Curtain & Curtain (No 3) - [2023] FedCFamC1F 891

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…

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 3)

Details

AGLC: Curtain & Curtain (No 3) [2023] FedCFamC1F 891
Case: [2023] FedCFamC1F 891
Decision Date: 18 October 2023

CaseChat Overview and Summary

The case of Curtain & Curtain (No 3) involved a dispute between Ms Curtain and Mr Curtain, concerning an application by the wife for an adjournment of the hearing and a continuation of a stay order. The matter came before the Federal Circuit and Family Court of Australia, with the wife seeking an adjournment to allow her to consider the husband’s discovery provided the day prior to the hearing. Additionally, she sought a continuation of the stay of an order that had been stayed by consent at a previous hearing. The husband opposed both the application for an adjournment and the continuation of the stay. The husband also sought an undertaking from the wife regarding damages.

The legal issues before the court included whether the wife's application for an adjournment should be granted, whether the stay order should continue, and what the appropriate costs should be if the husband's opposition to the adjournment application was unsuccessful. The court considered the wife's need for time to review the new discovery and the potential impact of the stay on the proceedings. The court also evaluated the husband's opposition and his request for an undertaking regarding damages.

The court granted the wife's application for an adjournment, finding that the balance of convenience favoured the wife's need to review the new discovery. The court held that the stay of Order 3 made on 20 July 2023 should continue until the substantive hearing of the Application in a Proceeding filed on 29 August 2023. The court rejected the husband's request for an undertaking regarding damages. Given the husband's wholly unsuccessful opposition to the adjournment application, the court awarded him costs of $1,000. The Application in a Proceeding was listed for mention before the Honourable Mead J on 6 November 2023.

The court made orders that Order 3 made on 20 July 2023 be stayed until the substantive hearing of the Application in a Proceeding. The Application in a Proceeding was to be mentioned before the Honourable Mead J on 6 November 2023 at 9.30 am. The husband was required to pay $1,000 in costs within 56 days.

Orders

Orders of the court

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.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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