ADAMO & VINCI - [2020] FamCAFC 208

FAMILY COURT OF AUSTRALIA

ADAMO & VINCI

[2020] FamCAFC 208

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant husband appealed against an interlocutory order – Where insufficient doubt attends the judgment sought to be challenged – Where no substantial injustice will accrue if leave is not given – Leave refused.

Family Law Act 1975 (Cth) s 94AA

Family Law Rules 2004 (Cth) rr 15.42, 15.52

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Salmon and Ors & Salmon [2020] FamCAFC 134
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

APPLICANT:

Mr Adamo

RESPONDENT:

Ms Vinci

INDEPENDENT CHILDREN’S LAWYER:

Stidwill Solicitors

FILE NUMBER:

SYC

3598

2018

APPEAL NUMBER:

EAA

100

2020

DATE DELIVERED:

25 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

In Chambers

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

Heard by way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

7 July 2020

LOWER COURT MNC:

[2020] FamCA 537

REPRESENTATION:

THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Alidenes & Co Solicitor

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Stidwill Solicitors (not participating)

Order

Leave to appeal the order of a judge of the Family Court made on 7 July 2020 is refused.
The applicant husband is to file and serve written submissions in relation to costs of no more than two (2) pages by 4.00 pm on 2 September 2020.
The respondent wife is to file and serve written submissions in reply of no more than two (2) pages within five (5) days thereafter.

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 Adamo & Vinci 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: EAA 100 of 2020
File Number: SYC 3598 of 2018

Mr Adamo

Applicant

And

Ms Vinci

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

By his Amended Notice of Appeal filed on 12 August 2020, Mr Adamo (“the husband”) seeks to appeal an order made by a Judge of the Family Court on 7 July 2020 dismissing an application for permission to call an expert witness brought by him as part of pending…

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.

Continue reading ADAMO & VINCI

Details

AGLC: ADAMO & VINCI [2020] FamCAFC 208
Case: [2020] FamCAFC 208
Decision Date: 25 August 2020

CaseChat Overview and Summary

The appeal before the Court was brought by the husband, the applicant, against an interlocutory order made by a judge of the Family Court. The order in question was made on 7 July 2020. The husband sought leave to appeal this interlocutory order, arguing that there was sufficient doubt about the correctness of the decision to warrant further review by the Court. The wife, the respondent, opposed the husband’s application, contending that the interlocutory order was correctly made and that there was no reasonable prospect of success on appeal.

The central legal issue for the Court was whether the husband had demonstrated sufficient doubt regarding the correctness of the interlocutory order to warrant granting leave to appeal. The Court considered the criteria established in previous case law for determining whether leave to appeal should be granted, particularly focusing on whether there was insufficient doubt about the judgment and whether a substantial injustice would be caused if leave were not granted. The Court also evaluated the husband's arguments against the established principles to determine whether they had provided a reasonable prospect of success on appeal.

In its decision, the Court found that there was insufficient doubt about the correctness of the interlocutory order. The husband's arguments did not present a reasonable prospect of success on appeal, and granting leave would not result in a substantial injustice. The Court concluded that the interlocutory order should stand and that the husband had not met the threshold for leave to appeal. Consequently, the Court refused the husband’s application for leave to appeal the interlocutory order. The Court did, however, direct the husband to submit written submissions on the costs of the appeal within a specified timeframe.

The Court's final order was that leave to appeal the interlocutory order was refused, and the husband was directed to file written submissions on costs by a specific deadline. The wife was also instructed to respond to the husband’s submissions within five days thereafter. The form of the order was subject to formal entry into the Court's records. The Chief Justice had approved the publication of this judgment under the pseudonym Adamo & Vinci, in accordance with section 121(9)(g) of the Family Law Act 1975.

Orders

Orders of the court

Order

1. Leave to appeal the order of a judge of the Family Court made on 7 July 2020 is refused.

2. The applicant husband is to file and serve written submissions in relation to costs of no more than two (2) pages by 4.00 pm on 2 September 2020.

3. The respondent wife is to file and serve written submissions in reply of no more than two (2) pages within five (5) days thereafter.

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 Adamo & Vinci has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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