Legal Research
Cases
Carlson and Carlson

Carlson and Carlson

Case [2020] FamCA 108 26 February 2020

Type to search within this case.

FAMILY COURT OF AUSTRALIA

CARLSON & CARLSON

[2020] FamCA 108

FAMILY LAW – APPLICATION – CONTEMPT – Sentencing – Where interim property orders were previously made, including an injunction restraining the husband from dealing with assets of corporations he controlled without him giving written notice to the wife – Where the wife alleges six counts of the husband failing to comply with the injunction – Where a breach of the injunction is capable of sanction under Part XIIIB of the Family Law Act 1975 (Cth) – Where each count alleges the husband’s contempt pursuant to s 112AP(1)(b) of the Family Law Act 1975 (Cth) – Where the husband relied on ss 90 and 137 of the Evidence Act 1995 (Cth) to contend admissions made by him in the course of proceedings were not admissible in evidence against him – Where the husband has previously been sanctioned for breaching orders without reasonable excuse – Where the Court is satisfied the husband had knowledge of the existence, content and meaning of the orders – Where six counts of contempt are proved – Where the husband is sentenced to concurrent terms of imprisonment, but the sentences are conditionally suspended – Costs reserved.

Crimes Act 1914 (Cth) Pt IB
Evidence Act 1995 (Cth) ss 90, 135, 137

Family Law Act 1975 (Cth) Pts VIII, XIIB, ss 112AA, 112AP

Family Law Rules 2004 (Cth) r 21.08

Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 14^th edition, 2019)

Abduramanoski and Abduramanoska (2005) FLC 93-215
Ascot Investments Pty Ltd and Harper and Harper (No.3) (1982) FLC 91-253
Burke v LFOT Pty Ltd (2002) 209 CLR 282
Carlson & Carlson [2015] FamCA 708
Cummings and Cummings (1976) FLC 90-100
Fauna Holdings Pty Ltd and Mitchell (No 2) (2000) FLC 93-053
G v H (1994) 181 CLR 387
Hay & Hay (1998) FLC 92-819
Ibbotson and Wincen (1994) FLC 92-496
Keehan & Keehan [2019] FamCAFC 250
Kendling and Kendling (Contempt) (2008) FLC 93-384
Little v The Queen [2018] NSWCCA 63
McClintock & Levier (2009) FLC 93-401
McGillivray v Piper, A, CEO of the Ministry of Justice (2000) FLC 93-046
Mead & Mead (2007) FLC 93-327
Oakley & Millar [2019] FamCAFC 12
Olbrich v The Queen (1999) 199 CLR 270
Papakosmas v The Queen (1999) 196 CLR 297
Re Colina; ex parte Torney (1999) 200 CLR 386
Sahari and Sahari (1976) FLC 90-086
Schwarzkopff and Schwarzkopff (1992) FLC 92-303
Tate and Tate (2002) FLC 93-107
The Queen v Olbrich (1999) 199 CLR 270
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Weissensteiner v The Queen (1993) 178 CLR 217
Witham & Holloway (1995) 183 CLR 525

APPLICANT:

Ms Carlson

RESPONDENT:

Mr Carlson

FILE NUMBER:

NCC

1538

2015

DATE DELIVERED:

26 February 2020

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

13 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Duane

SOLICITOR FOR THE APPLICANT:

Rankin Ellison Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bithrey

SOLICITOR FOR THE RESPONDENT:

Gillard Family Lawyers

Orders

In…

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 Carlson and Carlson

Details

AGLC: Carlson and Carlson [2020] FamCA 108
Case: [2020] FamCA 108
Decision Date: 26 February 2020

CaseChat Overview and Summary

In the matter of *Carlson and Carlson*, Austin J of the Family Court of Australia considered an application by the wife for contempt against the husband. The dispute concerned the husband's alleged breaches of court orders made under the *Family Law Act 1975* (Cth).

The primary legal issue before the court was whether the husband had committed contempt of court by failing to comply with existing orders. The court was required to determine the nature and extent of any breaches and, if found proven, to consider appropriate sanctions.

Austin J found the husband guilty of six counts of contempt. In sentencing, his Honour applied principles of contempt law, noting the importance of upholding court orders. The husband was sentenced to concurrent terms of three months imprisonment for each proven count. However, these sentences were suspended on the condition that the husband fully complied with all existing and future orders made under the *Family Law Act 1975* (Cth) until the parties' claims for relief under Part VIII of that Act were completely fulfilled. The wife's costs in relation to the contempt application were reserved for 28 days.

Orders

Orders of the court

In respect of each of the six counts of contempt contained within the Application-Contempt filed by the applicant wife on 5 December 2018, which are found proven, the respondent husband is sentenced to imprisonment for concurrent terms of three (3) months, and such sentences are:

(a) suspended until the orders finally made by the Family Court of Australia to determine the parties’ claims for relief under Part VIII of the Family Law Act 1975 (Cth) are completely fulfilled;

(b) upon the condition that the husband, from now until the expiration of the suspension period, complies with all existing and future orders made between the parties under the Family Law Act 1975 (Cth).

The wife’s costs in respect of the Application-Contempt filed on 5 December 2018 are reserved for 28 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.

Citations

AGLC Citation

Carlson and Carlson [2020] FamCA 108

Most Recent Citation

Pitman & Hynes [2024] FedCFamC2F 22

Cases citing this decision · 2 of 2 shown

Pitman & Hynes
[2024] FedCFamC2F 22 Para 47

…In Carlson & Carlson [2020] FamCA 108 at paragraphs 9 – 11, the legal principles which apply were summarised as follows: Any finding of contempt is reserved for those cases in which all other legitimate methods of enforcement have been exhausted and the subject conduct amounts to a challenge to the administration o…
Jingyi & Chao (No 2)
[2023] FedCFamC1F 700 Para 4

…In Carlson & Carlson [2020] FamCA 108, the legal principles which apply to such forms of alleged contempt were summarised as follows: 9.Any finding of contempt is reserved for those cases in which all other legitimate methods of enforcement have been exhausted and the subject conduct amounts to a challenge to the a…

View all 2 citing cases →

Cases cited in this decision · 12 of 12 shown

Keehan v Keehan
[2019] FamCAFC 250 Para 9

…encourage his future compliance with orders, deter him from acting in contempt again, and to deter others from contemptuous conduct ( Keehan & Keehan [2019] FamCAFC 250 at [23]; Oakley & Millar at [45]; McClintock & Levier (2009) FLC 93-401 at [150]-[151]).…
Oakley & Millar
[2019] FamCAFC 12 Para 5

…y (1995) 183 CLR 525; Tate and Tate (2002) FLC 93-107 (“ Tate and Tate ”); Mead & Mead (2007) FLC 93-327 (“ Mead & Mead ”); Oakley & Millar [2019] FamCAFC 12 (“ Oakley & Millar ”) at [30]).…
Little v R
[2018] NSWCCA 63 Para 6

…use the ultimate decision is really a process of “intuitive synthesis” of relevant objective and subjective considerations ( Little v The Queen [2018] NSWCCA 63 at [47]). Every case has unique circumstances.…
CARLSON & CARLSON
[2015] FamCA 708 Para 4

…estraints imposed upon the husband by the orders made on 12 August 2015 were premised on findings made by Cleary J in these terms ( Carlson & Carlson [2015] FamCA 708): … 42.The evidence of the [husband] is that he has, without reference to the [wife], recently sold an Asset 1 for $39,500 and an Asset 2 for $9,200.…
Burke v LFOT Pty Ltd
[2002] HCA 17 Para 10

…produced and the power of the other to have contradicted (see Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454; Burke v LFOT Pty Ltd (2002) 209 CLR 282 at 330). The husband must have reasonably anticipated his alleged motive for transferring IS’s assets would have been the subject of challenge, since h…
Vetter v Lake Macquarie City Council
[2001] HCA 12 Para 10

…proof which is in the power of one side to have produced and the power of the other to have contradicted (see Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454; Burke v LFOT Pty Ltd (2002) 209 CLR 282 at 330). The husband must have reasonably anticipated his alleged motive for transferring IS’s assets w…
R v Olbrich
[1999] HCA 54

…) FLC 93-401 McGillivray v Piper, A, CEO of the Ministry of Justice (2000) FLC 93-046 Mead & Mead (2007) FLC 93-327 Oakley & Millar [2019] FamCAFC 12 Olbrich v The Queen (1999) 199 CLR 270 Papakosmas v The Queen (1999) 196 CLR 297 Re Colina; ex parte Torney (1999) 200 CLR 386 Sahari and Sahari (1976) FLC 90-086 Schwarzkopff…
Papakosmas v The Queen
[1999] HCA 37 Para 1

…. The “danger” contemplated is the misuse of the evidence in some way which would prejudice the husband unfairly ( Papakosmas v The Queen (1999) 196 CLR 297 at [91]).…
Witham v Holloway
[1995] HCA 3 Para 5

…elements of the contempt allegations, including the husband’s knowledge of both the terms and the meaning of the breached order ( Witham v Holloway (1995) 183 CLR 525; Tate and Tate (2002) FLC 93-107 (“ Tate and Tate ”); Mead & Mead (2007) FLC 93-327 (“ Mead & Mead ”); Oakley & Millar [2019] FamCAFC 12 (“ Oakley & Mi…
G v H
[1994] HCA 48 Para 5

…his decision not to give evidence, which imputation is not available ( Weissensteiner v The Queen (1993) 178 CLR 217 at 223-228, 235-236; G v H (1994) 181 CLR 387 at [22]; Mead & Mead at [13]).…
Weissensteiner v The Queen
[1993] HCA 65 Para 5

…is open, and simply imputing his guilt due to his decision not to give evidence, which imputation is not available ( Weissensteiner v The Queen (1993) 178 CLR 217 at 223-228, 235-236; G v H (1994) 181 CLR 387 at [22]; Mead & Mead at [13]).…
The Queen v Olbrich
[1999] HCA 5418 Para 10

…reasons. I have proceeded on the basis that the husband’s evidence in purported mitigation need only meet the lower civil standard of proof ( The Queen v Olbrich (1999) 199 CLR 270).…

Legislation cited in this decision · 4

Evidence Act 1995 (Cth)
135, 137, 90 4 mentions (from Para 5)
Family Law Rules 2004 (Cth)
14, 21.08 4 mentions (from Para 6)
Crimes Act 1914 (Cth)
1 mention (from Para 2)
Family Law Act 1975 (Cth)
1 mention (from Para 1)