FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Adamo & Vinci (No 2) [2024] FedCFamC1A 96
Appeal from: Adamo & Vinci (No 4) [2023] FedCFamC1F 1100 Appeal number: NAA 11 of 2024 File number: SYC 3598 of 2018 Judgment of: AUSTIN, HARTNETT AND BRASCH JJ Date of judgment: 13 June 2024 Catchwords: FAMILY LAW – APPEAL – Where the appellant filed an application seeking to discharge final parenting and property orders – Where the primary judge did not find there had been a material change of circumstances to warrant re-litigation – Where the primary judge dismissed the application – Where the appellant appealed all orders – Where the appellant could not elucidate how the primary judge applied wrong principles of law – Where the primary judge’s preference for the respondent’s evidence over the appellant’s evidence is not an appellable error – Application in an appeal to adduce further evidence – Where the appellant conceded it was his forensic choice not to adduce certain evidence at trial – Where the appellant could not persuade the Court there was any materiality in the documents which may have resulted in a different result – Application dismissed – Appeal dismissed – Where the appellant has been wholly unsuccessful in the appeal – Appellant to pay the costs of the respondent in a fixed sum. Legislation: Evidence Act1995 (Cth) s 50
Family Law Act 1975 (Cth) ss 79A, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.31
Cases cited: Adamo & Vinci (No 2) [2020] FamCA 873
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317
Barker v Barker (2007) 36 Fam LR 650; [2007] FamCA 13
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Dimnick & Harrison [2023] FedCFamC1A 30
Fatimi Pty Ltd v Bryant [2002] NSWSC 750
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Klewer v Official Trustee in Bankruptcy (No 2) [2010] NSWCA 258
Lane & Lane (2016) FLC 93-699; [2016] FamCAFC 53
Livesey v Jenkins [1985] AC 424
Marriage of Millar (1983) FLC 91-326; [1983] FamCA 21
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20
Repatriation Commission v Nation (1995) 57 FCR 25
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Simpson & Hamlin (1984) 79 FLR 304
State of NSW v Kable (2013) 252 CLR 118; [2013] HCA 26
Vinci & Adamo [2021] FedCFamC1A 53
Number of paragraphs: 117 Date of hearing: 29 May 2024 Place: Heard in Sydney, delivered in Newcastle The Appellant: Litigant…
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- Adamo & Vinci (No 2) [2024] FedCFamC1A 96
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- [2024] FedCFamC1A 96
- Decision Date
CaseChat Overview and Summary
The case of Adamo & Vinci (No 2) involves an appeal by Mr Adamo against the final parenting and property orders made by the primary judge in the Family Court of Australia. The primary judge had dismissed Mr Adamo's application to discharge the final orders, and he now appeals those decisions. The court was required to determine whether the primary judge had made any errors in law or fact that warranted setting aside the final orders.
The court found that Mr Adamo had failed to demonstrate any material change in circumstances that would justify re-litigating the parenting dispute. The court also dismissed Mr Adamo's arguments regarding the primary judge's interpretation of certain bank documents and the alleged failure to apply the right principles of law. The court held that the primary judge's preference for the respondent's evidence over Mr Adamo's evidence was not an error of law. Furthermore, the court rejected Mr Adamo's application to adduce further evidence, as he had conceded that it was his forensic choice not to present certain evidence at trial, and he could not persuade the court that the documents would have resulted in a different outcome. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs in a fixed sum.
The court's reasoning was based on the principle that where a judgment is clear in its terms, it cannot be construed contrary to its clear meaning. The court found that the final orders were unambiguous and did not impose any additional obligations on the respondent regarding school fees or parenting arrangements. The court also noted that the primary judge's interpretation of the bank documents and the allocation of pension assets were within the court's discretion and did not amount to an error of law. The court concluded that Mr Adamo had been wholly unsuccessful in his appeal and dismissed both the Application in an Appeal and the Second Further Amended Notice of Appeal.
The court found that Mr Adamo had failed to demonstrate any material change in circumstances that would justify re-litigating the parenting dispute. The court also dismissed Mr Adamo's arguments regarding the primary judge's interpretation of certain bank documents and the alleged failure to apply the right principles of law. The court held that the primary judge's preference for the respondent's evidence over Mr Adamo's evidence was not an error of law. Furthermore, the court rejected Mr Adamo's application to adduce further evidence, as he had conceded that it was his forensic choice not to present certain evidence at trial, and he could not persuade the court that the documents would have resulted in a different outcome. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs in a fixed sum.
The court's reasoning was based on the principle that where a judgment is clear in its terms, it cannot be construed contrary to its clear meaning. The court found that the final orders were unambiguous and did not impose any additional obligations on the respondent regarding school fees or parenting arrangements. The court also noted that the primary judge's interpretation of the bank documents and the allocation of pension assets were within the court's discretion and did not amount to an error of law. The court concluded that Mr Adamo had been wholly unsuccessful in his appeal and dismissed both the Application in an Appeal and the Second Further Amended Notice of Appeal.
Orders
Orders of the court
NAA 11 of 2024
SYC 3598 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR ADAMO
Appellant
AND:
MS VINCI
Respondent
ORDER MADE BY:
AUSTIN, HARTNETT AND BRASCH JJ
DATE OF ORDER:
13 JUNE 2024
THE COURT ORDERS THAT:
1. The Application in an Appeal filed 8 May 2024 is dismissed.
2. The Second Further Amended Notice of Appeal filed 24 April 2024 is dismissed.
3. The appellant pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $18,800 within 28 days.
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).
Background
Background to the litigation
For the reasons that follow, both the Application in an Appeal and the Second Further Amended Notice of Appeal will be dismissed with costs.BACKGROUND The respondent was born in 1971 and the appellant in 1972. The parties commenced cohabitation in or around 2001 and were married in 2002. There are two children of the marriage. The parties’ older child, X, was born in 2006 and will soon be 18 years old (“X”). Even if the appeal was successful, there is little utility in considering parenting orders for him. The parties’ younger child, Y, was born in 2009 and is 15 years old (“Y”). Separation occurred under one roof in August 2012, until the appellant left the former matrimonial home in October 2018. The parties were divorced in June 2019. Prior to their divorce, the appellant commenced proceedings on 7 June 2018 in the then Federal Circuit Court of Australia as to parenting and property. In August 2019, the proceedings were transferred to the then Family Court of Australia, and in July 2020 final hearing dates were allocated. The final hearing was conducted over three days in September 2020. Reasons were delivered on 16 October 2020 (see Adamo & Vinci (No 2) [2020] FamCA 873). Those 2020 final orders provided for the children to live with the respondent and spend four nights per fortnight and half the holidays with the appellant. The primary judge determined that the parties’ property interests be altered 80 per cent to the respondent and 20 per cent to the appellant. The property alteration orders included orders to equally split the respondent’s parliamentary pension. The respondent appealed against the orders splitting her pension. That appeal was dismissed on 5 November 2021 (Vinci & Adamo [2021] FedCFamC1A 53). The parties were then in dispute about schooling for the children, whether the respondent was in arrears for school fees, and whether she could afford to keep the children at the school they had been attending. Consequently, the appellant filed an Initiating Application on 16 April 2021 seeking orders pursuant to s 79A of the Act. The appellant contended that justice had miscarried because the respondent had failed to disclose the arrears to a judge in the then Family Court of Australia and that she was unable to pay the school fees going forward. With respect to parenting, it seems uncontroversial that after the 2020 final orders, the children jointly or severally moved back and forth between their parents. That is hardly surprising given their age. There were some discrepancies in the evidence between the appellant and the respondent as to whom the children had been living with after the 2020 final orders. The primary judge found (at [98]), that whilst it was unnecessary to make findings, what was clear on the appellant’s evidence was that Y had spent “significantly less time” with the appellant than the 2020 final orders had provided for. Parenting was added to the dispute by way of the appellant’s Amended Initiating Application filed 5 December 2022, seeking a variation of the 2020 final orders as to parenting.
Evidence
Evidence Before The Court
Finally, the appellant sought for this Court to receive the list of objections he had tendered at trial. After some discussion, the appellant abandoned this aspect of the application.Disposition – Further evidence During the appeal hearing, the appellant abandoned, explicitly or by appropriate concessions, the documents sought to be adduced in his proposed orders 1, 3, 4 (in so far as s 35(b) of the FCFCOA Act was concerned) and 5. The documents in his proposed order 2 (the ADVO between siblings and a child’s 2022 wishes) will not be adduced into evidence before this Court. The ADVO documents lack probative value and blur the boundaries between trial and appellant functions. The child’s wishes add nothing to what the primary judge already knew, and, in any event, his views are not determinative. None of these documents establish any appellable error on the part of the primary judge, and it would therefore not likely have produced a different result (see CDJ v VAJ at [109], [111], [136], [140]–[151], [169] and [186.9]). The Application in an Appeal will be dismissed.Grounds of Appeal The appellant is self-represented, although a professional by calling. In the Second Further Amended Notice of Appeal, the appellant listed four grounds of appeal with numerous sub-grounds, many of which are dense and did not clearly identify the purported appellable error. The first ground concerns parenting matters and the balance of three canvas financial matters. We will approach the grounds in the same way – parenting and then property.Ground 1 – parenting The appellant challenges the primary judge’s findings that a material change of circumstance had not been made out to justify re-litigating about the children. As the appellant acknowledges, this is sometimes colloquially referred to as the rule in Rice & Asplund (1979) FLC 90-725, which requires the person bringing a parenting application, where parenting orders have already been made, to demonstrate that there has been a relevant change in circumstances to warrant the court re-litigating a parenting dispute. It is not so much a rule but a manifestation of the best interests principle. The appellant abandoned Ground 1(a)(i), whereby the appellant worked on an erroneous assumption (as he did at trial) that the interim orders of a (then) Federal Circuit Court judge made on 12 August 2019 survived or otherwise sat alongside the 2020 final orders. Ground 1(a)(ii) is that the primary judge applied wrong principles of law by referring to statements from a bank officer “set out at [55] of the Reasons as hearsay at [56] of the Reasons in the reasoning process therein”. The appellant’s submissions laboured the point that he disagreed with the primary judge’s interpretation of things recorded in some bank documents. Yet, the appellant could not identify with any precision, or at all, the principles he contended should have been applied by the primary judge in the two paragraphs he sought to impugn.
Decision
Reasons for decision
The appellant could not identify any other authority which supported his notion that we could go behind unambiguous orders to look for some alternate meaning in the reasons given to explain those orders. Rather, the vast preponderance of authority is well-represented by the following discussion in Repatriation Commission v Nation (1995) 57 FCR 25 at 33–34, where Black CJ, Jenkinson and Beaumont JJ agreed, saying:33.The rule in England is that when a judgment is clear as to its terms, not even the pleadings nor the history of the action may be utilised to construe the judgment contrary to its clear meaning (see Halsbury’s Laws of England, 4th ed., Vol. 26 at 273). Where, however, the judgment or order is ambiguous, it may be permissible to resort to extrinsic material, including the reasons for judgment, to resolve the ambiguity (see Gordon v Gonda (1955) 1 All ER 762 at 765, 768).34.A similar approach has been taken in this country. If, as in the case of a “speaking” order (see, e.g., I.C.I. Australia Operations Pty. Ltd. v Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248 at 262) its true meaning is “immediately plain”, the terms of the order will speak for themselves. If this is not the case, the true meaning may be ascertained according to ordinary rules of construction (see Australian Consolidated Press Ltd. v Morgan [1965] HCA 21; (1965) 112 CLR 483 per Windeyer J at 503; McNair Anderson Associates Pty. Ltd. v Hinch [1985] VicRp 30; (1985) VR 309 at 311-2; cf. Kwikspan Purlin System Pty. Ltd. v Federal Commissioner of Taxation (1986 2 ATC 4602 at 4605; Australian Energy Limited v Lennard Oil N.L. (No. 2) (1988) 2 Qd R 230 at 232; Sharpe v Goodhew, Drummond J, 11 December 1992, unreported, at 10-12; Australian Securities Commission v Skase, Drummond J, 13 January 1993, unreported, at 16-17). Under the ordinary rules of construction, evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has “a plain meaning” (see Codelfa Construction Pty. Ltd. v State Rail Authority of N.S.W. [1982] HCA 24; (1982) 149 CLR 337 per Mason J at 352).(Emphasis added) There is no ambiguity in Orders 14 and 15. They are plain in their meaning and there is no controversy about that meaning which would warrant looking at extrinsic material. There is no obligation upon the respondent with respect to school fees and parenting arrangements to be reasonably inferred from those very clear orders. Ultimately, the appellant conceded that the success on both of these grounds depended on the Court accepting his argument about the supposed additional obligations. We do not. Ground 3 fails in its entirety.Ground 4 – property – exceptional circumstances and hardship Grounds 4(a)(i) – (iii) are hard to comprehend but seem to be directed to s 79A(1)(d) of the Act and that the primary judge failed to conclude that exceptional circumstances will derive from the hardship he and the children will suffer by virtue of Orders 14 and 15 (extracted above) in the 2020 final orders, if they are not set aside. The appellant also complains that it is not apparent that the primary judge applied “the test” in Simpson & Hamlin (1984) 79 FLR 304, asking whether the change in care arrangements was in the reasonable contemplation of the parties at the time the original order was made.
Ratio Decidendi
Legal Principle Established
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