Carlson & Carlson

Case [2019] FamCAFC 245

FAMILY COURT OF AUSTRALIA

CARLSON & CARLSON [2019] FamCAFC 245

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Valuation of the parties’ assets and liabilities – Where there was insufficient disclosure made at the time of final hearing before the trial judge – Where the respondent wife also had access to all financial records with respect to the family trust – Where the trial judge’s reasons do not explain findings about the parties’ respective entitlements – Where the reasons also do not explain whether an adjustment with respect to ss 79(4) and 75(2) of the Family Law Act 1975 (Cth) was appropriate – Where there is no consideration as to whether the orders made were just and equitable – Appeal allowed.

FAMILY LAW – APPEAL – COSTS – Where the appeal has succeeded on a point of law – Where no order for costs is appropriate – Costs certificates issued for the appeal and the rehearing.
Family Law Act 1975 (Cth) ss 75(2), 79(4)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Chapman & Chapman (2014) FLC 93-592; [2014] FamCAFC 91
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
APPELLANT: Mr Carlson
RESPONDENT: Mrs Carlson

INDEPENDENT CHILDREN’S 

LAWYER:

 Legal Aid NSW
(did not participate)
FILE NUMBER: NCC 1538 of 2015
APPEAL NUMBER: EA 89 of 2018
DATE DELIVERED: 17 December 2019
PLACE DELIVERED: Melbourne
PLACE HEARD: Sydney
JUDGMENT OF: Alstergren CJ, Strickland & Austin JJ
HEARING DATE: 8 April 2019
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 7 June 2018
LOWER COURT MNC: [2018] FamCA 466

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Kearney SC
SOLICITOR FOR THE APPELLANT: Muggletons
COUNSEL FOR THE RESPONDENT: Mr Page QC with Mr Duane of counsel
SOLICITOR FOR THE RESPONDENT: Rankin Ellison Lawyers

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

 Legal Aid NSW Newcastle Family Law (did not participate)

Orders

  1. The appeal be allowed.

  2. Orders 17-24 inclusive made on 7 June 2018 be set aside.

  3. The parties’ respective applications for orders pursuant to Part VIII of the Family Law Act 1975 (Cth) be remitted and transferred to the Sydney registry for re-hearing by a judge other than the trial judge.

  4. The appellant husband is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.

  5. The respondent wife is granted a costs certificate pursuant to the provisions of


    s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that,…

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AGLC
Carlson & Carlson [2019] FamCAFC 245
Case
[2019] FamCAFC 245
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Carlson & Carlson dealt with a dispute between a husband and wife concerning the valuation of their assets and liabilities for property settlement purposes. The wife appealed the trial judge's findings and orders regarding their respective entitlements and the appropriateness of certain adjustments under the Family Law Act 1975 (Cth). The primary issue before the court was whether the trial judge's reasons for determining the entitlements and adjustments were adequate, transparent, and consistent with the principles of justice and equity. The court also had to consider whether the orders made were appropriate and if the trial judge had properly exercised his discretion.

The court found that the trial judge's reasons were insufficient and lacked clarity in explaining the findings about the parties' respective entitlements and the adjustments made. The trial judge did not address whether an adjustment under sections 79(4) and 75(2) of the Family Law Act was appropriate, and there was no consideration of whether the orders made were just and equitable. The court concluded that the appeal should be allowed due to the inadequacy of the reasons provided by the trial judge. Consequently, the orders made by the trial judge were set aside, and the parties' applications for orders were remitted and transferred to the Sydney registry for re-hearing by a different judge. The court also issued costs certificates for both the appeal and the rehearing, pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

The final orders of the court were to allow the appeal, set aside the orders made by the trial judge, remit and transfer the parties' applications for re-hearing, and issue costs certificates for the appeal and the rehearing. The costs certificates were granted to the appellant husband for the appeal, to the respondent wife for the appeal, and to both parties for the rehearing. These orders were subject to the entry of the order in the Court's records.

Orders

Orders of the court

1.

The appeal be allowed.

2.

Orders 17-24 inclusive made on 7 June 2018 be set aside.

3.

The parties’ respective applications for orders pursuant to Part VIII of the Family Law Act 1975 (Cth) be remitted and transferred to the Sydney registry for re-hearing by a judge other than the trial judge.

4.

The appellant husband is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.

5.

The respondent wife is granted a costs certificate pursuant to the provisions of

s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.

6.

The appellant husband and the respondent wife are granted costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the parties in respect of the costs incurred by them in relation to the re-hearing.

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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