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Cirillo & Cirillo (No 4)

Cirillo & Cirillo (No 4)

Case [2022] FedCFamC1F 208 4 April 2022

Jurisdiction

Admissibility of Evidence

Specific Performance

Res Judicata

Discovery & Disclosure

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208

File number(s): SYC 4192 of 2020

Judgment of: ALDRIDGE J

Date of judgment: 4 April 2022

Catchwords:
FAMILY LAW – PROPERTY – Application in a Proceeding – Where the respondents seek an order for real estate agents and prospective purchases of the former matrimonial home be admitted for inspection of the property for the purposes of sale – Where the applicant seeks an adjournment to put on evidence and issue a subpoena – Nature of the current proceedings – Adjournment refused – Orders made allowing the inspection of the property.

FAMILY LAW – JURISDICTION – Whether the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”) has jurisdiction in the matter consequent upon the passing of the Federal Circuit and Family Court of Australia 2021 (Cth) (“the Act”) – Where the matter was filed in the Family Court of Australia (as it was then known) – Where the matter has never been in Federal Circuit and Family Court of Australia (Division 2) and consequently could never have been transferred to Division 1 as required by s 25 of the Act – Legislative intent that the jurisdiction of the Family Court of Australia continue in Division 1 in respect of proceedings filed in it – No provision that provides otherwise – Where the Chief Justice made orders for transfer under specific jurisdiction – Where those orders, even if jurisdiction was lost, were effective to confer jurisdiction on Division 1 – The Court is satisfied that Division 1 has the jurisdiction to hear and determine the application in this matter.

Legislation:
Act Interpretations Act 1901 (Cth) s 15AA

Family Law Act 1975 (Cth) s 31

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 25, 51, 52, 132, 149

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 1

Marriage Act 1961 (Cth)

Explanatory Memorandum, Federal Circuit and Family Court of Australia Bill 2019 (Cth)

Explanatory Memorandum, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (Cth)

Cases cited:
Cirillo & Cirillo (No 3) [2022] FedCFamC1F 207

Duarte and Anor & Morse (2019) FLC 93-902

Hazeldell Ltd v Commonwealth (1924) 34 CLR 442

Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Wallace & Stelzer and Anor (2013) FLC 93-566

Division: Division 1 First Instance

Number of paragraphs: 60

Date of hearing: 4 April 2022

Place: Sydney

Solicitor for the Applicant: MDW Law

Solicitor for the Respondents: Boyce Family Law & Mediation
ORDERS

SYC 4192 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CIRILLO

Applicant

AND:
MS CIRILLO

First Respondent

B PTY LTD

Second Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

4 APRIL 2022

THE COURT ORDERS THAT:
1.Within two (2) days of written request by the first…

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 Cirillo & Cirillo (No 4)

Details

AGLC: Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208
Case: [2022] FedCFamC1F 208
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia (Division 1), the husband and the second respondent sought an order allowing real estate agents and a prospective purchaser of their former matrimonial home to inspect the property for sale purposes. The wife opposed the application, seeking an adjournment to present evidence and issue a subpoena. The court first had to determine its jurisdiction, given the recent legislative changes to the Family Law Act and the Federal Circuit and Family Court of Australia Act, which raised questions about the jurisdiction of Division 1 over matters filed in it before 1 September 2021. The court concluded that the legislature intended for Division 1 to retain its jurisdiction over such matters. The court also found that the Chief Justice's order transferring and retransferring the proceedings conferred jurisdiction on Division 1. The court then denied the adjournment, emphasising the need to avoid satellite litigation and to proceed with the inspection to determine the property's value. The court ordered the wife to provide access to the property for inspection by the real estate agent and prospective purchaser for one hour.

The court ordered that within two days of a written request by the husband's solicitors to the wife's solicitors, the wife shall do all things and sign all documents necessary to provide access to the former matrimonial home at RR Street, Suburb P and its grounds to the licensed real estate agent and prospective purchaser. The costs of this application are reserved to the final hearing.

Orders