Minchin & Curnock - [2025] FedCFamC2F 212

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Minchin & Curnock [2025] FedCFamC2F 212

File number(s): PAC 6018 of 2022

Judgment of: JUDGE NEWBRUN

Date of judgment: 20 February 2025

Catchwords: FAMILY LAW – PROPERTY – Application for interim sale of property – application dismissed.

Cases cited: Fraser & Fraser [2013] FamCA 843

Division: Division 2 Family Law

Number of paragraphs: 29

Date of hearing: 14 February 2025

Place: Parramatta

Counsel for the Applicant: Mr Gardener

Solicitor for the Applicant: Monardo Legal

Counsel for the Respondent: Mr Havenstein

Solicitor for the Respondent: Hogg and Associates
ORDERS

PAC 6018 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MINCHIN

Applicant

AND:
MS CURNOCK

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

20 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The husband’s Application in a Proceeding filed 18 November 2024 is 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).
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 been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN

This is the determination of the husband’s Application in a Proceeding filed 18 November 2024 seeking interim property settlement. One amendment was sought by the husband to that Application: that in lieu of an interim property settlement of 35 per cent to each of the parties from the net sale proceeds of their former matrimonial home at Suburb B, he sought that each party rather receive $150,000 from such proceeds.
The wife opposes such interim property settlement.
A final property hearing has been set down for these proceedings and is to be held on 14 May 2025 (two days), being only some three months away.
On 24 May 2023, by consent, the court made both interim parenting and property orders, inter alia, that the parties’ two children live with the mother, that pending the sale of the former matrimonial home at Suburb B the wife have the sole right to occupy that property to the exclusion of the husband, that the property at Suburb C be sold, and an interim distribution of $125,000 to each of the husband and wife occur.
On 13 February 2024, by consent, the court made orders on a final basis in relation to parenting, inter alia, that the children live with the mother.
The husband relied upon:

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 Minchin & Curnock

Details

AGLC: Minchin & Curnock [2025] FedCFamC2F 212
Case: [2025] FedCFamC2F 212
Decision Date: 20 February 2025

CaseChat Overview and Summary

In the matter of Minchin & Curnock, the Federal Circuit and Family Court of Australia was tasked with determining an application for the interim sale of a property. The applicant, Mr Minchin, sought to sell the family home, which was still subject to property settlement proceedings, to address his financial difficulties. The respondent, Ms Curnock, opposed the application on the grounds that it was premature and would prejudice her interests in the property.

The central legal issue before the court was whether the application for the interim sale of the family home should be granted, given the ongoing property settlement proceedings. The court had to consider whether the applicant's financial difficulties warranted an exception to the general rule that property should not be sold during the pendency of property settlement proceedings. The court also needed to assess whether granting the application would unjustly prejudice the respondent’s interests.

Judge Newbrun dismissed the application, finding that the applicant had not provided sufficient evidence to demonstrate that the sale was necessary or that it would not prejudice the respondent. The judge concluded that the application was premature, as the property settlement proceedings were still in their early stages. Furthermore, the court found that the respondent’s opposition was well-founded and that allowing the sale at that juncture would unfairly disadvantage her. Consequently, the court denied the application for the interim sale of the property. The dismissal of the application means that the property will remain subject to the ongoing settlement proceedings.

Orders

Orders of the court

PAC 6018 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MINCHIN

Applicant

AND:

MS CURNOCK

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

20 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The husband’s Application in a Proceeding filed 18 November 2024 is 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).

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

Full text does not contain this section.

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):	PAC 6018 of 2022
Judgment of:	JUDGE NEWBRUN
Date of judgment:	20 February 2025
Catchwords:	FAMILY LAW – PROPERTY – Application for interim sale of property – application dismissed.
Cases cited:	Fraser & Fraser [2013] FamCA 843
Division:	Division 2 Family Law
Number of paragraphs:	29
Date of hearing:	14 February 2025
Place:	Parramatta
Counsel for the Applicant:	Mr Gardener
Solicitor for the Applicant:	Monardo Legal
Counsel for the Respondent:	Mr Havenstein
Solicitor for the Respondent:	Hogg and Associates

PAC 6018 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MINCHIN Applicant
AND:	MS CURNOCK Respondent

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	20 FEBRUARY 2025