Vadisanis & Vadisanis - [2013] FamCAFC 90

FAMILY COURT OF AUSTRALIA

VADISANIS & VADISANIS

[2013] FamCAFC 90

FAMILY LAW – APPLICATION IN AN APPEAL – Application by the appellant for the expedition of the substantive appeal – The circumstances justify the expedition of the appeal – Application granted.

FAMILY LAW – APPLICATION IN AN APPEAL – Application by the appellant to adduce further evidence – The further evidence will be allowed in the stay appeal only.

FAMILY LAW – APPLICATION FOR LEAVE TO APPEAL – Application by the appellant for leave to appeal against an order refusing to grant a stay – The order dismissing the application for a stay was an “interlocutory decree” – Leave required – Leave granted on the basis that there is merit in the appeal and a refusal to grant leave would cause a substantial injustice.

FAMILY LAW – APPEAL – Appeal against an order refusing to grant a stay – Where the appellant submits that the appeal would be rendered nugatory if the stay was not granted – The trial Judge erred in failing to accept that the wife had not abandoned her application to retain the home as part of her settlement – Appeal allowed.

FAMILY LAW – RE-EXERCISE OF DISCRETION – The appeal would be rendered nugatory if the stay was not granted – The appeal cannot be said to be without merit and the appeal is bona fide – The appeal was filed promptly – The expedition of the appeal will lessen any prejudice – Stay granted.

Family Law Act 1975 (Cth), ss 93A(2) 94AA
Family Law Regulations 1984, reg 15A
Family Law Rules 2004, r 22.09

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170
Carr v Finance Corp of Australia Ltd (1981) 147 CLR 246
CDJ & VAJ (1998) 197 CLR 172
House v The King (1936) 55 CLR 499
Gronow v Gronow (1979) 144 CLR 513
Kowaliw & Kowaliw (1981) FLC 91-092
Malouf v Maloufand Ors (1999) 167 ALR 383
Norbis v Norbis (1986) 161 CLR 513
Rutherford and Rutherford (1991) FLC 92-255
Trahn & Long (No. 2) [2008] FamCAFC 194
Youssef & Youssef (unreported, Full Court of the Family Court of Australia, 10 October 1997)

APPELLANT:

Ms I Vadisanis

FIRST RESPONDENT:

Mr Vadisanis

SECOND RESPONDENT:

Ms J Vadisanis

FILE NUMBER:

SYC

6377

2008

APPEAL NUMBER:	EA	20	of	2013
EA	59	of	2013

DATE DELIVERED:

7 June 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Ryan and Johnston JJ

HEARING DATE:

7 June 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 April 2013

LOWER COURT MNC:

[2013] FamCA 290

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Givney

SOLICITOR FOR THE APPELLANT:

Campbell Paton & Taylor

COUNSEL FOR THE FIRST RESPONDENT:

Mr Dlakic

SOLICITOR FOR THE FIRST RESPONDENT:

Johnston Vaughan Solicitors and Attorneys

COUNSEL FOR THE SECOND RESPONDENT:

Mr Farmakidis

SOLICITOR FOR THE SECOND RESPONDENT:

JSM Lawyers

Orders

The appellant’s application to adduce further evidence in this appeal be allowed.
The…

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: Vadisanis & Vadisanis [2013] FamCAFC 90
Case: [2013] FamCAFC 90
Decision Date

CaseChat Overview and Summary

The appeal was brought by Ms I Vadisanis (the wife) against an order made by Fowler J dismissing her application for a stay of property settlement orders. The appeal was opposed by Mr Vadisanis (the husband) and the husband’s mother, Ms J Vadisanis (the intervenor). The wife argued that if the orders were not stayed, her appeal would be rendered nugatory, as one of the objectives of the appeal was to ensure she retains the former matrimonial home, which, pursuant to the orders, must be sold. The Full Court of the Family Court of Australia was required to determine whether the appeal would be rendered nugatory if the stay was not granted, whether the trial Judge erred in failing to accept that the wife had not abandoned her application to retain the home as part of her settlement, and whether the appeal was brought in a timely fashion and bona fide. The Full Court found that the appeal would be rendered nugatory if the stay was not granted, the trial Judge erred in failing to accept that the wife had not abandoned her application to retain the home as part of her settlement, the appeal was brought in a timely fashion and bona fide. Accordingly, the appeal was allowed, the operation of the orders made by Fowler J on 22 January 2013 was stayed until determination of the appellant’s appeal, and the appeal against the orders of Fowler J made on 22 January 2013 was expedited.

Orders