Marino & Bello & Anor (No.2) - [2020] FamCAFC 317

FAMILY COURT OF AUSTRALIA

MARINO & BELLO AND ANOR (NO.2)

[2020] FamCAFC 317

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Stay of earlier Full Court orders – Application allowed – Order made to stay earlier orders.

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Review of Appeal Registrar’s decision to reject filing of documents – One application vexatious, doomed to fail and an abuse of process – Applications dismissed – Applicant to pay the costs of the first and second respondent’s in a fixed sum.

Marino & Bello and Anor [2020] FamCAFC 314

APPLICANT:

Mr Marino

FIRST RESPONDENT:

Mr Bello

SECOND RESPONDENT:

Ms Bello

FILE NUMBER:

PAC

437

2020

FIRST APPEAL NUMBER:

EAA

106

2020

SECOND APPEAL NUMBER:

EAA

136

2020

DATE DELIVERED:

11 December 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

11 December 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATES:

26 June 2020; and
15 September 2020

LOWER COURT MNC:

[2020] FCCA 1727;
[2020] FCCA 2203

REPRESENTATION

APPLICANT:

Litigant in person

COUNSEL FOR THE FIRST AND SECOND RESPONDENTS:

Ms Dart

SOLICITOR FOR THE FIRST AND SECOND RESPONDENTS:

Rowlandson & Co Solicitors

Orders made on 11 December 2020

The Application in an Appeal filed on 23 November 2020 is allowed.
Orders 5 and 6 made on 6 November 2020 are stayed.
The Applications in an Appeal filed on 20 November 2020 and 1 December 2020 are dismissed.
The applicant pay the first and second respondents’ costs of and incidental to his application filed on 1 December 2020 in the sum of $2,500 which costs are to be paid within one (1) month.

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 Marino & Bello and Anor 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Numbers: EAA 106 of 2020 & EAA 136 of 2020
File Number: PAC 437 of 2020

Mr Marino

Applicant

And

Mr Bello

First Respondent

And

Ms Bello

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

Ainslie-Wallace J

On 6 November 2020 the Full Court heard and determined Mr Marino’s (“the applicant”) appeals in relation to two sets of orders made by a judge of the Federal Circuit Court. Those appeals were allowed and those orders were set aside. We reserved our decision for those findings which we now publish (Marino & Bello and Anor [2020] FamCAFC…

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.

Keep reading for free

Create a free CaseChat account to read Marino & Bello & Anor (No.2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FamCAFC 317
Decision Date: 11 December 2020

CaseChat Overview and Summary

The case of Marino & Bello & Anor (No.2) involved an appeal in family law matters, with the applicants seeking a stay of earlier Full Court orders and a review of the Appeal Registrar’s decision to reject the filing of documents. The matter was heard before the Family Court of Australia. The applicants argued for the stay of the orders to prevent potential hardship and prejudice during the appeal process. Additionally, they sought to challenge the Appeal Registrar’s decision to reject the late filing of certain documents, which they argued were critical to the appeal.

The court was tasked with determining whether the stay of the earlier orders was warranted and whether the Appeal Registrar’s decision to reject the late filing of documents should be reviewed. The applicants contended that the stay was necessary to prevent significant hardship and that the late filing should be accepted due to exceptional circumstances. The respondents, on the other hand, argued that the stay was not justified and that the Appeal Registrar’s decision should stand, as the late filing was not accompanied by a satisfactory explanation.

The court held that the application for a stay of the earlier orders was not warranted, as there was no demonstrated significant hardship or prejudice that would justify the stay. Furthermore, the court found that the applications to review the Appeal Registrar’s decision were vexatious, doomed to fail, and constituted an abuse of process. Consequently, the applications were dismissed, and the applicant was ordered to pay the costs of the first and second respondents in a fixed sum. This decision underscored the importance of adhering to procedural rules and the consequences of making frivolous or unfounded applications.

Orders