Curtain & Curtain (No 2) - [2023] FedCFamC1F 661

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Curtain & Curtain (No 2) [2023] FedCFamC1F 661

File number: ADC 4409 of 2013

Judgment of: KARI J

Date of judgment: 11 August 2023

Catchwords:
FAMILY LAW – INJUNCTIONS – Preservation of property

FAMILY LAW – COSTS – Where the wife pursues costs for interlocutory application and hearing – costs awarded

Legislation:
Family Law Act 1975 (Cth) (‘the Act’),

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’).

Cases cited:
Curtain & Curtain [2016] FamCA 577,

Curtain & Curtain [2019] FamCA 919,

Curtain & Curtain [2022] FedCFamC1A 134,

Curtain & Curtain [2022] FedCFamC1F 186,

Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157.

Division: Division 1 First Instance

Number of paragraphs: 57

Date of hearing: 20 July 2023

Place: Adelaide

Counsel for the Applicant: Mr Tredrea

Solicitor for the Applicant: Jordan & Fowler Family Lawyers

Counsel for the Respondent: Mr McQuade

Solicitor for the Respondent: C M Tucker & Associates
ORDERS

ADC 4409 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CURTAIN

Applicant

AND:
MR CURTAIN

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

11 AUGUST 2023

THE COURT ORDERS THAT:
1.Within 90 days, the husband do pay to the wife costs in the amount of FOUR THOUSAND THREE HUNDRED AND FIFTY FIVE DOLLARS AND THIRTY TWO CENTS ($4,355.32).
2.The Application in a Proceeding filed 15 May 2023 and the Response to an Application in a Proceeding filed 12 July 2023 be dismissed.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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
KARI J
INTRODUCTION

These proceedings arise as a result of an Application in a Proceeding filed by the wife on 15 May 2023 in which she seeks certain injunctions to restrain the husband from dealing with various assets.
In his Response filed 12 July 2023 the husband opposed the making of any injunctions, however, towards the end of his Counsel’s submissions at the contested hearing on 20 July 2023, the husband agreed to the injunctive relief sought by the wife.
While orders in the terms agreed between the parties were made by agreement at the hearing on 20 July 2023,…

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 (No 2)

Details

AGLC: Curtain & Curtain (No 2) [2023] FedCFamC1F 661
Case: [2023] FedCFamC1F 661
Decision Date

CaseChat Overview and Summary

The case of Curtain & Curtain (No 2) involved a dispute between the husband and wife, both born in 1963, regarding property settlement following their separation in 2011. The wife had initiated proceedings for alteration of the parties' interests in property pursuant to section 79 of the Family Law Act 1975 (Cth). The court had to decide whether to grant an additional injunction and the wife's application for costs. The case had a complex history, with several previous decisions and appeals. The central issue in this latest decision was the wife's application for an additional injunction and her application for costs. The wife sought an injunction to prevent the husband from selling certain properties, which the husband opposed. Additionally, the wife applied for an order for the husband to pay her costs associated with the proceedings.

The court considered the wife's application for an additional injunction and her application for costs. In granting the injunction, the court noted the wife's concerns about the husband's potential sale of the properties, which were part of the final property orders. The court found that there was a real risk of prejudice if the injunction was not granted. The court also considered the wife's application for costs, which the husband opposed. The court assessed the overall conduct of the proceedings and the wife's reasonable entitlement to costs. The court concluded that the wife was entitled to an order for costs, subject to certain adjustments.

The court granted the wife's application for an additional injunction, preventing the husband from selling the specified properties. The court also ordered the husband to pay the wife's costs associated with the proceedings, subject to adjustments for certain payments already made. The court's decision provided clarity and protection for the wife in relation to the contested properties, while also addressing the financial implications of the ongoing litigation.

Orders

Orders of the court

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Background

Background to the litigation

These reasons, accordingly, relate to the additional injunction that was made on 20 July 2023 and the disposition of the wife’s costs application.BACKGROUND These proceedings have a lengthy history. While there are no less than five written judgments in the matter, four in particular encapsulate the history of the proceedings, namely:(a)The decision of Berman J delivered on 15 July 2016, Curtain & Curtain [2016] FamCA 577 determining the parties’ competing property settlement applications pursuant to s 79 of the Family Law Act 1975 (Cth) (‘the Act’).(b)The decision of Mead J delivered on 4 December 2019 refusing the wife’s application to bifurcate the determination of her application pursuant to s 79A(1)(a) of the Act from any ultimate determination of her s 79 application in the event that the former application was successful; Curtain & Curtain [2019] FamCA 919.(c)The decision of Mead J delivered 25 March 2022 dismissing the husband’s application for summary dismissal of the wife’s application pursuant to s 79A(1)(a) of the Act to set aside the orders made by Berman J on 15 July 2016; Curtain & Curtain [2022] FedCFamC1F 186.(d)The decision of the Full Court delivered 31 August 2022 dismissing the husband’s appeal of Mead J’s orders made 25 March 2022, which refused the summary dismissal application bought by the husband; Curtain & Curtain [2022] FedCFamC1A 134. In circumstances where I have had regard to those reasons, I do not propose to set out a detailed history of the proceedings. Instead I propose to summarise the relevant facts and history of the litigation to date. The wife was born in 1963 and she is presently 59 years of age. The husband was born in 1963 and he is presently 59 years of age. The parties were in a relationship of approximately 28 years; forming a relationship in 1983, marrying in 1988 and separating on 14 November 2011. On 25 November 2013 the wife commenced proceedings for alteration of the parties’ interests in property pursuant to s 79 of the Act. On 15 July 2016 Berman J made final orders resolving the parties competing s 79 applications for property settlement pursuant to s 79 of the Act, having heard a trial over five days (“the final property orders”). The effect of the final orders made by Berman J on 15 July 2016 was that:(a)There was to be a 55/45 apportionment of property in favour of the husband;(b)The husband retained a property in C Town and farming land in Region AF (known separately as “N Property”, “Suburb TT” and “M Property”) and the related farming enterprise; and(c)The wife retained 3 properties located in each Suburb G, Town J and Town L. A significant aspect of the dispute between the parties during the hearing before Berman J centred over which of the parties were to ultimately retain ownership of certain farming land and the related farming ventures operated on that land (in particular “Suburb TT” and “N Property” in circumstances where “M Property” was held solely by the husband). Berman J ultimately resolved that dispute in favour of the husband by accepting the husband’s evidence that in the post separation period the parties had brokered an agreement to resolve their financial dispute on terms which included the husband retaining the farming land and enterprise (at [162] and [192] – [215]).

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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File number:	ADC 4409 of 2013
Judgment of:	KARI J
Date of judgment:	11 August 2023
Catchwords:	FAMILY LAW – INJUNCTIONS – Preservation of property FAMILY LAW – COSTS – Where the wife pursues costs for interlocutory application and hearing – costs awarded
Legislation:	Family Law Act 1975 (Cth) (‘the Act’), Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’).
Cases cited:	Curtain & Curtain [2016] FamCA 577, Curtain & Curtain [2019] FamCA 919, Curtain & Curtain [2022] FedCFamC1A 134, Curtain & Curtain [2022] FedCFamC1F 186, Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157.
Division:	Division 1 First Instance
Number of paragraphs:	57
Date of hearing:	20 July 2023
Place:	Adelaide
Counsel for the Applicant:	Mr Tredrea
Solicitor for the Applicant:	Jordan & Fowler Family Lawyers
Counsel for the Respondent:	Mr McQuade
Solicitor for the Respondent:	C M Tucker & Associates

ADC 4409 of 2013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CURTAIN Applicant
AND:	MR CURTAIN Respondent

ORDER MADE BY:	KARI J
DATE OF ORDER:	11 AUGUST 2023