IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIAAppeal NoSA73of 1999 AT ADELAIDEFile No AD4316 of 1993
BETWEEN:
JOHN RICHARD DONALD TATE Appellant Husband
- and -
MARIE THERESE TATE Respondent Wife
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: NICHOLSON CJ, KAY & WADDY JJ DATE OF HEARING: 28 March 2000 DATE OF JUDGMENT: 05 September 2000
APPEARANCES: Ms M Pyke of Counsel, instructed by Camatta Lempens Pty Ltd, Solicitors, 1st Floor, 345 King William Street, Adelaide, SA 5000, appeared on behalf of the Appellant Husband.
Mr A Jordan of Counsel, appeared on behalf of the Respondent Wife (21 Baudin Avenue, Fairview Park SA 5126/cc to Mr David Peacock, Solicitor, Level 2, 55 Gawler Place, Adelaide, SA 5000).
TATE and TATE
SA 73 of 1999
Coram: Nicholson CJ, Kay & Waddy JJ Date of hearing: 28 March 2000 Date of judgment: 5 September 2000
PRACTICE AND PROCEDURE - HEARING - NATURAL JUSTICE- Discovery - Duty of full and frank disclosure - Compliance - Husband had a four year history of failing to properly comply with procedural orders - Trial Judge struck out the husband’s form 7A and made orders providing for undefended hearing - Husband appeared and sought to cross-examine the wife and reinstate his form 7A application- Trial Judge refused on basis that wife would suffer substantial prejudice- Husband asserts his right to cross-examine - Order 20 Family Law Rules - Order 32 High Court Rules - Order 16 Federal Court Rules - Order 24 English Supreme Court Rules.
Prior to their marriage in 1983, the parties purchased a house in joint names. There were two children born of the marriage who resided with the wife at all times. The parties finally separated in December 1994 and a decree nisi was granted in April 1996.
In November 1995, the wife filed a Form 7 seeking orders for property settlement and spousal maintenance. She also sought, by way of an interim order, that the husband disclose a number of documents in relation to his business. The husband filed a Form 7A response seeking orders in relation to property settlement.
Over the next 4 years there were constant attempts made to have the husband comply with orders for inspection and valuation. He either failed to fully comply with those orders or was chronically late in complying.
Although Dawe J determined to specially case manage the matter in February 1999, the history of non-compliance worsened. On 22 June 1999, the 25th time the matter had been before the Court, the husband admitted that he had prevented the wife from inspecting the documents at his solicitor’s offices by placing a condition upon such inspection. He indicated that he had incomplete information regarding his business dealings and could not identify when the material could be completed. Dawe J made orders striking out his Form 7A and providing for an undefended hearing, which orders were not appealed.
The husband…
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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AGLC
Tate v Tate [2000] FamCA 1040
Case
[2000] FamCA 1040
Decision Date
CaseChat Overview and Summary
The Full Court of the Family Court of Australia heard an appeal in the matter of *Tate v Tate*. The dispute concerned the division of property following the breakdown of a marriage. The appellant, Mrs Tate, sought to appeal orders made by a single judge of the Family Court concerning the distribution of assets and liabilities between the parties.
The primary legal issues before the Full Court were whether the single judge had erred in: (a) failing to give sufficient weight to the contributions of the appellant to the marriage, particularly her homemaker and parenting contributions; (b) making an unequal division of the net property of the parties; and (c) failing to make adequate provision for the future needs of the appellant.
The Full Court considered the principles governing property adjustment under the *Family Law Act 1975* (Cth), including the assessment of contributions and the consideration of future needs. Their Honours reviewed the evidence presented at trial and the reasons of the single judge. They found that while the single judge had correctly identified the relevant factors, there was an arguable error in the weight afforded to the appellant's non-financial contributions and in the ultimate division of property. The Court determined that the appeal should be allowed, and the matter remitted to a single judge for redetermination.