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

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

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

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…

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 (No. 2)

Details

AGLC: Carlson and Carlson (No. 2) [2018] FamCA 622
Case: [2018] FamCA 622
Decision Date: 17 August 2018

CaseChat Overview and Summary

In the matter of *Carlson and Carlson (No. 2)*, Cleary J considered an application for a stay and made orders concerning property and injunctive relief. The proceedings involved Mr and Mrs Carlson, with the wife seeking to restrain the husband from approaching a specific property, and the husband seeking to appeal earlier orders.

The court was required to determine whether to grant a stay of the earlier orders, and if not, to consider variations to those orders. Specifically, the court had to decide on the appropriate terms of an injunction restraining the husband from approaching the property and to consider interim orders preventing the wife from dealing with the property pending the husband's appeal.

Cleary J refused the application for a stay, but varied the existing orders. The husband was restrained by injunction from approaching within 30 metres of the property. Furthermore, pending the determination of the husband's appeal, the wife was restrained from selling, transferring an interest in, or using the property to secure further debt by way of mortgage.

Orders

Orders of the court

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

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”).

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.

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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