KOZAK (Deceased) and KOZAK - [2020] FCWA 233

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: KOZAK (Deceased) and KOZAK [2020] FCWA 233
CORAM: TYSON J
HEARD: 7 DECEMBER 2020
DELIVERED : Ex tempore
FILE NO/S: PTW 5350 of 2016
BETWEEN: MS MORRISON (as the Legal Personal Representative of) MS KOZAK (Deceased)
Applicant
AND
MR KOZAK
Respondent

Catchwords:

FAMILY LAW – Application to re-open – Where the husband seeks to re-open final property proceedings to adduce further evidence after Reasons have been published, but prior to pronouncement of Orders – Where the evidence the husband wishes to rely upon in support of his application was not diligently provided – Where the Legal Personal Representative is prejudiced by the application for leave to re-open – Application dismissed – Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Representation:

Counsel:

Applicant	:	Mr Dowding SC
Respondent	:	Mr Hedges SC

Solicitors:

Applicant	:	Frichot and Frichot
Respondent	:	Warner Legal

Case(s) referred to in decision(s):

Chong v Ha (No 2) [2018] FCCA 320
Gaspaldi & Gaspaldi [2008] FamCAFC 134
Holland & Holland (2017) FLC 93-798
Smith v New South Wales Bar Association (1992) 176 CLR 256
Suell v Suell (2009) 40 Fam LR 690
Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

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

1 The Respondent husband [Mr Kozak] seeks leave to re-open and adduce further evidence. That application is opposed by the Legal Personal Representative of the late wife, [Ms Kozak].

2 The husband and wife separated in October 2015, after a 19-year relationship. They were unable to agree on how to divide their property, which proceeded to trial on 12 and 13 July 2018. Judgment was reserved and Reasons were published on 30 July 2018. At that time, I invited the parties to confer as to the form of the proposed orders, to give effect to the Reasons.

3 On 5 August 2018 the wife died. Since then, her sister has been appointed as the Applicant’s Legal Personal Representative. By consent, leave was granted to adduce further evidence. There was a dispute about the scope of the further evidence, which I determined and Reasons were published on 3 December 2019.

4 The trial resumed and further hearing was conducted on 28 April 2020. Regrettably, there were further delays as a consequence of procedural fairness not being afforded to the trustee of the husband’s superannuation fund, subsequent to which each party then filed and served a minute setting out the final orders they sought.

5 On 21 September 2020 Reasons were delivered. On that date, the husband foreshadowed an application for leave to re-open. I then…

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.

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Details

Case: [2020] FCWA 233
Decision Date: 7 DECEMBER 2020

CaseChat Overview and Summary

The case before the Family Court involved the deceased's husband, who sought to re-open final property proceedings to present additional evidence after reasons had been published but before orders were made. The deceased's estate, represented by her husband as the Legal Personal Representative, opposed the application. The primary legal issue was whether the husband should be permitted to adduce further evidence, which he had not diligently provided, potentially affecting the final outcome of the property settlement. The court had to consider the prejudice to the deceased's estate and the principles of procedural fairness and diligence in presenting evidence.

The court examined the husband's application and the circumstances surrounding the late provision of evidence. It was determined that the evidence the husband wished to rely upon was not provided in a diligent manner, which undermined the integrity of the proceedings. The court further considered the potential prejudice to the deceased's estate if the application were allowed, given that the Reasons had already been published and the parties had been given an opportunity to address the issues. The court concluded that the application was not in the interests of justice and dismissed the husband's application to re-open the proceedings.

As a result of the dismissal, the final orders of the court remained unaffected, and the deceased's estate was not prejudiced by the husband's attempt to introduce further evidence. The court emphasised that each case would be determined based on its unique circumstances, with a focus on the principles of diligence and procedural fairness. The decision underscored the importance of timely and diligent presentation of evidence in family law proceedings.

Orders