Konitza and Konitza (No. 2)

[2009] FamCAFC 213

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

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.

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

1. 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.

2. 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…