Curtain & Curtain - [2019] FamCA 919

FAMILY COURT OF AUSTRALIA

CURTAIN & CURTAIN

[2019] FamCA 919

FAMILY LAW – PRACTICE AND PROCEDURE – Application in a case to bifurcate s.79A and s.79 application – application refused.

Family Law Act 1975 (Cth) s 79A

Patching & Patching (1995) FLC 92-585
Lancer & Lancer [2008] FamCAFC 112
Riley & Pateman [2000] FamCA 1296
Trustee of the Bankrupt Estate of Hicks & Hicks & Anor (2018) FLC 93-824

APPLICANT:

Ms Curtain

RESPONDENT:

Mr Curtain

FILE NUMBER:

ADC

4409

2013

DATE DELIVERED:

4 December 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Mead J

HEARING DATE:

26 & 28 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Jordan & Fowler Barristers & Solicitors

COUNSEL FOR THE RESPONDENT:

Mr McQuade (on 28 November 2019)

SOLICITOR FOR THE RESPONDENT:

CM Tucker & Associates

Orders

That the application in a case filed herein by the wife on 20 November 2019 be dismissed.
That the application in a case filed herein by the husband on 26 November 2019 seeking orders for the adjournment of all court hearings including the trial listed for 3 and 4 December 2019 be dismissed.
That paragraph 3 of the second application in a case filed herein by the husband on 26 November 2019 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Curtain & Curtain has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4409 of 2013

Ms Curtain

Applicant

And

Mr Curtain

Respondent

REASONS FOR JUDGMENT

On 25 November 2013 the wife instituted proceedings for settlement of property.
On 15 July 2016 Berman J made final orders (as amended on 26 July 2016) in relation to those proceedings.
On 12 August 2016 the wife filed an appeal against those orders.
The appeal was deemed to be abandoned on 28 November 2016.
On 29 November 2017 the wife filed an initiating application.
The final orders sought by the wife in that application were as follows:
1.That pursuant to Section 79A(1)(a) of the Family Law Act 1975 as amended the Order made by Honourable Justice Berman on 26 July, 2016 be set aside.
2.That pursuant to Section 79 of the said Act the Court do make such Order for settlement of property or adjustment of interests in property as the Court deems just and equitable.
3.That the husband pay the wife’s costs on an indemnity basis.
No interim or procedural orders were sought in the application.
The application was accompanied by an…

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 Curtain & Curtain

Details

AGLC: Curtain & Curtain [2019] FamCA 919
Case: [2019] FamCA 919
Decision Date: 4 December 2019

CaseChat Overview and Summary

In the matter of *Curtain & Curtain*, Mead J of the Family Court of Australia considered applications made by both the wife and the husband. The wife filed an application on 20 November 2019, and the husband filed two applications on 26 November 2019, one of which sought to adjourn all court hearings, including a trial scheduled for 3 and 4 December 2019.

The central legal issues before the court were whether to grant the wife's application and whether to grant the husband's application for an adjournment of the scheduled trial and other hearings. The court was also required to determine the fate of a specific paragraph within the husband's second application.

Mead J dismissed the wife's application filed on 20 November 2019. Furthermore, the court dismissed the husband's application seeking an adjournment of all court hearings, including the trial. The court also dismissed paragraph 3 of the husband's second application.

Orders

Orders of the court

That the application in a case filed herein by the wife on 20 November 2019 be dismissed.

That the application in a case filed herein by the husband on 26 November 2019 seeking orders for the adjournment of all court hearings including the trial listed for 3 and 4 December 2019 be dismissed.

That paragraph 3 of the second application in a case filed herein by the husband on 26 November 2019 be dismissed.

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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