Adamo & Vinci
[2022] FedCFamC1F 127
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Adamo & Vinci [2022] FedCFamC1F 127
File number(s): SYC 3598 of 2018 Judgment of: MCCLELLAND DCJ Date of judgment: 15 February 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Judicial Registrar – Review of decision – Where the parties were ordered by a Judicial Registrar to file points of claim and defence. Where the applicant has not filed his point of claim and only relies on an affidavit. Where the Judicial Registrar has acted consistently within their powers – application dismissed. Legislation: Family Law Act 1975 (Cth)ss 75(2), 79A
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Federal Circuit and Family Court of Australia, Central Practice Direction- Family Law Case Management, 1 September 2021
Cases cited: Adamo & Vinci (No 2) [2020] FamCA 873
Wayne Lawrence & Anor v Frances Gunner [2014] NSWSC 121
Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 15 February 2022 Place: Sydney Applicant: Litigant in person Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: Alidenes & Co Solicitor ORDERS
SYC 3598 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ADAMO
Applicant
AND: MS VINCI
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
15 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The applicant husband’s application for review filed 27 December 2021 of orders 3 and 4 made by Judicial Registrar Bardetta on 14 December 2021 is dismissed.
2.Leave is granted to the applicant to discontinue the application for review filed on 27 December 2021 of orders made by Judicial Registrar Bardetta on 20 December 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Adamo & Vinci has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
In this matter the applicant has filed an application for review of orders made by a judicial registrar on 14 December 2021 and specifically orders 3 and 4 of those orders. Paragraphs 3 and 4 of the orders made by the judicial registrar on 14 December 2021 were these:
Order 3. By no later than 4:00 pm on 31 January 2021 the applicant husband file and serve verified points of claim which he seeks to rely on in relation to the application in the proceedings as amended on 16 April 2021.
Order 4. By no later than 4:00 pm on 14 February 2021 the respondent wife file and serve verified points of defence which she seeks to rely on in relation to the applicant’s application in the proceedings amended on 16 April 2021.
Those orders sought clarification from the applicant as to the basis upon which he pressed for orders s 79A of the Family Law Act 1975 (Cth). It is the case of the Applicant that he has adequately particularised the nature of his case in his affidavit of 5 March 2021 and that no further clarification is required.
A review of a registrar’s decision is a rehearing. That is, the matter is being considered afresh. I have considered the matter afresh and, having considered the matter afresh, I am satisfied that the orders made by the judicial registrar for the applicant to file points of claim and for the respondent to file points of defence to those points of claim was entirely appropriate.
By way of outline, the affidavit of the applicant filed on 5 March 2021 refers to the decision of Rees J, Adamo & Vinci (No 2) [2020] FamCA 873 made on 16 October 2020 including her Honour’s findings regarding s 79 and also s 75(2) considerations which the applicant husband regarded as being relevant to his s 79A application.
Reading the relevant paragraphs of the husband’s affidavit it is difficult to discern how the contentions made in those paragraphs, are relevant to the section 79A application. The judge hearing this matter is entitled to have those matters clarified. Points of claim are an accepted means of obtaining that clarification.
The judicial registrar acted entirely appropriately and consistent with her powers under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and the Central Practice Direction- Family Law Case Management, which empower the court to make such directions as the court deems fit in order for the effective case management of matters and specifically for a clarification of issues in dispute.
Paragraphs 6 and 7 relate of the husband’s affidavit relate to costs of the children’s education with paragraph 8 of the affidavit referring to the respondent mother removing the children from a school. It is difficult to see, on its face, how that evidence is relevant to a s 79A application. It is also a matter that requires clarification.
Paragraph 9 of the affidavit raises a concern regarding the adequacy of disclosure by the wife which, if established, may have some relevance to the s 79A application. But just how it relates with that s79A application again is a matter that requires clarification.
Paragraph 10 also relates to that issue of the applicant contending that the respondent wife provided inadequate disclosure and, again, requires clarification.
Paragraph 11 relates to disclosure of the children’s school fees and the husband’s assertions that he was not aware of the extent of to which they were in arrears. Again, this is potentially relevant to a s 79A application. But just how they impact upon the s 79A application is again something that would benefit from clarification.
The remaining part of the affidavit traverses a number of issues including the applicant’s assertions of miscarriage of justice. There is a reference to the children’s mental health issues. There is an issue about the husband’s concern about a child support assessment. All of those issues would benefit from clarification to enable the respondent firstly to understand the nature of the case she has to meet and ultimately the court to be aware of the issues in dispute between the parties. In that context, I note that paragraph 16 summarises the applicant’s application under section 79A where he says:
I therefore say that it is appropriate that the Court should increase the amounts ordered to be paid to me pursuant to orders 14 and 15 by the difference with the amount referred to in paragraph 5 above as attributable to the 10 per cent adjustment in the amount of $172,626.70
Again, it is difficult, on the face of that affidavit, to see how the applicant leaps from the earlier paragraphs to ultimately the orders that he contends should be made by the court as set out in paragraph 16.
One further matter I would refer to is the decision of the Supreme Court of New South Wales, a decision of Kunc J, Wayne Lawrence & Anor v Frances Gunner [2014] NSWSC 121 dated 21 February 2014 where his Honour said at [6]:
The efficient and cost effective management of proceedings in the court is premised upon case management being dealt with by a registrar except in certain specialist lists. That is both an attempt to achieve the most efficient distribution of work between the various levels of judicial officers in the court and the recognition of the skill and experience of the registrars in case managing matters.
In this matter, in my view, having read the applicant’s affidavit of 5 March 2021 to which I have referred and attempting to perceive the nature of the applicant’s application pursuant to s 79A is such that it was entirely appropriate and, in my view, consistent with the overarching purpose set out in ss 67 and 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) for the registrar to make the orders and direction set out in orders 3 and 4 of the orders made on 14 December 2021.
In the re-exercise of discretion and my consideration of the matters afresh, having considered the matters set out in the husband’s affidavit of 5 March 2021 to which I have referred, I am satisfied that the husband should file points of claim setting out the basis upon which he seeks the relief he is pressing in these proceedings.
Accordingly I dismiss the husband’s application for review of the orders 3 and 4 of the orders made by the judicial registrar on 14 December 2021.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 15 February 2022
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