Carlson & Carlson - [2025] FedCFamC1F 24

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…

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 [2025] FedCFamC1F 24
Case: [2025] FedCFamC1F 24
Decision Date: 22 January 2025

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Carlson sought enforcement of Final Orders against Mr Carlson. The wife feared that the husband may have destroyed or disposed of certain items, prompting her to seek an Anton Piller order on an ex parte basis. The application was heard by Schonell J, who needed to determine whether such an order was appropriate given the circumstances.

The court examined the need for an Anton Piller order, which allows for a search of premises without notice to the respondent. The applicant must demonstrate that there is a real and substantial risk that evidence will be destroyed. The court found that the evidence provided did not justify the making of such an order. The applicant had not demonstrated a real and substantial risk of destruction or disposal of evidence. The court concluded that it was not appropriate to make an Anton Piller order in this case.

In light of the court's findings, the matter was directed to return for further hearing to address the enforcement of the Final Orders. The wife was instructed to serve her Amended Application – Enforcement and any further amended application and affidavit by a specific date. The husband was required to file and serve his response and affidavit by a later date, with the wife then having the opportunity to file and serve any affidavit in reply. The matter was scheduled for a hearing on a specified date.

The court noted that compliance with the directions was expected, and failure to do so would result in proceedings continuing in the absence of the non-compliant party. The form of the order was subject to review and potential variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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