Seggio and Durante & Ors - [2012] FamCAFC 27

FAMILY COURT OF AUSTRALIA

SEGGIO & DURANTE AND ORS

[2012] FamCAFC 27

FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – where the order sought to be appealed against required the husband to withdraw his disclaimer of interest in his mother’s estate – where if leave is granted the husband seeks on appeal orders that the proceedings be stayed, that Order 5 be dismissed, and the matter be re-heard by a different Federal Magistrate – where the order complained of was made in the context of an interlocutory hearing relating to parenting and property settlement issues as well as determination of penalty for a proven contravention by the husband – where it would appear that Order 5 was a final order and thus leave to appeal is not required – where leave to appeal is granted in any event because of the relative uniqueness of the issue before the Federal Magistrate – where the husband says that the Federal Magistrate erred in not taking into account that he had disclaimed his interest in his mother’s estate in 2006 – where there is a question mark over whether what was said in 2006 did constitute a disclaimer or whether it was effective – where it was open to the Federal Magistrate to conclude that the husband had “lost” his right to disclaim his interest in his mother’s estate – where the husband’s counsel suggested that a disclaimer once made is irrevocable and cannot be withdrawn and “the Court has no power to so order” – where whether the disclaimer is revocable or not does not determine the power of the Court to order its withdrawal – where there is no merit in any of the grounds of appeal – appeal dismissed.

FAMILY LAW – APPEAL – COSTS – where the wife seeks costs in the sum of $2,000 – where the husband opposes the application for costs on the basis that it was reasonable for him to file his application given the validity of the points raised therein – where the appeal has been wholly unsuccessful – costs order made as sought by the wife.

Family Law Act 1975 (Cth) – s 80(1)(k), s 106B

JW Broomhead (Vic) Pty Ltd (In liquidation) v JW Broomhead Pty Ltd [1985] VR 891

APPLICANT:

Mr Seggio

1^ST RESPONDENT:

Ms Durante

2^ND RESPONDENT:

Mr Seggio

3^RD RESPONDENT:

Ms Bissi

4^TH RESPONDENT:

State Trustees Limited

FILE NUMBER:

MLC

1121

2010

APPEAL NUMBER:

2011

DATE DELIVERED:

24 February 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

8 June 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

3 February 2011

LOWER COURT MNC:

[2011] FMCAfam77

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Howe

SOLICITOR FOR THE APPLLICANT:

Hughes Watson Marks Kennedy Barristers & Solicitors

COUNSEL FOR THE 1^ST, 2^ND AND 3^RD RESPONDENTS:

Ms McCreadie

SOLICITOR FOR THE 1^ST RESPONDENT:

Perry Weston Lawyers

SOLICITOR FOR THE 2

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.

Keep reading for free

Create a free CaseChat account to read Seggio and Durante & Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FamCAFC 27
Decision Date: 24 February 2011

CaseChat Overview and Summary

Seggio and Durante & Ors involved an appeal against an order made during a family law proceeding. The husband sought leave to appeal an order that required him to withdraw a disclaimer of interest in his mother’s estate. The dispute arose in the context of an interlocutory hearing addressing parenting, property settlement, and a proven contravention by the husband. The Federal Magistrate had made Order 5, which the husband sought to challenge on appeal, arguing that the Magistrate erred by not considering his prior disclaimer of interest.

The legal issues before the court included whether leave to appeal was necessary, as Order 5 appeared to be a final order. Despite this, leave was granted due to the uniqueness of the issue. The husband argued that the disclaimer made in 2006 was irrevocable, but the court noted that the revocability of the disclaimer did not affect its power to order its withdrawal. Ultimately, the court found no merit in the husband’s grounds for appeal.

The court dismissed the appeal and ordered the husband to pay the wife $2,000 in costs of the appeal. The wife had sought this amount, and the husband's opposition was based on the validity of the points raised in his application. Given the wholly unsuccessful appeal, the court granted the wife’s costs application.

Orders

Orders of the court

To the extent that it is necessary, leave is granted to the applicant husband to appeal against Order 5 made by Federal Magistrate Hartnett on 3 February 2011.

The appeal be dismissed.

The husband pay to the wife the costs of and incidental to the appeal fixed in the sum of $2,000.

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.