CARLSON & CARLSON - [2015] FamCA 708

FAMILY COURT OF AUSTRALIA

CARLSON & CARLSON

[2015] FamCA 708

FAMILY LAW – CHILDREN – Interlocutory Application – Best Interests – Parental Responsibility – Children to live with the mother – Children to spend time with the father each alternate weekend – Father otherwise restrained from approaching the mother or the children – Mother to have sole parental responsibility, except for education, in which the parties are to have shared parental responsibility

FAMILY LAW – PROPERTY SETTLEMENT – Husband cause to be paid to the wife the sum of $25,000, such sum to be characterised on the making of final orders – Certain restraints placed on the husband – Wife’s application for spousal maintenance dismissed – Husband to meet the mortgage and rate payments on the former matrimonial home, where the mother and children will again reside

FAMILY LAW – PRACTICE & PROCEDURE – Review of a Registrar’s Decision – Application dismissed

Family Law Act 1975 (Cth), ss 61DA

Goode & Goode (2006) FLC 93-286

APPLICANT:

Mr Carlson

RESPONDENT:

Ms Carlson

FILE NUMBER:

NCC

1538

2015

DATE DELIVERED:

12 August 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

10 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levick

SOLICITOR FOR THE APPLICANT:

Mark Graham Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Duane

SOLICITOR FOR THE RESPONDENT:

Rankin Ellison Lawyers

Orders

Parenting Orders

That the children B born … 2002 (“B”) and C born … 2004 (“C”) (together known as “the children”) live with the mother.
That the parties have equal shared parental responsibility for the education of the children, and for all other long term decisions the mother shall have sole parental responsibility for the children.
The parties shall forthwith do all acts and things to ensure the immediate return of the children to their respective schools namely D School, Suburb E and F School, Suburb G and thereafter each is restrained from changing the enrolment of the children or either of them (other than for progression to High School by C) without the prior written consent of the other or Order of the court.
That the children spend time with the father each alternate weekend from Friday after school until Sunday 5.00 pm with the father to collect the children from school at the commencement of the period and cause a family member or known family friend to return the children to the home of the mother at the conclusion of the period time to commence on the second weekend after the mother and children have re-occupied the home pursuant to Order 5.
Within 14 days the husband must vacate the property situate at and known as H Street, Suburb G, and thereafter the wife have exclusive occupancy of the property with the children.
Mr Carlson is restrained by injunction from approaching Ms Carlson or the children B born … 2002 and C born … 2004 except in accordance with these Orders and is restrained from attending the property at H Street, Suburb…

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 [2015] FamCA 708
Case: [2015] FamCA 708
Decision Date: 12 August 2015

CaseChat Overview and Summary

This matter concerned an interlocutory application in family law proceedings between Mr Carlson (the husband) and Ms Carlson (the wife). The dispute involved parenting arrangements for the parties' two children, B and C, and property settlement issues. The court was required to review a Registrar's decision.

The court was asked to determine the best interests of the children, including where they should live and the allocation of parental responsibility. It also needed to address property settlement, including an interim payment to the wife and specific financial obligations of the husband concerning the former matrimonial home and company assets. The wife's application for spousal maintenance and a review of a Registrar's decision were also before the court.

Cleary J made orders that the children live with the mother, with shared parental responsibility for their education and sole parental responsibility for other long-term decisions. The father was to have time with the children on alternate weekends and was restrained from approaching the mother or children except as permitted by the orders. The husband was ordered to vacate the former matrimonial home within 14 days, allowing the wife and children exclusive occupancy, and was to meet the mortgage and rate payments on that property. The husband was also restrained from dealing with his interests in certain companies and trusts without prior written notice to the wife. An interim property payment of $25,000 was ordered to be paid to the wife's solicitors. The wife's application for spousal maintenance and the application for review of the Registrar's decision were dismissed.

Orders

Orders of the court

Parenting Orders

That the children B born … 2002 (“B”) and C born … 2004 (“C”) (together known as “the children”) live with the mother.

That the parties have equal shared parental responsibility for the education of the children, and for all other long term decisions the mother shall have sole parental responsibility for the children.

The parties shall forthwith do all acts and things to ensure the immediate return of the children to their respective schools namely D School, Suburb E and F School, Suburb G and thereafter each is restrained from changing the enrolment of the children or either of them (other than for progression to High School by C) without the prior written consent of the other or Order of the court.

That the children spend time with the father each alternate weekend from Friday after school until Sunday 5.00 pm with the father to collect the children from school at the commencement of the period and cause a family member or known family friend to return the children to the home of the mother at the conclusion of the period time to commence on the second weekend after the mother and children have re-occupied the home pursuant to Order 5.

Within 14 days the husband must vacate the property situate at and known as H Street, Suburb G, and thereafter the wife have exclusive occupancy of the property with the children.

Mr Carlson is restrained by injunction from approaching Ms Carlson or the children B born … 2002 and C born … 2004 except in accordance with these Orders and is restrained from attending the property at H Street, Suburb G.

The husband is restrained by injunction from removing from the property at

H Street, Suburb G, any chattels, furniture, artwork, appliances, linen or other items of property except his own clothes and personal effects.

The husband must do all acts in his capacity as director of I Pty Ltd to cause the company to:

8.1 Permit the wife the use of the 4WD motor vehicle in the possession of the wife;

8.2 Ensure that the vehicle is kept registered and insured and all registration fees, insurance premiums and other amounts necessary to comply with this Order are paid as and when they fall due;

8.3 Permit the wife to use the fuel card in the wife’s possession and that the accounts attached to that card are paid as and when they fall due;

8.4 OR in the alternative to Order 8.1 the husband shall make available to the wife for her exclusive use a motor vehicle of the same or similar make, year and value as the 4WD motor vehicle prior to the company requiring the return of the 4WD motor vehicle if that step is to be taken by I Pty Ltd.

The husband is restrained from transferring, encumbering, or otherwise dealing with his 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 ...

10.

The husband must pay:

10.1 To the Australia and New Zealand Banking Group Limited all periodic payments necessary to service the loans secured by mortgage over the property at H Street, Suburb G, being registered dealings numbered … and …;

10.2 To J Town Council in payment of rates levied on the property as and when same fall due;

10.3 To K Corp in payment of rates levied as and when same fall due.

11.

Each of the parties do all acts and things and sign all documents and the husband cause I Group or I Services to do all acts and things and sign all documents necessary to give effect to these Orders.

12.

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 Section 106A of the Family Law Act to execute such documents on behalf of the defaulting party and that:

12.1 The Registrar do all necessary acts and things to give force and effect to these Orders;

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

Interim property payment

13.

Within 14 days of the date of these Orders the husband cause to be paid to the solicitors for the wife the sum of $25,000.00. Such payment to be characterised on the making of final Orders by way of court determination or agreement of the parties.

Restraints

14.

14.1 That the husband shall give to the wife notice in writing of any intention he forms to take one or more of the following steps:

14.1.1 Altering or in any way causing to be altered the current shareholdings and directorships of I Group Pty Limited (ACN …) (“I Group”) and I Services Pty Limited (ACN …) (“I Services”);

14.1.2 Selling, transferring, mortgaging, encumbering, disposing of or in any way dealing with the shareholdings, loan accounts and other interests of the parties or either of them in I Group and/or I Services, whether held beneficially or on trust;

14.1.3 Resigning or permitting his removal as a director of I Group and/or I Services or either of them;

14.1.4 Appointing or causing to be appointed any other person as a director or officeholder of I Group and/or I Services;

14.1.5 Amending or in any way altering the Memorandum and Articles of Association of the I Group and/or I Services and from issuing any further shares or altering the rights attaching to any shares in those companies or either of them;

14.1.6 Disposing of, transferring, converting, charging, encumbering or otherwise dealing with the assets of either I Group or I Services except in the ordinary course of business and with 7 days written notice of the wife;

14.1.7 Taking any steps to appoint or remove any trustee of any trust in respect of which he exercises a power of appointment;

14.1.8 Causing either I Group or I Services to appoint or remove any trustee of any trust with respect to which either of those entities exercises a power of appointment;

14.1.9 Taking any steps to alter in any way the Deed establishing any trust of which he is a Trustee;

14.1.10 Causing I Group or I Services to alter in any way the Deed establishing any trust of which either I Group or I Services are trustees;

14.1.11 Taking any steps to divest himself of any powers as appointor or guardian of any trust in which he has been appointed as such;

14.1.12 Taking any steps as to alter a trust in which either he, I Group or I Services has power to so effect such an alteration;

14.1.13 Taking any steps to increase the remuneration or expenses paid by I Group or I Services to himself or for his benefit;

14.1.14 Taking any steps to increase the remuneration or expenses paid by I Group, I Services or himself, either in his own right or as a trustee, to third parties whether employed or contracted to any entity over which he exercises control.

14.2 The husband is restrained by injunction for a period of 42 days following the giving of that written notice from taking any such step without the prior written consent of the wife or Order of the court.

Spouse Maintenance

15.

The Application of the wife for spouse maintenance is dismissed.

16.

The Application in a Case filed 19 June 2015 for review of decision of a Registrar is dismissed.

17.

This matter is listed before a Registrar of this Court at 11.30 am on Friday 21 September 2015 for a Case Assessment Conference.

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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