GAMMA & SERRITELLA - [2015] FamCA 283

FAMILY COURT OF AUSTRALIA

GAMMA & SERRITELLA [2015] FamCA 283

FAMILY LAW – PROPERTY SETTLEMENT – INTERIM PROCEEDINGS – APPLICATION FOR LEAVE PURSUANT TO S44(3) OF THE FAMILY LAW ACT 1975 – Where the parties cohabited for approximately ten years – Where there are three children of the marriage – Where two children are in the care of the wife and one child in the care of the husband – Where the wife says she will suffer hardship because she is financially impecunious and has no assets of significance – Where the husband made an offer of settlement and completed an Application for Consent Orders shortly after separation – Where the wife asserts that the reason for the delay was because the husband threatened to kill her if she signed the Application and told her that she would get more if she waited longer – Where the husband says his liabilities exceed his assets – Where the husband did not provide evidence to substantiate his assertions – Where the prejudice to the husband does not outweigh the hardship to the wife if she cannot pursue her claim – Leave granted to the wife to institute proceedings out of time.

Family Law Act 1975 (Cth) s 44

Whitford & Whitford (1979) FLC 90-612
Montano & Kinross (2014) FLC 93-623

APPLICANT: Ms Gamma

RESPONDENT: Mr Serritella

FILE NUMBER: SYC 2674 of 2010

DATE DELIVERED: 22 April 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 14 April 2015
REPRESENTATION

SOLICITOR FOR THE APPLICANT: KP Lawyers & Barristers

COUNSEL FOR THE RESPONDENT: Mr Schonell

SOLICITOR FOR THE RESPONDENT: Dettman Longworth Lawyers
Orders
IT IS ORDERED

That leave be granted to the wife to institute proceedings for property settlement out of time.
That, pending further order, the husband be restrained from selling, transferring or encumbering the property at B Street, Suburb C; his interest in any company and his interest as a beneficiary of the Serritella Family Trust.
That the husband have liberty to apply on the giving of 21 days’ notice in relation to Order 2.
That the matter be referred to the Registrar to be listed for directions.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gamma & Serritella has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY
FILE NUMBER: SYC 2674 of 2010

Ms Gamma
Applicant
And

Mr Serritella
Respondent
REASONS FOR JUDGMENT
1.Ms Gamma (“the wife”) commenced co-habitation with Mr Serritella (“the husband”) in 1997/1998 and they married in 2004. The wife had no significant assets at the commencement of the relationship. The husband asserts that he had net assets of $250,000.
2.There are three children aged 15 years, 14 years and 12 years.
3.The husband and the wife separated in approximately June 2008, the children remaining in the care of the wife until June 2014 when the eldest child moved to live with…

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 GAMMA & SERRITELLA

Details

AGLC: GAMMA & SERRITELLA [2015] FamCA 283
Case: [2015] FamCA 283
Decision Date: 22 April 2015

CaseChat Overview and Summary

In the matter of *Gamma & Serritella*, heard before Rees J, the wife sought leave to institute proceedings for property settlement out of time. The husband was also subject to interim injunctive relief, restraining him from dealing with certain assets, including a property, his company interests, and his beneficial interest in a family trust.

The primary legal issue before the court was whether to grant the wife leave to commence property settlement proceedings after the statutory time limit had expired. A secondary issue concerned the appropriateness of continuing the interim injunctive orders against the husband pending further determination of the substantive property settlement claims.

Rees J granted the wife leave to institute proceedings out of time, indicating that the court was satisfied that the necessary conditions for such an extension had been met. The court also continued the interim injunctive orders against the husband, thereby preserving the status quo of the identified assets. These orders were made pending further proceedings and the husband was granted liberty to apply to vary or set aside the injunctive relief upon giving 21 days' notice.

The matter was subsequently referred to the Registrar for listing for directions, signifying the next procedural step in the progression of the property settlement proceedings.

Orders

Orders of the court

IT IS ORDERED

That leave be granted to the wife to institute proceedings for property settlement out of time.

That, pending further order, the husband be restrained from selling, transferring or encumbering the property at B Street, Suburb C; his interest in any company and his interest as a beneficiary of the Serritella Family Trust.

That the husband have liberty to apply on the giving of 21 days’ notice in relation to Order 2.

That the matter be referred to the Registrar to be listed for directions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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