FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carswell & Tenson (No 4) [2024] FedCFamC1F 848
File number(s): SYC 5497 of 2018 Judgment of: CURRAN J Date of judgment: 6 December 2024 Catchwords: FAMILY LAW – PROPERTY – Final hearing – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Consideration of s 75(2) – Where husband has a far superior earning capacity– Where wife has primary care of the children – Wife’s earning capacity
FAMILY LAW – CHILD SUPPORT – Application for departure – Where the wife seeks a departure order for periodic and non-periodic child support – Finding of grounds for a departure order – Orders made for non-periodic child support departure but not for periodic departure order
FAMILY LAW – SPOUSAL MAINTENANCE – Consideration of the parties’ respective financial positions – Where some expenses of the wife were not qualified with evidence and were unreasonable –Wife will have significant financial resources available to her – The benefits of finality – Application for periodic or lump sum spousal maintenance refused
Legislation: Child Support (Assessment) Act 1989 (Cth) ss 116, 117, 123, 124, 125
Family Law Act 1975 (Cth) ss 72, 74, 75, 79, 81, 106A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.06, 8.15, 12.06
Cases cited: Astbury v Astbury (1978) 4 Fam LR 395 at 398
Best & Best (1993) FLC 92-418
Blatch v Archer (1774) 1 Cowp 63
Brown & Brown (2007) FLC 93-316
Carswell & Tenson [2022] FedCFamC1F 467
Chorn v Hopkins (2004) FLC 93-204
Clauson & Clauson (1995) FLC 92-595
Gyselman & Gyselman (1992) FLC 92-279
Hall v Hall (2016) 257 CLR 490
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Jones v Dunkel (1959) 101 CLR 298
Kannis & Kannis [2002] FamCA 1150
Kowaliw and Kowaliw (1981) FLC 91-092
Mitchell & Mitchell (1995) FLC 92–601; [1995] FamCA 32
Murray & Murray (2020) FLC 94-000
Omacini v Omacini (2005) FLC 93-218
Rice & Rice [2020] FamCAFC 174
RK & SK (2000) FLC 93-050
Rosati v Rosati (1998) FLC ¶92-804
Saberton & Saberton [2013] FamCAFC 89
Stanford v Stanford (2012) 247 CLR 108
Stoddard & Glover [2016] FamCA 674
Taguchi & Taguchi (1987) FLC 91-836
Townsend and Townsend (1995) FLC 92-569
Trask & Westlake (2015) FLC 93-662; [2015] FamCAFC
Trevi & Trevi (2018) FLC ¶93–858
Warwick & Cutler and Anor [2016] FamCA 934
Division: Division 1 First Instance Number of paragraphs: 376 Date of hearing: 4-7 June 2024 Place: Sydney Counsel for the Applicant: Mr Beckerling Solicitor for the Applicant: Kerr Fels Counsel for the Respondent: Ms Lawson Solicitor for the Respondent: Hall & Wilcox ORDERS
SYC 5497 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CARSWELL
Applicant
AND: MR TENSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
6 DECEMBER 2024
THE COURT ORDERS THAT:
Property Orders
1.Within 90 days from the date of these Orders…
Continue reading Carswell & Tenson (No 4)
Sign in free to access the full text
- AGLC
- Carswell & Tenson (No 4) [2024] FedCFamC1F 848
- Case
- [2024] FedCFamC1F 848
- Decision Date
CaseChat Overview and Summary
The court considered the wife's claim for a 70/30 property division in her favor, citing equal contributions and specific factors under s 75(2) of the Family Law Act 1975 (Cth). It found that a 65/35 division was more equitable, taking into account the husband's superior earning capacity and the wife's primary care of the children. Regarding child support, while the court found grounds for a departure order for non-periodic child support, it dismissed the request for periodic child support. The wife's application for spousal maintenance was also dismissed due to her significant financial resources and the benefits of finality. The court ordered the husband to pay the wife a settlement sum within 90 days and made specific orders for non-periodic child support and the sale of the Suburb C property in the event of default.
The court's decision balanced the needs of the parties and the children, ensuring a fair distribution of assets and responsibilities. It recognized the husband's higher income and the wife's role as the primary caregiver, while also considering the children's educational and health needs. The final orders provided for a structured division of property and support, reflecting the court's assessment of the parties' financial situations and the welfare of the children.
Orders
Orders of the court
SYC 5497 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS CARSWELL
Applicant
AND:
MR TENSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
6 DECEMBER 2024
THE COURT ORDERS THAT:
Property Orders
1. Within 90 days from the date of these Orders (“Due Date”):
(a) The respondent husband (“husband”) pay the applicant wife (“wife”) the sum of $2,860,731.07 (“the Payment”); and
(b) Contemporaneously with the Payment, the wife will do all such acts and things and sign all documents as may be required to transfer to the husband all of her right, title and interest in the property situated at CC Street, Suburb C in the State of New South Wales being the whole of the land described in Folio Identifier … (“the Suburb C Property”) (“the Transfer”)
(c) Contemporaneously with both the Payment and the Transfer, the husband do all things and sign all documents necessary to refinance all encumbrances secured over the Suburb C Property into his sole name such that the wife is discharged from any liability concerning the same.
Orders in default
2. Failing the Payment by the husband to the wife by the Due Date, the parties forthwith do all acts and things and sign all necessary documents to cause the sale of the Suburb C Property as soon as reasonably practicable.
3. Unless otherwise agreed in writing between the parties, the sale of the Suburb C property is to be carried out in the following manner:
(a) Real Estate Agent Selection:
(i) Within 7 days of the Due Date, the wife shall nominate in writing to the husband the names of 3 qualified real estate agents (“real estate agents”) who have consented to act;
(ii) If the wife does not nominate 3 real estate agents within 7 days of the Due Date, the husband may nominate a real estate agent at his sole discretion and notify the wife within a further 7 days, and that will be the agent for the purposes of the sale;
(iii) If the wife does nominate 3 real estate agents, then within a further 7 days after the date of her nomination, the husband shall select the preferred agent of those nominated by the wife and then that agent will be the agent for the purposes of the sale;
(iv) If the husband does not select 1 agent pursuant to the preceding subparagraph, then the wife may choose one of the 3 real estate agents at her sole discretion and that will be the real estate agent for the purposes of the sale;
(v) Within 14 days of the selection of the real estate agent, the parties shall sign all authorities and execute all documents necessary to instruct the real estate agent to act on the sale of the Suburb C Property.
(vi) The parties shall be responsible for giving joint instructions to the real estate agent acting on the sale of the Suburb C Property; and
(vii) The costs of the real estate agent shall be borne equally between the parties.
(b) Conveyancing solicitors:
(i) Within 7 days of the Due Date, the wife shall nominate in writing to the husband the names of 3 qualified conveyancing solicitors or settlement agents (“conveyancing solicitor”), who have consented to act;
(ii) If the wife does not nominate 3 conveyancing solicitor within 7 days of the Due Date, the husband may nominate a conveyancing solicitor at his sole discretion and notify the wife within a further 7 days, and that will be the conveyancing solicitor for the purposes of the sale;
(iii) If the wife does nominate 3 conveyancing solicitors, then within a further 7 days the husband shall select the preferred agent of those nominated by the wife, and then that conveyancing solicitor will be the conveyancing solicitor for the purposes of the sale;
(iv) If the husband does not select 1 conveyancing solicitor within 7 days, the wife choose one of the 3 nominated conveyancing solicitors at her sole discretion and that will be the conveyancing solicitor for the purposes of the sale;
(v) Within 14 days of appointment of the real estate agent the parties shall sign all authorities and execute all documents necessary to instruct the conveyancing solicitor to act on the sale of the Suburb C Property; and
(vi) The costs of the conveyancing solicitor shall be borne equally between the parties.
(c) Auction
(i) The Suburb C Property be placed on the market for sale by auction within 28 days of the date of the default of the Payment;
(ii) The husband vacate the Suburb C Property no less than 7 days prior to the date of the auction and ensure that same has been professionally cleaned, at the husband’s cost;
(iii) Such an auction take place within 42 days from the date of placing the Suburb C Property on the market for sale by public auction, or as soon as practicable thereafter;
(iv) A reserve price shall be fixed by written agreement between the parties within 7 days of the property being listed for auction;
A. Failing agreement as to a reserve price, within 7 days of the Suburb C property being listed for auction, the parties agree a valuer, or failing agreement the Single Expert Witness in these proceedings, AL Valuers, be instructed as the Valuer;
B. The Valuer shall set the reserve price; and
C. The parties shall share the costs of the Valuer equally.
(v) In the event that the Suburb C Property fails to be sold at the auction referred to above, the property shall be resubmitted for auction at a reserve price as recommended by the Valuer and shall be resubmitted for auction at a time as agreed and in the absence of agreement as determined by the real estate agent.
4. Pending settlement of the Suburb C Property pursuant to the preceding Order:
(a) The husband pay each instalment on the home loan and each encumbrance secured against the Suburb C Property, as it falls due;
(b) The husband meet the costs of the council rates and charges, insurance premiums and all utilities of the Suburb C Property as and when they fall due;
(c) The husband do all things reasonably requested by the Agent to cooperate and assist in marketing the Suburb C Property, including to ensure the property is clean and permit home opens and inspections by interested parties if same occur prior to him vacating same;
(d) The husband indemnify the wife and keep her indemnified in respect of each of the above obligations.
5. Pending settlement of the sale:
(a) The parties be restrained from renting, letting or tenanting the Suburb C Property in any way, without the prior written consent of the other party; and
(b) The parties be restrained from taking any step to further encumber the Suburb C Property, without the prior written consent of the other party; and
(c) The parties be restrained from taking any step to cause a reduction to the purchase price of the Suburb C Property, or to engage with any prospective purchasers of the property in any way which the Agent considers may cause a reduction in the purchase price; and
(d) In the event a prospective purchaser makes an offer to purchase the Suburb C Property prior to the proposed date for auction, the parties may agree on a price and to sell the property to such a purchaser in writing. In the event that the parties are unable to agree on a price then the Suburb C Property shall proceed to auction; and
(e) The parties or either of them may lawfully bid at the auction.
6. Upon the settlement of the sale of the Suburb C Property, the proceeds of sale be distributed as follows:
(a) In repayment of the real estate agent’s costs, the conveyancing solicitor’s and the valuer’s costs;
(b) In repayment of the encumbrances secured against the Suburb C Property;
(c) Payment to the wife of a cash sum to effect a 65% division of the determined property pool to the wife, less the sum of $2,612.
(d) The balance be paid to the husband.
Payment of outstanding AM School liability
7. The husband forthwith pay to AM School the sum of $25,790.50, being 50% of the outstanding unpaid school fees, together with 50% of any interest accruing or owed on that sum, and will indemnify the wife in respect of that sum.
8. The wife forthwith pay to AM School the sum of $25,790.50, being 50% of the outstanding unpaid school fees, together with 50% of any interest accruing or owed on that sum and will indemnify the husband in respect of that sum.
Existing Property
9. By consent, within 14 days the husband make the above artwork available for collection by the wife or an agent on her behalf:
[List of artworks omitted]
10. Other than as provided for in these orders, the parties be declared to have the sole right, title and interest in:
(a) Any chattels, goods, furnishings, bank accounts, artworks and other property which are at the date hereof in their possession respectively; and
(b) Any monies, shares, or superannuation entitlements which stand in their sole name respectively at the date hereof.
Other Orders Sought
11. If either party refuses or neglects to execute any deed or instrument necessary to give effect to the Orders set out in Order 2 above, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
Child support departure orders
12. The application for a periodic departure order is dismissed.
13. By consent, pursuant to s 118 and s 124 of the Child Support (Assessment) Act 1989 (Cth), there be a departure from the administrative assessment of child support payable by the husband for Y, X, and Z (“the children”), such that the husband pay annual tuition fees and technology levies imposed by AM School from Term 3 2024 and for such time as X and/or Z attend that school (with such amounts not to be credited by the husband against any administrative assessment requiring the payment of periodic child support by the husband to the wife that may issue from time to time by the Child Support Agency in accordance with the Child Support (Assessment) Act 1989).
14. Pursuant to sections 118 and 124 of the Child Support (Assessment) Act 1989 (Cth), there be a departure from the administrative assessment of child support payable by the husband for the children, such that the husband pay the following:
(a) All fees and costs of AM School compulsory curricular activities for each of X and Z as they appear on the school/s invoice;
(b) Costs of the AM School uniform for each of X and Z being:
(i) In each year of school, the husband pay for one Winter Uniform and one Summer Uniform for each of X and Z;
(ii) In each year of school, the husband pay for all of the compulsory items identified in the AM School Sports Uniform List for each of X and Z;
(c) The cost of the children’s school textbooks and equipment as identified in:
(i) The AM School Book List and Stationary List or equivalent for each of X and Z in each year of their schooling; and
(ii) the Book List and Stationary List or equivalent for Y in each year of his schooling;
(d) All additional or gap medical expenses for the children for medical treatments, dental and orthodontic work (as recommended by their treating Dentist or Orthodontist), psychology, psychiatry, occupational therapy, physiotherapy, and hospital expenses;
15. In relation to the expenses describe at Orders 13 and 14(a) – (d) above, the husband pay the costs directly to the service provider within the service providers terms.
16. Pursuant to s 125 of the Child Support (Assessment) Act 1989 (Cth), the husband shall not seek to reduce his periodic child support under the current administrative assessment, or obtain credit as a result of any payments he makes to try to reduce his current child support assessment as set out in these Orders.
17. The parties forthwith do all acts and things necessary to cause a copy of this order to be lodged with the Child Support Registrar.
Spousal maintenance
18. Order 3 of the orders of Justice Smith dated 6 July 2022 be discharged forthwith upon the husband fully discharging his obligation to make the payment of the settlement sum payment at Order 1(a) or 6(c).
19. The application for spousal maintenance is otherwise dismissed.
Costs
20. If any party seeks costs, an application in the appropriate form supported by affidavit evidence is to be filed and served within 28 days of the date of these orders.
21. If no application for costs is filed within the time specified, there shall be no order as to costs.
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
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.