CARLSON & CARLSON - [2018] FamCA 466

FAMILY COURT OF AUSTRALIA

CARLSON & CARLSON

[2018] FamCA 466

FAMILY LAW – CHILDREN – Parental responsibility – Where equal shared parental responsibility is not practical as the parties cannot communicate and agreement on decisions for the best interests of the children is unlikely – Concluded the residential parent should have long term sole parental responsibility – Ordered the mother have sole parental responsibility.

FAMILY LAW – CHILDREN – With whom a child lives – Where real weight is given to both children’s strong preference for living with the mother – Where both parties have the capacity to meet the children’s needs – Where both parents have created pressure and conflict for the children – Ordered the children live with the mother and spend time with the father each alternate weekend with additional time during school holidays.

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where both parties wish to have their property interests separated and adjusted – Where at the commencement of the relationship the father was in a financially stronger position – Where the parties’ contributed equally during the marriage – Where the father did not make full disclosure of his financial position in his trial documents – Ordered the father transfer the mother all his rights in the former matrimonial home – Ordered the parties to cause the wife to be transferred all rights in the motor vehicle in the wife’s possession – Ordered the wife to transfer to the father all her rights in I Group Pty Ltd.

FAMILY LAW – CHILD SUPPORT – Application for departure – Where the father is in arrears of Child Support – Where the mother and the father each makes a departure application where the mother is seeking capitalisation of future payments where the father is seeking discharge of arrears – Ordered the applications of both are dismissed.

Child Support (Assessment) Act 1989 (Cth) s 117
Family Law Act 1975 (Cth), ss 60CC, 64B, 75, 79

Bevan & Bevan [2013] FamCAFC 116
Gyselman & Gyselman (1991) 15 Fam LR 219
Stanford & Stanford (2012) 247 CLR 108

APPLICANT:

Mr Carlson

RESPONDENT:

Ms Carlson

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

1538

2015

DATE DELIVERED:

7 June 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

11 - 14 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Mullane & Lindsay

COUNSEL FOR THE RESPONDENT:

Mr Duane

SOLICITOR FOR THE RESPONDENT:

Rankin Ellison Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

Parenting

That all prior parenting orders in relation to B born … 2002 and C born … 2004 (“the children”) are discharged.
That the mother have sole parental responsibility for making decisions about major long term issues in relation to the children.
That the mother shall advise the father in writing as soon as practicable of decisions she has taken about major long term issues.
That…

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 & CARLSON

Details

AGLC: CARLSON & CARLSON [2018] FamCA 466
Case: [2018] FamCA 466
Decision Date: 7 June 2018

CaseChat Overview and Summary

This case involved a dispute between Mr. Carlson and Mrs. Carlson concerning parenting arrangements for their two children, property settlement, and child support. The court was required to determine the most appropriate parenting orders, considering the children's best interests and the parents' capacity and past conduct. Additionally, the court had to address the division of the parties' property and resolve applications relating to child support arrears and future payments.

The primary legal issues before the court were: firstly, whether equal shared parental responsibility was appropriate given the parties' inability to communicate and reach agreements regarding the children's long-term welfare, and if not, what form of parental responsibility and living arrangements would best serve the children's interests; and secondly, how to achieve a just and equitable property settlement, taking into account the parties' contributions, financial positions, and disclosure issues. The court also considered applications for departure from child support assessments.

Cleary J determined that due to the significant communication breakdown between the parents, equal shared parental responsibility was not practical. The court gave substantial weight to the children's strong preference to live with their mother and ordered that the children live with Mrs. Carlson, with the father to have sole parental responsibility for major long-term decisions, while both parents would share responsibility for day-to-day care. In relation to property, the court ordered the father to transfer his interest in the former matrimonial home to the mother, and the mother to transfer her interest in I Group Pty Ltd to the father, reflecting their contributions and the father's initial financial advantage. Both parties' applications for departure from child support assessments were dismissed.

Orders

Orders of the court

Parenting

That all prior parenting orders in relation to B born … 2002 and C born … 2004 (“the children”) are discharged.

That the mother have sole parental responsibility for making decisions about major long term issues in relation to the children.

That the mother shall advise the father in writing as soon as practicable of decisions she has taken about major long term issues.

That the mother and the father shall each have parental responsibility for making decisions concerning the day to day care, welfare and development of the children when the children are living or staying with a parent pursuant to these orders.

That the children live with the mother.

That the children spend time with the father as follows:

(a) During school terms:

(i) Each alternate weekend from after school Friday until before school Monday.

(b) School holidays – During the school holiday periods at the end of Terms One and Three:

(i) The sequence of alternate weekends when the children spend time with the father pursuant to Order 6(a) is to continue;

(ii) If an alternate weekend falls on a weekend other than the last weekend of the school holidays then the time the children spend with the father will commence at 5.00 pm Friday and conclude 5.00 pm the following Tuesday; and

(iii) If an alternate weekend falls on the last weekend of the school holidays then the time the children spend with the father will commence at 5.00 pm on the prior Wednesday and conclude at 5.00 pm Sunday.

(i) The sequence of alternate weekends is suspended for the whole of the holiday period with the pattern to recommence and continue in Term Three; and the children shall spend time with the father:

A. In 2018 and even years thereafter from 5.00 pm on the last Friday of Term Two to 9.00 am the second Monday thereafter (a period of ten nights); and

B. In 2019 and alternate years thereafter for ten nights concluding at 5.00 pm on the last Sunday before the commencement of Term Three commencing at 5.00 pm on the Thursday ten nights prior.

(d) During the long school holiday period at the end of Term Four each year:

(i) The sequence of alternate weekends when the children spend time with the father is suspended for the whole of the period.

(ii) The children shall spend time with the father:

A. For Christmas in 2019 and each alternate year thereafter from midday 26 December to midday 29 December;

B. In 2018 and each alternate year thereafter from midday 23 December to midday 26 December;

C. For a period of fourteen nights concluding at 5.00 pm on the last Sunday before Term One of the new school year commences and commencing at 5.00 pm on the Sunday fourteen nights prior (for example 5.00 pm Sunday 14 January 2019 to 5.00 pm Sunday 28 January 2019); and

D. In January 2019 and every second year thereafter from 5.00 pm on the first Sunday following after New Year’s Day until the third Sunday thereafter (a period of fourteen nights) (for example 5.00 pm Sunday 6 January 2019 to 5.00 pm Sunday 20 January 2019).

E. If the children are not otherwise spending time with the father on the weekend of Father’s Day then the children spend time with the father from 5.00 pm Saturday until return to school Monday morning on the weekend of Father’s Day.

If the time the children spend with the father pursuant to Order 6 falls on the weekend of Mother’s Day then the time the children spend with the father is to conclude (and the children are to be returned to the mother) at 5.00 pm Saturday on the weekend of Mother’s Day.

Communication

Each parent shall permit the children or either of them to communicate with the other parent at any reasonable time (whether it is the child or the other parent who initiates the contact).

Changeovers

Changeovers which do not take place at the school shall take place at the corner of T Street and H Street, Suburb G with the father sending a text to the mother confirming the arrival of himself or a family member and thereafter the children walking down to meet him (if they are not already at the meeting point at the commencement of a period of time) or walking home at the conclusion of the period.

Restraints

10.

Mr Carlson is restrained by injunction from approaching within 50 metres of the property at H Street, Suburb G.

11.

Each party must ensure that the other party is informed as soon as practical of any serious medical matter involving the children when the children are in their care.

12.

The mother must keep the father informed of the children’s health professionals and must notify the father of any medical procedures and treatments affecting the children; and the father may (at his cost if any) obtain information in relation to the children’s health professionals.

13.

The mother must keep the father informed of the children’s schools; and the father (at his cost) may obtain information (including notices, newsletters, reports, photographs and the like) in relation to the children from the children’s schools.

14.

The parties must not denigrate the other party or members of the other party’s family or friends:

(a) To, or within the hearing of, the children; or

(b) On social media, websites and the like to which the children could have access.

15.

The parties must not discuss these Court proceedings with, or within the hearing of, the children.

Explanation of Orders

16.

That the mother will bring the children to see the Senior Family Consultant (and the Independent Children’s Lawyer if she wishes to be present) in order for the Senior Family Consultant/Independent Children’s Lawyer to explain the orders to the children and to answer any questions which either of them may have.

Property

H Street, Suburb G

17.

Within 35 days the father must:

(a) Do all acts and execute all documents provided by the wife at her expense necessary to transfer to the wife all of his right, title and interest in the property situate at and known as H Street, Suburb G, being the whole of the land contained in Certificate of Title folio identifier …;

(b) Do all acts necessary to cause his parents Mr R Carlson and Mr Q Carlson to withdraw Caveat No. …8B from the title to the property at H Street, Suburb G.

Father’s personal liabilities

18.

Within 35 days the father must:

(a) Do all acts and execute all documents necessary to cause the wife to be released from any liability she may have to the father’s parents Mr R Carlson an Mr Q Carlson or either of them;

(b) Do all acts and execute all documents necessary to cause the wife to be released from all guarantees given by her to the Australia and New Zealand Banking Group Limited in relation to personal liabilities of the father, including but not limited to ANZ Bank account number …12 in the name of Mr Carlson;

(c) Do all acts and execute all documents necessary to cause the wife to be released from any other personal liability of the father.

I Group Pty Ltd

19.

Within 35 days, the parties must do all acts and execute all documents necessary to cause the company I Group Pty Ltd (ACN …) (“I Group”) to transfer to the wife, all its right, title and interest in the 4WD registration number … currently in the wife’s possession.

20.

Immediately following the parties doing all acts referred to in Order 19, the wife must do all acts and things and sign all documents provided by the father at his expenses, as may be required to:

(a) Transfer to the father or his nominee all her right, title and interest in her entire shareholding in I Group;

(b) Cause to be assigned or transferred to the father absolutely all rights, entitlements, claims, actions or demands which the wife may have against the company howsoever arising;

(d) Resign as a beneficiary of the Carlson Family Trust (“the Trust”); and

(e) Cause to be assigned or transferred to the father absolutely all rights, entitlements, claims, actions or demands which the wife may have against the Trust howsoever arising.

21.

At the same time that the wife does all acts referred to in Order 20, the father must:

(a) Do all acts and execute all documents necessary to cause I Group to release the wife from any claim it may have against her;

(b) Do all acts and execute all documents (including if necessary, personally paying all amounts) necessary to cause Australia and New Zealand Banking Group Limited to discharge the mortgages secured over the property at H Street, Suburb G, registered dealing numbers … and …;

(c) Do all acts and execute all documents necessary to cause the wife to be released from all guarantees given by her to the Australia and New Zealand Banking Group Limited in relation to I Group and/or the Trust including but not limited to guarantees given by her in relation to ANZ Bank Account numbers …19 and …82 in the name of I Group Pty Ltd;

(d) Do all acts necessary to cause the wife to be released from any other liability of I Group and/or the Trust whether such liability is past, present or future including any liability the Commissioner of Taxation arising from such shareholding or distributions from the Trust and any liability of the wife to the Australian Securities & Investments Commission and any other Government bodies;

(e) Indemnify the wife and forever thereafter keep her indemnified in respect of any financial liability of the wife arising out of or in relation to I Group and/or the Trust.

U Pty Ltd

22.

Within 35 days the father must:

(a) Do all acts and execute all documents necessary to cause U Pty Ltd (ACN …) to release the wife from any claim it may have against her;

(b) Do all acts and execute all documents necessary to cause the wife to be released from all guarantees given by her to the Australia and New Zealand Banking Group Limited in relations to the company U Pty Ltd including but not limited to guarantees given by her in relation to ANZ Bank Account number …69 in the name of U Pty Ltd;

(c) Do all acts necessary to cause the wife to be released from any other liability of U Pty Ltd whether such liability is past, present or future; and

(d) Indemnify the wife and forever thereafter keep her indemnified in respect of any financial liability of the wife arising out of or in relation to U Pty Ltd.

Other property

23.

Unless otherwise specified in these orders as between the parties:

(a) Each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and

(b) Unless otherwise agreed herein each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

24.

If either party refuses or neglects to sign within 14 days of a written request to do so any documents necessary to put into effect to all or any of the terms of these orders the Registrar of the Newcastle Registry of the Family Court of Australia is appointed pursuant to the provisions of s 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of the defaulting party and that:

(a) The Registrar do all necessary acts and things to give force and effect to these orders; and

(b) The defaulting party pay the costs of the other party on a solicitor/own client basis.

Child Support

25.

The application by the wife pursuant to Division 4 Part 7 of the Child Support (Assessment) Act 1989 [Orders 8 to 12 inclusive] for a departure from current assessment of child support for the children is dismissed.

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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