Prietto & Abella - [2022] FedCFamC2F 807

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

Luadaka v Luadaka [1998] FamCA 1520

Spencer v Commonwealth (2010) 241 CLR 118

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…

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 Prietto & Abella

Details

AGLC: Prietto & Abella [2022] FedCFamC2F 807
Case: [2022] FedCFamC2F 807
Decision Date: 21 June 2022

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Prietto & Abella involved a dispute between Ms Prietto, the applicant, and Mr Abella, the respondent. The primary issue was the applicant's application for an adjustment of property interests under section 79 of the Family Law Act 1975 (Cth). The respondent applied for a summary dismissal of this application on the basis that the applicant's case was weak and that there were no assets at the time of separation. The applicant, however, did not specify the relief she sought, and the respondent did not inquire as to the specifics of the relief sought by the applicant. This lack of clarity meant the Court could not be satisfied that the applicant had no reasonable likelihood of success, even if her case was weak.

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

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

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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 Luadaka v Luadaka [1998] FamCA 1520 Spencer v Commonwealth (2010) 241 CLR 118
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

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