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…

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 [2022] FedCFamC1F 127
Case: [2022] FedCFamC1F 127
Decision Date

CaseChat Overview and Summary

In this matter, the applicant sought a review of orders made by a judicial registrar regarding a family law dispute. The applicant, who is self-represented, had not filed his points of claim as directed by the judicial registrar, instead relying solely on an affidavit. The judicial registrar had ordered both the applicant and respondent to file points of claim and defence, respectively. The applicant's application for review of these orders was dismissed, and leave was granted for the applicant to discontinue the application for review.

The central legal issue before the court was whether the judicial registrar's orders for the filing of points of claim and defence were appropriate and consistent with the powers granted under the relevant legislation and rules. The court needed to determine if the judicial registrar had correctly exercised her discretion in directing the parties to file points of claim and defence, particularly in light of the applicant's reliance on his affidavit.

In delivering the judgment, Deputy Chief Justice McClelland reviewed the judicial registrar's orders and the applicant's affidavit. The court found that the judicial registrar had acted appropriately and within her powers by requiring the filing of points of claim and defence. The affidavit submitted by the applicant was deemed insufficiently clear to provide the necessary clarification of the issues in dispute. The court highlighted that points of claim are an accepted means of obtaining clarity on the specific issues to be addressed in family law proceedings. The judicial registrar's orders were consistent with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and the Central Practice Direction- Family Law Case Management. Therefore, the court dismissed the application for review and granted leave for the applicant to discontinue the application for review.

In summary, the court upheld the judicial registrar's decision, affirming that the requirement for the parties to file points of claim and defence was justified to ensure effective case management and clarity of issues in the proceedings.

Orders