Carswell & Tenson - [2022] FedCFamC1F 467

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carswell & Tenson [2022] FedCFamC1F 467

File number(s): SYC 5497 of 2018

Judgment of: SMITH J

Date of judgment: 6 July 2022

Catchwords: FAMILY LAW – PROPERTY – Review – Interim hearing – Limits on evidence –– Wife not entitled to rely upon 7 affidavits comprising 150 pages of text and 500 pages of documents on a simple interim application – Obligations of parties and legal practitioners to comply with overarching purpose – Spouse maintenance – Husband to pay wife $2,500 per week. Interim property settlement – No risk partial payment will impair ability to do justice and equity at final hearing – Husband to pay wife $250,000 – Former matrimonial home in which husband resides to be sold if interim property settlement not paid.

Legislation:
Evidence Act 1995 (Cth) s 50

Family Law Act 1975 (Cth) Part VIII, ss 72, 75, 79, 80, 117

Federal Circuit and Family Court of Australia Act2021 (Cth) s63, Part 6 Division 4

Federal Circuit & Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.08

Cases cited:
Franklyn & Franklyn [2019] FamCAFC 256

Strahan & Strahan (Interim property orders) [2009] FamCAFC 166

Division: Division 1 First Instance

Number of paragraphs: 184

Date of hearing: 1 June 2022

Place: Sydney

Solicitor for the Applicant: Litigant in person

Counsel for the Respondent: Mr Beckerling

Solicitor for the Respondent: Kerr Fels
ORDERS

SYC 5497 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR TENSON

Applicant

AND:
MS CARSWELL

Respondent

ORDER MADE BY:

SMITH J

DATE OF ORDER:

6 JULY 2022

PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The Application for Review filed 20 April 2022 be granted.
2.The orders made on 1 April 2022 be set side.

Spousal Maintenance
3.By way of periodic spousal maintenance, the Respondent (“the husband”) pay $2,500 per week to the Applicant (“the wife”).
4.The first payment is to be made by Friday 8 July 2022.
5.The weekly payment is then to be made on, or by, each following Tuesday.

Interim Property Settlement
6.Within 60 days of the date of these orders the Husband pay $250,000 to the Wife by way of interim property settlement.
7.In the following Orders the wife is the first party and the husband is the second party.
8.Failing payment of the full sum of $250,000 in order 6 within the specified time, the parties shall then forthwith do all acts and things and sign all necessary documents to cause the sale of the former matrimonial home, being the property situated at and known as CC Street Suburb C NSW ("the Property"), by way of public auction as soon as reasonably practicable and for that purpose the following sale provisions shall apply:
(a)Real estate agent selection
(i)That within 7 days of the date of these Orders the first party shall nominate in writing to the second party the names of 3 qualified real estate agents (agents) who have consented to act.
(ii)If the…

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 Carswell & Tenson

Details

AGLC: Carswell & Tenson [2022] FedCFamC1F 467
Case: [2022] FedCFamC1F 467
Decision Date

CaseChat Overview and Summary

The matter before the court involves a dispute between Carswell and Tenson regarding property and parenting arrangements following their separation. The wife, Tenson, initiated proceedings in August 2018 seeking property settlement and parenting orders. The primary issue in this case is the division of the matrimonial property, specifically the valuation and ownership interests in a property located at CC Street, Suburb C. The court must also consider the implications of the property settlement on the parenting arrangements for their three children, Y, X, and Z. The wife argues for a larger share of the assets, while the husband contends that his debtors and business interests should be taken into account.

The court's task was to determine the fair division of the assets, taking into account the contributions of each party, the needs of the children, and the overall welfare of the family. This included assessing the valuations provided by both parties, the relevance of historical property valuations, and the treatment of the husband's business interests and debts. The court also needed to consider the current living arrangements of the children and the implications of any property settlement on these arrangements.

The court found that the property at CC Street, Suburb C, was the main asset in question, with valuations ranging from $3.75 million to $6.6 million. The court emphasised the need for a current valuation and highlighted discrepancies in the parties' claims regarding the husband's debtors and business interests. The court also noted the importance of considering the children's welfare and the implications of the property settlement on their living arrangements. The court left the issue of costs and potential referrals to the trial judge, recognising the complexity of the proceedings and the need for a comprehensive assessment of all conduct.

The court ordered that a current valuation of the property be obtained and that the parties provide updated financial information. The court also directed that the parenting arrangements be reviewed in light of the property settlement, ensuring that the children's best interests are prioritised. The final orders will be made following further submissions and consideration of the updated financial information and parenting arrangements.

Orders

Orders of the court

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Background

Background to the litigation

On an interim basis it is not clear to me whether it is the wife or her solicitors whose conduct lead to the position adopted. Accordingly, after much consideration, I leave the issue of to the Trial Judge, who will be best placed to consider the totality of the conduct of these proceedings and whether any action is required either in respect of costs or referral.BACKGROUNDRelationship The husband is 49. The wife is 44. They met in late 2004. The husband was a professional. The wife was a professional at a company in Perth. The parties commenced cohabitation at the husband’s apartment in Sydney in October 2007. They married in 2008. There are three children of the marriage: Y 12, X, 10 and Z now 8. The parties separated in August 2017. They lived under the one roof until the wife and children relocated in late 2017. The wife commenced these, property and parenting, proceedings on 29 August 2018. The wife has not re-partnered. She lives with the children in a rental property at Suburb C, discussed elsewhere. She says she has no family to provide her with practical support in Sydney. Her parents live in Perth and none of her siblings live in New South Wales. The husband has re-partnered with Ms E. The husband and Ms E have a child, the children’s half-brother W, who is now just over a year old. They live at Suburb C. The children live primarily with the wife. Y spends 5, and X and Z 4, nights a fortnight at Suburb C. Y has had significant behavioural issues, discussed elsewhere.Joint Balance Sheet The parties provided a joint balance sheet dated 11 November 2021 [Exhibit A]. The main asset is the property at CC Street Suburb C valued by each party in November 2021 at $6,600,000. The husband was permitted to rely upon a valuation report for the property as at 10 May 2019 of $3,750,000. Precisely why he says this historical valuation is relevant to this application is not clear. The wife says that the total assets are $8,723,950. The husband $6,957,556. The major differences are around the husband’s debtors, which the wife said were [WA2 [14]] $1,415,949. The husband says [HA2 [15]] that as at “15 February 2022, I have Aged Debtors of $550,509.34” The husband apparently does not include his debtors in the balance sheet. The reasons he takes that position are not clear. Another issue in dispute is the value of the husband’s share of the bank guarantee of his business. The wife values this at $275,000. The husband says his interest is not recoverable. The parties’ estimates of liabilities were $$4,709,348 and $4,651,597 respectively. The major liabilities were agreed to be the joint liabilities for a NAB home loan facility of $1,475,934 and a NAB private portfolio account liability of $2,479,694. That is approximately $3.955 million of joint liabilities. There are a range of disagreements including about unpaid bills and about whether or not the wife’s debt to her parents [WA1 [92]] of approximately $260,000 for legal fees is a current liability, considered further elsewhere.

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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File number(s):	SYC 5497 of 2018
Judgment of:	SMITH J
Date of judgment:	6 July 2022
Catchwords:	FAMILY LAW – PROPERTY – Review – Interim hearing – Limits on evidence –– Wife not entitled to rely upon 7 affidavits comprising 150 pages of text and 500 pages of documents on a simple interim application – Obligations of parties and legal practitioners to comply with overarching purpose – Spouse maintenance – Husband to pay wife $2,500 per week. Interim property settlement – No risk partial payment will impair ability to do justice and equity at final hearing – Husband to pay wife $250,000 – Former matrimonial home in which husband resides to be sold if interim property settlement not paid.
Legislation:	Evidence Act 1995 (Cth) s 50 Family Law Act 1975 (Cth) Part VIII, ss 72, 75, 79, 80, 117 Federal Circuit and Family Court of Australia Act2021 (Cth) s63, Part 6 Division 4 Federal Circuit & Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.08
Cases cited:	Franklyn & Franklyn [2019] FamCAFC 256 Strahan & Strahan (Interim property orders) [2009] FamCAFC 166
Division:	Division 1 First Instance
Number of paragraphs:	184
Date of hearing:	1 June 2022
Place:	Sydney
Solicitor for the Applicant:	Litigant in person
Counsel for the Respondent:	Mr Beckerling
Solicitor for the Respondent:	Kerr Fels

SYC 5497 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR TENSON Applicant
AND:	MS CARSWELL Respondent

ORDER MADE BY:	SMITH J
DATE OF ORDER:	6 JULY 2022