FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Curtain & Curtain (No 4) [2024] FedCFamC1F 348
File number(s): ADC 4409 of 2013 Judgment of: MEAD J Date of judgment: 4 June 2024 Catchwords: FAMILY LAW – PROPERTY – Application under s79A – application by the wife seeking to set aside orders made in 2016 – allegation husband failed to disclose financial information before the 2016 trial – wife’s position that had the information been disclosed there would have been a substantially different result in the 2016 proceedings – where the husband seeks the 2016 orders remain as final order and that the wife’s application be dismissed – where it is the husband’s position that at the time of the 2016 trial the wife was aware of the husband’s interest in a trust and that it had no discernible value – where a particular document the wife seeks to be produced had been in her possession from shortly after separation to date of trial – finding that neither party disclosed – no basis for finding miscarriage of justice. Legislation: Family Law Act 1975, ss 79, 79A, 79A(1)(a) Cases cited: Barker & Barker [2007] FamCA 13
Bigg v Suzi (1998) FLC 92-799
Curtain & Curtain [2016] FamCA 577
Curtain & Curtain [2018] FamCA 769
Curtain & Curtain [2019] FamCA 919
Curtain & Curtain [2022] FedCFamC1A 134
Curtain & Curtain [2022] FedCFamC1F 186
Riley & Pateman [2000] FamCA 1296
Suiker & Suiker (1993) FLC 92-436
Division: Division 1 First Instance Number of paragraphs: 215 Date of hearing: 2–5 April 2024 & 8-12 April 2024 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:
MEAD J
DATE OF ORDER:
4 JUNE 2024
THE COURT ORDERS THAT:
1.The wife’s Initiating Application filed herein on 29 November 2017 as amended on 8 May 2020 be dismissed.
2.The response to Initiating Application filed herein by the husband on 13 February 2018 be dismissed.
3.All extant applications be otherwise dismissed save as to 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has…
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CaseChat Overview and Summary
In the matter of Curtain & Curtain (No 4), the applicant, Ms Curtain, sought to set aside property settlement orders made by Justice Berman in 2016, arguing that her former husband, Mr Curtain, had failed to disclose certain financial information prior to and at the time of the trial. Ms Curtain contended that had the undisclosed information, which included the husband’s potential interest in a trust and payments made to a third party, been known, the outcome of the 2016 proceedings would have been substantially different. In contrast, Mr Curtain argued that the orders should remain as they were, and that the application to set them aside should be dismissed. Specifically, he asserted that at the time of the 2016 trial, Ms Curtain was already aware of his interest in the trust, which he believed to have no discernible value at that time. Additionally, he claimed that a specific document sought by Ms Curtain had been in her possession from shortly after the separation until the date of trial.
The court was required to determine whether Mr Curtain had indeed failed to disclose relevant information, and if such failure constituted a miscarriage of justice warranting the setting aside of the 2016 orders. The legal issues encompassed whether the non-disclosure of the husband’s interest in the trust and the payments to Ms YY were material, and if so, whether these omissions significantly impacted the outcome of the 2016 proceedings.
The court found that there was no intentional suppression or failure to disclose information concerning the husband’s interest in the trust, as the wife was already aware of the potential interest prior to separation. The court further found that at the time of the 2016 trial, no interest in the trust had been assigned to the husband, and he genuinely believed that any such interest had minimal or no value. Additionally, the court was not satisfied that the husband had intentionally suppressed or failed to disclose information regarding payments made to Ms YY or the revetment invoice issues. Given these findings, the court concluded that there was no basis for setting aside the 2016 orders, and dismissed the wife’s application.
The court made an order dismissing the wife’s initiating application filed on 29 November 2017, as amended on 8 May 2020. It also dismissed the husband’s response to the initiating application filed on 13 February 2018. All other extant applications were dismissed, except for the matter of costs. The form of the order is subject to the entry in the Court’s records and may be subject to review or variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The court was required to determine whether Mr Curtain had indeed failed to disclose relevant information, and if such failure constituted a miscarriage of justice warranting the setting aside of the 2016 orders. The legal issues encompassed whether the non-disclosure of the husband’s interest in the trust and the payments to Ms YY were material, and if so, whether these omissions significantly impacted the outcome of the 2016 proceedings.
The court found that there was no intentional suppression or failure to disclose information concerning the husband’s interest in the trust, as the wife was already aware of the potential interest prior to separation. The court further found that at the time of the 2016 trial, no interest in the trust had been assigned to the husband, and he genuinely believed that any such interest had minimal or no value. Additionally, the court was not satisfied that the husband had intentionally suppressed or failed to disclose information regarding payments made to Ms YY or the revetment invoice issues. Given these findings, the court concluded that there was no basis for setting aside the 2016 orders, and dismissed the wife’s application.
The court made an order dismissing the wife’s initiating application filed on 29 November 2017, as amended on 8 May 2020. It also dismissed the husband’s response to the initiating application filed on 13 February 2018. All other extant applications were dismissed, except for the matter of costs. The form of the order is subject to the entry in the Court’s records and may be subject to review or variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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:
MEAD J
DATE OF ORDER:
4 JUNE 2024
THE COURT ORDERS THAT:
1. The wife’s Initiating Application filed herein on 29 November 2017 as amended on 8 May 2020 be dismissed.
2. The response to Initiating Application filed herein by the husband on 13 February 2018 be dismissed.
3. All extant applications be otherwise dismissed save as to 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
It was the primary position of the husband at the conclusion of the trial that the orders made by the Honourable Justice Berman on 15 July 2016 (as amended 26 July 2016) should not be disturbed or set aside and that the wife’s application should be dismissed. In the alternative it was submitted on his behalf that the court should find that the wife made no contribution to the funds ultimately recovered by the husband from W Pty Ltd resulting in an outcome whereby the orders of Berman J are preserved in their existing state. BACKGROUND The wife and the husband are both aged 60 years of age. They commenced a relationship in 1983, married in 1988 and separated in November 2011. The parties remained living under the same roof from time to time until the wife left the family home with their four children in January 2013 to live in Adelaide.[5] Their four adult children are now aged 30, 25, 23 and 21.[5] Curtain & Curtain [2016] FamCA 577, 12. At the time the trial commenced the wife deposed to being employed as a health professional, with an average weekly income of $2,165 inclusive of wages, bank interest, superannuation contributions and a “[…]” fringe benefit. The wife was living alone.[6][6] Wife’s financial statement filed 27 February 2024, Part D & E. At the time of trial the husband deposed to being employed as a manager by AL Pty Ltd with total average weekly income of $2,691. That amount was comprised of wages and investment income. He was living alone.[7][7] Husband’s financial statement filed 22 March 2024, Part D & E. The nub of the dispute in these proceedings was whether the husband had failed in his duty to disclosure to the wife and to the court prior to or at the time of trial before Berman J in April 2016 a letter dated 18 February 2013 setting out the true nature of his employment with W Pty Ltd and the benefits to which he was entitled in Q Trust arising from that employment. In addition it was the wife’s case that neither prior to the 2016 trial nor at the time of trial did the husband disclose that W Pty Ltd was indebted to E Pty Ltd for work carried out but not invoiced prior to the date of trial and further, that he made no disclosure of having paid various sums to a Ms YY between the date of separation and date of trial. It was the wife’s case that had all relevant information regarding those matters been disclosed by the husband prior to trial the outcome would have been significantly different than that determined by Berman J. It was the husband’s position that from sometime after January 2013 when the wife left the former matrimonial home and at least by 1 December 2014 the wife was aware that by correspondence to him from W Pty Ltd dated 18 February 2013 he had received an offer of employment in the following terms:Good Morning [Mr Curtain],This letter is to confirm the intention upon your employment with [W Pty Ltd] to issue you or your nominee with 20% equity in the [Q Trust] by way of an Issue of Units in the Trust. At the time of your commencement of employment, these Units will issue as well as your election to the board of the company.Further it is the intention of the [W Group] to issue you with a 20% carrying equity in any future [Transport] Facility entity subject to your performance as set out in your employment contract.Please contact me any time if you have further requirements and or questions.Kind regards[Mr NN][8]and had a copy of that document.[8] Wife’s book of documents filed 28 March 2024, Item 7 p.51.
Evidence
Evidence Before The Court
It was of significant concern that by the time the trial commenced before me on 2 April 2024 the parties combined legal costs totalled just under $800,000.PARTIES EVIDENCE AT TRIAL The wife relied on the following documents at trial, namely:·Wife’s Amended Initiating Application filed 8 May 2020;·Wife’s trial affidavit filed 28 February 2024; ·Wife’s Responsive trial affidavit 2 April 2024; and·Wife’s Financial statement filed 27 February 2024. The husband relied upon the following documents at trial, namely:·Response to Initiating Application 13 February 2018;·Husband’s trial affidavit filed 25 March 2024;·Husband Financial Statement filed 22 March 2024;·Affidavit of Mr AJ filed on 21 Match 2024; and·Affidavit of Mr AK filed 28 March 2024. Both parties were cross examined at trial as were the husband’s witnesses Mr AJ and Mr AK. Both parties tendered books of discovered documents to which no objection was taken. In addition, various exhibits were tendered.ORDERS SOUGHT BY THE PARTIES AT TRIAL At the conclusion of trial the wife sought the following orders, set out in an email to Associate to Justice Mead on 12 April 2024 4:17pm. 1.That pursuant to s79A(1)(a) the Order made by Justice Berman on 26/7/16 be set aside.2.That by way of settlement of property or alteration of interests in property:a.the husband do transfer or cause to be transferred to the wife, with the wife to discharge the Westpac mortgage, the following real property (free from all encumbrances):i.the land and improvements thereon situated at Section … in [Region AF] commonly known as “[Suburb TT] Property” being the whole of the land described in Certificate of Title Register Books Volume … Folio …, Volume … Folio …, and Volume … Folio … (the property of [E Trust]);ii.the land and improvements thereon situated at sections … and … in [Region AF] commonly known as “[M Property]” and being the whole of the land described in Certificates of Title Register Books Volume … Folio … and Volume … Folio … (the property of [Mr Curtain] Family Trust);b.by way of superannuation split [Curtain Pty Ltd] as trustee of [Mr Curtain] Superannuation Fund do transfer to a superannuation fund nominated by the wife the interest of the fund in the land and improvements thereon commonly known as “[N Property]” situated at section … [Region AF] and being the whole of the land described in Certificate of Title Register Book Volume … Folio …;c.the wife do have as her sole property and free from any claim right or entitlement of the husband:i.the land and improvements situated at [F Street], [Suburb G] being the land described in Certificate of Title Register Book Volume … Folio …;ii.[agricultural] plant and equipment employed in the conduct of the [agricultural] enterprise of the parties; iii.all other personally presently in her possession;iv.the items of personalty identified at paragraph 218 of judgment of Berman J dated 15/7/16 (still in the husband’s possession); d.within 30 days of the compliance by the husband in respect to paragraphs 2(a) and (b), there be a financial adjustment between the parties by a payment from the wife to the husband in the amount of $1,079,797.50 representing an equal distribution of the net value of the property pool (“the settlement sum”).3.That in default of payment by the wife to the husband of the settlement sum and such default continuing for the period of 60 days then all, or part thereof, of the real property the subject of the order be sold, with liberty to the husband to participate in the sale process at his election, and the settlement sum (in addition to such interest arising pursuant to the Family Law Act and Court Rules) to be paid from such sale. 4.That the husband pay the wife’s costs on an indemnity basis.
Decision
Reasons for decision
I also expressed concern as to whether the wife ever provided a copy of the letter to the husband from W Pty Ltd dated 18 February 2013 to her solicitors or counsel. I make no finding in that regard but note the wife was represented throughout almost the entirety of the litigation save as for the actual trial before Berman J in April 2016, by extremely experienced solicitors and counsel. Notwithstanding the numerous notes to which I have referred in these reasons there is no reference in any of them to the existence of or terms of that particular correspondence which in the circumstances of this case is unusual.CONCLUSION For those reasons I find that the wife has not satisfied the court that the husband either intentionally supressed or failed to disclose information regarding his potential interest in Q Trust in that the existence of the potential interest in that entity was known to the wife prior to separation, and the wife was aware of the detailed offer forwarded to the husband on 28 December 2012 which was in the terms of the letter of offer to him dated 18 February 2013. I further find that at the time of trial in April 2016 no interest in Q Trust had been assigned to him and he genuinely believed in the event that any such interest was ever assigned to him it had minimal or no value. I note that the only evidence before this court in April 2024 as to the possible value of the husband’s interest as of April/May/June 2016, in light of the facts and circumstances at that time, was not discernible in that there was no discernible value in the proposed Town J commercial facility.[55][55] Valuation of Mr Curtain’s interest in the commercial facility at Town J dated 27 March 2024, paragraphs 5.102 & 5.103. I find that the wife was not misled as to the circumstances of the husband’s interest in Q Trust at the time of trial. I am not satisfied that the husband intentionally suppressed or failed to disclose information concerning payments made to Ms YY in 2014/2015 or that he supressed or failed to disclose relevant information concerning the revetment invoice issues on 6 May 2016. In the event that I am mistaken in that regard I find the remarks referred to earlier herein in paragraph 18 of these reasons from Barker’s Case namely:…Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed…[56]are opposite to this matter as regards both of those issues.[56] Barker & Barker [2007] FamCA 13 at [123]. In closing I express my serious concern about the costs incurred by both parties in these proceedings. I find the observation and finding of His Honor Justice Berman contained in paragraph 125 of his reasons delivered on 15 June 2016 apposite to the conduct of the wife during these proceedings namely:…her conduct could only be described as recalcitrant and it was clear both by her actions but also exemplified by a level of bravado when giving evidence that she did not feel she should be criticised…
Ratio Decidendi
Legal Principle Established
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