Konitza and Konitza - [2009] FamCAFC 171

FAMILY COURT OF AUSTRALIA

KONITZA & KONITZA

[2009] FamCAFC 171

FAMILY LAW - PROPERTY SETTLEMENT - APPEAL AGAINST REFUSAL OF WIFE’S APPLICATION TO RECEIVE EQUAL CONTRIBUTION BASED ENTITLEMENT – HUSBAND’S CROSS APPEAL AGAINST MONIES ADDED BACK TO THE MATRIMONIAL ASSET POOL AND DOUBLE COUNTING OF ASSETS - APPEAL FROM FAMILY COURT – DISCRETION - APPLICATION OF LAW - Wife deceased prior to determination of proceedings - Not established that trial Judge erred in concluding that the husband’s advance of funds to an adult daughter should be added back to pool of assets available for distribution between the parties - Not established that trial Judge erred in the exercise of her discretion by declining to add back the value of land transferred to an adult grandson to pool of assets available for distribution between the parties - Not established that trial Judge gave insufficient weight to the content and context of the wife’s contribution as homemaker and parent within the terms of section 79(4)(c) of the Family Law Act 1975 (Cth) - Not established that trial Judge failed to consider and apply the provisions of Section 79(8) (b)(ii) - Established that trial Judge erred in her quantification of the asset pool, and that her discretion miscarried - Held that trial Judge failed to give any or adequate weight to wife’s indirect contribution in post separation period - Appeal and cross-appeal adjourned

Family Law Act 1975 (Cth); Section 75(2); Section 79(8)

A v J (1995) FLC 92-619
Allesch v Maunz (2000) 203 CLR 172
Bennett and Bennett (1991) FLC 92-191
C and C [1998] FamCA 143
De Winter and De Winter (1979) FLC 90-605
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Tasmanian Trustees Limited (Administrators of Estate of Gleeson) v Gleeson (1990) FLC 92-156

APPELLANT/CROSS-RESPONDENT:

G KONITZA as Legal Personal Representative of Mrs KONITZA (Deceased)

RESPONDENT/CROSS-APPELLANT:

Mr KONITZA

FILE NUMBER:

PTW

3281

2006

APPEAL NUMBER:

2009

DATE DELIVERED:

16 September 2009

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Perth

JUDGMENT OF:

Bryant CJ, Coleman & May JJ

HEARING DATE:

30 June 2009

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

8 May 2009

LOWER COURT MNC:

[2009] FCWA 55

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr Ingleby with Mr Davies

SOLICITOR FOR THE APPELLANT:

O’Sullivan Davies

COUNSEL FOR THE RESPONDENT:

Mr Dowding SC with Ms Taylor

SOLICITOR FOR THE RESPONDENT:

Carr & Co.

Orders

That the further hearing of the appeal be adjourned.
That within 21 days, each party file and serve any further evidence intended to be relied upon in support of the re-exercise of the trial Judge’s discretion.
That within 21 days each party file and serve submissions in relation to:
(a)Whether the Full Court should re-exercise the trial Judge’s discretion or remit the proceedings for re-hearing by a judge other than the trial Judge.
(b)The orders which should be made in lieu of the orders of the trial Judge in the event of the Full Court re-exercising the trial Judge’s discretion.

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 Konitza and Konitza

Details

AGLC: Konitza and Konitza [2009] FamCAFC 171
Case: [2009] FamCAFC 171
Decision Date: 16 September 2009

CaseChat Overview and Summary

In the matter of Konitza and Konitza, the appeal was brought before the court to challenge the decisions made by the trial judge. The dispute primarily centred on the trial judge's exercise of discretion in certain rulings during the proceedings. The Full Court was tasked with determining whether the trial judge's decisions were appropriate and, if not, what the appropriate course of action should be.

The court had to decide whether the discretion exercised by the trial judge should be re-evaluated by the Full Court or if the matter should be remitted for a re-hearing by a different judge. Additionally, the court needed to consider the specific orders that should be made if the Full Court decided to re-exercise the trial judge's discretion. The overarching issue was to ensure that justice was served and that the correct legal principles were applied in the context of the case.

The court found that the matter required further evidence and submissions to be adequately informed before making a decision. The Full Court directed that both parties file and serve any further evidence within 21 days. Moreover, the parties were instructed to submit written arguments on whether the Full Court should re-exercise the trial judge's discretion or remit the proceedings for re-hearing, as well as to propose alternative orders. The court also set a timeline for responding to these submissions. The appeal was adjourned pending these further submissions and evidence.

Orders

Orders of the court

That the further hearing of the appeal be adjourned.

That within 21 days, each party file and serve any further evidence intended to be relied upon in support of the re-exercise of the trial Judge’s discretion.

That within 21 days each party file and serve submissions in relation to:

(a) Whether the Full Court should re-exercise the trial Judge’s discretion or remit the proceedings for re-hearing by a judge other than the trial Judge.

(b) The orders which should be made in lieu of the orders of the trial Judge in the event of the Full Court re-exercising the trial Judge’s discretion.

That within 28 days any submissions in response to the submissions referred to in the preceding order be filed and served.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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