Carlson & Carlson
[2025] FedCFamC1F 24
•22 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carlson & Carlson [2025] FedCFamC1F 24
File number: SYC 4404 of 2021 Judgment of: SCHONELL J Date of judgment: 22 January 2025 Catchwords: FAMILY LAW – ANTON PILLER ORDER – Ex parte application – Where the wife sought orders on an ex parte basis by way of enforcement of Final Orders – Where the wife believes that the husband may destroy or dispose of various items– Where the wife seeks an Anton Piller order –Where the Court is not satisfied that it is appropriate to make an Anton Piller order – Orders made for the wife to direct service upon the respondent and for the matter to come back to the Court by way of enforcement. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.34(1), 2.34(2), 2.34(3), 5.11, 5.19, 5.19(3)(g), 5.21 Cases cited: Ansah v Ansah [1977] 2 All ER 638
Stowe and Stowe (1981) FLC 91-027; [1980] FamCA 92
Talbot and Talbot (1995) FLC 92-586
Television Broadcasts Ltd and Nyuyen (1988) 21 FCR 34 PMSI Group v Wilson [2003] NSWSC 263
Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 22 January 2025 Place: Sydney Counsel for the Applicant: Mr Francis Solicitor for the Applicant: Alexis Legal The Respondent: No appearance ORDERS
SYC 4404 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CARLSON
Applicant
AND: MR CARLSON
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
22 JANUARY 2025
THE COURT DIRECTS THAT:
1.The wife to file and serve the husband with her Amended Application – Enforcement filed 22 January 2025 together with any further amended application and affidavit by no later than 4.00 pm Tuesday, 28 January 2025.
2.The husband to file and serve any Response and affidavit on which he intends to rely by no later than 4.00 pm Tuesday, 4 March 2025.
3.The wife is to file and serve any affidavit in reply by no later than 4.00 pm Tuesday, 11 March 2025.
4.The matter is fixed for hearing before Senior Judicial Registrar Hayward on Monday, 3 April 2025.
THE COURT NOTES THAT:
A.The Court expects the parties to comply with directions. In the event that the parties do not comply with the directions, then they can assume that the Court will proceed in the absence of that party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carlson & Carlson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
By way of an Amended Application – Enforcement, the wife seeks orders by way of enforcement consequent upon Final Orders made on 29 July 2024.
The application seeks orders that the wife be appointed trustee for sale of a property at B Street, Suburb C (“the property”), exclusive occupation of the property, and that the husband vacate the property. Thereafter, the wife seeks various orders to effect a sale of the property.
In addition, the wife seeks an ‘enforcement officer’ to enter various properties and secure ‘computer equipment’ as well as the ashes of the parties’ deceased child. She also seeks the husband pay her costs and that of an independent solicitor “to be appointed to give effect” to the orders.
The wife’s application has not been served and she seeks to proceed ex parte.
DOCUMENTS RELIED ON
The wife relies on the following documents:
(1)Amended Application – Enforcement filed 22 January 2025;
(2)Affidavit of the wife filed 22 January 2025.
The specific orders the wife seeks are to the following effect:
1.The wife be forthwith appointed as trustee for the sale of the property known as and situate at [B Street, Suburb C], NSW […] being the property more particularly described as Lot […] in DP […] ("the property").
2.The wife be forthwith granted exclusive occupation of the property.
3.Within 28 days of the date of these Orders, the husband vacate the property AND, in the event that the husband fails to do so, the Marshall of this Court be hereby appointed to forthwith remove him from the property and the Australian Federal Police and NSW Police are hereby requested to render such assistance as may be required to give effect to this Order.
4.The wife be permitted to provide the sole instructions to the agent and conveyancer with respect to the sale of the property.
5.Following the departure or removal of the husband from the property, the husband be restrained from approaching within 100 metres of the property or from taking any action to interfere with or delay the sale of the property.
6.The costs of any repairs or maintenance required to the property (as recommended by the selling agent), cleaning of the property, or for the removal of items left in the property by the husband, be paid at first instance by the husband or deducted from his share of the net sale proceeds prior to their distribution pursuant to paragraph 2(d) of the Orders made on 29 July 2024.
7.The amount equivalent to 46.5% of all missed (or partially unpaid) loan repayments of principal and interest on the loans secured by mortgage ordinarily due and payable from May 2024 to the date of the sale of the property be deducted from the husband's share of the net sale proceeds and paid to the wife prior to the distribution of those funds pursuant to paragraph 2(d) of the Orders made on 29 July 2024.
8.An enforcement officer be hereby appointed to forthwith enter the property and/or the husband's new residential address at [D Street, Suburb E], NSW, […], and secure all [computer equipment] contained therein and create a copy of the material referred to in paragraph 4(c) of the Orders made on 29 July 2024 for the provision of same to the wife.
9.The enforcement officer be hereby directed to forthwith enter the property and/or the husband's new residential address at [D Street, Suburb E], NSW, […], and secure [F]'s ashes and deliver same to the wife for the wife to give effect to paragraph 8 of the Orders made on 29 July 2024.
10.The enforcement officer be hereby directed to forthwith enter the property and/or the husband's new residential address at [D Street, Suburb E], NSW, […], and secure the items listed at orders 4(a}(ii} and 4(a}(vi} of the Orders made on 29 Jul~ 2024 and deliver same to the wife for the wife.
11.To prevent the deletion, transfer or disposal of the material and items referred to in paragraphs 7, 8 and 9 herein, this application be initially listed on an urgent, ex parte basis.
12.An enforcement warrant issue forthwith to give effect to these Orders.
13.All expenses or fees payable or paid by the wife to give effect to these Orders be deducted and paid (or reimbursed to the wife) from the husband's share of the net sale proceeds prior to those funds being distributed pursuant to paragraph 2(d) of the Orders made on 29 July 2024.
14.The husband pay the wife's costs of this Application on an indemnity basis, with such sum to be payable out of the husband's share of the net sale proceeds prior to those funds being distributed pursuant to paragraph 2(d) of the Orders made on 29 Jul 2024.
15.The husband pay the costs or fees of the enforcement officer or any independent solicitor(s) appointed to give effect to these Orders on an indemnity basis.
DISPENSING WITH SERVICE AND PROCEEDING EX PARTE
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provide that the Court may proceed without service of an application. In summary, the Rules provide as follows:
(1)Rule 2.34(1) provides that a party who is unable to serve a document may apply, without notice, for an order to dispense with service of the document, with or without conditions.
(2)Rule 2.34(2) provides that when considering an application under r 2.34(1), the Court may have regard to a number of factors including the nature of the proceeding.
(3)Rule 2.34(3) provides that if the Court orders that service of a document is dispensed with, then the document is taken to have been served.
The wife bears the onus of establishing to the satisfaction of the Court that the orders that she seeks should be made without notice to the husband.
The Rules also make provision for what someone in the position of the wife must establish to ground the making of an ex parte order. In that respect, r 5.11 provides:
5.11 Applications without notice
An applicant seeking that an interlocutory order be made without notice to the respondent must:
(a) satisfy the court about why:
(i)shortening the time for service of the application and the fixing of an early date for hearing after service would not be more appropriate; and
(ii) an order should be made without notice to the other party; and
(b)in an affidavit or orally, with the court’s permission, make full and frank disclosure of all the facts relevant to the application, including the following:
(i)whether there is a history or allegation of child abuse or family violence between the parties;
(ii)whether there have been any previous proceedings between the parties and, if so, the nature of the proceedings;
(iii)the particulars of any orders currently in force between the parties;
(iv)whether there has been a breach of a previous order by either party to the proceeding;
(v)whether the respondent or the respondent’s lawyer has been told of the intention to make the application;
(vi)whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made;
(vii)the capacity of the applicant to give an undertaking as to damages;
(viii)the nature of the damage or harm that may result if the order is not made;
(ix)why the order must be urgently made;
(x)the last known address or address for service of the other party.
In Stowe and Stowe (1981) FLC 91-027 (“Stowe”), the Full Court of the then Family Court of Australia made the following observations at 76,258–76,259:
Ex parte orders are dealt with in reg. 42. That regulation makes it clear that ex parte orders are to operate only until a specified time or (as in the present case) until further order of the Court (para. (5)). The Court is empowered to give directions as to the service of the order and the hearing of an application for a further order (para. (6)). Regulation 42 was considered by the Full Court in the case of Sieling (1979) FLC 90-627, where reference was made, with approval, to Ansah (1977) 2 W.L.R. 760. In that case, the Court of Appeal emphasised that if an order was made ex parte it should be limited in time to the shortest possible period which must elapse before a preliminary hearing could be arranged. It is implicit in the decisions of Sieling (supra) and Ansah (supra) that wherever possible short notice of the proceedings should be given to the respondent:
“The general principles are that the Court must be satisfied that the matter is of such urgency that the applicant’s interests (or the interests of the child) can be protected only by an immediate order. It is necessary to balance the likelihood of harm to the applicant against the hardship to the respondent of making an order without hearing him. The more drastic the order the more grave must be the risk to be averted and the more important the requirement that the respondent be heard at the earliest opportunity. An order that a party be excluded from the home or that a child be removed from the custody of a party must be supported by evidence of an imminent risk of such a nature that the Court cannot wail even the period of time necessary for short service.” (Sieling (1979) FLC 90-627 at p. 78,254.)
In those limited circumstances where it is necessary to make an ex parte order, the onus rests upon the applicant for the injunction both at the ex parte stage and at the later hearing of the matter to satisfy the Court that the circumstances justify the making and continuation of the order. This is so irrespective of whether the respondent formally applies to set aside the order. Counsel for the appellant husband submitted – correctly in our view – that the Court's discretion could miscarry if the onus were put upon the respondent to satisfy the Court that the order should be discharged.
Thus, in making an order ex parte, the Court is required to have regard to the nature and imminence of risk of harm.
To proceed in the absence of and without notice to a party is an extraordinary thing for a court to do. The circumstances in which a court does so have in the authorities been variously described as ‘anomalies’ or ‘exceptional’. The Full Court in Stowe as referred to above, cited with approval the observations of the United Kingdom Court of Appeal in Ansah v Ansah [1977] 2 All ER 638. Their Lord Justices’ observations bear repeating, where they stated at 642:
Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party (see Craig v Kanseen [1943] 1 KB 256 at 262). Nonetheless, the power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately. Such circumstances do undoubtedly tend to occur more frequently in family disputes than in other types of litigation … but even in such cases the court should only act ex parte in an emergency when the interests of justice or the protection of the applicant or a child clearly demands immediate intervention by the courts. Such cases should be extremely rare … Circumstances, of course, may arise when prior notice cannot be given to the other side; for example, cases where one parent has disappeared with the children, or a spouse, usually the wife, is so frightened of the other spouse that some protection must be provided against a violent response to service of proceedings, but the court must be fully satisfied that such protection is necessary.
The relief the wife seeks also includes orders in the nature of an Anton Piller order. There is no doubt the Court has power to make such an order albeit it is a power exercised sparingly (Talbot and Talbot (1995) FLC 92-586).
Commencing at r 5.19, the Rules set out with precision what the court needs to be satisfied of before making an Anton Piller order. Central to the making of such an order is the requirement of an independent solicitor. In that respect, r 5.19(3)(g) provides that the applicant must provide the consent of one or more lawyers to act as independent lawyers for the purposes of r 5.21. In that respect, in Television Broadcasts Ltd and Nyuyen (1988) 21 FCR 34 at 38 Lee J said:
The grant of an Anton Piller order is a peremptory and severe interference with the ordinary rights of a party when it is done without the support of any binding judgment and care must be taken to see that the order is only granted in appropriate cases and with due safeguards.
DISCUSSION
The wife’s affidavit refers at length to the difficulties she has had in securing the husband’s consent to sell the property in compliance with the Final Orders made 29 July 2024. The wife’s affidavit also details at length attempts by her to give effect to that which the Court has ordered. That said, to proceed ex parte is an order that should only be made in exceptional circumstances. Counsel for the wife quite properly conceded that the husband should be heard on the making of such an order.
I am not satisfied that orders appointing the wife as a trustee for sale carry the hallmark of exceptionality such that the husband should be denied the opportunity to be heard. I agree with counsel for the wife that there is no principled reason why the husband should not be heard. That said, I propose to make directions for the service of the wife’s application, for the husband to put on material, and for a hearing to be listed before a Senior Judicial Registrar.
The Court expects parties to comply with orders. In the event that the parties do not comply with orders, I have little doubt that the Court would make orders to give effect to the sale of the property, make an order for costs, and where appropriate, an order for costs on an indemnity basis.
The balance of the relief sought by the wife is in the nature of an Anton Piller order. The nature of the relief sought by the wife at proposed Order 8 is both intrusive and invasive. The Final Orders do not provide for the wife to access all of the husband’s computer equipment. They provide for her to receive a digital copy of photographs and videos. What is sought is way outside the scope of the wife’s entitlement pursuant to the orders. It is conceivable that the documents sought to be ‘secured’ by the order contain more than just videos and photographs and may contain personal, confidential and potentially privileged communications. It is an overreach and a significant invasion of the husband’s privacy and not warranted given the scope and terms of the order sought to be enforced.
Given the terms of Order 8 of the Final Orders and its drafting, providing that the internment is to occur at “a mutually convenient time agreed upon”, it is questionable whether any party could be in breach of that order.
The background to the relief sought at proposed Order 9 arises in dreadful circumstances. The parties’ child tragically died in 2010. The child’s ashes have remained in the parties’ home.
The parties separated in November 2020, upon which the wife left the home. The wife says:
26.In the years following our son [F's] death, [F's] ashes and the keepsakes that we have of him remained in the Property, even beyond the date of separation. [Mr Carlson] has used some of these items, as well as the attachment and grief that they inspire in me, to try to hurt and manipulate me.
…
47.… I have held fears for the safety and integrity of [F's] ashes, as well as for the memorabilia relating to him and for precious items such as family photographs and videos, for a long time, including prior to the final hearing in this matter in July 2024.
The wife gives evidence of matters that she says give rise to a concern that the husband may damage and or dispose of the ashes and items of property that are, I accept, irreplaceable.
I have no doubt that the circumstances of the child’s death are incredibly distressing and in view of the wife’s evidence, it is clear that grief and trauma remain ever present.
As upsetting as the events are, and I accept that the wife may not understand this, I am required to apply the law justly and dispassionately. The event the applicant relies upon to ground her belief that the husband will act in a way that may cause the ashes and/or photograph to be destroyed are entirely historical in nature. In that respect, she points to events in 2021. Her evidence is to the following effect:
24.After I moved from the Property, [Mr Carlson] made a list of the items I took with me and forced me to sign it. On 11 January 2021, I had a telephone conversation with [Mr Carlson] in words to the following effect:
I said: "Can I please have [F's keepsakes]?"
He said: "No, I'll be taking those."
I said:"I think we need to discuss it further, but if you are going to take the [keepsakes] I would like to have [F's] ashes and memorabilia."
He said: "We should scatter his ashes so that neither of us gets him."
I said: "Why are you punishing me? He is our son."
He said: "I didn't think you would want any memory to do with me. You have already taken everything you want from the house and signed the document saying you've taken it."
I said:“I only signed the document you gave me saying what items I had taken, not that I didn't want any other belongings. You still have my birth certificate. Can I get it back?"
He said: "No, I don't have any of the birth certificates. They are getting certified."
25.I was only able to obtain my birth certificate from [Mr Carlson] in around early 2021. In about early 2021, [Mr Carlson] did give me [F's keepsakes].
…
28.When I returned to my car, [Mr Carlson] came outside and was holding something in his hand. [Mr Carlson] said words to the effect of: "Do you want this?" Because he was standing near the front door and I was close to the letterbox in front of my car, I could not immediately see what he was holding. After a moment, I realised that he was holding up [a keepsake related to F]. This was one [keepsake] that we had which had not been included [with the others].
29.[Mr Carlson] raised his hand and I realised what was about to happen. I said words to the effect of: "Don't you dare!"
30.As the word "dare" came out of my mouth, [Mr Carlson] hurled the [keepsake] onto the driveway, shattering the cast into many pieces.
31.I felt as though I had been punched in the stomach. I did not know what to say and just looked on in distress and grief. [Z] was sitting in the car and I did not want her to become upset, so I got in the car and drove away.
The wife also refers to various text messages between her and the husband that she says give her concerns as to the actions of the husband. Again, these texts relate to events in early 2021.
The wife says that she called the police. Her evidence of that conversation is as follows:
40.On 5 March 2021, I received a call from the Police officer who said to me words to the effect of: “When we spoke to [Mr Carlson] and asked him about [F's] belongings, he said all of [F's] things were not gone. We asked him why he sent the messages and the photos, and he said that it was to show you that he still had everything.” I said: “What did he say about smashing the [keepsake]?” The Police officer said: “He claimed that it fell and broke when he was passing it to you.” This is absolutely false.
I note Final Orders were made in this matter on 29 July 2024 by consent. Each of the husband and wife were represented.
The orders can be interpreted as an acknowledgment that the items referred to in Order 4 of those orders still exist notwithstanding the applicant’s interpretation of statements made by the husband that predate the orders.
I am not satisfied that there is a basis for the wife’s belief as at today that was not apparent at the time the orders were made some eight months earlier. If it did exist at that time, then presumably different orders would have been made.
There is no evidence before me today to give rise to the risk of damage or destruction. In addition, there is the failure on the part of the wife to comply with the provisions of r 5.21. Rule 5.21 is cast in mandatory terms. All that is tendered is a letter from a solicitor that he will act as an independent solicitor, but I am not satisfied that the letter reveals that the solicitor has an understanding of the scope of the duties imposed upon him by the terms of the orders that is asked to be made and the circumstances in which it would be made particular by reference to the wife’s affidavit. For example, the letter does not reveal that he has an understanding of the issues, nor that he has read the wife’s affidavit
The terms of r 5.21 are not matters of mere process, but of substance. In that respect, in PMSI Group v Wilson [2003] NSWSC 263 Campbell J said the following:
8.The role of the Supervising Solicitor is most important. The Supervising Solicitor must be a solicitor who is independent of the solicitor for the plaintiff, and who has experience in the execution of Anton Piler orders.
I decline to make the orders as sought by the wife.
I will however make orders for the wife’s application to be served, and the husband given the opportunity to be heard.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 23 January 2025
0
1
1