Iannello and Iannello (No.4) - [2019] FCCA 3842

FEDERAL CIRCUIT COURT OF AUSTRALIA

IANNELLO & IANNELLO (No.4)

[2019] FCCA 3842

Catchwords:
FAMILY LAW – Interim judgment – refusal to transfer to Family Court of Australia – dismissal of Application in a Case to stay proceedings pending the determination of appeal – refusal of oral application for the bifurcation of the proceeding – where the Respondent Husband is awaiting the determination of Serious Injury Application – Respondent Husband’s Serious Injury Application lodged 18 November 2019 – Respondent Husband’s injuries sustained in October 2012.

Legislation:

Family Law Act 1975 (Cth), s.79

Federal Circuit Court of Australia Act 1999 (Cth), s.39(6)

Federal Circuit Court Rules 2001 (Cth), r.8.02

Cases cited:

Aldridge & Keaton (Stay Application) [2009] FamCAFC 106

Applicant:

MS IANNELLO

Respondent:

MR IANNELLO

File Number:

MLC 3008 of 2018

Judgment of:

Her Honour Judge C E Kirton QC

Hearing date:

19 November 2019

Date of Last Submission:

19 November 2019

Delivered at:

Melbourne

Delivered on:

19 November 2019

REPRESENTATION

Counsel for the Applicant:

Ms Smallwood SC

Solicitors for the Applicant:

Marshalls & Dent & Wilmoth

Counsel for the Respondent:

Mr Williams

Solicitors for the Respondent:

Bayside Family Law Solutions

Counsel for the Independent Children’s Lawyer:

Mr Ham

Solicitors for the Independent Children’s Lawyer:

McKean Park Lawyers

ORDERS

The Respondent Husband’s Application in a Case filed on 13 November 2019 is dismissed.
The Respondent Husband’s oral application made on 19 November 2019 for bifurcation of the final hearing is refused.
Costs reserved.

IT IS NOTED that publication of this judgment under the pseudonym Iannello & Iannello (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3008 of 2018

MS IANNELLO

Applicant

And

MR IANNELLO

Respondent

REASONS FOR JUDGMENT

This matter comes before the Court by way of an Application in a Case which was filed on 13 November 2019. The orders sought in that Application in a Case are that the order of the Court made on 3 October 2019, as amended on 31 October 2019, in relation to property matters be stayed pending the determination of the Applicant Husband’s appeal filed with the Family Court of Australia on 30 October 2019. The second order is that the Respondent Wife pay the Applicant Husband’s costs of and incidental to this application on an indemnity basis.
The Application in a Case was supported by the Affidavit of the Husband’s solicitor which was filed on 13 November 2019. The Notice of Appeal was filed on 30 October 2019. There are two grounds of appeal: the first is that, pursuant to r.8.02 of the Federal Circuit Court Rules 2001 (Cth), this matter be transferred to the Family Court of Australia, Melbourne Registry, and (2) that in the event that the matter is not transferred to the Family Court of Australia, then it be listed for a mention upon the determination of the Applicant Husband’s Serious Injury Application.
It is now conceded that the first ground has no basis due to s.39(6) of…

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.

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Details

Case: [2019] FCCA 3842
Decision Date: 19 November 2019

CaseChat Overview and Summary

In *Iannello and Iannello (No.4)*, Her Honour Judge C E Kirton QC of the Federal Circuit Court of Australia considered an application by the Respondent Husband concerning the final hearing of proceedings. The specific dispute revolved around the Respondent Husband's application filed on 13 November 2019, and a subsequent oral application made on 19 November 2019 seeking to bifurcate the final hearing.

The primary legal issue before the Court was whether to grant the Respondent Husband's applications. This involved determining the appropriateness of dismissing the initial application and refusing the request to bifurcate the final hearing. The Court was required to assess the merits of the Respondent Husband's arguments for bifurcation against the procedural and substantive considerations of the case.

Her Honour Judge Kirton QC dismissed the Respondent Husband's application filed on 13 November 2019 and refused his oral application for bifurcation of the final hearing made on 19 November 2019. The Court ordered that costs be reserved.

Orders

Orders of the court

The Respondent Husband’s Application in a Case filed on 13 November 2019 is dismissed.

The Respondent Husband’s oral application made on 19 November 2019 for bifurcation of the final hearing is refused.

Costs reserved.

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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