FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Prietto & Abella [2022] FedCFamC2F 807
File number: MLC 13606 of 2021 Judgment of: JUDGE BLAKE Date of judgment: 21 June 2022 Catchwords: FAMILY LAW – application by the Husband for summary dismissal of the Wife’s application for an alteration of property interests – where the parties had no assets at separation – where Husband acquired assets post separation – where the Wife’s case is not strong – where the Wife’s failure to specify the relief she seeks and the Husband’s failure to inquire as to the relief sought by the Wife means the Court cannot be satisfied the Wife has no reasonable likelihood of success in the litigation even though her case is a weak one – application for summary dismissal not granted.
FAMILY LAW – application by Husband for security for costs – where there are no assets in the jurisdiction and the parties reside overseas- where the Wife’s case is a weak one – where the Wife has outstanding costs orders against her – where the Wife stated she would not pay any costs orders – application for security for costs granted – Wife has leave to file amended application for an adjustment of property interests once security for costs is paid
Legislation: Family Law Act 1975 (Cth), ss 44(3A)(c)(i), 75(2), 79, 79(2), 79(3), 79(4), 117(1), 117(2), 117(2A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, ss 10.09, 10.11, 12.02, 12.04
Federal Court of Australia Act 1976 (Cth) s 31A(2)
Cases cited: Beck v Beck (2004) FLC 93-181
Bretton v Bondai [2013] FamCAFC 168
Deng & Galinski [2021] FCCA 843
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Lindon v Commonwealth (No.2) (1996) 70 ALJR 541
Division: Division 2 Family Law Number of paragraphs: 61 Date of hearing: 24 May 2022 Place: Melbourne The Applicant: Appeared in Person Counsel for the Respondent: Mr O’Grady Solicitor for the Respondent: Smith Family Law ORDERS
MLC 13606 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PRIETTO
Applicant
AND: MR ABELLA
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
21 JUNE 2022
THE COURT ORDERS THAT:
1.The Wife has leave to pursue her application under section 79 of the Family Law Act 1975 (Cth) (‘the Act’) out of time.
2.The Wife’s application to suspend or review the order for divorce made 22 May 2020 be summarily dismissed.
3.The Husband’s application for summary dismissal of the Wife’s application for an adjustment of property interests be dismissed.
4.Subject to the Wife complying with order 5, the Wife has leave to file an Amended Initiating Application seeking orders for an adjustment of property interests under section 79 of the Act.
5.The Wife pay the amount of $50,000 into the court to be held as security for costs pending the determination of the Wife’s application under section…
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- [2022] FedCFamC2F 807
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CaseChat Overview and Summary
The legal issues before the Court included whether the respondent's application for summary dismissal should be granted, given the weak nature of the applicant's case and the lack of specificity in the applicant's relief sought. Additionally, the respondent applied for security for costs due to the absence of assets in the jurisdiction and the parties' residence overseas. The Court also considered the applicant's outstanding costs orders and her statement that she would not pay any costs orders. The Court found that the respondent's application for security for costs was warranted, and the applicant was granted leave to file an amended application for an adjustment of property interests once security for costs was paid.
The Court dismissed the respondent's application for summary dismissal, as it could not be satisfied that the applicant had no reasonable likelihood of success. However, the Court granted the respondent's application for security for costs, ordering the applicant to pay $50,000 into the Court as security. The proceedings were stayed pending the applicant's compliance with this order. If the applicant failed to pay the required security for costs within 90 days, the proceedings would be dismissed. The matter was adjourned for mention before Judicial Registrar Taylor on 3 October 2022.
Orders
Orders of the court
MLC 13606 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS PRIETTO
Applicant
AND:
MR ABELLA
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
21 JUNE 2022
THE COURT ORDERS THAT:
1. The Wife has leave to pursue her application under section 79 of the Family Law Act 1975 (Cth) (‘the Act’) out of time.
2. The Wife’s application to suspend or review the order for divorce made 22 May 2020 be summarily dismissed.
3. The Husband’s application for summary dismissal of the Wife’s application for an adjustment of property interests be dismissed.
4. Subject to the Wife complying with order 5, the Wife has leave to file an Amended Initiating Application seeking orders for an adjustment of property interests under section 79 of the Act.
5. The Wife pay the amount of $50,000 into the court to be held as security for costs pending the determination of the Wife’s application under section 79 of the Act and any application for costs arising from that application, to be released as directed by further order of the court.
6. The proceedings be stayed pending the Wife’s compliance with order 5 above.
7. In the event the Wife does not pay $50,000 into the court as payment for security for costs within 90 days of the date of this order, the proceedings be dismissed.
8. The matter be adjourned to 3 October 2022 at 12.00pm for mention before Judicial Registrar Taylor at the Federal Circuit and Family Court of Australia.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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