KOWALD & HELGET - [2018] FamCAFC 126

FAMILY COURT OF AUSTRALIA

KOWALD & HELGET

[2018] FamCAFC 126

FAMILY LAW – APPEAL – PROPERTY – Where appeal is disposed of by consent orders.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Wares as Litigation Guardian for Ms Kowald

RESPONDENT:

Ms Segari as Legal Personal Representative of the Late Mr Helget

FILE NUMBER:

CAC

1439

2013

APPEAL NUMBER:

2016

DATE DELIVERED:

9 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace Ryan & Austin JJ

HEARING DATE:

9 July 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

27 January 2016

LOWER COURT MNC:

[2016] FCCA 133

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Ian Coleman SC

SOLICITOR FOR THE APPELLANT:

Carter Ferguson Solicitors & Attorneys

SOLICITOR FOR THE RESPONDENT:

Ms Christina Huesch Alliance Family Law

Orders by consent

That pursuant to Rule 6.15(3) of the Family Law Rules 2004 (Cth), Ms Wares in her capacity as the legal personal representative of the deceased Mr Helget be substituted for Mr Helget as a party to the proceedings.
The appeal against the orders of Judge Brewster of the Federal Circuit Court made on 27 January 2016 be allowed.
That the orders 1(a), 2, 3, 4(d), 5(b) and (c), 6, 9 and 11 of Judge Brewster made on the 27 January 2016 be set aside, and the following orders be made:
That the Respondent shall retain the net proceeds of sale from the following properties:
(a)The property situated at and known as M Street, Suburb D in the State of New South Wales ("the Suburb D property");
(b)The property situated at and known as Q Street, Suburb R in the State of New South Wales; and
(c)The property situated at and known as K Street, Suburb L in the State of New South Wales.
That the Appellant do all acts and things and execute all documents necessary to either:
(a)Transfer her interest in the Suburb D property to the Estate of the Respondent; or
(b)Transfer her interest in the Suburb D property directly to the purchaser(s) of the Suburb D property in accordance with a contract for sale of land in respect of that property and to authorise the Estate of the Respondent to retain all of the net proceeds of sale of such property.
Save to the extent as provided by these orders, each party shall retain as to his or her property absolutely and beneficially all property real or personal in the ownership of that party.
That the Respondent pay the Appellant's costs as agreed in the sum of $15,000.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kowald & Helget has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 23 of 2016
File Number: CAC 1439 of 2013

Ms Wares as Litigation Guardian for Ms Kowald

Appellant

And

Ms Segari as Legal Personal Representative of the Late Mr Helget

Respondent

EX TEMPORE REASONS FOR JUDGMENT

AINSLIE-WALLACE J

Ms Kowald through her litigation guardian, appeals against property settlement orders made on 27 January 2016 by Judge Brewster as between her and Mr Helget now deceased, and who was represented on the appeal by his solicitor acting for the estate. For convenience however I will refer to the parties as appellant and respondent.
On 19 February 2016 the appellant filed an appeal against the primary judge’s order. The appeal has been resolved as between the parties who ask the court to allow the appeal, set aside certain orders made by the primary judge and re-exercise the discretion of the primary judge by making consent orders.
Some factual background to the hearing of the dispute is helpful to give context to the application and to the appeal against the primary judge’s reasons.
The parties met in January 2010 and commenced to live together in May 2010. Although later in 2010, the appellant moved away from where the parties had been living, she returned to live with the respondent in March 2011, and the primary judge was satisfied that the relationship between them subsisted during that time. The primary judge found that the final separation between the parties was in May 2013. There were no children of the relationship.
His Honour’s reasons sets out the procedural history of the matter, noting that an application for property settlement was filed in December 2013. His Honour noted that an application was going to be made for the appointment of a litigation guardian for the appellant because she had “significant mental health issues” ([13]).
The matter was fixed for final hearing on 31 August 2016 and although the primary judge had directed that any application for the appointment of a litigation guardian be made by 7 July, such an application was not made until 14 August. It seems however that the application was reserved to be considered at the hearing.
On being made, the primary judge granted the application to appoint a litigation guardian. At that time the lawyer appearing for the appellant sought an adjournment to allow the litigation guardian time to familiarise herself with the facts and for the further preparation of the case. That adjournment was denied. Eventually on the first day of the hearing, counsel then appearing for the appellant sought and was granted leave to withdraw from the case. The case continued and was concluded by the primary judge on the basis of submissions of the respondent’s counsel.
It is in these circumstances that the appeal was brought.
In July 2016 the respondent died and his solicitor represents his estate for the purposes of the appeal. The appellant remains under a disability and her interests are represented by her litigation guardian.
As I have indicated, the appeal has been resolved to the extent that the appellant and respondent agree that the appeal should be allowed and the orders of the primary judge be set aside.
There is no provision in the Family Law Act 1975 (Cth) indicating that appellate powers in s 94 may be exercised regardless of error. It is therefore necessary that before this Court can allow an appeal, some appealable error must be found on the part of the trial Judge.
The appeal contends that the appellant was denied procedural fairness by the primary judge in his refusal of an adjournment in the circumstances just outlined.
In my view, having had regard to the grounds of appeal, the reasons for decision of the primary judge and the written submissions of senior counsel for the appellant, the ground of failure to afford procedural fairness is made out.
That being the case, I would allow the appeal and would order the impugned orders of the primary judge, be set aside.
The parties sought that this court re-exercise the primary judge’s discretion and make orders, the terms of which were agreed as between litigation guardian for the appellant and the respondent’s executor.
Before making any order in the re-exercise of the discretion, albeit by consent, it is necessary that a court be satisfied that the proposed orders are just and equitable.
Briefly, the relevant circumstances of the parties are as follows.
At the time of the commencement of the relationship each party owned property and had interests in superannuation; the appellant’s property and superannuation was worth $700,000 and that of the respondent $630,000.
During the relationship the respondent worked and the appellant did not.
In March 2011 the parties won $2 million in a lottery. There was no dispute as between them that the winnings were regarded by them as joint. From those winnings, they invested money, bought property and other items and paid debts of the appellant.
At the date of hearing before the primary judge the net property of the parties was found by the primary judge to be $1.4 million. Not included in that sum was $94,000 that each party had received some time before the hearing. In addition, the appellant had $83,000 in superannuation and the respondent $65,000.
The proposed orders have the effect of a broadly equal division of the property of the parties.
It is to be recalled that the appellant is under a disability by reason of mental illness. It was submitted that she is presently in receipt of a disability pension and other benefits. She cares for her 14 year old disabled daughter. She owns an unencumbered property in which she and her daughter reside.
While obviously the respondent has no financial needs, it was submitted that the orders reflect his contributions to the property and the parties and each of them.
Senior counsel submitted that the contended orders take into account the difficulty from the appellant’s point of view in any rehearing of this matter given her inability to give any relevant evidence and also if it be the case, the difficulty of making an application against the respondents estate in the equity division of the Supreme Court, taking into account her disabilities.
I am mindful too that the litigation guardian has a duty to act in the best interests of the appellant and asks that these orders be made, as does the executor of the respondent’s estate who too has duties in relation to the calling in of property to the estate for distribution. He too seeks that these orders be made.
I am satisfied that the orders sought to be made are just and equitable in all of the circumstances and I would make the orders sought.
The orders agreed between the parties also provides for the payment of $15,000 in the way of costs by the respondent to the appellant and I would make that order.

RYAN J

I agree and have nothing to add.

AUSTIN J

I agree and have nothing to add.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie‑Wallace, Ryan & Austin JJ) delivered on 9 July 2018.

Associate:

Date: 9 July 2018