Vescio v Vescio

[2007] HCATrans 342

[2007] HCATrans 342

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S259 of 2006

B e t w e e n -

CARMELO MICHAELANGELO VESCIO

Applicant

and

ROSETTA GRAZIELLA VESCIO

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 AUGUST 2007, AT 8.46 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant husband and respondent wife were married in 1972 and separated on 24 December 1982.  The applicant commenced divorce proceedings in March 1983 and a decree nisi was made on 17 March 1984.  That decree became absolute on 28 April 1984.

At first instance, in the Family Court of Australia, in proceedings for a division of property pursuant to the Family Law Act 1975 (Cth) ("the Act"), Hogan J found the respondent to be a credible witness and the applicant, whilst self-assured and confident, when pressed in cross‑examination procrastinated, contradicted himself and deposed to assertions which defied common sense, and were unacceptable absent corroboration. His Honour therefore rejected the applicant's evidence where it conflicted with that of the respondent.

Sections 75(2) and 79 of the Act require the court to make orders which are, in all of the circumstances, just and equitable, taking into account the financial contributions made by and on behalf of the parties and various other contributions.

His Honour made findings about the respective financial contributions of the parties at the time of the marriage.  He was satisfied that the respondent gave considerable assistance to the applicant in his work.  His Honour was satisfied that during the period of cohabitation the respondent was primarily responsible for the care of the two children of the marriage and their welfare.  His Honour also had regard to the parties' respective earning capacities, their ages and health.  In view of their respective contributions, the vastly superior financial position of the applicant husband, and the fact that he would retain for his own use the assets of a company that he controlled, a just and equitable division, in his Honour's opinion, was 70% in favour of the respondent and 30% to the applicant.  The trial judge also ordered that the applicant pay two-thirds of the costs of the respondent because he had "pursued a course in which he has sought to conceal any assets that he might have … seeking to prevent the wife from recovering her just entitlement".

The applicant appealed, and the respondent cross-appealed against the judgment and orders of Hogan J to the Full Court of the Family Court (Murray, Lindenmayer and Walsh JJ). There the applicant sought to challenge the primary judge's division of the assets arguing it to be plainly wrong, and manifestly outside the range of a reasonable exercise of the discretion vested in the court by s 79 of the Act. The applicant also sought an order that, to the extent that the wife's allocation of property exceeded one-half of the net assets available for distribution between the parties, that amount was attributable to the provision of maintenance to her pursuant to s 77A of the Act.

The Full Court noted that a primary judge, exercising the power of the Court under s 79, was exercising a wide and largely unfettered discretion which should only be interfered with on appeal if the appeal court were satisfied that it had been exercised on a wrong principle, or that the primary judge had taken extraneous or irrelevant matters into account or failed to take into account relevant ones, mistaken the facts, or had reached a conclusion on the facts that was unreasonable or plainly unjust. None of these defects were made out. The appeal against the costs order was similarly rejected.

As to maintenance, the Full Court found that, as the respondent had sought a settlement of property, not only was the primary judge correct not to include any provision for lump sum maintenance in his award, but also that he would have been in error had he done so.

The applicant applies to this Court but requires a substantial extension of time.  The decision of the Full Court was given on 22 April 1989.  The applicant filed his application for special leave to appeal on 6 August 2006.  No basis for an extension is put forward by the applicant.  This is itself grounds for refusing the application.  However, independently of that impediment, the applicant has not shown any reason to doubt the correctness of the Full Court's refusal to interfere with the clearly discretionary decision made on orthodox principle by the primary judge.

Special leave is accordingly refused.

Because the applicant is unrepresented, this application for special leave falls to be dealt with in accordance with rule 41.10 of the High Court Rules 2004. Pursuant to rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application and I publish the disposition signed by Justice Callinan and myself.

AT 8.51 AM THE MATTER WAS CONCLUDED