TREBIANO & TREBIANO - [2018] FamCAFC 110

FAMILY COURT OF AUSTRALIA

TREBIANO & TREBIANO

[2018] FamCAFC 110

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the husband seeks expedition of his notice of appeal against final property orders – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed.

Family Law Act 1975 (Cth) ss 75(2), 94(2D)(j)

Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Mr Trebiano

RESPONDENT:

Ms Trebiano

FILE NUMBER:

PAC

1251

2017

APPEAL NUMBER:

2018

DATE DELIVERED:

15 June 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

15 June 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 May 2018

LOWER COURT MNC:

[2018] FamCA 344

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Johnson

SOLICITOR FOR THE APPLICANT:

Brander Smith McKnight

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Maclarens Lawyers

IT IS ORDERED

That the Application in an Appeal filed on 8 June 2018 be dismissed.
That the Appeal Registrar conduct a procedural hearing in the appeal as soon as is reasonably practicable.
Each party pay their own costs in relation to the application for expedition
IT IS NOTED
That the parties agree the appeal may be called on short notice.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trebiano & Trebiano has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 76 of 2018
File Number: PAC 1251 of 2017

Mr Trebiano

Applicant

And

Ms Trebiano

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed 8 June 2018, Mr Trebiano (“the husband”) seeks an order for an expedited hearing of his appeal (EA 76 of 2018). The appeal was filed on 8 June 2018 against final property orders made by Foster J on 18 May 2018.
The husband and Ms Trebiano (“the wife”) were married for 25 years. The parties were 70 years of age at the time of trial. There are no children of the relationship.
In broad terms, the orders under appeal provide for:
·The sale of real property jointly owned by the parties at B Street, Suburb C (“the Suburb C property”) and the distribution of the proceeds of sale as to 55 per cent plus $32,981 to the wife and the balance to the husband (Order 1);
·Pending sale,…

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.

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Details

AGLC: TREBIANO & TREBIANO [2018] FamCAFC 110
Case: [2018] FamCAFC 110
Decision Date: 15 June 2018

CaseChat Overview and Summary

The Family Court of Australia was asked to decide whether an appeal by Mr Trebiano against final property orders should be expedited. The appeal was filed on 8 June 2018 against orders made by Foster J on 18 May 2018. The husband and wife were married for 25 years and there are no children of the relationship. The appeal concerns the distribution of the proceeds of the sale of the parties' jointly owned property at B Street, Suburb C, the splitting of the parties' entitlements in the Trebiano Pension Fund, and the transfer of the husband's interest in D Pty Ltd to the wife. The wife supports the application for expedition.

The court considered the criteria for expediting an appeal under s 94(2D)(j) of the Family Law Act 1975 (Cth) and r 12.10A of the Family Law Rules 2004 (Cth). The court found that the husband had acted promptly in filing the notice of appeal and application for expedition. The wife was not prejudiced by a truncated timeframe for preparing her case for appeal. However, the court found that the nature of the appeal did not justify giving it priority over other appeals awaiting hearing. Although the husband's health was a significant matter in the hearing, it was not a sufficient justification to displace other appeals waiting for a hearing date. The court dismissed the application for expedition but directed that a procedural hearing in the appeal be arranged by the Appeals Registrar as soon as reasonably practicable.

The court ordered that the application in an appeal filed on 8 June 2018 be dismissed and that the appeal registrar conduct a procedural hearing in the appeal as soon as is reasonably practicable. Each party pay their own costs in relation to the application for expedition.

Orders