Pagliotti & Hartner

[2009] FamCAFC 18

FAMILY COURT OF AUSTRALIA

PAGLIOTTI & HARTNER [2009] FamCAFC 18

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT - Application for leave to appeal, and if leave be granted, to appeal against orders made by the trial Judge dismissing the husband’s application for a permanent stay of the wife’s section 79 application for property settlement – Where the husband sought maintain his section 78 application but exclude section 79 from the determination of proceedings with respect to the property of the parties – Where Italian proceedings in relation to the breakdown of the marriage also on foot – Whether the trial Judge erred in failing to find that the wife’s section 79 application was res judicata or subject to Anshun estoppel

Not established that the trial Judge erred in declining to conclude that the determination by the Roman Tribunal constituted a res judicata estopping the wife from pursuing her claim under section 79 – Not established that the trial Judge erred in law in failing to appreciate the subject matter or legal bases upon which the husband’s and wife’s respective Australian proceedings were framed – Not established that the trial Judge erred in finding that the Roman Tribunal did not, and could not, purport to determine the beneficial ownership of the Australian property or the proceeds of its sale where proceedings in this country with respect to the beneficial entitlements of the parties in the Australian property or the proceeds of its sale will be necessary – Not established that the substance of the matters determined by the Roman Tribunal and the issues likely to be agitated in this Court, whether pursuant to section 78 or section 79, reveal a common substratum of judicial controversy

Not established that the trial Judge erred in failing to follow and apply the decision of this Court in Kemeny v Kemeny (1998) FLC 92-806 – Kemeny does not establish that issue estoppel in relation to one cause of action necessarily gives rise to issue estoppel in relation to all causes of action. Nor does it establish that concluding that Australia is a clearly inappropriate forum for the determination of one category of matrimonial cause necessarily renders Australia a clearly inappropriate forum for all other categories of matrimonial cause – Not established that the trial Judge erred in failing to find that orders of this Court with respect to the Australian property would be futile, in circumstances where enforceability does not necessarily assumes great significance, the significance of any decision of this Court being for an Italian court to determine within the context of Italian proceedings – Not established that Australia would be a clearly inappropriate forum for the determination of the parties’ entitlements to the Australian property, whereas it would be so far as the maintenance rights of the parties were concerned (whether using that term in the narrow sense by which it is understood in Australian law, or the broad sense in which it is understood in Italian law), or the beneficial ownership of…