Carswell & Tenson (No 2) - [2022] FedCFamC1F 561

Federal Circuit and Family Court of Australia
(DIVISION 1)
Carswell & Tenson (No 2) [2022] FedCFamC1F 561

File number(s): SYC 5497 of 2017

Judgment of: SMITH J

Date of judgment: 5 August 2022

Catchwords: FAMILY LAW – PROPERTY – Review Application – Extension of time not granted – Dismissed

Legislation: Federal Circuit & Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.05

Cases cited: Carswell & Tenson [2022] FedCFamC1F 467

Division: Division 1 First Instance

Number of paragraphs: 20

Date of hearing: 22 July 2022

Place: Newcastle by Microsoft Teams

Solicitor for the Applicant: Kerr Fels

Solicitor for the Respondent: The Respondent was Self-Represented
ORDERS

SYC 5497 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CARSWELL

Applicant

AND:
MR TENSON

Respondent

order made by:

SMITH J

DATE OF ORDER:

5 AUGUST 2022

THE COURT ORDERS THAT:
1.The Application for Review filed 10 June 2022 be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Carswell & Tenson is approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:

The Applicant Ms Carswell (“the wife”) filed an Application for Review of a Senior Judicial Registrar’s order on 10 June 2022. The Respondent Mr Tenson (“the husband”) opposes the application.
The background is set out in my earlier Judgment of Carswell & Tenson [2022] FedCFamC1F 467.
The facts relevant to the application are that on 1 April 2022 a Senior Judicial Registrar made orders that: the husband pay the wife spousal maintenance of $2,362 per week; and $250,000 by way of partial property settlement with for the sale of the parties’ former matrimonial home in default of payment; and a “dollar for dollar” costs order. That order disposed of the wife’s interim application.
On 20 April 2022 the husband filed an Application for Review (“husband’s Review Application”).
On 20 April 2022 he also filed an Application in a Proceeding seeking to stay the Senior Judicial Registrar’s orders of 1 April 2022 pending the outcome of his Review application. On 12 May 2022 the Senior Judicial Registrar heard that Application and stayed, amongst other orders, his order in relation to the payment of spousal maintenance until 30 June 2022.
The matter came on before me on 1 June 2022. I granted the husband’s Review Application and re-heard the wife’s substantive application. Judgment Carswell…

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 (No 2)

Details

AGLC: Carswell & Tenson (No 2) [2022] FedCFamC1F 561
Case: [2022] FedCFamC1F 561
Decision Date

CaseChat Overview and Summary

Ms Carswell filed an Application for Review of a Senior Judicial Registrar’s order on 10 June 2022. Mr Tenson opposes the application. The dispute between the parties revolves around spousal maintenance and a property settlement stemming from their former matrimonial relationship. The Federal Circuit and Family Court of Australia (Division 1) was tasked with resolving the wife's application for review of a decision to stay spousal maintenance payments pending the outcome of a substantive application for property settlement and spousal maintenance.

The court had to determine whether the wife's Application for Review was within the permissible time frame and whether an extension of time should be granted considering her failure to comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.05. Additionally, the court needed to decide whether the Application for Review was futile given that the husband's Review Application had already been granted, and whether the wife's financial position warranted a reconsideration of the spousal maintenance stay.

Justice Smith found that the wife's Application for Review was out of time, and no adequate explanation was provided for the delay. The court noted the husband's failure to make payments as promised during the hearing, which was troubling, but ultimately decided not to extend the time limit for filing the review application. The court was not persuaded that the circumstances warranted an extension of time, especially given the husband's willingness to continue making the spousal maintenance payments as stated in court. Additionally, the court found the application to be largely futile since the substantive application had already been re-heard and determined, and the stay order had been lifted. The court dismissed the wife's Application for Review, and no extension of time was granted.

Orders