Curtain & Curtain (No 3)
[2023] FedCFamC1F 891
•18 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Curtain & Curtain (No 3) [2023] FedCFamC1F 891
File number(s): ADC 4409 of 2013 Judgment of: KARI J Date of judgment: 18 October 2023 Catchwords: FAMILY LAW – ORAL APPLICATION FOR AN ADJOURNMENT – Ex tempore reasons – Where the wife sought an adjournment of the hearing to allow her to consider the husband’s discovery provided the day prior to the hearing – Where the wife sought a continuation of the stay of an order stayed by consent at the previous hearing - Where the husband opposed the application for an adjournment – Where the husband opposed the continuation of the stay – Where the husband sought that the wife give an undertaking as to damages - Application for an adjournment granted – balance of orders promoted by the husband refused
FAMILY LAW – COSTS – Where the husband’s opposition to the adjournment application was wholly unsuccessful – costs awarded fixed in the sum of $1,000
Legislation: Family Law Act 1975 (Cth) ss 78A, 117 Cases cited: Curtain & Curtain (No 2) [2023] FedCFamC1F 661 Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 18 October 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: CM 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:
18 OCTOBER 2023
THE COURT ORDERS THAT:
1.That Order 3 made on 20 July 2023 be stayed until such time that the Application in a Proceeding filed on 29 August 2023 is listed for substantive hearing.
2.That the Application in a Proceeding filed on 29 August 2023 be listed for mention only before the Honourable Mead J to abide the substantive proceedings on 6 November at 9.30 am.
3.Within 56 days, the husband do pay to the Jordan & Fowler Solicitors Trust account, the sum of $1,000 by way of costs.
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).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
This matter comes before me today in relation to an Application in a Proceeding filed by the wife on 29 August 2023. By that application, of significance, the wife seeks orders that fall into two categories: firstly, she seeks an order staying the terms of an order made on 20 July 2023 (amended 11 September 2023) and secondly, she sought orders by way of discovery of certain documents.
The application itself sits in a wider context of there being extant proceedings before the Court pursuant to s 79A of the Family Law Act 1975 (Cth) (‘the Act’). The substantive proceedings have not yet been listed for trial and are due to be mentioned before the primary judge on 6 November 2023. Be that as it may, the matter has come before me in circumstances where an application was filed which led to the orders that I made on 20 July 2023 which are now the subject of the stay application (Curtain & Curtain (No 2) [2023] FedCFamC1F 661).
BACKGROUND
The order that was made on 20 July 2023 was an order directed to the preservation of assets. I do not propose to set out the orders made that day in full, but the order to which the present application relates is Order 3, which provides as follows:
3. Notwithstanding paragraph 1.4, upon providing not less than 30 days written notice to the Applicant’s solicitors, the Respondent *Husband may sell up to 500,000 units held by him in the [AG Trust] ON CONDITION that the net proceeds of any such sale, or sales, be utilised entirely in payment down of the [AH Bank] mortgage held in the name of [E Trust] (or any subsequent mortgage or mortgages against the “[TT]” property), and/or in payment of any amounts of personal taxation liabilities of the Respondent *Husband to the Australian Taxation Office that pre-date 2016.
The effect of order 3 of 20 July 2023 is that it carved out a provision for the husband to pay down certain debts, despite the terms of the injunctions made at orders 1 and 2 of the orders made that day.
Following the making of that order, the wife filed the present Application in a Proceeding on 29 August 2023. She did so seeking a stay because - my words, not hers - from her perspective, there was a lack of clarity as to the husband’s financial circumstances, not least of which because, from her perspective, the information that he had made available to her had been opaque and apparently contradictory. But secondly, he had not provided full and complete discovery.
The husband may well take a different view to the wife’s interpretation of events. In fact, I am sure he does. Whatever the case may be, however, the matter came before me for hearing of that application, the husband having filed a response on 1 September 2023.
The matter has been before me several times since the application was filed. Firstly, on 1 September 2023 when the matter was adjourned to 5 September 2023. At the hearing on 5 September 2023, the matter was again adjourned to hearing on 21 September 2023. At that hearing, argument proceeded. However, during the course of argument, the parties, who are both represented by experienced counsel, were able to broker an agreement for the purposes of that hearing. That agreement is reflected in the orders that were made that day:
1.That by consent during the period of the adjournment only, paragraph 3 of the orders of 20 July 2023 be stayed.
2.That forthwith the husband do provide disclosure of the following:
a.The refinance of the [AH Bank] mortgage secured against the property commonly known as [TT property] and particularly described as the land in Certificates of Title Register Book Volume […] Folios […], […] and […];
b.Financial statements for the Belmonte Family Trust for the financial years ending 2022 and 2023;
c.All documents and advice relating to any accounting and/or taxation advice pertaining to the sale and/or transfer of any units in the [AG Trust] including but not limited to any sale of such shares and transfer into the husband’s self-managed superannuation fund.
3.That the proceedings be adjourned for further consideration to 10.00am on 18 October 2023 with such hearing to be conducted on a face-to face basis.
DISCUSSION
The effect of the orders, as acknowledged by counsel for the husband today, was that there was to be a stay of order 3 made on 20 July 2023 and that the husband would provide discovery, with a view to the parties having some further negotiations to either resolve the Application in a Proceeding and/or for the matter to be argued fully today, being the adjourned date of 18 October 2023.
Significantly, Order 2 made on 21 September 2023 required the husband to forthwith provide disclosure of three categories of documents. For reasons which have been identified during the course of submissions, although are perplexing, the discovery ordered to occur forthwith on 21 September 2023 in fact only occurred shortly after 1.30 pm yesterday, 17 October 2023, despite a request being made by the wife’s solicitors on 3 October 2023 for fulsome discovery to be made. I pause here to mention that on 20 September 2023, the day prior to the last hearing, the husband’s solicitors sent a list of documents to the wife’s solicitors, and it is that list about which a request for production was made on 3 October 2023.
The orders, however, made on 21 September 2023, I am told by counsel for the wife, may well go beyond the list of discovery that was provided by the husband’s solicitors on 20 September 2023. Whatever the case may be, however, there is a stark reality that the husband did not comply in a timely way with the orders made on 21 September 2023. How it could be possibly said that production of documents less than half a day prior to a hearing affords the wife any procedural fairness to enable her to consider the material, her legal representatives to do so and to take legal advice and formulate a position for the purposes of today’s hearing simply defies logic.
From my perspective, there has been a complete discourtesy to the court and to the wife and her legal representatives, leaving aside that there has not been compliance with the orders, given the discovery did not occur forthwith from the making of those orders on 21 September 2023.
As a consequence of the same, it is the wife’s position today that the application and today’s hearing should be adjourned. That is a position that I expressed a preliminary favourable view to, partway through submissions by the wife’s counsel.
Counsel for the husband does not consent to the adjournment on behalf of his client and nor does he consent to a continuation of the stay made by Order 1 on 21 September 2023. In making those submissions, the husband’s counsel’s submits that the consent given on 21 September 2023 to the stay being ordered should not be assumed to exist today.
However, in circumstances where the orders made on 21 September 2023 were made on the basis of a regime of fulsome discovery to enable the wife to consider whether she pressed her application or not, it is difficult to understand why an adjournment and a continuation of the stay during the period of the adjournment is opposed.
I accept that submissions have been made on behalf of the husband that, if the stay continues, there may well be some financial consequences including the dissipation of assets under his control. However, it strikes me that the reasons that the matter is unable to proceed today is because, at the husband’s end, there was not compliance with the orders made on 21 September 2023. Whether that is an issue of the husband’s making or not, the reality is compliance occurred yesterday; almost a month after the order was made. The husband, as a result, has put the wife in a difficult position today.
In all of the circumstances, while I am alive to the submissions that have been made on behalf of the husband and while I have no view as to whether the stay should be made, permanently or not, for today's purposes, at least, I am satisfied, given all that has transpired to date, that there should be a continuation of the stay until the matter can return for further hearing.
In terms of where the matter proceeds from here, as I indicated at the outset, the matter is only being dealt with by me at this juncture because the primary judge has been unavailable to hear the matter, due to ill health. However, the primary judge has the matter listed before her on 6 November 2023.
In circumstances where the matter is listed before the primary judge in a little over a fortnight’s time, it strikes me that any further consideration of this application should be dealt with by the primary judge.
I accordingly, propose to adjourn the matter to that day, and make an order for the stay to continue until such time that the primary judge lists the application in a proceeding of 29 August 2023 for hearing.
I am alive to the fact that I have also been told that there may well be an application made at the wife’s end for the primary judge to be disqualified from hearing the matter. If that application is made, and if the primary judge accedes to that application, then the matter will likely return to me.
UNDERTAKING AS TO DAMAGES
The husband has asked the court to direct the wife to provide an undertaking as to damages in the event that there is to be a further continuation of the stay order.
I decline to make any order as to the wife providing an undertaking as to damages. I decline to do so despite being cognisant that the parties are embroiled in s 79A proceedings to set aside final orders previously made by the court to resolve the question of property settlement between them.
I decline to make that order at this juncture, in circumstances where for the reasons I have already identified, it may well have been that the wife would not have pursued her application today, but for the late compliance at the husband’s end with the orders made on the last occasion.
I make it clear that I am not foreclosing the possibility of making such an order when the application is ultimately heard and determined. However, for today's purposes, in circumstances where the reasons for the adjournment are of the husband's making, I do not consider it appropriate to make such an order today.
COSTS
I now turn to the question of costs. An oral application has been made at the wife’s end today for costs thrown away in relation to today's hearing. The application appears to largely be grounded in those factors set out in s 117(2A) of the Act and in particular, s 117(2A)(c) the conduct of the parties to the proceedings, but also, s 117(2A)(e), whether a party to the proceedings has been wholly unsuccessful.
On any view, the husband’s opposition to the adjournment application today has been wholly unsuccessful. More importantly, I am cognisant that the reason that the adjournment application has been made is in circumstances where the conduct of the husband has been less than courteous, for all of the reasons that I have already identified relating to discovery order.
The financial circumstances of the parties have been well canvassed in previous reasons, including those that I delivered when I made the orders in July 2023.
Weighing all of the relevant factors together and understanding that no one factor is determinative of any costs application, it is my view that on balance, an order for costs thrown away should be made today.
The quantum that has been sought by the wife is an amount of $1,200. It is not calculated, to my mind, with any real reference to Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’). I am mindful that in any event, the court, under the rules, has the power to fix the amount of costs to be paid, if it is minded to make an order for costs.
Understanding that an affidavit was filed yesterday at the wife’s end, to advise the court as to that which had transpired during the period of the adjournment so far as the husband’s lack of compliance with the orders made on the last occasion and in addition, that counsel has attended today with his instructor and the matter has proceeded to full argument of over an hour and 20 minutes today, it is my view that the quantum of costs be fixed in the amount of $1,000.
For all of those reasons, I make an additional order for costs.
NOTE:
These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 20 October 2023
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