Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Curtain & Curtain [2022] FedCFamC1A 134
Appeal from: Curtain & Curtain [2022] FedCFamC1F 186 Appeal number: NAA 78 of 2022 File number: ADC 4409 of 2013 Judgment of: ALDRIDGE, MCGUIRE & STRUM JJ Date of judgment: 31 August 2022 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Appeal from an interlocutory decision dismissing an application for summary dismissal – Where the applicant unsuccessfully argued before the primary judge that the respondent’s application under s 79A of the Family Law Act 1975 (Cth) should be summarily dismissed – Merits of the proposed appeal considered – Decision not attended by sufficient doubt to warrant reconsideration – No substantial injustice – Application for leave to appeal dismissed – Appeal dismissed – Applicant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 45A
Federal Court of Australia Act 1976 (Cth)
Family Law Rules 2004 (Cth) rr 10.12, 10.14, 13.04
Cases cited: Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229
Edmunds & Edmunds (2018) FLC 93-847; [2018] FamCAFC 121
Harford & Spalding [2022] FedCFamC1A 78
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lindon v Commonwealth(No 2) (1996) 136 ALR 251; [1996] HCA 14
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Ritter & Ritter and Anor (2020) FLC 93-957; [2020] FamCAFC 86
Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 43; [1993] QCA 114
Number of paragraphs: 67 Date of hearing: 29 July 2022 Place: Heard in Melbourne (via video link), delivered in Brisbane Counsel for the Applicant: Mr McQuade Solicitor for the Applicant: CM Tucker & Associates Counsel for the Respondent: Mr Tredrea Solicitor for the Respondent: Jordan & Fowler Family Lawyers ORDERS
NAA 78 of 2022
ADC 4409 of 2013FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CURTAIN
Applicant
AND: MS CURTAIN
Respondent
order made by:
ALDRIDGE, MCGUIRE & STRUM JJ
DATE OF ORDER:
31 august 2022
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the respondent’s costs of the application for leave to appeal, fixed in the sum of $18,370.39.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Curtain & Curtain has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, MCGUIRE & STRUM JJ:
This…
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CaseChat Overview and Summary
In this case, the applicant, Mr Curtain, sought leave to appeal an interlocutory discretionary decision made by the Family Court of Australia. The primary issue was whether the Court should grant Mr Curtain leave to appeal the decision made by the primary judge, who dismissed his application for summary dismissal of his wife’s application to set aside property settlement orders. The wife, Ms Curtain, had filed an application to set aside the property settlement orders on the grounds of a miscarriage of justice due to fraud, suppression of evidence, or false testimony by Mr Curtain.
The Court was required to determine whether the primary judge’s decision to dismiss Mr Curtain’s application for summary dismissal was correct. This involved examining whether the evidence presented by Ms Curtain had a reasonable prospect of success and if the alleged non-disclosures and misrepresentations by Mr Curtain amounted to a miscarriage of justice. The Court needed to assess the credibility of the evidence and the potential impact of the undisclosed information on the original property settlement orders.
In its judgment, the Court found that the primary judge correctly dismissed Mr Curtain’s application for summary dismissal. The Court held that the respondent’s evidence, if believed, demonstrated that Mr Curtain had failed to disclose relevant financial information, including a letter confirming his entitlement to equity in a trust and income from another entity. The Court noted that the non-disclosure and misrepresentations by Mr Curtain could potentially result in a miscarriage of justice, as they might have influenced the outcome of the original property settlement. The Court concluded that the respondent had presented sufficient evidence to warrant a full hearing on the merits of her application.
Consequently, the Court refused Mr Curtain’s application for leave to appeal and dismissed the appeal. The Court upheld the primary judge’s decision that the respondent’s application had a reasonable prospect of success and that the alleged non-disclosures and misrepresentations warranted a full hearing.
The Court was required to determine whether the primary judge’s decision to dismiss Mr Curtain’s application for summary dismissal was correct. This involved examining whether the evidence presented by Ms Curtain had a reasonable prospect of success and if the alleged non-disclosures and misrepresentations by Mr Curtain amounted to a miscarriage of justice. The Court needed to assess the credibility of the evidence and the potential impact of the undisclosed information on the original property settlement orders.
In its judgment, the Court found that the primary judge correctly dismissed Mr Curtain’s application for summary dismissal. The Court held that the respondent’s evidence, if believed, demonstrated that Mr Curtain had failed to disclose relevant financial information, including a letter confirming his entitlement to equity in a trust and income from another entity. The Court noted that the non-disclosure and misrepresentations by Mr Curtain could potentially result in a miscarriage of justice, as they might have influenced the outcome of the original property settlement. The Court concluded that the respondent had presented sufficient evidence to warrant a full hearing on the merits of her application.
Consequently, the Court refused Mr Curtain’s application for leave to appeal and dismissed the appeal. The Court upheld the primary judge’s decision that the respondent’s application had a reasonable prospect of success and that the alleged non-disclosures and misrepresentations warranted a full hearing.
Orders
Orders of the court
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Background
Background to the litigation
This is an application by the husband, Mr Curtain (“the applicant”), for leave to appeal and, if successful, an appeal from an interlocutory discretionary decision. The proposed appeal was argued with the application for leave to appeal on the basis of the grounds set out in the Amended Notice of Appeal. For the reasons which follow, we refuse the application for leave to appeal and it will be dismissed.Background On 15 July 2016, Berman J made final orders for alteration of interests in property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), which were amended on 26 July 2016. On 29 November 2017, the wife, Ms Curtain (“the respondent”), filed an Initiating Application seeking to set aside those orders pursuant to s 79A(1)(a) of the Act, on the ground of a miscarriage of justice, by reason of fraud, suppression of evidence (including failure to disclose relevant information) or the giving of false evidence. In summary, she relied upon:(a)the failure by the applicant to disclose a letter dated 18 February 2013 from W Pty Ltd as trustee for the Q Trust, which confirmed their intention, upon the commencement of his employment with them, to issue him or his nominee with 20 per cent of the equity in the Q Trust;(b)an email dated 19 August 2013 from the applicant to W Pty Ltd, in which he advised them that the respondent and he had separated; that she had asked for his “correspondence of engagement” with them; that he had told her (falsely) that he was engaged as a consultant, and not as an employee, “on a needs basis”; and that he had drafted the letter attached to that email (backdated to 4 May 2013) for their consideration, throughout which there were references to the applicant being a consultant (at [22]); and(c)the failure by the applicant to disclose income from PP Pty Ltd, namely the sum of $74,200, for work undertaken but not billed by him prior to the trial before Berman J. On 13 February 2018, the applicant filed a Response to Initiating Application seeking that the s 79A application be dismissed. Nearly three years later, on 18 January 2021, the applicant filed an Application in a Case seeking that the respondent’s application pursuant to s 79A be summarily dismissed. Before us and, it would appear, before the primary judge, there was no explanation for his delay in bringing that application. On 19 April 2021, the respondent filed a Response to the summary dismissal application, seeking that it be dismissed. The summary dismissal application was argued before the primary judge on the papers on 23–24 August 2021. It was submitted before her Honour, on behalf of the applicant, that it was apparent on the face of the respondent’s documents that they did not disclose any fraud or suppression of evidence or, if they did, no miscarriage of justice had occurred, such that the respondent’s s 79A application had no reasonable prospect of success. The primary judge delivered judgment on 25 March 2022, dismissing the application for summary dismissal.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
A similar approach is to be taken in applications for summary dismissal. The Court does not undertake a preliminary trial, nor is a detailed hearing of the case on its merits required.Reasons for judgment at first instance After identifying the documents relied upon by each of the parties and the legal principles pertaining to summary dismissal, the primary judge extensively addressed first the evidence of the applicant and then that of the respondent. In circumstances where (at [30]) her Honour recognised that, in determining the summary dismissal issue, she could only take into account the material on which the respondent sought to make out her case or, put another way, take the respondent’s case at its highest (unless it was inherently incredible or unreliable), it is unusual that she first considered the applicant’s evidence, rather than that of the respondent. However, in circumstances where it is the applicant who complains about the dismissal of his application, nothing turns upon the order in which the primary judge considered the parties’ evidence. The primary judge then properly recognised (at [28]) that the applicant could only succeed in obtaining an order for summary dismissal if the Court was satisfied that the respondent had no reasonable prospect of successfully prosecuting her s 79A application, “noting that no reasonable prospect of success does not equate to the Court finding the proceedings to be hopeless or bound to fail”. Her Honour further recognised (at [32]) that, to succeed in her s 79A application:32.It will be necessary for the [respondent] to succeed to firstly satisfy the Court that the [applicant] failed to disclose relevant financial information to the Court at the time of the hearing before Berman J and secondly, that as a result, there has been a “miscarriage of justice”. Her Honour then said (at [36]–[37]):36.It is the nub of the [respondent’s] case that despite an acknowledged request in writing from her then solicitors, Law Firm AC, to the [applicant’s] then solicitors Law Firm AE dated 2 December 2014 requesting an explanation of why the letter from W Pty Ltd to the [applicant] dated 18 February 2013 had not been made available and advising it was still required, the document was not discovered at that time or at any other time prior to trial.37.In addition, the [respondent] contends, in support of her s 79A application, that the [applicant] deliberately withheld other documents that gave lie to his claim of merely working on a consultancy basis for W Pty Ltd and having no interest or prospective interest in that entity or in Q Trust. Further, she contends he was not frank in cross-examination about those matters such that the understanding gained by the [respondent] and the Court of the true relationship between the [applicant], W Pty Ltd and Q Trust was incorrect, and the suppression of that evidence ultimately resulted in a miscarriage of justice. The primary judge then considered some of the instances of non-disclosure complained of by the respondent:(a)In relation to the letter dated 18 February 2013 from W Pty Ltd as trustee for the Q Trust to the applicant, her Honour found that he had a duty both to the respondent and to the Court to disclose it, but that he did not do so after it was raised in her solicitor’s correspondence of 2 December 2014 or at any later time prior to the date of trial in 2016 (see [43] and [41]). How the respondent came to know of the existence of that letter and whether she knew the contents thereof, without them being disclosed by the applicant, are matters in dispute which cannot be resolved before trial. What is not in contention is that he did not disclose the letter or its contents to her or to the Court.(b)In relation to the employment of the applicant by W Pty Ltd, her Honour found that, by his email dated 19 August 2013, he advised them that the respondent and he had separated; that she had asked for his “correspondence of engagement” with them; that he had falsely told her that he was engaged as a consultant, and not as an employee, “on a needs basis”; and that he had drafted the letter attached to that email, backdated to 4 May 2013, for their consideration. Throughout that letter, there were references to the applicant being a consultant “at a rate of $75/hour, plus the reimbursement of specific cost travel and accommodation costs on presentation of receipts” (see [46] and [47]).(c)In relation to the applicant’s employment agreement with W Pty Ltd dated June 2013, which was for a period of five years, with a total annual salary of $218,000 (including superannuation) and an annual motor vehicle allowance of $18,000, her Honour found that there was no reference in that document to the matters referred to in the correspondence dated 18 February 2013 (see [40] and [45]).
Ratio Decidendi
Legal Principle Established
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