KOZAK (Deceased) and KOZAK - [2020] FCWA 161

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: KOZAK (Deceased) and KOZAK [2020] FCWA 161
CORAM: TYSON J
HEARD: 24 JANUARY 2019, 8 AUGUST 2019, 28 APRIL 2020 and MINUTES FILED 24 AUGUST 2020 and 31 AUGUST 2020
DELIVERED : 21 SEPTEMBER 2020
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 – Where after the trial and publication of reasons and prior to the pronouncement of orders the wife died – Leave to re-open granted following the wife’s death and orders for substitution of the legal personal representative – Where the wife received an insurance payment prior to her death, which she had not banked or disclosed – Where the wife’s insurance payment only came to light after her death, upon disclosure by the legal personal representative – Where the husband seeks the insurance payment be included in the asset pool for division and other changes following the trial – Where the wife’s terminal illness resulted in the insurance payment - Where it is agreed and the court finds it is appropriate to make an order in respect to property following the wife’s death –– Where the court adopts a multiple pool approach – Assessment of contributions – Assessment of s 75(2) factors – Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

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):

Anson & Meek (2017) FLC 93-816
C and T [2002] FamCA 196
Calvin & McTier (2017) FLC 93-785
Dickons & Dickons (2012) 50 Fam LR 244
Froth & Froth [2007] FamCA 1608
Holland & Holland (2017) FLC 93-798
Lenehan & Lenehan (1987) FLC 91-814
Menzies and Evans and Evans (1988) FLC 91-969
Miller & Miller [2009] FamCAFC 121
Norbis v Norbis (1986) 161 CLR 513
Norman & Norman [2010] FamCAFC 66
Re Parrott v Public Trustee of NSW (1994) FLC 92-473
Sinclair & Sinclair [2012] FamCA 388
Stanford v Stanford (2012) 247 CLR 108
Tasmanian Trustees Limited and Gleeson (1990) FLC 92-156
Vokic & Vlass [2012] FamCA 56
Yates & Yates [2012] FamCAFC 138
Yeates (as executor for Mr Yeates) & Yeates [2013] FCWA 117
Zaruba & Zaruba (2017) FLC 93-776
Zyk and Zyk (1995) FLC 92-644

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[Ms Kozak] [(“the wife”)] and [Mr Kozak] [(“the husband”)] separated in 2015, after a 19 year relationship. The parties were unable to agree how to divide their property, which proceeded 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.

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Details

Case: [2020] FCWA 161
Decision Date

CaseChat Overview and Summary

This case concerns the property settlement of the parties, [Mr Kozak] and [Ms Kozak], who separated in 2015. The parties proceeded to trial in July 2018, but [Ms Kozak] died in August 2018, before final orders were made. The trial resumed in April 2020 and the Court was required to determine the property settlement following [Ms Kozak]’s death. The Court was required to determine the following matters: the value of the property of the parties; the contributions of the parties; whether there should be any adjustment in favour of the husband, on account of the matters raised in s 75(2); and what outcome is just and equitable. The Court found that the husband's contributions to Pool 1 were equal to the wife's, his contributions to Pool 2 were 100%, and his contributions to Pool 3 were nil. The Court found there should be a modest adjustment in favour of the husband, of $60,000. The Court found the outcome it proposed was just and equitable.

Orders