FABRIZI v GRASSO (JNR) as the Legal Personal Representative of MR GRASSO (DECEASED) [No 2]

[2022] WASCA 27

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Family Law
2. › De facto relationships
3. › Property settlement
4. › Death of party before determination
5. › Whether court would have made order if deceased party had not died
6. › Whether question under s 205ZG(8)(b) apt for preliminary determination
7. › Family Court Act 1997 (WA), s 205ZG
1. Practice and Procedure
2. › Procedural fairness
3. › Change in procedure at hearing
4. › Summary dismissal of proceedings listed for interim applications
5. › Whether party denied opportunity to adduce evidence
6. › Whether breach of procedural fairness material
1. Practice and Procedure
2. › Preliminary issues
3. › Whether issue apt for separate determination
4. › Whether evaluative statutory criteria can be determined as preliminary issue without trial
1. Appeal
2. › Additional evidence on appeal
3. › Whether in interests of justice to admit
4. › Supreme Court (Court of Appeal) Rules 2005 (WA), r 47(3)(d)

Quick Take

The question under s 205ZG(8)(b) of the Family Court Act 1997 (WA) — whether the court would have made a property settlement order if the deceased party had not died — cannot properly be determined as a preliminary issue separately from the final determination of the application, because it requires the court to apply all of the criteria in s 205ZG(4) (including s 205ZD(3)) to the facts and circumstances, which can only be answered on the basis of findings of fact made after a trial. A court that changes the character of a hearing from interim applications to final determination of the proceedings must ensure the parties have adequate notice and opportunity to adduce all relevant evidence.