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
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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CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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