Karbowiak v Mitolo

Case [2024] SASCA 31

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

KARBOWIAK v MITOLO

[2024] SASCA 31

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)

21 March 2024

SUCCESSION - ADMINISTRATION OF ESTATE - OTHER MATTERS

The applicants seek leave to appeal an order for a separate trial in a proceeding concerning the estate of Mr Mitolo, who died intestate.

The first applicant seeks a declaration that she was the domestic partner of the deceased under the Family Relationships Act 1975 (SA), in addition to an order for provision out of the estate under the Inheritance (Family Provision) Act 1972 (SA). The second applicant, the first applicant’s biological son, claims to be an ‘eligible applicant’ under the Inheritance (Family Provision) Act 1972 (SA).

The first respondent is the deceased’s mother in her capacity as administrator of the estate, and she is the second respondent in her own right as the deceased’s mother and beneficiary.

In June 2023 the respondent filed an application that the first applicant’s claim for a declaration under the Family Relationships Act 1975 (SA) be heard as a separate trial to any trial concerning orders for provision out of the estate.

There appears to be an issue about the valuation of the estate assets and liabilities. Over the opposition of the applicants, the application was granted and orders were made to facilitate the separate trial.

There are four broad appeal grounds:

1.The applicants’ contention that the primary judge did not engage with their case, failed to give the matter proper judicial consideration and failed to give adequate reasons because the judge reproduced verbatim, without attribution, passages from the respondent’s written submissions.

2.The primary judge failed to take into account or give any weight to various of the applicants’ contentions.

3.The primary judge took into account and accepted, uncritically, various contentions advanced by the respondent which were “either irrelevant, unsupported by evidence, or, to the extent that they were matters of an evaluative judgment … perverse or irrational”.

4.The primary judge erred in his construction of s 14(2) of the Family Relationships Act 1975 (SA).

HELD (the Court) refusing leave to appeal, with costs:

1.The proposed appeal concerns a matter of practice and procedure and this Court will give deference to the decision made by the primary judge and exercise particular caution before granting leave and intervening on appeal.

2.The determination made by the judge was, ultimately, not one that required extended analysis, nor lengthy or complex reasons.  The judge was not required to refer to all of the submissions made by the parties and, so long as their key submissions were addressed and the reasoning in support of the decision made clear on a reading of the reasons as a whole, there can be no complaint about a degree of copying. 

3.Section 14(2) of the Family Relationships Act 1975 (SA) comprises a statutory direction that there will be a separate trial of any issues arising under that Act…

Continue reading Karbowiak v Mitolo

Sign in free to access the full text

Details
AGLC
Content removed [2024] SASCA 31
Case
[2024] SASCA 31
Decision Date

CaseChat Overview and Summary

The case of *Karbowiak v Mitolo* involved an application for leave to appeal an interlocutory decision concerning the administration of an estate. The primary dispute centred on whether the first applicant, who claimed to be the deceased's domestic partner, met the statutory definition of a "domestic partner" at the time of the deceased's death. The respondent, the deceased's 90-year-old mother, contested this claim, suggesting the relationship had ended years prior. A further issue arose regarding the eligibility of the second applicant, the first applicant's son, to benefit from the estate, which depended on his mother being the deceased's domestic partner.

The court was required to determine two key legal issues. Firstly, it needed to consider the meaning of "domestic partner" under section 11A(b)(i)(A) or (B) of the *Family Relationships Act* (FRA), specifically whether the first applicant had lived with the deceased continuously for three years or for periods aggregating three years within the four years preceding his death. Secondly, the court had to interpret section 6(g) of the *Inheritance (Family Provision) Act* (IFPA) concerning a child's entitlement, which was contingent on their parent being the deceased's domestic partner.

The court's reasoning focused on the merits of the proposed appeal grounds and the potential for substantial injustice. It noted the applicants' reliance on the High Court's broad interpretation of "living together" in *Fairbairn v Radecki*, which emphasises sharing life as a couple rather than solely cohabitation. However, the court found that the proposed appeal grounds lacked merit. Furthermore, the applicants failed to demonstrate how the order for a separate trial of the FRA declaration, scheduled for April, would cause them substantial injustice.

Consequently, the court refused leave to appeal the interlocutory decision, with costs awarded to the respondent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Accordingly, leave to appeal should be refused. Relevant background and contentions The evidence of the first applicant is to the effect that she was in a genuine domestic relationship with the deceased but that they did not “live together as a couple” after May 2012, more than seven years before the deceased’s death. The respondent is 90 years of age, and it is agreed that she will be replaced as administrator. For her part, the respondent accepts that the first applicant and the deceased were in a relationship for a time, though she thought that it ended in 2012. She lived opposite the deceased and believed he lived there on his own during the last six years of his life. She has also deposed to the belief that the first applicant entered into another relationship with another member of the respondent’s family and was residing with him from around 2017. As there appears to be a contest between the parties over whether the first applicant and the deceased were in domestic relationship at the date of his death, as the first applicant claims, or possibly only much earlier, as the respondent allows, there is likely to be a contest between the parties as to whether and from when the first applicant satisfies the requirements of s 11A(b)(i)(A) or (B) of the FRA:A person is, on a certain date, the “domestic partner” of another if—…(b)the person is, on that date, living with the other in a close personal relationship and—(i) the person—(A) has so lived with the other continuously for the period of 3 years immediately preceding that date; or(B) has during the period of 4 years immediately preceding that date so lived with the other for periods aggregating not less than 3 years … As to this, the first applicant relied on the relatively recent observations of the High Court in Fairbairn v Radecki concerning the breadth of the concept of “living together” within s 4AA of the Family Law Act 1975 (Cth) namely, that:[6]Living together … will often, perhaps usually, mean cohabitation of some residence by a couple for some period ... But cohabitation of a residence or residences is not a necessary feature of “living together”. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. ……“Living together”, consistently with authority, should be construed as meaning sharing life as a couple.[citations omitted][6] Fairbairn v Radecki (2022) 275 CLR 400, [33], [39] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ). There is, in addition, an issue between the parties as to whether the second applicant qualifies if his mother was not the deceased’s domestic partner at the date of the deceased’s death. That turns on the proper meaning of s 6(g) of the IFPA:(g)A child of a … domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In all of these circumstances leave to appeal proposed appeal grounds 2 and 3 should be refused.Conclusion Looked at in broad terms, the proposed appeal grounds lack merit. Further, and in any event, the applicants have not demonstrated how the order that there be a separate trial of the FRA declaration, together with the consequential orders facilitating the hearing of that trial in April this year, will cause them any substantial injustice. In all of these circumstances, leave to appeal the interlocutory decision of the primary judge should be refused, with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.