Minchin & Curnock
[2025] FedCFamC2F 212
•20 February 2025
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:
(a)His Application in a Proceeding filed 18 November 2024;
(b)His affidavit in support filed 13 November 2024;
(c)His Financial Statement filed 4 September 2024;
(d)His Case Outline (Interim Hearing) filed 10 February 2025; and
(e)Joint balance sheet (Exhibit B).
The wife relied upon:
(a)Her Response to an Application in a Proceeding filed 28 January 2025;
(b)Her affidavit in support filed 28 January 2025;
(c)Her tender bundle of documents (Exhibit A);
(d)Her Case Outline (Interim Hearing) filed 13 February 2025.
As to the husband’s proposed interim property settlement, the Court now refers to relevant legal principle.
In Fraser & Fraser [2013] FamCA 843, Foster J stated, inter alia:
39.The circumstances in which the Court can make interim property Orders are well settled (Strahan & Strahan(Interim property Orders) [2009] FamCAFC 166).
40.In Marchant [2012] FamCAFC 181 the Full Court considered the principles in the following terms at [24]-[28]:
In Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (“Strahan”), the Full Court (Boland, Thackray and O’Ryan JJ) undertook a comprehensive review of the authorities and identified relevant principles and guidelines to be followed in respect of interim property Orders pursuant to ss 79 and 80(1)(h) of the Act.
It follows from the joint judgment of Boland and O’Ryan JJ in Strahan that there are two stages to the hearing of such an application and that the first question on an application for such an Order is whether the Court should exercise its discretion to entertain the application. Whilst it is not necessary for an applicant to establish compelling circumstances for that question to receive an affirmative answer, it is necessary to establish that it would be appropriate for the Court to exercise the power and the, “...overarching consideration...” as to appropriateness is the interests of justice. Recognising that in the context of s 79 proceedings, the interests of justice will usually be best served by one single and final determination of property Orders, it will not be appropriate to exercise the power merely because, on such a final determination, the applicant would receive the interim property sought or in excess of that sought.
We think it is important to highlight that whilst the discussion of the first question in the joint judgment in Strahan includes examples, including by reference to other cases, where the appropriateness criteria would be met, there was no attempt to define or exhaustively identify those circumstances or categories of cases meeting that criteria. That is understandable, given the discretionary nature of the adjudication involved and the wide range and variety of circumstances presented from case to case, so that any such attempt would likely prove to be futile. Nevertheless, the joint judgment in Strahan emphasised both the importance of the interests of justice normally being served by a single and final determination of s 79 Orders and that establishing only that the applicant’s ultimate entitlement would cover or exceed the interim claim was not sufficient, on its own, to establish that the application ought be entertained.
It also follows from Strahan that if the first question is answered affirmatively, and the second or substantive stage is reached, because the jurisdiction under s 79 of the Act is being exercised, the provisions of that section must be considered and applied, but with limitations given that it is not the final hearing ([135]). As their Honours Boland and O’Ryan JJ noted at [136], because the discretion conferred by the power in s 79 is to make such Order as the Court considers appropriate, provided it is just and equitable to make the Order in circumstances where the power will not be exhausted by the interim Order, the interim Order must be capable of variation or reversal without resort to s 79A of the Act or appeal, and must be capable of alteration at any time prior to, or as part of, a final exercise of the s 79 power.
However, if it is established that it is likely that the applicant would only be receiving what he or she was entitled to receive when the power was exhausted, that would be sufficient to enable the Order sought to be made ([137]).
In the determination of the husband’s application for interim property settlement, the Court has had regard to the above legal principles.
The joint balance sheet, viewed from the wife’s contentions in that balance sheet, indicate that the net assets excluding superannuation are about $1,788,417 (the parties’ contended addbacks relating to previous interim property distributions of $250,000 have not been included).
The parties married in 2011 and separated in July 2021. There were two children of the relationship aged 11 and 8 years. Parenting orders provide for those children to live with the wife and spend 5 nights per fortnight and holiday time with the husband.
The wife asserts that at the commencement of cohabitation she owned a property at Suburb C with the net value of about $320,000. This property was sold in mid-2023, and each party received an interim distribution of $125,000 each, a total of $100,000 was placed into a joint interest-bearing bank account, and a total of $132,756 was paid towards the mortgage loan on the parties’ former matrimonial home at Suburb B.
The Suburb B property was purchased in 2011 for approximately $850,000. A loan was taken out with D Bank for $693,000. The wife asserts that equity in the Suburb C property of about $80,000 was used to assist in the purchase, and her mother advanced about $80,000. The husband asserts that thereafter his income usually paid for the mortgage loan repayments. He ceased those repayments in about early 2023 when he was no longer able to do so. He asserts that the mortgage loan is now being paid down through some of the proceeds of the sale of the Suburb C property.
The husband asserts that in about August 2012 he received about $185,000 relating to the sale of a property at Suburb E and he paid that amount into the wife’s bank account with the intention that would be used to pay the mortgage loan on Suburb B and other expenses. The wife asserts, in this context, inter alia, that she applied some of those funds in her bank account to the husband’s tax and credit card debts before applying $60,000 to reduce the joint mortgage loan over Suburb B.
During the relationship the husband worked as a professional however he did suffer periods of being unable to work after a medical diagnosis in 2016. When the husband was incapacitated the wife asserts that she cared for him, carried out the household work, and cared for the children.
During the relationship, the wife asserts that she was the primary carer of the children and attended to the majority of household chores. She also asserts that she worked at various times during the relationship on a part-time basis and contributed her income towards the parties’ living expenses.
Post-separation, the wife and children continued to reside in the Suburb B property. The husband has been living with his mother.
The wife is aged 48 years, and the husband is aged 58 years.
By reference to the above legal principles, the husband has not persuaded the Court that it will be appropriate and in the interests of justice to entertain his application for orders for interim property settlement.
Firstly, the husband asserts that he is experiencing financial distress.
The husband has not persuaded the Court that he is experiencing such present financial distress that the Court should conclude that it is now appropriate and in the interests of justice that his application be entertained, again noting that the final hearing is only three months away.
In this regard the Court refers to the husband’s assertions in paragraphs 44 to 53 of his affidavit, and to his Financial Statement. In terms of the husband’s total average weekly income and total personal expenditure, his total average weekly income, according to his Financial Statement, is about $683. His total weekly personal expenditure, according to his Financial Statement, is about $536, however when one adds his asserted additional expenditure for insurances and electricity (see his affidavit paragraph 47), on a weekly basis, about $137 per week, his total weekly personal expenditure comes to about $673. Thus, his total weekly personal expenditure does not exceed his total average weekly income.
Secondly, turning to the husband’s assertions relating to his alleged debts, he asserts that he does not have the funds to pay off these debts. As to his alleged ATO tax debt, $96,137, the wife asserts that the husband’s disclosure regarding these taxation liabilities does not make clear the basis of those liabilities. The wife contests this liability is a matrimonial debt in the joint balance sheet. The wife asserts, in relation to the husband’s alleged debt of $50,000 to his mother that the husband’s side has not provided any loan agreement between the husband and his mother or disclosed any statements of account for his mother; the wife contests this alleged debt in the joint balance sheet. As to his assertions that there are outstanding school fees of $6,900, by reference to the wife’s tender bundle, Exhibit A, the school fee debt was paid off about one week ago.
In any event, observing that the final property hearing is only three months away, the husband has not adduced sufficient evidence to persuade the Court that there is some relevant necessity or urgency to presently pay off his asserted debts, in particular the asserted credit card debt of $10,329, the asserted ATO tax debt of $96,137, and the asserted loan debt to his mother of $50,000. For example, there is no relevant evidence from the husband’s bank regarding the credit card debt, nor evidence from the ATO or his mother, regarding any necessity or urgency to presently pay off the asserted debts.
Thirdly, again observing that the final property hearing is only three months away, the wife contends that should the husband’s interim property settlement application be now granted, by about the time that the final property hearing is due to commence in mid-May 2025, she will be effectively required to obtain temporary accommodation for herself and the children. She contends that any funds needed to be expended to obtain and maintain such temporary accommodation will compromise her financial ability to later purchase real estate accommodation for herself and the children, noting that she will likely receive a significant sum of money from the final determination of the property proceedings. She also alludes to seeking to avoid having to potentially rehouse the children twice this year – for the first time if the Suburb B property is now sold on an interim basis with the wife being required to find temporary accommodation, and for the second time after a final property hearing when the wife would seek to purchase real estate to house herself and the children. There is force to these contentions of the wife. In this context, the wife had stated in her affidavit filed 28 January 2025 as follows:
55.I am concerned that [Mr Minchin] seeks to sell the [Suburb B] property as it is the children's home. The [Suburb B] property has provided stability for the children's living arrangements throughout these family law proceedings. I am concerned that if the [Suburb B] property is sold prior to the conclusion of the matter and to the determination of the final distribution between [Mr Minchin] and I, it will result in me having to find temporary accommodation for the children and I, with the consequence of me expending a significant amount of those funds on that temporary accommodation. I ultimately wish to use the distribution I would receive at final property settlement on reaccommodating the children and I in the [same] local government area. I wish to remain as close as practicable to the children's schools, extracurricular activities and the life we have enjoyed in the area. I wish to minimise as much as possible the disruption to their young lives. The sale of the [Suburb B] property on an interim basis places in jeopardy this plan in at least two ways. Firstly, I am concerned that if I spend money accommodating the children and I in temporary housing that I will expend some of the capital that I would otherwise use to purchase a new home for the children and me. I have been looking at [properties] with three bedrooms in the […] local government area, and from my research I believe that I will be able to find something suitable in the vicinity of $1.6-1.7 million plus purchasing costs. If I am successful in my application before the Court, I believe this will be achievable. If I am compelled to spend money on temporary accommodation, then that opportunity is likely to fall away.
56.Secondly, I am concerned about the implications for the children needing to relocate on multiple occasions, and the instability that will cause for them. If the [Suburb B] property is sold on an interim basis, the children may be faced with relocating to temporary accommodation until we are in a position to relocate to more permanent accommodation when the matter is heard on a final basis. [X] is starting high school this year, and I fervently hope that I only need to move her accommodation once this year.
The husband had submitted, in relation to the wife’s above contention that if the Suburb B property is now sold on an interim basis she will be compelled to spend money on temporary accommodation which may well prejudice her aspirations to purchase certain real estate, that it was most unlikely that at a final property hearing the wife would receive sufficient funds to enable her to purchase a home for $1.6 to $1.7 million (see paragraph 55 above the wife’s affidavit). However, the Court would still infer from the wife’s evidence, and it is a matter of common sense in any event, that the wife may well still wish to purchase real estate to house herself and the children if she was financially unable to purchase a home for $1.6 to $1.7 million.
Hypothesising the result of a final property hearing, in many respects, on one view, the parties’ marital partnership involved, for a significant part of the relationship, the husband working as the breadwinner for the family and the wife primarily caring for the children and household, albeit with assistance from the husband in these latter respects. The wife made a separate significant financial contribution through the provision of a significant part of the net proceeds of sale from the Suburb C property to the parties’ assets (about $483,000). The husband asserts that he separately contributed about $180,000 to the parties’ assets from the sale of a property. Later, it would appear that following the husband’s unfortunate medical diagnoses and related incapacity, the wife was required to both care for the husband at times and carry out childcare and household work significantly alone. The wife has the primary care of the children with the husband spending time with them. Accordingly, and acknowledging some imprecision in this exercise, the wife may well achieve a final property order for at least 50 per cent. 50 per cent of $1,788,417 is about $894,208. Accordingly, should the wife receive such sum at a final hearing, it cannot be clearly ruled out that the wife will be able to afford to purchase some form of real estate accommodation for herself and the children in her preferred local government area.
Having regard to the above discussions, the Court will make an order dismissing the husband’s application accordingly.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 20 February 2025
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