Adamo & Vinci (No 2) - [2022] FedCFamC1F 128

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Adamo & Vinci (No 2) [2022] FedCFamC1F 128

File number(s): SYC 3598 of 2018

Judgment of: MCCLELLAND DCJ

Date of judgment: 15 February 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where during the hearing the applicant sought to adduce further evidence by way of letter in support of application in a proceeding – Where the Court requires evidence by way of affidavit and to be filed no later than 2 days before the hearing – Where the respondent seeks a costs order on basis of time wasted by applicant – Application granted on basis of applicant giving an undertaking to the Court

Legislation:
Family Law Act 1975 (Cth) s 79A

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.07, 8.04, 12.17

Cases cited: Re WS (No 3) (2017) NSWSC 1160

Division: Division 1 First Instance

Number of paragraphs: 8

Date of hearing: 15 February 2022

Place: Sydney

The 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 adjournment application of the applicant father is granted on the basis of the undertaking provided by the applicant father today.
2.The matter is adjourned for hearing at 2:00 pm, 18 March 2022.
THE COURT NOTES THAT:
A.The undertaking provided by the applicant father to the Court is as follows:
a.Within 14 days of the date of these orders he will comply with the direction at order 3 made by Judicial Registrar Bardetta on 14 December 2022;
b.Within 14 days pay to the solicitors for the wife the sum of $6,600 in respect to a lump sum costs representing costs thrown away by the adjournment.

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 husband has sought to proceed with an application in a proceeding filed on 24 December 2021. Upon being asked what evidence he intended to…

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 (No 2)

Details

AGLC: Adamo & Vinci (No 2) [2022] FedCFamC1F 128
Case: [2022] FedCFamC1F 128
Decision Date

CaseChat Overview and Summary

The case of Adamo & Vinci (No 2) was heard in the Federal Circuit and Family Court of Australia. The applicant, Mr Adamo, sought an adjournment of proceedings in relation to an application in a proceeding filed on 24 December 2021. The applicant intended to rely on a letter he sent to the court's chambers, which was not received by the respondent's solicitors. The court found it improper for a party to communicate directly with chambers about the substance of the matter without the consent of the other party. Moreover, the court's rules require evidence in support of an application to be provided by way of an affidavit and served at least 48 hours prior to the hearing.

The legal issues in the case revolved around the proper process for submitting evidence in support of an application in a proceeding, and the consequences of the applicant's failure to comply with court orders and rules. The court found that the applicant had not followed the correct process for submitting evidence and had failed to comply with previous court orders. The court also considered the potential prejudice to the respondent if the adjournment was granted, as well as the issue of costs.

The court granted the adjournment sought by the applicant on the condition that he provide an undertaking to the court that he will, within 14 days, file and serve points of claim in accordance with the directions made by the senior judicial registrar on 14 December 2021. The court also required the applicant to undertake to meet the costs thrown away by the respondent in the sum of $6,600. The matter was adjourned for hearing at 2:00 pm, 18 March 2022. The court noted that the form of the order was subject to the entry in the Court’s records.

Orders