Adamo vs. Vinci: Upholding Justice through Procedural Integrity and Evidentiary Standards"

Citation:

Adamo & Vinci (No 2) [2024] FedCFamC1A 96

Introduction:

The Federal Circuit and Family Court of Australia, Division 1, delivered a pivotal judgment in the case of Adamo & Vinci (No 2) [2024] FedCFamC1A 96. This appeal case centered around the appellant's attempts to discharge final parenting and property orders, alleging a material change of circumstances and procedural errors by the primary judge.

Facts:

• The appellant (Mr. Adamo) and the respondent (Ms. Vinci) were previously married and have two children.
• Final parenting and property orders were made in October 2020, with the children primarily residing with the respondent.
• The appellant sought to discharge these orders, claiming a material change in circumstances and procedural issues.
• The primary judge dismissed the appellant's application, leading to this appeal.

Issues:

1. Whether there was a material change of circumstances justifying the re-litigation of parenting orders.
2. Whether the primary judge erred in dismissing the application to set aside property orders under sections 79A(1)(a), (c), and (d) of the Family Law Act 1975 (Cth).
3. Whether further evidence should be admitted on appeal.
4. Whether the appellant should bear the costs of the appeal.

Rule:

• Family Law Act 1975 (Cth): Sections 79A(1)(a), (c), and (d) for setting aside property orders.
• Evidence Act 1995 (Cth): Section 50 regarding the admissibility of evidence.
• Federal Circuit and Family Court of Australia Act 2021 (Cth): Section 35 for procedural compliance.

Analysis:

Key Paragraphs from the Judgment:

• Material Change of Circumstances: The primary judge found that the appellant had not established a material change in circumstances warranting re-litigation of parenting orders (paragraphs 1-5).
• Paragraph 98: "The primary judge concluded that even based on the appellant's evidence, the children had spent significantly less time with him than provided for in the orders. This was not deemed a change in circumstances."
• Application of Wrong Principles of Law: The appellant failed to elucidate how the primary judge applied wrong principles of law (paragraph 17).
• Paragraph 37: "The appellant's submissions lacked precision, failing to demonstrate the application of wrong principles by the primary judge."
• Admissibility of Further Evidence: The appellant's application to adduce further evidence was dismissed as it lacked materiality and nexus that would alter the primary judge's decision (paragraphs 18-33).
• Paragraph 22: "The appellant could not demonstrate how the omitted documents would have produced a different result at trial."
• Costs: The appellant was ordered to pay the respondent's costs fixed at $18,800 due to the wholly unsuccessful appeal (paragraphs 112-117).
• Paragraph 117: "Impecuniosity is no bar to an award of costs being made."

Reasons for Judgment:

The Court dismissed the appeal, emphasizing that the appellant failed to demonstrate any material change of circumstances or errors in the primary judge's application of legal principles. The application to adduce further evidence was also dismissed due to its lack of relevance and potential impact on the original decision. Costs were awarded to the respondent due to the appellant's wholly unsuccessful appeal.

Take Home Lesson:

This case underscores the importance of establishing a clear and substantial change in circumstances when seeking to alter final parenting and property orders. It also highlights the necessity for precise and relevant evidence in appeals and the potential financial repercussions of unsuccessful litigation.