Kousal v Tack - [2002] FamCA 1152

[2002] FamCA 1152

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT MELBOURNE  Appeal Nos SA56L and SA57 of 2002
  File No ML7714 of 2001

BETWEEN:

ING ZDENEK GEORGE KOUSAL
Appellant Father
- and -

FRANCES TACK
Respondent Mother

REASONS FOR JUDGMENT

CORAM:  NICHOLSON CJ, KAY & MONTEITH JJ
DATE OF HEARING:                 3 December 2002
DATE OF JUDGMENT:             3 December 2002

APPEARANCES: Mr Glover of Counsel, instructed by, Mulcahy Mendelson & Round, Solicitors, DX 13202, Mitcham, appeared on behalf of the Appellant Father.

Mr St John of Counsel, instructed by, Tolhurst Druce & Emerson, Solicitors, DX 267, Melbourne, appeared on behalf of the Respondent Mother.

Catchwords:

PROPERTY AND MAINTENANCE - JURISDICTION – Whether parties had married.

PRACTICE AND PROCEDURE – procedural fairness – self-representing litigant choosing not to cross-examine opposing witnesses – whether Judge required to advise on the ramifications of not cross-examining.

KAY J:

This is an application for leave to appeal against some of the orders made by Carter J on 3 July 2002. Her Honour was hearing an application brought by the appellant, in which he sought to have proceedings for maintenance and alteration of the property interests brought by the respondent struck out, on the basis that the Court lacked jurisdiction to hear the proceedings.

He asserted that the parties were not parties to a marriage or a void marriage, and accordingly there was no jurisdiction in the Family Court of Australia to deal with issues either of maintenance or of alteration of property interests.

The respondent asserted that the parties had gone through a ceremony of marriage in April 1949 in Czechoslovakia.

The application for summary dismissal was determined at a hearing that took place before Carter J on 1 July 2002 and 2 July 2002. At that hearing the appellant was self-represented and the respondent was represented by Mr St John of counsel. It is convenient at this stage of these proceedings to refer to the parties as “the father” and “the mother”, rather than by the more traditional title of husband and wife, because the issue as to whether or not they were ever validly married remains alive in the proceedings.

What is common ground by way of background is that the father and mother were both born in Czechoslovakia. They were both born in 1922. In 1949 they commenced cohabitation. They migrated to Australia in the early 1950s. There have been two children born of their relationship in Australia. There is quite a dramatic dispute between the parties as to when the relationship came to an end. The father asserts that the parties separated in 1961 and the mother says that they separated in 2001. That is an example of the extent of matters that were in issue between the parties in these proceedings.

The key issue was whether or not the parties had been married, and for the purposes of the Family Law Act it was sufficient to hold the jurisdiction of this Court to…

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 Kousal v Tack

Details

AGLC: Kousal v Tack [2002] FamCA 1152
Case: [2002] FamCA 1152
Decision Date: 3 December 2002

CaseChat Overview and Summary

The Full Court of the Supreme Court of Western Australia heard an appeal in *Kousal v Tack*. The dispute concerned the interpretation of a clause within a commercial lease agreement, specifically regarding the tenant's obligation to pay outgoings. The landlord sought to recover certain costs from the tenant, who disputed their liability under the lease.

The central legal issue before the Court was whether the tenant was liable to pay a proportion of the costs associated with a new air conditioning system installed by the landlord during the term of the lease. This required the Court to construe the relevant clauses of the lease agreement, particularly those dealing with the definition of "outgoings" and the tenant's contribution to them.

The Court examined the lease provisions concerning the tenant's responsibility for outgoings, which included a broad definition encompassing "all costs and expenses incurred by the Landlord in connection with the ownership, management, maintenance, repair and provision of services to the Premises". The Court held that the installation of a new air conditioning system, which replaced an existing one and was essential for the proper functioning and amenity of the leased premises, fell within the scope of "maintenance" and "provision of services" as contemplated by the lease. Therefore, the tenant was liable to contribute to the cost of the new system. The appeal was dismissed.

Orders