FAMILY COURT OF AUSTRALIA
| GADDE & GADDE | [2019] FamCAFC 116 |
| FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the husband’s challenges on appeal were founded on contentions that the trial judge denied him procedural fairness – Where it was open for the trial judge to exercise discretion to grant or refuse an adjournment – Where the husband failed to demonstrate error in the trial judge’s procedural conduct of the trial – Where there is no prejudice to the husband – Where the husband failed to demonstrate he was denied procedural fairness or natural justice – Where those grounds of appeal fail. FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Parenting and Property – Where both parties sought to adduce further evidence – Where leave was granted by consent for the respondent to rely on selected paragraphs of her affidavit filed with her Application – Where it was unclear to the Full Court how the respondent’s evidence was relevant to the appeal’s disposition – Where the appellant sought to adduce evidence to be led in the sense contemplated by Allesch v Maunz (2000) 203 CLR 172 – Where fresh evidence sought to be adduced by the appellant was limited – Where the appeal fails and there is no discretion for the Full Court to re-exercise – Application dismissed. FAMILY LAW – APPEAL – PARENTING – Where the husband appeals from final parenting orders permitting the wife to relocate with the child to Country F – Where the trial judge’s orders provided for alternative arrangements for the child to spend time with the husband, regardless of the husband’s residence in Australia or in Country F – Where the grounds of appeal challenge findings, the exercise of discretion and weight given to various factors – Where the trial judge applied and adequately considered the factors pursuant to ss 60CC(2) and 60CC(3) of the Family Law Act 1975 (Cth) – Where it was open to the trial judge to find the presumption of equal shared parental responsibility rebutted – Where there is no appealable error by the trial judge – Where the findings made by the trial judge were open on the evidence – Where the trial judge gave adequate reasons – Appeal dismissed. FAMILY LAW – APPEAL – PROPERTY – Child Support – Where the trial judge made property settlement orders to distribute the parties’ property, 66 per cent to the wife and 34 per cent to the husband – Where the husband alleges the trial judge erred in identifying and valuing “add-backs” and liabilities – Where the husband contended the trial judge’s contribution-based adjustments were excessive – Where findings relating to the parties’ contribution-based entitlements were open to the trial judge and clearly explained – Where no error in the trial judge’s approach in making findings under ss 75(2) and 79(4) of the Family Law Act 1975 (Cth) is demonstrated – Where the findings of the trial judge were open on the evidence – Where the… |
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- AGLC
- Gadde & Gadde [2019] FamCAFC 116
- Case
- [2019] FamCAFC 116
- Decision Date
CaseChat Overview and Summary
The court examined the husband's claims of procedural unfairness and found that the trial judge had the discretion to grant or refuse an adjournment. The husband did not demonstrate any error in the trial judge's conduct of the trial, nor did he show that he was prejudiced in any way. The husband's claim that he was denied procedural fairness or natural justice also failed. The court held that the husband's grounds of appeal were without merit. In relation to the fresh evidence sought by the husband, the court found that the evidence was limited and did not warrant re-exercising the trial judge's discretion. Therefore, the husband's application to adduce further evidence was dismissed. The court further found that the trial judge had applied and adequately considered the relevant factors when making the final parenting and property settlement orders. The court held that the trial judge's findings were open on the evidence, and there was no appealable error in the trial judge's approach. The court also found that the trial judge's findings relating to the parties' contribution-based entitlements were clearly explained. The mathematical error identified in the property settlement order could be corrected by the Full Court.
The appeal was dismissed, and the husband was ordered to pay 75 per cent of the wife's costs of the appeal. The Full Court also made an order to implement the trial judge's determination to dismiss a child support application, pursuant to s 94(2) of the Family Law Act 1975 (Cth). The Full Court found that the husband's poor financial circumstances did not preclude a costs order. The wife was directed to hold the money payable to the husband as security for the payment of her costs.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
The Application in an Appeal filed by the appellant on 7 May 2019 be dismissed.
3.
Pursuant to s 94(2) of the Family Law Act 1975 (Cth), it is ordered:
(a) The sum of $140,013 is substituted for the sum of $94,246 within Order 3.1 made by the trial judge on 1 June 2018; and
(b) Any and all outstanding applications between the parties seeking relief under the Child Support (Assessment) Act 1989 (Cth) are dismissed.
4.
The appellant shall pay 75 per cent of the respondent’s costs of and incidental to the appeal in the sum agreed or assessed on an ordinary party/party basis.
5.
The respondent shall hold the money payable by her to the appellant pursuant to Order 3.1 made by the trial judge on 1 June 2018 as security for the appellant’s payment of her costs pursuant to Order 4 hereof.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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