Carlson and Carlson (No. 2)

[2018] FamCA 622

FAMILY COURT OF AUSTRALIA

CARLSON & CARLSON (NO. 2) [2018] FamCA 622

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Application for stay pending determination of parenting and property appeal – Where the children are teenagers and have lived with their mother since separation – Where long term parental decisions are settled – Where the wife offered no opposition to a reduction of the restraint on the husband from coming more than 50 metres from the family home - Whether the appeal would be rendered nugatory if a stay were not to be granted – Where the husband has not complied with orders relating to the discharge of mortgages secured on the family home – Where the husband does not agree to pay down debt from monies held on behalf of the parties for preservation of assets – Where hardship will be caused to the wife if stay is granted - Where the husband should not benefit from non-compliance – Application for stay dismissed – Where further orders made.

Family Law Act (Cth) 1975
Family Law Rules 2004 (Cth)

Trahn & Long (No.2) [2008] FamCAFC 194

APPLICANT: Mr Carlson

RESPONDENT: Ms Carlson

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 1538 of 2015

DATE DELIVERED: 17 August 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 9 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Shearston

COUNSEL FOR THE RESPONDENT: Mr Duane

SOLICITOR FOR THE RESPONDENT: Rankin Ellison Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The application for a stay filed 11 July 2018 is refused, and dismissed subject to the following further orders.

2. Order 10 of the orders of 7 June 2018 (“the orders”) is varied to read:

   Mr Carlson is restrained by injunction from approaching within 30 metres of the property at H Street, Suburb G (“the property”).

1. The wife is restrained pending the hearing and determination of the appeal of the husband from taking the following steps, or any of them, in relation to the property:

a)Selling the property;

b)Transferring an interest in the property to a third party;

c)Using the property to secure further debt by way of mortgage.

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 (No. 2) 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).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1538 of 2015

Mr Carlson

Applicant

And

Ms Carlson

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 11 July 2018 by Mr Carlson, whom I will refer to as the husband.  The application is for a stay of certain orders delivered on 7 June 2018.  The husband was the applicant in the substantive proceedings which involved disputes about both property and parenting.

2. The husband lodged an appeal on 4 July 2018.  There is a procedural hearing scheduled for 21 August 2018.  The appeal is likely to be heard and determined in 2019. 

3. The stay is opposed by the respondent, Ms Carlson, whom I will refer to as the wife.

4. Submissions were made on behalf of the wife in terms of her willingness to accept certain conditions to the refusal or granting of a stay.

5. The Independent Children's Lawyer filed in Court a Submitting Notice which advised that the Independent Children’s Lawyer submits to any order the Court may make in the proceeding.  The Independent Children’s Lawyer was thereafter excused.

Evidence

1. The documents relied on in the application are as follows: 

Applicant Husband:

a)Application in a Case filed 11/07/2018;

b)Affidavit of the husband, Mr Carlson, filed 11/07/2018;

c)Notice of Appeal filed by the husband 4/07/2018;

d)Judgment in the substantive proceedings dated 7/06/2018;

Respondent Wife:

e)Response to an Application in a Case filed 2/08/2018;

f)Affidavit of the wife, Ms Carlson, filed 8/08/2018;

g)Affidavit of the wife, Ms Carlson, filed 2/08/2018;

h)Outline of submissions of wife;

Independent Children’s Lawyer:

i)Submitting Notice.

Granting of Stay

1. A stay is not granted lightly. Rule 22.11 of the Family Law Rules 2004 only requires that the judge who heard the substantive proceedings, if at all possible, hear the stay and that the Court exercise discretion.   

2. The onus of establishing that a stay should be granted rests with the applicant for the stay

3. There are factors arising from authorities summarised in the decision of Trahn & Long (No.2) [2008] FamCAFC 194 (11 December 2008) which will be taken into account.

Parenting Orders Under Appeal-

1. All parenting orders are appealed.

2. Of the orders sought to be stayed, two relate to parenting.[1]

   [1] Orders 2 and 3

3. They are an order that the wife have sole parental responsibility and that the wife notify the husband of decisions she makes in that role about major long-term decisions for the children.

4. There is also a restraint by injunction on the husband from approaching within 50 metres of the property which was the former matrimonial home at Suburb G.[2]

   [2] Order 10

5. The grounds of appeal (1 to 6) in this area have very little substance.  They involve bald statements that reasons were inadequate, that insufficient weight was given to the evidence, and that there was error in conclusion about parental responsibility.  There are two identical grounds relating to the failure of the trial judge to disqualify herself at the conclusion of the trial.

6. I take into account the age of the children, 16 and 14, and that they have lived with their mother since separation of the parties four years ago.  The long-term parental responsibility decisions are settled in this matter.

7. In her affidavit of 2 August 2018, the wife commits herself to maintaining the children at their current high school, not attempting to influence their religious affiliation, and noting that there are no current health issues for either of the children. 

8. On that basis, I decline a stay of the relevant parenting orders and consider that the wife’s evidence is sufficient protection for the husband in that regard.

9. In relation to the restraint, the wife offered no opposition to a reduction of the restraint on the husband from coming more than 50 metres from the family home to not coming within 30 metres.  This is to meet the husband’s stated wish to visit his sister, who lives in the same street, without fear of breach of current orders.

10. The husband coming to the family home without consent has been a contentious issue in this case. It is something which has adversely affected the children and should not be stayed lightly.  An order will be made incorporating the concession of the wife. 

Property Orders

1. All property orders are appealed against (Orders 17 to 24) and all are the subject of the Stay application. 

2. The grounds of appeal in this area are also without much substance.  There is a complaint made about deficiencies in the Balance Sheet and analysis of the financial position of the parties.  The husband both failed to make adequate disclosure of his financial position and failed to comply with orders for disclosure and preparation of valuation.

3. Attempts during the course of the trial to rectify deficiencies in evidence of the husband were unsuccessful.[3]  In particular, the husband, through his counsel, had forcefully submitted both:  (1) that the husband did not seek an adjournment of the proceedings, (2) that the husband should be able to rely on reports, affidavits and other documents which had remained unserved until the trial had commenced. 

   [3] Reasons for Judgment delivered 7/06/2018, paras 7-15

4. The second relevant consideration is hardship.    There are debts secured on the family home by way of mortgage relating to the corporate entities run by the husband.  The orders provide for the discharge of those mortgages by the husband and for him to indemnify the wife.  The husband has not done so.  He resists doing so until his appeal has been determined.  He is not meeting mortgage payments.

5. The wife has received correspondence from the mortgagee bank, as the husband has also.  Those documents contain notice of future action by the mortgagee in respect of outstanding debt. 

6. Fees and interest are accruing on the mortgage debt.  The wife has now received correspondence from the ANZ Bank by way of notice of determination and demand for repayment in full of debts.[4]  

   [4] Affidavit of the wife filed 8/08/2018, Annexures

7. It is not in dispute that the trustee for sale of joint property of the parties is holding $421,000 on trust in the joint names of the parties.[5]  The husband has declined to respond to the correspondence from the wife’s solicitors proposing to use those funds to pay down debt.[6]

   [5] Affidavit of the wife filed 8/08/2018, par 32

   [6] Affidavit of the wife filed 8/08/2018, par 33

8. The wife has done all she can to engage with the husband in this regard.  To pay down debt in this way would see preservation of that asset.  The husband, in my view, should not benefit from his own non-compliance.

9. The preservation of the assets in this matter is of significance in relation to a submission that the appeal will be rendered nugatory in the event that the funds held in trust are applied to debt.

10. The wife is entitled to the fruits of the judgment, and it is likely that the house itself could be sold or at least diminished as to the equity by the accrual of ongoing unpaid mortgage debt.

11. There is $24,310 in costs orders owed by the husband to the wife.  Those costs orders remain unpaid.

12. The husband has not paid child support since July 2016 and has declined to do so since that time.

13. Land and water rates in relation to the former family home are accruing. 

14. The wife, through her counsel, expressed her willingness to accept restraints on the sale or transfer of the family home property which will ensure the preservation of the asset. An order will be made to that effect.

15. I conclude that there is insufficient evidence to explain the husband’s failure to comply to agree to pay down debt. 

16. Hardship to the wife in terms of erosion of her equity in the home is the factor to which I give significant weight.

17. Orders are made accordingly.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 17 August 2018.

Associate: 

Date:  17 August 2017