SAGONA & SAGONA - [2020] FCCA 1786

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAGONA & SAGONA

[2020] FCCA 1786

Catchwords:
FAMILY LAW – Transfer to the Family Court of Australia from the Federal Circuit Court of Australia – application in the Supreme Court of Victoria for transfer – practical issue that there can be no transfer of the Supreme Court proceedings to the Federal Circuit Court of Australia – proceedings transferred to the Family Court of Australia – Husband’s parents joined as Second and Third Respondents.

Legislation:

Corporations Act 2001 (Cth)

Family Law Act 1975 (Cth), ss.79, 121

Federal Circuit Court Rules 2001 (Cth), rr.1.03(1), 8.02, 8.02(2), 8.02(4), 11.01(1)

Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)

Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic)

Property Law Act 1958 (Vic), s.91

Cases cited:

Talbot & Talbot [2014] FamCA 128

Valceski v Valceski [2007] NSWSC 440

Warby & Warby [2001] FamCA 1469

Applicant:

MS SAGONA

Respondent:

MR SAGONA

File Number:

DGC 3471 of 2019

Judgment of:

Judge Stewart

Hearing date:

26 June 2020

Date of Last Submission:

26 June 2020

Delivered at:

Melbourne

Delivered on:

2 July 2020

REPRESENTATION

Counsel for the Applicant:

Mr Hall

Solicitors for the Applicant:

PCL Lawyers

Counsel for the Respondent:

Ms Skinner

Solicitors for the Respondent:

Mark J Halse Barrister & Solicitor

ORDERS

Leave is granted to the Wife to make an application to transfer these proceedings to the Family Court of Australia.
On 9 July 2020 and pursuant to section 39 of the Federal Circuit Court Act 1999, these proceedings be transferred to the Melbourne Registry of the Family Court of Australia to be listed on a date to be advised.
The Husband’s parents, Mr B Sagona and Ms C Sagona, be joined as parties in the proceedings and hereafter referred to as the Second and Third Respondent.
Each of the parties’ costs be and are hereby reserved.
Liberty is granted to each of the parties to apply with respect to costs.
Leave is granted to the parties to provide a sealed copy of these orders and the Reasons for Judgment to the Supreme Court of Victoria in proceedings ....
Liberty is granted to the parties to apply specifically with respect to order 6 hereof.

AND THE COURT NOTES THAT

(A)The parties, or any of them, shall forthwith advise the Chambers of Judge Stewart in the event that they seek to be heard with respect to orders 5 and/or 6 hereof.
(B)The transfer to the Family Court of Australia will not take place until 9 July 2020 to allow the parties to avail themselves of orders 5 and/or 6 hereof.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3471 of 2019

MS SAGONA

Applicant

And

MR SAGONA

Respondent

REASONS FOR JUDGMENT

These are substantive proceedings between the Wife and the Husband pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”). At…

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 SAGONA & SAGONA

Details

AGLC: SAGONA & SAGONA [2020] FCCA 1786
Case: [2020] FCCA 1786
Decision Date: 2 July 2020

CaseChat Overview and Summary

In proceedings before the Supreme Court of Victoria, the Wife sought leave to transfer the matter to the Family Court of Australia. The Husband's parents were also joined as parties to the proceedings, to be referred to as the Second and Third Respondents.

The central legal issue before the Court was whether to grant leave for the transfer of the proceedings to the Family Court of Australia, and consequently, the joinder of the Husband's parents as parties. The Court was required to consider the practical implications of such a transfer, particularly in light of the inability to transfer proceedings directly from the Supreme Court to the Federal Circuit Court.

Judge Stewart granted leave for the transfer of the proceedings to the Melbourne Registry of the Family Court of Australia, effective from 9 July 2020. The Court also ordered that the Husband's parents be joined as parties. Costs were reserved for each party, with liberty granted to apply in relation to costs and the provision of orders and reasons to the Supreme Court of Victoria. The transfer was deferred to allow parties to address these matters.

Orders

Orders of the court

Leave is granted to the Wife to make an application to transfer these proceedings to the Family Court of Australia.

On 9 July 2020 and pursuant to section 39 of the Federal Circuit Court Act 1999, these proceedings be transferred to the Melbourne Registry of the Family Court of Australia to be listed on a date to be advised.

The Husband’s parents, Mr B Sagona and Ms C Sagona, be joined as parties in the proceedings and hereafter referred to as the Second and Third Respondent.

Each of the parties’ costs be and are hereby reserved.

Liberty is granted to each of the parties to apply with respect to costs.

Leave is granted to the parties to provide a sealed copy of these orders and the Reasons for Judgment to the Supreme Court of Victoria in proceedings ....

Liberty is granted to the parties to apply specifically with respect to order 6 hereof.

AND THE COURT NOTES THAT

(A) The parties, or any of them, shall forthwith advise the Chambers of Judge Stewart in the event that they seek to be heard with respect to orders 5 and/or 6 hereof.

(B) The transfer to the Family Court of Australia will not take place until 9 July 2020 to allow the parties to avail themselves of orders 5 and/or 6 hereof.

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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