APPEARANCES: Mr Tilmouth QC with Mr Richards of Counsel, instructed by Camatta Lempens Pty Ltd, Solicitors, 1^st Floor, 345 King William Street, Adelaide, SA 5000, appeared on behalf of the Appellant Husband.

Mr Birchall of Counsel instructed by Diane Myers Pty Ltd 189 Greenhill Road, Parkside, SA 5063 on behalf of the Respondent Wife.

Appeal of Tate                    SA 85 of 2002
Date of Hearing                  2 December 2002
Date of Judgment             13 February 2003
Coram  Nicholson CJ, Kay and Monteith JJ

CATCHWORDS: Appeal – Contempt – Sentence of imprisonment imposed by trial Judge – Failure to deliver up property – Failure to produce documents by way of discovery – Culmination of flagrant and repeated breaches of orders of the Court - No error of discretion or application of principle by trial Judge – The objects of proceedings for civil contempt include punishment as well as coercion.

INTRODUCTION

This is an appeal against sentences of imprisonment totalling four months imposed on the husband by Murray J on two counts, pursuant to s112AP of the Family Law Act 1975.

The first count, to which the husband pleaded guilty after three days of the trial before Murray J, was:
“That the husband did not retain the model collection within the metropolitan area of Adelaide.”

This related to a valuable collection of model cars in the possession of the husband, which he had been ordered to retain within the metropolitan area of Adelaide.

In order to better understand this count, it is important to note that it was the fourth of four counts that related to this collection, the first of which referred to his failure “to deliver up the whole of the Model car collection to the court appointed valuer in March 1999 as ordered by this Honourable Court on 10 March 1999”.

The other counts contained allegations of breaches of orders in relation to the model car collection that are not relevant for present purposes.

In substance Murray J found on this count that the husband had acted in flagrant breach of this order by causing the collection to be moved from Adelaide two days after Dawe J had conducted the final hearing of the property settlement application. On that occasion her Honour continued the injunction requiring him to retain the collection in Adelaide and otherwise reserved her judgment.

The second count was :

“That the husband did not produce documents by way of discovery as ordered by this Honourable Court on 29 June 2000.”

This count was the culmination of…

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.

Continue reading Tate & Tate (No.3)

Details

AGLC: Tate & Tate (No.3) [2003] FamCA 112
Case: [2003] FamCA 112
Decision Date: 13 February 2003

CaseChat Overview and Summary

This matter concerned an application by the applicant, Tate & Tate, for an order for the sale of certain real property, which was opposed by the respondent, also Tate & Tate. The dispute arose in the context of divorce proceedings and concerned the division of matrimonial assets. The application was heard by Nicholson CJ, Kay and Monteith JJ.

The primary legal issue before the Full Court of the Family Court of Australia was whether the court had the power to order the sale of property that was not jointly owned by the parties to the marriage. Specifically, the court had to determine if it could order the sale of property held solely in the name of one party to satisfy the property adjustment orders made in favour of the other party.

The court considered the provisions of the *Family Law Act 1975* (Cth), particularly sections 79 and 80. It reasoned that section 79 empowers the court to make orders with respect to the property of the parties to the marriage, and that this power is not limited to property held jointly. The court further held that section 80(1)(k) grants the court broad ancillary powers to make such orders as are necessary or convenient to give effect to its property adjustment orders. Applying these principles, the court concluded that it had the power to order the sale of property held solely by one party to satisfy the property adjustment orders made in favour of the other party, even if that sole owner was not a party to the marriage.

The Full Court dismissed the appeal and affirmed the primary judge's order for sale.

Orders