Pagliotti and Hartner - [2008] FamCA 1037

FAMILY COURT OF AUSTRALIA

PAGLIOTTI & HARTNER

[2008] FamCA 1037

FAMILY LAW – JURISDICTION – Proceedings taken in the Roman Tribunal – Res judicata

APPLICANT:

Mr Pagliotti

RESPONDENT:

Ms Harnter

FILE NUMBER:

SYC

1883

2007

DATE DELIVERED:

20 June 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

4 & 5 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Oliver

SOLICITOR FOR THE APPLICANT:

David Begg & Associates

COUNSEL FOR THE RESPONDENT:

Ms Cohen

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

Orders

That the application of the husband, filed on 21 November 2007, is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Pagliotti & Hartner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 1883 of 2007

MR PAGLIOTTI

Applicant

And

MS HARTNER

Respondent

REASONS FOR JUDGMENT

The Proceedings

By an application filed on 21 November 2007 the husband, Mr Pagliotti, sought a permanent stay of proceedings commenced on 15 March 2007 by the wife, Ms Hartner, pursuant to section 79 of the Family Law Act. The precise orders sought by the husband were as follows:
“An order that the proceedings, save insofar as they continue proceedings […]/2006 commenced in the Supreme Court of New South Wales on 16 August 2006 and transferred to the Family Court of Australia by order of the Supreme Court pursuant to section 5(1) of the Jurisdiction of Courts (Cross-Vesting Act [1987] Cth on 30 April 2007, be permanently stayed.”
This application was similar to an order sought by the husband in his response to an application for final orders filed on 27 July 2007.
The consequence of such an order would be that the husband could proceed with his application for a declaration that he holds a beneficial interest in real estate at B, of which the wife was the registered proprietor. The wife, on the other hand, would be prevented from continuing her proceedings pursuant to section 79 of the Family Law Act.

Background

The wife was born in January 1935 and is now 73 years of age. The husband was born in April 1944 and is now 64 years old. They married in November 1972, in Australia, and separated on 26 May 2002 while living in Italy.
At all relevant times the husband has been employed by the Italian government. Due to his employment, the parties have lived at various times in Australia, Italy, and a number of other countries.
In May 2003 the husband commenced proceedings in the Ordinary Tribunal of Rome (referred to henceforth as “the Italian proceedings”), seeking an order for judicial separation and the attribution of matrimonial fault to the wife. He sought an order to the effect that each party bear responsibility for his and her own maintenance. The expert evidence indicated that orders for spouse maintenance are, fundamentally, the means by which an Italian court adjusts the financial positions of parties following…

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 Pagliotti and Hartner

Details

AGLC: Pagliotti and Hartner [2008] FamCA 1037
Case: [2008] FamCA 1037
Decision Date: 20 June 2008

CaseChat Overview and Summary

In *Pagliotti and Hartner*, heard before Stevenson J, the husband sought to appeal an interim property settlement order made by a registrar. The dispute concerned the division of assets between the parties following their separation.

The central legal issue before Stevenson J was whether the registrar had erred in making the interim property settlement order. Specifically, the court was required to determine if the registrar had exercised her discretion appropriately in light of the evidence presented at the time of the interim hearing.

Stevenson J dismissed the husband's application, finding no error in the registrar's exercise of discretion. The judge reasoned that the registrar had properly considered the relevant factors and the evidence before her when making the interim order. The husband's appeal was therefore unsuccessful.

Orders

Orders of the court

That the application of the husband, filed on 21 November 2007, is dismissed.

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.