Adamo & Vinci (No 4)

Case [2023] FedCFamC1F 1100

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Adamo & Vinci (No 4) [2023] FedCFamC1F 1100

File number(s): SYC 3598 of 2018
Judgment of: SCHONELL J
Date of judgment: 18 December 2023
Catchwords:

FAMILY LAW – PARENTING – Where the husband sought to discharge final parenting orders – Where the husband contended that there had been a change in circumstances – Where the wife sought a dismissal of the husband’s application based on the principles in Rice and Asplund (1979) FLC 90-725 – Where the Court is not satisfied that there has been a change in circumstances as contended by the husband – Application dismissed.

FAMILY LAW – FINANCIAL – Where the husband sought to set aside final financial orders pursuant to s 79A of the Family Law Act 1975 (Cth) – Where the husband contended that the wife had suppressed evidence and/or failed to disclose evidence before the trial judge on the last occasion, that the wife had defaulted on an obligation imposed by the final orders and/or that exceptional circumstances existed – Where the wife sought a dismissal of the husband’s application – Where the Court is not satisfied that any of the asserted grounds have been made out – Application dismissed.

Legislation:

Family Law Act 1975 (Cth) ss 60CA, 60CC, 64B, 75, 79, 79A

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01

Cases cited:

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

Barker & Barker (2007) 36 Fam LR 650; [2007] FamCA 13

Carriel & Lendrum (2015) FLC 93-640; [2015] FamCAFC 43

Dimmick & Harrison [2023] FedCFamC1A 30

Freeman and Freeman (1987) FLC 91-857; [1986] FamCA 23

Lane & Lane (2016) FLC 93-699; [2016] FamCAFC 53

Langmeil & Grange [2013] FamCAFC 31

Livesey v Jenkins [1985] AC 424

Prowse & Prowse (1995) FLC 92-557; [1994] FamCA 91

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

Rohde and Rohde (1984) FLC 91-592

Simpson and Hamlin (1984) FLC 91-576; [1984] FamCA 62

SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16

Taylor v Taylor (1979) 143 CLR 1l [1979] HCA 38

Trewitt & Brock [2021] FedCFamC1A 9

Vinci & Adamo [2021] FedCFamC1A 53

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance
Number of paragraphs: 138
Date of hearing: 27 – 29 November 2023
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:

SCHONELL J

DATE OF ORDER:

18 DECEMBER 2023

THE COURT ORDERS THAT:

1.The Further Amended Initiating Application filed 5 December 2022 is dismissed.

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…

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AGLC
Adamo & Vinci (No 4) [2023] FedCFamC1F 1100
Case
[2023] FedCFamC1F 1100
Decision Date

CaseChat Overview and Summary

The case of Adamo & Vinci (No 4) involved proceedings brought by Mr Adamo seeking to discharge final parenting orders and set aside final financial orders made in Adamo & Vinci (No 2) [2020] FamCA 873. The application was dismissed by the Federal Circuit and Family Court of Australia (Division 1). The husband argued that there had been a change in circumstances warranting a discharge of the final parenting orders and sought to set aside the final financial orders on various grounds, including suppression of evidence and exceptional circumstances. The wife opposed the application on the basis that the husband had not demonstrated any change in circumstances or grounds for setting aside the orders. The court had to determine whether the husband had established a change in circumstances sufficient to warrant the discharge of the final parenting orders and whether any of the grounds alleged by the husband had been made out to set aside the final financial orders.

The court found that the husband had not satisfied the onus of proving a change in circumstances since the final parenting orders were made. The court noted that there had been no significant change in the husband’s ability or willingness to take up the opportunity to spend more time with the children, as had been contemplated at the time of the final parenting orders. In relation to the financial orders, the court concluded that the husband had not demonstrated that there had been suppression of evidence, failure to disclose evidence, default by the wife, or exceptional circumstances. The court was not satisfied that any of the grounds for setting aside the final financial orders had been made out.

Accordingly, the husband's Further Amended Initiating Application was dismissed. The court's order provided that the application filed on 5 December 2022 be dismissed. This decision underscores the stringent requirements for discharging or setting aside final orders in family law proceedings, emphasising the importance of demonstrating significant changes in circumstances or valid grounds for such relief.

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:

SCHONELL J

DATE OF ORDER:

18 DECEMBER 2023

THE COURT ORDERS THAT:

1. The Further Amended Initiating Application filed 5 December 2022 is dismissed.

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

In circumstances where the husband sought to discharge the parenting orders and where part of the husband’s relief is pursuant to s 79A(1)(d), I will address the parenting aspects of the proceedings first. BACKGROUND The parties commenced cohabitation in or around 2001, married in 2002, separated on a final basis on or about 1 August 2012 and divorced in 2019. The parties continued to reside in the same home following separation until late 2018, after which the husband left the Suburb E property (being the former matrimonial home) and began residing with his parents. The parties have two children together, namely X born 2006 and aged 17 years and Y born 2009 and 14 years. The husband first commenced proceedings on 7 June 2018 in the Federal Circuit Court of Australia (as it then was). The proceedings were subsequently transferred to the Family Court of Australia (as it then was) on 12 August 2019. In September 2020, the proceedings were listed for final hearing for three days before Rees J. On 16 October 2020, her Honour delivered her reasons for judgment and made final parenting and property orders (Adamo & Vinci (No 2) [2020] FamCA 873). In relation to the parenting aspect of the proceedings, her Honour made orders that provided for the children to live with the wife and spend time with the husband for four nights a fortnight as well as half school holidays. Her Honour noted that the primary issue was whether the husband would take up the opportunity to spend more time with the children, finding ultimately that she had no confidence that the husband would have a significant and consistent role in the children’s lives (at [164]), and that it was unlikely that the husband would comply with orders and spend more time with the children (at [218]). The property orders provided for the parties’ assets to be divided in the proportions of 20 per cent to the husband and 80 per cent to the wife. Justice Rees assessed contributions to the non‑superannuation pool to be 70 per cent to the wife and 30 per cent to the husband. A further 10 per cent adjustment under s 75(2) was made in favour of the wife, in part because of her Honour’s findings that the wife will likely bear the majority of the parenting responsibilities and because her Honour could not be satisfied that the husband would make any significant financial contributions to the children’s care (at [316] and [318]). Her Honour also noted that the wife would continue to pay the children’s school fees and that the husband had not made any direct contribution to the fees (at [319]). Orders were also made for the wife’s pension to be split equally. At the final hearing, both parties deposed to family violence perpetrated by the other. Her Honour accepted “that the husband had used derogatory and inappropriate language to the wife” as alleged by her (at [105]), which included calling the wife a “slut” and a “fucking whore” (at [89] and [92]). In relation to family violence perpetrated by the wife, her Honour observed that the husband made generic allegations and that it was difficult to ascertain what violent conduct the wife was alleged to have done (at [80]). Her Honour otherwise found that there was mutual shoving and pushing by both parties (at [105]).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am not satisfied that the husband has established a ground pursuant to s 79A.CONCLUSION For the above reasons, the husband’s Further Amended Initiating Application filed 5 December 2022 will be dismissed.

Ratio Decidendi

Legal Principle Established

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