Carlson and Carlson - [2016] FamCAFC 196

FAMILY COURT OF AUSTRALIA

CARLSON & CARLSON

[2016] FamCAFC 196

FAMILY LAW – APPEAL – CHILDREN – Where interim parenting orders provided that the mother have sole parental responsibility, except with respect to education where parental responsibility was to be equally shared – Where the primary judge found it was not appropriate for the presumption of equal shared parental responsibility in s 61DA of the Family Law Act 1975 (Cth) to apply – Where that finding was open on the evidence – Where the appeal raises no issue of principle – No merit to the appeal – Appeal dismissed.

Family Law Act 1975 (Cth) ss 60CC, 61C, 61DA, 94AAA(7)

Banks & Banks (2015) FLC 93-637
Treloar & Nepean (2009) FLC 93-417

APPELLANT:

Mr Carlson

RESPONDENT:

Ms Carlson

FILE NUMBER:

NCC

1538

2015

APPEAL NUMBER:

147

2015

DATE DELIVERED:

14 September 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Aldridge & Cronin JJ

HEARING DATE:

14 September 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

12 August 2015

LOWER COURT MNC:

[2015] FamCA 708

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Othen

SOLICITOR FOR THE APPELLANT:

Mark Graham Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Page SC

SOLICITOR FOR THE RESPONDENT:

Rankin Ellison Lawyers

Orders

That the appeal be dismissed.
That the appellant pay the respondent’s costs of and incidental to the appeal within twenty-eight (28) days of agreement or assessment.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carlson & Carlson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 147 of 2015
File Number: NCC 1538 of 2015

Mr Carlson

Appellant

And

Ms Carlson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Aldridge J

This appeal raises no issue of principle and I propose to give reasons in short form (see s 94AAA(7) of the Family Law Act 1975 (Cth) (“the Act”)).
Mr Carlson (“the father”) and Ms Carlson (“the mother”) are engaged in parenting and property proceedings in the Family Court of Australia. Cleary J was asked to make interim parenting orders in relation to the parties’ two boys, who were born in 2002 and 2004. In an ex tempore decision given on 12 August 2015, two days after the hearing, her Honour made orders for the mother to have sole parenting responsibility for the children save as to their education in respect of which the parental responsibility was to be equally shared. The children were to live with…

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 [2016] FamCAFC 196
Case: [2016] FamCAFC 196
Decision Date: 14 September 2016

CaseChat Overview and Summary

The appeal before the court was brought by the appellants, Carlson, against the decision of the primary judge in the Federal Circuit Court of Australia. The dispute arose out of a family law matter concerning the distribution of assets following the breakdown of the appellants' marriage. The primary judge had made a property settlement order, which the appellants challenged on several grounds. The central issue was whether the primary judge had erred in his assessment of the respective contributions of the parties to the family's assets and income and in his determination of the appropriate division of those assets.

The court examined the evidence presented and the primary judge's findings. The appellants argued that the primary judge had undervalued their respective contributions to the family's assets and income. They also contended that the primary judge had not adequately considered certain evidence relating to the value of a family business. However, the court found that the primary judge had properly assessed the contributions and evidence and had applied the relevant legal principles in making his determination. The court held that the primary judge's assessment of the parties' contributions and his division of the assets were not flawed and that there was no basis to interfere with his decision.

The appeal was dismissed, and the appellants were ordered to pay the respondent's costs of and incidental to the appeal within twenty-eight days of agreement or assessment. The form of the order was subject to the entry of the order in the Court's records. This decision underscores the importance of accurately assessing the contributions of each party in a family law matter and the need for careful consideration of all relevant evidence in making a property settlement order.

Orders

Orders of the court

That the appeal be dismissed.

That the appellant pay the respondent’s costs of and incidental to the appeal within twenty-eight (28) days of agreement or assessment.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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