LAGIOIA & RAPINO

[2020] FamCA 11

FAMILY COURT OF AUSTRALIA

LAGIOIA & RAPINO [2020] FamCA 11

FAMILY LAW – PROPERTY – Where an application is made under s 44(3) – where the Wife sought leave to institute property proceedings out of time – where hardship is not established – application dismissed.

FAMILY LAW – COSTS – Application for costs – where the Husband made an application to restrain the Wife’s solicitor from acting in the proceedings – where the Husband abandoned the application – where the Husband is required to pay the disbursement for counsel and two thirds of the solicitor’s fees.

Family Law Act 1975 (Cth) ss 44(3), 44(4), 79(4), 75(2)

Althaus and Althaus (1982) FLC 91-233
Bevan v Bevan (2013) 49 FamLR 387
Emerald and Emerald [2018] FamCAFC 217
Hall and Hall (1979) FLC 90-679
In the Marriage of N and S I Jacenko (1986) 11 Fam LR 341
Norton v Locke (2013) 50 Fam LR 517
Sharp v Sharp (2011) 50 Fam LR 567
Stanford v Stanford (2012) 247 CLR 108
Whitford and Whitford (1979) FLC 90-612

APPLICANT: Ms Lagioia

RESPONDENT: Mr Rapino

FILE NUMBER: CAC 1615 of 2008

DATE DELIVERED: 17 January 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 18 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Howard

SOLICITOR FOR THE APPLICANT: Phelps Reid

COUNSEL FOR THE RESPONDENT: Mr Haddock

SOLICITOR FOR THE RESPONDENT: Dobinson Davey Clifford Simpson

Orders

1. The Wife’s application to commence property proceedings out of time is refused.

2. The Wife’s initiating application filed 16 May 2017 is dismissed.

3. The Husband is, within 28 days, to pay to the Wife on account of her legal costs in relation to his application to restrain her solicitors from acting for her the sum of $4,825.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lagioia & Rapino has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1615 of 2008

MS LAGIOIA

Applicant

And

MR RAPINO

Respondent

REASONS FOR JUDGMENT

Introduction

1. The current proceedings involve an application by the Wife for leave to commence property proceedings out of time.  This application followed a long history of litigation that commenced some years after the parties’ separation in October 2008.

2. The parties’ divorce order became final in January 2012.

3. The Husband commenced property proceedings in the Federal Circuit Court in February 2012.

4. The Husband withdrew his application in the Federal Circuit Court on 14 May 2013 without orders being made.

5. The Applicant Wife filed an Initiating Application on 16…