Giacobetti & Giacobetti - [2023] FedCFamC1F 802

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Giacobetti & Giacobetti [2023] FedCFamC1F 802

File number(s): SYC 5998 of 2021

Judgment of: CURRAN J

Date of judgment: 19 September 2023

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – interim hearing – where wife seeks adjournment of final hearing dates – where husband seeks to retain hearing dates with one further day being adjourned part-heard – where final hearing was set to commence one day following this determination – where wife alleges late disclosure by husband – where husband contends no impact on original expert valuation – where wife contends the true value of the shares impacts the relief sought overall – application granted – final hearing dates vacated – matter adjourned to 15 December 2023

Legislation:
Family Law Act 1975 (Cth) s 75

Federal Circuit Court and Family Court of Australia Family Law Rules 2021 (Cth) r 1.04

Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 28 November 2022

Cases cited:
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Mertens & Mertens [2016] FamCAFC 136

Division: Division 1 First Instance

Number of paragraphs: 34

Date of hearing: 19 September 2023

Place: Sydney

Counsel for the Applicant: Ms Mahony

Solicitor for the Applicant: Uther Webster & Evans

Counsel for the Respondent: Mr Othen

Solicitor for the Respondent: Newnhams Solicitors
ORDERS

SYC 5998 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GIACOBETTI

Applicant

AND:
MR GIACOBETTI

Respondent

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

19 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.The final hearing listed for three days commencing on 20 September 2023 is vacated.
2.The matter is adjourned for final hearing for four days commencing 15 December 2023.
3.Within 14 days, the parties are to file an agreed minute as to the timetable for the filing of any updated evidence and the filing of the updated expert report.
4.In the event that there is no agreement pursuant to order 3, directions will be issued from chambers.
5.By consent, Order 2 of the Orders made 18 October 2021 be varied as follows:
(a)That the Husband pay to the Wife the sum of $1,283.50 per week; and
(b)That the Wife be authorised to draw down up to $1,283.50 per week from the funds held in the parties' Controlled Monies Account; with such draw down funds to be characterised by the trial judge at Final Hearing.

6.Leave is granted to each party to issue such subpoena as they consider relevant to the issue in the proceedings.
7.The costs of and incidental to this application be reserved to the final hearing.

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…

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 Giacobetti & Giacobetti

Details

AGLC: Giacobetti & Giacobetti [2023] FedCFamC1F 802
Case: [2023] FedCFamC1F 802
Decision Date: 19 September 2023

CaseChat Overview and Summary

In the matter of Giacobetti & Giacobetti, the applicant, Ms Giacobetti, sought an adjournment of the final hearing dates in the Federal Circuit and Family Court of Australia. The dispute arose from an application for a final hearing to be rescheduled due to allegations of late disclosure by the respondent, Mr Giacobetti. Ms Giacobetti argued that the late disclosure of information regarding the true value of shares held by the parties would significantly impact the relief she sought. Mr Giacobetti contended that the late disclosure would not affect the original expert valuation, and thus, the hearing should proceed as scheduled. The court was required to determine whether the late disclosure warranted an adjournment of the final hearing dates.

The court considered the implications of the late disclosure on the fairness and efficiency of the proceedings. It recognised that the true value of the shares was central to the relief sought by Ms Giacobetti, and any discrepancy in the valuation could affect the outcome of the case. Curran J determined that the late disclosure indeed had the potential to impact the fairness of the proceedings and the ultimate relief sought by Ms Giacobetti. Therefore, the court granted the application for an adjournment, vacated the previously scheduled final hearing, and set new dates for the hearing to commence on 15 December 2023 for four days. The court also ordered that the parties were to file an agreed minute within 14 days as to the timetable for filing any updated evidence and the updated expert report, or otherwise directions would be issued from chambers.

The final orders of the court included the adjournment of the final hearing dates, the requirement for the parties to file an agreed minute regarding the timetable for evidence and expert reports, and the granting of leave for each party to issue subpoenas as relevant. The court also made variations to the interim orders, directing that Mr Giacobetti pay Ms Giacobetti a specified weekly sum and authorised her to draw down funds from the Controlled Monies Account. The costs of the application were reserved for the final hearing. The decision underscores the importance of timely disclosure in family law proceedings and the court's commitment to ensuring a fair process.

Orders

Orders of the court

SYC 5998 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS GIACOBETTI

Applicant

AND:

MR GIACOBETTI

Respondent

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

19 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. The final hearing listed for three days commencing on 20 September 2023 is vacated.

2. The matter is adjourned for final hearing for four days commencing 15 December 2023.

3. Within 14 days, the parties are to file an agreed minute as to the timetable for the filing of any updated evidence and the filing of the updated expert report.

4. In the event that there is no agreement pursuant to order 3, directions will be issued from chambers.

5. By consent, Order 2 of the Orders made 18 October 2021 be varied as follows:

(a) That the Husband pay to the Wife the sum of $1,283.50 per week; and

(b) That the Wife be authorised to draw down up to $1,283.50 per week from the funds held in the parties' Controlled Monies Account; with such draw down funds to be characterised by the trial judge at Final Hearing.

6. Leave is granted to each party to issue such subpoena as they consider relevant to the issue in the proceedings.

7. The costs of and incidental to this application be reserved to the final hearing.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 5998 of 2021
Judgment of:	CURRAN J
Date of judgment:	19 September 2023
Catchwords:	FAMILY LAW – PRACTICE & PROCEDURE – interim hearing – where wife seeks adjournment of final hearing dates – where husband seeks to retain hearing dates with one further day being adjourned part-heard – where final hearing was set to commence one day following this determination – where wife alleges late disclosure by husband – where husband contends no impact on original expert valuation – where wife contends the true value of the shares impacts the relief sought overall – application granted – final hearing dates vacated – matter adjourned to 15 December 2023
Legislation:	Family Law Act 1975 (Cth) s 75 Federal Circuit Court and Family Court of Australia Family Law Rules 2021 (Cth) r 1.04 Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 28 November 2022
Cases cited:	Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Mertens & Mertens [2016] FamCAFC 136
Division:	Division 1 First Instance
Number of paragraphs:	34
Date of hearing:	19 September 2023
Place:	Sydney
Counsel for the Applicant:	Ms Mahony
Solicitor for the Applicant:	Uther Webster & Evans
Counsel for the Respondent:	Mr Othen
Solicitor for the Respondent:	Newnhams Solicitors

SYC 5998 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS GIACOBETTI Applicant
AND:	MR GIACOBETTI Respondent

ORDER MADE BY:	CURRAN J
DATE OF ORDER:	19 SEPTEMBER 2023