KOZAK (Deceased) and KOZAK - [2019] FCWA 243

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: KOZAK (Deceased) and KOZAK [2019] FCWA 243
CORAM: TYSON J
HEARD: 8 AUGUST 2019
DELIVERED : 19 NOVEMBER 2019
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 - PROPERTY – Death of a party - Application to reopen after final reasons delivered and prior to pronouncement of orders – Where the Applicant died shortly after reasons were delivered – Where the parties consent to reopen but dispute the scope of leave to reopen – Limited leave to reopen granted – Case turns on its own facts

FAMILY LAW - PRACTICE AND PROCEDURE – Orders made limiting scope of reopening and matters to be addressed at resumed trial

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Dowding SC
Respondent	:	Mr Hedges SC

Solicitors:

Applicant	:	Frichot & Frichot
Respondent	:	Warner Legal

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

ASIC v Rich (2006) 235 ALR 587
Gaspaldi & Gaspaldi [2008] FamCAFC 134
Smith v New South Wales Bar Association (1992) 176 CLR 256

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”)] were unable to agree on orders by way of alteration of property interests, following the breakdown of their marriage. The trial took place on 12 – 13 July 2018. On 30 July 2019, I delivered reasons, but did not pronounce final orders. I invited the parties to confer and prepare a minute to give effect to the reasons.
2Before orders were made, the wife died. The wife’s sister, [Ms Morrison] has since been appointed as the wife’s Legal Personal Representative (“[the Legal Personal Representative]”). Orders have been made by consent to re-open the trial and adduce further evidence. There is no agreement about the scope of the further evidence to be adduced and ancillary orders, which is the matter now to be determined.

BACKGROUND FACTS

3At the time of trial, the husband was 60 years of age and was working on a full-time basis. The wife was 58 years of age and was in receipt of palliative care, having been diagnosed with [a terminal illness].
4I found the parties’ net property and superannuation entitlements was worth $836,225 plus the husband’s interest in [Property A], which was to be quantified upon sale. I concluded the parties’ contributions should be assessed at 52.5% in favour of the husband and 47.5% in favour of the wife and s 75(2) factors warranted a 7.5% adjustment in favour of the wife. I determined the just and…

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: [2019] FCWA 243
Decision Date: 19 NOVEMBER 2019

CaseChat Overview and Summary

The case of Kozak (Deceased) and Kozak was before the Family Court of Australia. The dispute involved a property settlement following the death of one of the parties, Mr Kozak. The matter came before the court for a final determination of the property settlement before Mr Kozak passed away. The parties had previously consented to reopen the case after the reasons for judgment were delivered, but before the pronouncement of orders. The central issue was whether the court should grant leave to reopen the case to address the deceased party's estate, and if so, the scope of such reopening.

The court considered the unusual circumstances of the case, where the applicant had died shortly after the reasons for judgment were delivered. Despite the parties' consent to reopen the matter, they disagreed on the extent of the reopening. The court found that the deceased party's estate was entitled to be heard and addressed in the reopened proceedings. However, the court limited the scope of the reopening to ensure that it did not unduly prejudice the respondent or disrupt the trial process. The court acknowledged the unique nature of the case and tailored the orders to address the specific issues arising from the death of the applicant.

The court granted limited leave to reopen the case, but restricted the matters to be addressed during the resumed trial. The court's orders ensured that the proceedings would focus on the deceased party's estate and related issues, without allowing a full reconsideration of the entire property settlement. The court emphasised that the case turned on its own unique facts and that the orders made were tailored to the specific circumstances of the case.

The court made orders limiting the scope of the reopening and the matters to be addressed at the resumed trial. The orders ensured that the proceedings would focus on the deceased party's estate and related issues, without allowing a full reconsideration of the entire property settlement. The court's approach balanced the need to address the deceased party's estate with the need to maintain fairness and efficiency in the trial process.

Orders