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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- Adamo & Vinci (No 3) [2022] FedCFamC1F 226
- Case
- [2022] FedCFamC1F 226
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CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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