Giacobetti & Giacobetti (No 3) - [2023] FedCFamC1F 1126

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Giacobetti & Giacobetti (No 3) [2023] FedCFamC1F 1126

File number(s): SYC 5998 of 2021

Judgment of: CURRAN J

Date of judgment: 20 December 2023

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE –Application for leave to amend application – Where application made on the final day of hearing – Where leave required pursuant to rule 2.50 – Where adjournment sought until February 2025 – Where leave to amend application refused

Legislation:
Family Law Act 1975 (Cth) s 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 2.50

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

Division: Division 1 First Instance

Number of paragraphs: 39

Date of hearing: 19 December 2023

Place: Sydney

Counsel for the Applicant: Mr Harper

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:

20 DECEMBER 2023

THE COURT ORDERS THAT:
1.The Oral Application to amend the final application is refused.
2.The Application filed in court to amend the final application to seek that orders in respect of B Pty Ltd be adjourned pursuant to section 79(5) and 79(6) is refused.

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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Giacobetti & Giacobetti has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
CURRAN J:

These reasons for judgment were delivered orally and have been corrected from the transcript.
ORAL APPLICATION FOR LEAVE TO FILE A FURTHER AMENDED APPLICATION
On the third day of the final hearing, counsel for the wife made an oral application for leave to amend her application to include an order to adjourn the determination of the issue of the treatment of the shares in B Pty Ltd to 2025 or later pursuant to ss 79(5) and (6) of the Family Law Act 1975 (Cth) (“the Act”).
This occurred after I had raised with the parties the possibility of considering a s 79(5) application after the conclusion of the single expert, Ms D’s evidence. On one view, there is now a lacuna as to…

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 (No 3)

Details

AGLC: Giacobetti & Giacobetti (No 3) [2023] FedCFamC1F 1126
Case: [2023] FedCFamC1F 1126
Decision Date: 20 December 2023

CaseChat Overview and Summary

In the Family Court of Australia, Ms Giacobetti filed an application for leave to amend her final application in the proceedings against Mr Giacobetti. The application was made on the final day of the hearing, and leave to amend was required pursuant to rule 2.50 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Ms Giacobetti sought an adjournment until February 2025 to allow for further investigation into certain financial matters, specifically in relation to B Pty Ltd.

The legal issues before the court were whether the application for leave to amend should be granted and, if so, whether the adjournment should be allowed. The court considered the timeliness of the application, the need for the amendment, and the potential impact on the proceedings. The court also took into account the rule 2.50 which requires leave to be granted in certain circumstances, and whether there were any exceptional circumstances that warranted an adjournment.

Curran J found that the application for leave to amend was made on the final day of the hearing, which was not timely. The court held that there were no exceptional circumstances to warrant an adjournment until February 2025. The court further held that the application for leave to amend the final application to seek orders in respect of B Pty Ltd should be refused. The court reasoned that the application was not made in a timely manner and that the proposed amendment would cause significant delay and inconvenience to the proceedings.

Accordingly, the court refused the oral application to amend the final application and the application filed in court to amend the final application to seek that orders in respect of B Pty Ltd be adjourned. The form of the order is subject to the entry in the Court’s records.

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:

20 DECEMBER 2023

THE COURT ORDERS THAT:

1. The Oral Application to amend the final application is refused.

2. The Application filed in court to amend the final application to seek that orders in respect of B Pty Ltd be adjourned pursuant to section 79(5) and 79(6) is refused.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 5998 of 2021
Judgment of:	CURRAN J
Date of judgment:	20 December 2023
Catchwords:	FAMILY LAW – PRACTICE & PROCEDURE –Application for leave to amend application – Where application made on the final day of hearing – Where leave required pursuant to rule 2.50 – Where adjournment sought until February 2025 – Where leave to amend application refused
Legislation:	Family Law Act 1975 (Cth) s 79 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 2.50
Cases cited:	Aon Risk Services v Australian National University (2009) 239 CLR 175
Division:	Division 1 First Instance
Number of paragraphs:	39
Date of hearing:	19 December 2023
Place:	Sydney
Counsel for the Applicant:	Mr Harper
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:	20 DECEMBER 2023