FAMILY COURT OF AUSTRALIA
| KONITZA & KONITZA (NO. 2) | [2009] FamCAFC 213 |
| FAMILY LAW– PROPERTY SETTLEMENT – FULL COURT RE-EXERCISE TRIAL JUDGE’S DISCRETION – APPLICATION OF LAW – Wife deceased prior to determination of proceedings – Appeal allowed for reasons previously published – Full Court able to re-exercise trial Judge’s discretion – Court of the opinion that contribution based entitlements of parties to the date of trial should be seen as equal and appropriate that if do so husband and wife receive 50/50 division of the net property pool |
| Family Law Act 1975 (Cth) Section 75(2) |
| Fisher v Fisher(No. 2) (1986) 161 CLR 438: (1986) FLC 91-767 |
| APPELLANT: | G KONITZA as Legal Personal Representative of Mrs KONITZA (Deceased) |
| RESPONDENT: | Mr KONITZA |
| FILE NUMBER: | PTW | 3281 | of | 2006 |
| APPEAL NUMBER: | WA | 10 | of | 2009 |
| DATE DELIVERED: | 22 October 2009 |
| PLACE DELIVERED: | Brisbane |
| 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 appeal be allowed.
That order 1(a) of the orders of 8 May 2009 be varied in part by the further order that the husband pay the sum of $440 533 to the legal personal representative of the wife.
That the cross-appeal be dismissed.
That costs be reserved.
That the appellant file and serve submissions in support of any application for costs or costs certificates within 21 days.
That the respondent file and serve any submissions with respect to costs or costs certificates within 42 days.
That the appellant file and serve any submissions in response to the submissions filed on behalf of the respondent within 56 days.
IT IS NOTED that publication of this judgment under the pseudonym Konitza & Konitza (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 10 of 2009
File Number: PTW 3281 of 2006
| G KONITZA as Legal Personal Representative of Mrs KONITZA (Deceased) |
Appellant
And
| Mr KONITZA |
Respondent
REASONS FOR JUDGMENT
SUPPLEMENTARY
On 16 September 2009, for reasons which were then articulated, the Full Court concluded that the wife’s appeal against orders for settlement of property made by the trial judge on 8 May 2009 should be allowed. The cross appeal of the husband against such orders was dismissed.
Subsequent to the delivery of the Court’s judgment, both parties, sensibly in our view, requested the Full Court to re-exercise the trial judge’s discretion. In its judgment of 16 September 2009, the Court expressed the view that there was no apparent impediment to so doing. The Court remained of that view, and made orders varying the trial judge’s…
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- AGLC
- Konitza and Konitza (No. 2) [2009] FamCAFC 213
- Case
- [2009] FamCAFC 213
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the amount ordered by the Family Court was appropriate and whether the appeal and cross-appeal should be allowed. The court needed to consider the financial circumstances of both parties and the factors relevant to making a fair and reasonable financial order between them. This included assessing the contributions made by each party to the marriage, the needs of the parties post-divorce, and the principle of equal sharing of the matrimonial assets.
In its reasoning, the court found that the amount ordered by the Family Court was insufficient and did not adequately reflect the wife's contributions to the marriage and her needs post-divorce. The court also noted that the husband had not demonstrated that the wife had been over-compensated. Consequently, the appeal was allowed, and the order was varied to increase the amount the husband was required to pay to the wife. The cross-appeal was dismissed as the court found the wife's request for a higher amount was not substantiated. The court reserved the matter of costs and set out a timeline for the parties to file their submissions on costs.
Orders
Orders of the court
1.
That the appeal be allowed.
2.
That order 1(a) of the orders of 8 May 2009 be varied in part by the further order that the husband pay the sum of $440 533 to the legal personal representative of the wife.
3.
That the cross-appeal be dismissed.
4.
That costs be reserved.
5.
That the appellant file and serve submissions in support of any application for costs or costs certificates within 21 days.
6.
That the respondent file and serve any submissions with respect to costs or costs certificates within 42 days.
7.
That the appellant file and serve any submissions in response to the submissions filed on behalf of the respondent within 56 days.
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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