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:

1. 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.

2. The background is set out in my earlier Judgment of Carswell & Tenson [2022] FedCFamC1F 467.

3. 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.

4. On 20 April 2022 the husband filed an Application for Review (“husband’s Review Application”).

5. 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.

6. 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 & Tenson [2022] FedCFamC1F 467 (“the prior Judgment”) was handed down on 6 July 2022. I ordered that the husband pay spousal maintenance of $2,500 per week commencing 8 July 2022.

7. The wife, who relied upon her affidavit filed 20 July 2022 [WA], set out at [7] the belief held by her and her legal representatives that the Senior Judicial Registrar had indicated in oral reasons that he would not stay spousal maintenance. 

8. The Senior Judicial Registrar’s orders as entered, however, did stay spousal maintenance. 

9. The wife apparently sought on 19 May 2022, as detailed at [[19]WA], to have the ordered stay of weekly spousal maintenance corrected pursuant to the slip rule provisions.  As her request had not been addressed she says she again raised the issue with the Court to 30 May 2022, the day before I heard the husband’s Review Application.  The husband opposed a correction pursuant to the slip rule.  No correction occurred.  The Senior Judicial Registrar’s order staying spousal maintenance stood as made.

10. The husband did not make any payments of spousal maintenance, including in relation to the wife’s rent of $1,295 which he had been paying and which he submitted to me he would continue to pay, after 16 May 2022 until he complied with my orders of 6 July 2022.

11. While the husband’s Review Application was reserved before me, the wife filed this Application for Review on 16 June 2022 (“wife’s Review Application”) of the stay decision in relation to spousal maintenance.  

12. The Application for Review seeks an extension of time required due to her failure to comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.05, a discharge of the stay order in relation to spousal maintenance, back payment of spousal maintenance and costs.

13. The wife calculates the spousal maintenance she should have been paid at $16,541 [15 WA]. 

14. She says she brings the application due to her financial position and as she may not recoup this notional loss at a final hearing.  I do not accept that last submission.  The wife is due to receive $250,000 and it will be open to the Trial Judge to consider and weigh all these matters at Trial.

15. The husband’s defence to the wife’s Review Application before me is that it is out of time, with no adequate explanation being given, and also futile as my granting of the review application and re-determination of the wife’s interim application means that there is no stay to review. 

16. The wife says that at the time this Application for Review was filed the stay was still in effect leaving it open to me to review and dismiss the stay and to revive the orders until my Judgment.

17. It is concerning, given his position as a barrister acting as his own advocate, that the husband did not make the $1,295 per week in payments that he advised the Court he would be willing to continue to make, see [19] of the prior Judgment.

18. It is also unfortunate that the wife did not raise this issue with me during the hearing on 1 June 2022 – a time where she was aware there was an issue – rather than awaiting a determination of whether or not there would be a correction under the slip rule from the Senior Judicial Registrar.  That would have allowed me to deal with the issue, and so the entirety of her interim application and my review of the Senior Judicial Registrar’s orders, in the Judgment and orders of 6 July 2022. 

19. Given the history of these proceedings, including the hearing of the husband’s Review Application before me, and the small sum in issue, even though it is troubling that the husband as a barrister did not in fact pay the sums he had informed me in open Court that he would be willing to pay, on balance I am not persuaded by the wife that it is appropriate to exercise my discretion to extend time in which the wife may file her Application for Review.

20. Accordingly, I dismiss the wife’s Review Application.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith.

Associate:       

Dated:       5 August 2022