth WA 6000 appeared on behalf of the Respondent Wife.

KANNIS
WA 6L of 2000 and WA 9 of 2002
Coram:                    Nicholson CJ, Buckley & Kay JJ
Date of hearing: 11 November 2002
Date of judgment:  24 December 2002

PRACTICE and PROCEDURE – consent appointment of son as Next Friend – finding that Next Friend an unreliable witness - whether the trial Judge should have dismissed Next Friend of his own motion.

PROPERTY SETTLEMENT – Contributions – lack of full and frank disclosure of assets- adjustment to contribution shares to recognise failure to disclose.

The parties had been married for 42 years and had accumulated known assets amounting to $33 million.

The husband suffered from dementia. Prior to trial the parties’ son had been appointed as a Next Friend for the husband.

Chief Judge Holden at first instance found that the husband and the next friend had failed to disclose all the husband’s assets.  In that light, his Honour reduced his finding on contributions of 60% in favour of the husband, to a 50% split including section 75(2) considerations.

The husband appealed arguing inter alia that the lack of disclosure had not been deliberate, and that the husband was being penalised for the failings of the Next Friend, when the correct course would have been for his Honour to remove the next friend if his Honour was of the view that the Next Friend was unsatisfactory.

Held:

• The only issue upon which it could be properly be said that the behaviour of the Next Friend impinged on the proceedings was the issue of non-disclosure.  There were ample other matters readily conceded or clearly open to the trial Judge about that issue which would enable the findings to stand independently of any criticism of the Next Friend.

• Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack…