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IANNELLO & IANNELLO (No.3)

IANNELLO & IANNELLO (No.3)

Case [2018] FCCA 3752 19 December 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

IANNELLO & IANNELLO (No.3)

[2018] FCCA 3752

Catchwords:
FAMILY LAW – Property – interim orders – application by the Husband for part property settlement to be characterised at trial – application by the Husband for orders in relation to the Wife’s future bonus payments – order made for the Husband to retain his shares by way of partial property settlement – application in relation to the Wife’s future bonus payments dismissed – order made that the Husband pay the Wife’s costs for the interim hearing.

Legislation:

Family Law Act 1975 (Cth), ss.4, 75, 79, 80, 117

Federal Circuit Court Rules 2001 (Cth), r.21.02

Cases cited:

Bevan & Bevan [2013] FamCAFC 116

Calderbank v Calderbank [1975] 3 All ER

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Harris & Harris (1993) FLC 92-378

In the Marriage of I (No.2) (1995) 22 Fam LR 557

Marlowe-Dawson & Dawson (No.2) [2014] FamCA 599

Mullane v Mullane (1983) 158 CLR 436

Stanford v Stanford (2012) 247 CLR 108

Strahan & Strahan (2011) FLC 93-466

Vasek & Vasek [2012] FamCAFC 206

Applicant:

MS IANNELLO

Respondent:

MR IANNELLO

File Number:

MLC 3008 of 2018

Judgment of:

Judge C.E. Kirton QC

Hearing date:

27 September 2018

Date of Last Submission:

27 September 2018

Delivered at:

Melbourne

Delivered on:

19 December 2018

REPRESENTATION

Counsel for the Applicant:

Ms Smallwood

Solicitors for the Applicant:

Marshalls & Dent & Wilmoth Lawyers

Counsel for the Respondent:

Ms Byrnes

Solicitors for the Respondent:

KHQ Lawyers

Solicitors for the Independent Children's Lawyer:

Ms Kourtis of McKean Park Lawyers

ORDERS

The Husband shall retain the shares referred to in Part I of his Financial Statement filed on 25 September 2018 for his sole use and benefit, by way of partial property settlement pursuant to ss.79 and 80(1)(h) of the Family Law Act 1975 (Cth).
Paragraph 2 of the Husband’s interim application for property orders in his Further Amended Response to Initiating Application, filed 25 September 2018, is dismissed.
The Husband pay the Wife’s costs of and incidental to the interim hearing on 27 September 2018 fixed in the sum of $3,619.38.

IT IS NOTED that publication of this judgment under the pseudonym Iannello & Iannello (No.3) 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

Introduction

These are property and parenting proceedings between the applicant (Wife) and the respondent (Husband). This is the third occasion that the Court has been required to deliver an interim decision in relation to matters in dispute between the parties since the commencement of this proceeding on 20 March 2018. This is an interim decision in relation to the partial division of property.

Issues to be determined

The issues to be determined are set out in the Husband’s second Further Amended Response to Initiating Application[1] (Second Further Amended Response) and the…

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 IANNELLO & IANNELLO (No.3)

Details

AGLC: IANNELLO & IANNELLO (No.3) [2018] FCCA 3752
Case: [2018] FCCA 3752
Decision Date: 19 December 2018

CaseChat Overview and Summary

In *Iannello & Iannello (No.3)*, Judge C.E. Kirton QC of the Family Court of Australia considered an application by the Husband for part property settlement and for orders concerning the Wife's future bonus payments. The dispute centred on how certain assets should be treated and distributed as part of the overall property settlement between the parties.

The primary legal issues before the Court were whether the Husband should be permitted to retain specific shares as a partial property settlement and whether orders should be made regarding the Wife's entitlement to future bonus payments. The Court was required to determine the appropriate characterisation and distribution of these assets within the framework of the *Family Law Act 1975* (Cth).

The Court ordered that the Husband retain the shares detailed in his Financial Statement as a partial property settlement, pursuant to sections 79 and 80(1)(h) of the *Family Law Act 1975*. Consequently, the Husband's application concerning the Wife's future bonus payments was dismissed. The Court also ordered the Husband to pay the Wife's costs for the interim hearing in the sum of $3,619.38.

Orders

Orders of the court

The Husband shall retain the shares referred to in Part I of his Financial Statement filed on 25 September 2018 for his sole use and benefit, by way of partial property settlement pursuant to ss.79 and 80(1)(h) of the Family Law Act 1975 (Cth).

Paragraph 2 of the Husband’s interim application for property orders in his Further Amended Response to Initiating Application, filed 25 September 2018, is dismissed.

The Husband pay the Wife’s costs of and incidental to the interim hearing on 27 September 2018 fixed in the sum of $3,619.38.

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.

Citations

AGLC Citation

IANNELLO & IANNELLO (No.3) [2018] FCCA 3752

Most Recent Citation

Iannello & Iannello (No.5) [2020] FCCA 589

Cases citing this decision · 2 of 2 shown

Iannello & Iannello (No 9)
[2021] FCCA 441 Para 3

…ello (No 4) [2019] FCCA 3842. [2] Iannello & Iannello [2018] FCCA 3528; Iannello & Iannello (No 2) [2018] FCCA 3662; Iannello & Iannello (No 3) [2018] FCCA 3752; Iannello & Iannello (No 4) [2019] FCCA 3842.…
Iannello & Iannello (No.5)
[2020] FCCA 589 Para 2

…CCA 3528 ( Iannello & Iannello (No.1) ); b) Iannello & Iannello (No.2) [2018] FCCA 3662 ( Iannello & Iannello (No.2) ); c) Iannello & Iannello (No.3) [2018] FCCA 3752 ( Iannello & Iannello (No.3) ); and d) Iannello & Iannello (No.4) [2018] FCCA 3842 ( Iannello & Iannello (No.4) ).…

View all 2 citing cases →

Cases cited in this decision · 17 of 17 shown

IANNELLO & IANNELLO (No.2)
[2018] FCCA 3662 Para 1

…sofar as it is relevant to this dispute has been previously set out in Iannello & Iannello (No. 2)[5] and I shall not repeat it in this judgment. [5] [2018] FCCA 3662, at [11]-[32].…
Iannello & Iannello
[2018] FCCA 3528 Para 1

…ve previously set out the history of the parties’ marriage and relationship in Iannello & Iannello[4] and shall not repeat it in this judgment. [4] [2018] FCCA 3528, at [3]-[10].…
Marlowe-Dawson and Dawson (No 2)
[2014] FamCA 599 Para 4

…s exercise (even if the right derives from registration or certification in the chosen profession) does not meet these criteria [105] . [101] [2014] FamCA 599. [102] (1908) 6 CLR 406 at p.411-12. [103] (1927) 39 CLR 539, at p.550. [104] (1971) 17 FLR 141. [105] [2014] FamCA 599, at [67].…
Vasek & Vasek
[2012] FamCAFC 206 Para 6

…received a number of payments pursuant to interim orders, some of which were expressed to be “[…] characterised by the trial judge”[29] . [28] [2012] FamCAFC 206. [29] Ibid., at [28].…
Stanford v Stanford
[2012] HCA 52 Para 1

…having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order [61] . [60] (2012) 247 CLR 108. [61] Ibid., at [37].…
Paris King Investments Pty Ltd v Rayhill
[2006] NSWSC 578 Para 4

…ake interim orders for litigation costs. The Full Court said: [43] (2011) FLC 93-466; [2009] FamCAFC 166. In Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 … Brereton J observed at [29], “[t]he juridical bases for an order for preliminary provision for litigation costs in matrimonial proceedings are dive…
Daniels v State of Western Australia
[2000] FCA 1334 Para 4

…on) does not meet these criteria [105] . [101] [2014] FamCA 599. [102] (1908) 6 CLR 406 at p.411-12. [103] (1927) 39 CLR 539, at p.550. [104] (1971) 17 FLR 141. [105] [2014] FamCA 599, at [67].…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801

…Cases cited: Bevan & Bevan [2013] FamCAFC 116 Calderbank v Calderbank [1975] 3 All ER Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Harris & Harris (1993) FLC 92-378 In the Marriage of I (No.2) (1995) 22 Fam LR 557 Marlowe-Dawson & Dawson (No.2) [2014] FamCA 599 Mullane v Mullane (1983) 158 CLR 436 Stanfo…
Mullane v Mullane
[1983] HCA 4

…(1993) 46 FCR 225 Harris & Harris (1993) FLC 92-378 In the Marriage of I (No.2) (1995) 22 Fam LR 557 Marlowe-Dawson & Dawson (No.2) [2014] FamCA 599 Mullane v Mullane (1983) 158 CLR 436 Stanford v Stanford (2012) 247 CLR 108 Strahan & Strahan (2011) FLC 93-466 Vasek & Vasek [2012] FamCAFC 206…
R v Toohey; Ex parte Meneling Station Pty Ltd
[1982] HCA 69 Para 3

…Aust) Pty Ltd [99] ; Reg v Toohey; Ex parte Meneling Station Pty Ltd [100] . [98] (1983) 158 CLR 436 at 445. [99] (1977) 51 ALJR 672, at p.679. [100] (1982) 158 CLR 327, at pp.343, 350-351.…
Federal Commissioner of Taxation v Everett
[1980] HCA 6 Para 5

…79. Consequently there is no jurisdictional basis under s 79 to make “the 25 per cent orders” sought by the wife [107] . [106] (1980) 143 CLR 440, at p. 450. [107] [2014] FamCA 599, at [71]-[72].…
Stow v Mineral Holdings (Australia) Pty Ltd
[1979] HCA 30 Para 3

…al right: Stowe v Mineral Holdings (Aust) Pty Ltd [99] ; Reg v Toohey; Ex parte Meneling Station Pty Ltd [100] . [98] (1983) 158 CLR 436 at 445. [99] (1977) 51 ALJR 672, at p.679. [100] (1982) 158 CLR 327, at pp.343, 350-351.…
Commissioner of Stamp Duties (Qld) v Donaldson
[1927] HCA 30 Para 4

…ertification in the chosen profession) does not meet these criteria [105] . [101] [2014] FamCA 599. [102] (1908) 6 CLR 406 at p.411-12. [103] (1927) 39 CLR 539, at p.550. [104] (1971) 17 FLR 141. [105] [2014] FamCA 599, at [67].…
Doodeward v Spence
[1908] HCA 45 Para 4

…right derives from registration or certification in the chosen profession) does not meet these criteria [105] . [101] [2014] FamCA 599. [102] (1908) 6 CLR 406 at p.411-12. [103] (1927) 39 CLR 539, at p.550. [104] (1971) 17 FLR 141. [105] [2014] FamCA 599, at [67].…
Bevan & Bevan
[2013] FamCAFC 116 Para 3

…majority of cases ”[64] . There is nothing in the present case to distinguish it from “ the vast majority of cases ”[65]. [63] Bevan & Bevan [2013] FamCAFC 116. [64] Ibid., at [70]. [65] Loc.Cit.…
As the respondents point out, when Mr Meyer provided his advice he did not have the benefit of Strahan v Strahan
[2009] FAMCAFC 166 Para 8

…f the Family Court in Strahan & Strahan[41] in relation to the Court’s jurisdiction to make the interim orders sought[42] . [41] (2011) FLC 93-466; [2009] FamCAFC 166. [42] Transcript T 23:13-16.…
Colgate Palmolive Co v Cussons Pty Ltd
(1993) 46 FCR 255

…Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
117, 4, 75, 79, 80 6 mentions (from Para 1)
Federal Circuit Court Rules 2001 (Cth)
21.02 2 mentions (from Para 1)
Child Support (Assessment) Act 1989 (Cth)
1 mention (from Para 5)