Adamo & Vinci (No 3)

Case [2022] FedCFamC1F 226

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Adamo & Vinci (No 3) [2022] FedCFamC1F 226

File number(s): SYC 3598 of 2018
Judgment of: MCCLELLAND DCJ
Date of judgment: 7 April 2022
Catchwords: FAMILY LAW – PROPERTY – Where final orders made by the Court in October 2020 – Where the husband filed an initiating application pursuant to s 79A of the Family Law Act 1975 (Cth) in April 2021 – Where the husband filed an Application in a Proceeding in December 2021 seeking an injunctive order against the wife from selling the former matrimonial home – Where the husband substantively changed his application upon adjournment of the interim defended hearing – Application dismissed – Husband ordered to pay costs of and incidental of the Application in a Proceeding as and from 16 February 2022.
Legislation:

Child Support (Assessment) Act 1989 (Cth)

Family Law Act 1975 (Cth) ss 60I, 79A, 117

Federal Circuit and Family Court of Australia Act2021 (Cth) ss 67, 68

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.08
Cases cited:

Adamo & Vinci [2020] FamCA 537

Adamo & Vinci [2020] FamCAFC 208

Adamo & Vinci (No 2) [2020] FamCA 873

Adamo & Vinci (No 2) [2020] FamCAFC 229

Camm v Linke Nominees Pty Ltd (No 4) [2013] FCA 223

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123; [2005] FamCA 158

I and I (No. 2) (1995) FLC 92–625

Kiefel v State of Victoria [2014] FCA 411

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93–664; [2015] FamCAFC 157

Modra v Victoria (Dept of Education and Early Childhood Development and Dept of Human Services) (2012) 205 FCR 445; [2012] FCA 240

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23

Sklavos v Australasian College of Dermatologists [2013] FCA 1065

Specsavers Pty Ltd v Optical Superstore Pty Ltd (2012) 208 FCR 78; [2012] FCAFC 183

Vinci & Adamo [2021] FedCFamC1A 53
Division: Division 1 First Instance
Number of paragraphs: 76
Date of hearing: 15 February 2022, 18 March 2022
Place: Sydney (via videoconference)
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:

7 APRIL 2022

THE COURT ORDERS THAT:

1.The applicant husband’s Application in a Proceedings filed 24 December 2021 is dismissed.

2.The applicant husband is to pay costs of and incidental to the applicant’s Application in a Proceeding filed 24 December 2021 as and from 16 February 2022 to the extent that those costs do not overlap with costs incurred by the respondent wife…

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AGLC
Adamo & Vinci (No 3) [2022] FedCFamC1F 226
Case
[2022] FedCFamC1F 226
Decision Date

CaseChat Overview and Summary

The case of Adamo & Vinci (No 3) involved a dispute between the parties over final orders made in October 2020, following a lengthy litigation history. The husband filed an initiating application in April 2021 seeking variations to the final orders. The husband subsequently filed an application in a proceeding in December 2021 seeking an injunctive order against the wife from selling their former matrimonial home. The wife filed an Outline of Case Document (Interim Hearing) on 17 March 2022 and sought orders for the husband's application to be dismissed with costs. The court was required to determine whether the husband's application for injunctive orders was meritorious and whether any costs should be awarded. The court found that the husband's application was without merit and dismissed it with costs. The court also found that the husband's application for injunctive orders was redundant and unnecessary and dismissed it. The court held that the husband's application for proposed Order 1 was misconceived, given the power in rule 5.08(3) of the Rules to grant leave to rely upon affidavit evidence. The court also held that proposed Order 2 was redundant, as the wife had filed and served her Points of Defence. The court found that the husband's application for proposed Order 4 was unclear and unnecessary, as the issue of service was not in dispute. The court held that the husband's application for proposed Order 5 was redundant, as the wife had no objection to the husband filing Points in Reply if he elected to do so. The court dismissed the husband's application in its entirety and ordered the husband to pay costs of and incidental to the Application in a Proceeding as and from 16 February 2022 to the extent that those costs do not overlap with costs incurred by the respondent wife in the period prior to and including 15 February 2022. The costs payable pursuant to Order 2 are to be paid within 14 days of those costs being agreed or assessed.

Orders

Orders of the court

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:

7 APRIL 2022

THE COURT ORDERS THAT:

1. The applicant husband’s Application in a Proceedings filed 24 December 2021 is dismissed.

2. The applicant husband is to pay costs of and incidental to the applicant’s Application in a Proceeding filed 24 December 2021 as and from 16 February 2022 to the extent that those costs do not overlap with costs incurred by the respondent wife in the period prior to and including 15 February 2022.

3. The costs payable pursuant to Order 2 are to be paid within 14 days of those costs being agreed or assessed.

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.

Background

Background to the litigation

I have found the husband’s application to be without merit and it has been dismissed with costs. BACKGROUND AND LITIGATION HISTORY Despite judicial officers of the Court on several occasions expressing grave concern regarding the conduct of these proceedings, this matter has absorbed disproportionate resources of the parties and the Court. This is made most apparent by the litigation history which, by way of broad summary, is as follows. The husband originally commenced proceedings in the Federal Circuit Court of Australia (as it was then known) on 7 June 2018. After several interim hearings, interim parenting orders were made on 12 August 2019 and the matter was also transferred to the Family Court of Australia (as it was then known). On 7 July 2020, Rees J dismissed an application by the husband in which he sought permission to call an expert witness in the context of the husband’s application for property settlement orders; Adamo & Vinci [2020] FamCA 537. On 25 August 2020, the husband’s appeal was dismissed by a decision of the Full Court; Adamo & Vinci [2020] FamCAFC 208. By subsequent decision dated 11 September 2020 the husband was ordered to pay the wife’s costs of and incidental to the appeal; Adamo & Vinci (No 2) [2020] FamCAFC 229. On 16 October 2020, Rees J delivered judgement and made final orders in respect to both the parties’ property and parenting disputes; Adamo & Vinci (No 2) [2020] FamCA 873. Those orders were appealed by the wife who challenged her Honour’s orders to make a superannuation splitting order in respect to the wife’s pension. On 16 April 2021, that is, prior to the determination of the Appeal the husband filed an application for final orders pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”). The parameters of that application are relevant for the purpose of considering the husband’s present application. The orders sought in the application filed on 16 April 2021 were as follows;1.That pursuant to s79A(l)(a) of the Family Law Act 1975(Cth), the Court varies or sets aside Orders (14) and (15) made by the Honourable Justice Rees in File number SYC3598 of2018 on 16 October 2020, and makes the following orders in substitution thereof: (14) that in addition to the $402,000 ordered to be paid by the wife to the husband on or before 16 April 2021, the wife pay to the husband a further $172,626 within 28 days of the making of the s79A orders. (15)That in the event that the wife has not paid the whole of the sum in Order 14 by the due date, she shall do all things required to sell the prope1iy at [D Street, Suburb E], in the State of New South Wales, being the land comprised in Folio Identifier […]47, and to pay the proceeds of sale, in the following order and priority: (a) to discharge any registered mortgage;(b) in payment of selling costs and agent's commission; (c) to pay to the husband any such amount as remains unpaid, together with interest calculated from the due date of payment in Order 14 until the date of payment at the interest rate prescribed by the Family Law Rules. 2. That Order shall take effect from __________ 20213. Costs(As per original, bold emphasis added)

Evidence

Evidence Before The Court

The respondent wife filed an Outline of Case Document (Interim Hearing) on 17 March 2022 and sought orders for the husband’s application to be dismissed with costs.EVIDENCE The husband sought to rely on the following evidentiary material;·the husband’s affidavit filed 16 December 2021, paragraphs 6–10;·the husband’s affidavit filed 1 March 2022;·paragraphs 6–15;·paragraphs 25–28;·paragraphs 42–46;·the husband’s affidavit filed on 16 March 2022 in its entirety. The wife sought to rely upon:·The wife’s affidavit filed 16 March 2022;·Response to Application in a Proceedings filed 16 March 2022;·Affidavit of Ms R filed 18 February 2022.CONSIDERATION I will deal with each of the husband proposed orders in seriatim.Proposed Order 1 Rule 5.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), by way of summary, provides that a party to interim proceedings may only rely on one affidavit. That affidavit is not to exceed 25 pages and not include more than 10 annexures. In the absence of objection by the respondent during the course of the proceedings, pursuant to r 5.08(3) of the Rules, I granted the applicant leave to rely upon the affidavit evidence to which I have referred above. There is, accordingly, no need to make Order 1 as proposed by the husband which, was, with respect, misconceived, given the power in rule 5.08(3) to which I have referred. I therefore dismiss the husband’s application for proposed Order 1.Proposed Order 2 Proposed Order 2 as sought by the husband is redundant. The wife filed and served her Points of Defence dated 15 March 2022 on 16 March 2022. During the course of the proceedings the husband complained regarding the adequacy of the respondent’s Points of Defence. Comparatively, the wife contended that her Points of Defence were adequate and appropriate for the relevant requirements of s 79A. Counsel for the wife foreshadowed the possibility of an application for the husband’s s 79A application to be struck out on the basis of the inadequacy of those pleadings. In circumstances where the adequacy of those pleadings is a matter to be determined, it is inappropriate for me to make any assessment or provide any commentary on the parties’ respective contentions in the absence of an appropriately focused debate. This would occur when the issue of the adequacy of the pleadings and the merit of the s 79A application is properly before the Court. In circumstances where the Points of Defence have been filed, proposed Order 2 as sought by the husband is redundant. I dismiss the husband’s application in that respect.Proposed Order 3 The respondent wife is not seeking an order for the applicant husband to file Points in Reply as contended in proposed Order 3. However, Counsel for the respondent indicated that the wife had no objection to the applicant filing Points in Reply if he elected to do so. In those circumstances the order as sought by the husband is unnecessary and I will not make an order in those terms.Proposed Order 4

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The wife sought to rely upon:·The wife’s affidavit filed 16 March 2022;·Response to Application in a Proceedings filed 16 March 2022;·Affidavit of Ms R filed 18 February 2022.CONSIDERATION I will deal with each of the husband proposed orders in seriatim.Proposed Order 1 Rule 5.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), by way of summary, provides that a party to interim proceedings may only rely on one affidavit. That affidavit is not to exceed 25 pages and not include more than 10 annexures. In the absence of objection by the respondent during the course of the proceedings, pursuant to r 5.08(3) of the Rules, I granted the applicant leave to rely upon the affidavit evidence to which I have referred above. There is, accordingly, no need to make Order 1 as proposed by the husband which, was, with respect, misconceived, given the power in rule 5.08(3) to which I have referred. I therefore dismiss the husband’s application for proposed Order 1.Proposed Order 2 Proposed Order 2 as sought by the husband is redundant. The wife filed and served her Points of Defence dated 15 March 2022 on 16 March 2022. During the course of the proceedings the husband complained regarding the adequacy of the respondent’s Points of Defence. Comparatively, the wife contended that her Points of Defence were adequate and appropriate for the relevant requirements of s 79A. Counsel for the wife foreshadowed the possibility of an application for the husband’s s 79A application to be struck out on the basis of the inadequacy of those pleadings. In circumstances where the adequacy of those pleadings is a matter to be determined, it is inappropriate for me to make any assessment or provide any commentary on the parties’ respective contentions in the absence of an appropriately focused debate. This would occur when the issue of the adequacy of the pleadings and the merit of the s 79A application is properly before the Court. In circumstances where the Points of Defence have been filed, proposed Order 2 as sought by the husband is redundant. I dismiss the husband’s application in that respect.Proposed Order 3 The respondent wife is not seeking an order for the applicant husband to file Points in Reply as contended in proposed Order 3. However, Counsel for the respondent indicated that the wife had no objection to the applicant filing Points in Reply if he elected to do so. In those circumstances the order as sought by the husband is unnecessary and I will not make an order in those terms.Proposed Order 4 The respondent wife acknowledges having been served with the relevant documents referred to in proposed Order 4 of the husband. Save to the extent that proposed Order 4 replicates proposed Order 8 of the Husband’s Application in a Proceeding filed on 24 December 2021 it is unclear why the husband sought to press Order 4. This is in circumstances where the issue of service is not in dispute and where directions have been made regarding the progress of the husband’s application for orders in which he is seeking a stay of his child support obligation. Accordingly, I will not make an order in terms of Order 4 as proposed by the husband. Proposed Order 5