Carson & Colt (No 2)

Case [2025] FedCFamC1A 143

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Carson & Colt (No 2) [2025] FedCFamC1A 143 

Appeal from: Colt &Carson (No 2) [2025] FedCFamC2F 303
Appeal number(s): NAA 108 of 2025
File number(s): BRC 8947 of 2023
Judgment of: MCCLELLAND DCJ
Date of judgment: 21 August 2025
Catchwords:  FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Whether trial judge erred in failing to consider an affidavit – Appeal dismissed – Appeal determined to be wholly without merit and lacked any prospects of success – Assertion by appellant found to be patently false – Submission by counsel for the appellant amounted to misconduct – Costs ordered on an indemnity basis – Exceptional circumstances – Proceedings not properly initiated.   
Legislation:

Corporations Act 2001 (Cth)

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Court and Federal Circuit and Family Court of Australia Regulations 2022 (Cth)

Judiciary Act1903 (Cth)

Cases cited:

 Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 350

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68

D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64

Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33

Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116

Kristiansen & Kristiansen [2025] FedCFamC1A 129

Maddax & Danner (Costs) [2016] FamCAFC 229

Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Medlow & Medlow (No 2) [2016] FamCAFC 63

Moy & Pao (2022) FLC 94–073; FedCFamC1A 17

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Phillips & Hansford (2020) FLC 93-941; [2020] FamCAFC 28

Plaintiff S164/2018 v Minister for Home Affairs (2018) 361 ALR 8; [2018] HCA 51

R v Birks (1990) 19 NSWLR 677

Number of paragraphs: 63
Date of last submission/s: 24 July 2025
Date of hearing: 24 July 2025
Place: Sydney
Counsel for the Appellant: Mr Jones
Counsel for the Respondents: Mr Linklater-Steele
Solicitor for the Respondents: McInnes Wilson Lawyers
Solicitor for the Second Respondent: O’Brien Family Law
Second Respondent: Mr O’Brien appearing as litigant in person

ORDERS

NAA 108 of 2025
BRC 8947 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS CARSON

Appellant
AND:

MR COLT

First Respondent

MR O’BRIEN THE TRUSTEE

Second Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

21 AUGUST 2025

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the costs of the second respondent in the fixed sum of $4802.75.

3.The appellant and the first respondent are to file written submissions, of no more than three pages, in respect to the quantum of costs, within 14 days.

Note:…

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AGLC
Carson & Colt (No 2) [2025] FedCFamC1A 143
Case
[2025] FedCFamC1A 143
Decision Date

CaseChat Overview and Summary

In Carson & Colt (No 2), the appeal by Ms Carson against interlocutory orders made by the primary judge was dismissed by the Court. The primary judge had issued orders concerning property settlement between Ms Carson and Mr Colt. The appeal against these orders was considered by the Court to be incompetent as it did not meet the criteria for leave to appeal under section 28(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The Court found the appeal to be wholly without merit and lacking any prospects of success, and it was determined that Ms Carson’s assertion regarding the consideration of an affidavit was patently false. The submission made by Ms Carson's counsel was deemed to be misconduct.

The Court’s reasoning was based on the procedural requirements for appealing interlocutory orders, which necessitate leave from the Court. The appeal was found to be incompetent because it did not satisfy the criteria for leave, as there was insufficient doubt about the correctness of the primary judge’s decision and no substantial injustice would result if leave were refused. Furthermore, the Court noted that the Appellant had not properly filed the affidavit in question and had made a late attempt to refile it, which was unsuccessful. The appeal process was found to be improperly initiated, and the Appellant was held accountable for the case as presented at the initial hearing. Consequently, the appeal was dismissed, and the Appellant was ordered to pay the costs of the second respondent.

Orders

Orders of the court

NAA 108 of 2025

BRC 8947 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS CARSON

Appellant

AND:

MR COLT

First Respondent

MR O’BRIEN THE TRUSTEE

Second Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

21 AUGUST 2025

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the costs of the second respondent in the fixed sum of $4802.75.

3. The appellant and the first respondent are to file written submissions, of no more than three pages, in respect to the quantum of costs, within 14 days.

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

The matter was heard before the primary judge on 20 November 2024, and judgment was delivered on 12 March 2025. THE DECISION BY THE TRIAL JUDGE The issues identified as requiring adjudication were identified by the primary judge to be as follows:(1)Whether there should be a stay of the enforcement order and the final property order.(2)Whether an injunction should issue restraining the husband from using the settlement monies, or alternatively, whether the wife’s application should be summarily dismissed—and if so, whether she should pay the husband’s costs on an indemnity basis.(3)Whether the wife should pay security costs of $80,725 to the husband’s solicitors, or whether her application should be stayed pending payment of those costs.(4)Whether the wife should pay the husband’s costs of and incidental to the Application for Review filed on 27 August 2024, and if so, whether those costs should be assessed on an indemnity or scale basis.(5)Whether the parties should be granted leave to use all documents filed in the Federal Circuit and Family Court of Australia in proceedings instituted in the Supreme Court of Queensland, Supreme Court of New South Wales, and the Magistrates Court of Queensland—or alternatively, whether leave should be granted only for specified documents.(6)Whether the Trustee ought to be released from the undertaking given to F Pty Ltd on 3 September 2024.(7)Directions regarding the payment of the disputed funds held under the Trustee’s undertaking—specifically, whether they should be paid to F Pty Ltd, the wife, the Supreme Court of New South Wales, the Federal Circuit and Family Court, or held in the trust account of F Pty Ltd’s solicitors.(8)Whether the Trustee was entitled to be paid his fees from the balance of the Suburb D property sale proceeds pursuant to the enforcement order In respect to those issues, by way of summary, the primary judge found as follows. In respect to the first issue, the Court dismissed the wife’s application for a stay of the enforcement and final property orders. The primary judge found that there was no power to grant a stay in the absence of an appeal or an application for leave to appeal, neither of which had been filed by the wife. The primary judge found the wife was also out of time to appeal and she had not sought an extension. In respect to the second issue, the primary judge dismissed the wife’s application for an injunction. In that respect, the primary judge found that the wife had no reasonable prospects of success in setting aside the final property order pursuant to s 79A based on alleged non-disclosure. In so determining, the primary judge found that the weight of evidence showed that the wife was aware of the loans and the liquidation of B Pty Ltd at the time of trial, and that it was unlikely that the wife would succeed in establishing that the indemnity order was unjust in those circumstances and where she retained those entities. In respect to the third issue, the husband’s application for security for costs was dismissed as unnecessary, given the summary dismissal of the wife’s substantive application. The issue was rendered moot by the earlier finding.

Ratio Decidendi

Legal Principle Established

In response to the question as to whether an affidavit purportedly sworn by the wife on 21 October 2024, was read in the first instance proceedings, the husband contends in his Amended Summary of Argument:54.This Court has to determine whether the Affidavit said to have been filed on 21 October 2024 was in evidence and properly relied upon by the Appellant before the Court at first instance before it finds the Judge fell into error.55.The Court would note that the Response and the Affidavit said to have been filed on 21 October 2024, is sealed as being filed on 21 November 2024, the day after the hearing. This seems consistent with the assertions made by the Appellant in her Summary of Argument, which states that she discovered difficulties with her Affidavits the next day (21 November 2024) when she attended the Registry.56.It is also consistent with the discovery of the reality of the position being made on 21 November 2024 and the subsequent application by the Appeal to re-open the evidence as noted in the Appellant’s written submissions. The Court’s refusal to allow a re-opening is not the subject of the present appeal.57.Whatever machinations may have been undertaken by the Appellant in seeking to file material after the hearing, it is evident on the Transcript that the Affidavit could not be relied upon. This is clear in that the attempt to refile material was couched in terms of “to be able to file those two errant affidavits to the clarify the error.”58.The Court would note that in the body of the judgment, the references to the Appellant’s evidence and arguments are confined to reference to the Appellant’s Affidavit filed 26 August 2024.59. The Transcript reveals the lukewarm attempt to in some way “refile” the two affidavits l late in the day, was abandoned before any ruling was made.60. The Appellant did not apply for an adjournment or take any action at the hearing to put before the Court the Affidavit executed on 21 October 2024. The Appellant is bound by the case as run at first instance.(Footnotes omitted)CONSIDERATIONThe Appeal is Incompetent This is an appeal against interim orders made by the primary judge. Such an appeal requires leave to appeal. In that respect section 28(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that leave of the Federal Circuit and Family Court of Australia (Division 1) is required to appeal to the Court from “a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 2).” Those prescribed judgments are identified in regulation 4.02 of the Federal Court and Federal Circuit and Family Court of Australia Regulations 2022 (Cth), and include “an interlocutory decree (other than a decree in relation to a child welfare matter).” These proceedings are property proceedings and do not concern a child welfare matter. The grant of leave requires the appellant to show the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave were refused, in the event it is determined that the decision is wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).