Carswell & Tenson (No 4)

Case [2024] FedCFamC1F 848


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…

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AGLC
Carswell & Tenson (No 4) [2024] FedCFamC1F 848
Case
[2024] FedCFamC1F 848
Decision Date

CaseChat Overview and Summary

Carswell & Tenson (No 4) was a case before the Federal Circuit and Family Court of Australia, involving a dispute between Ms Carswell and Mr Tenson regarding the division of property, child support, and spousal maintenance following their divorce. The central issues revolved around the equitable division of the property pool, the wife's request for periodic child support departure, and her application for spousal maintenance. The court was tasked with determining the appropriate division of the marital assets and whether there were grounds for the wife's requests for child support and spousal maintenance.

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

Orders will be made for a division of the property pool of 65% to the wife and 35% to the husband, and for non-periodic child support. The application of the wife for periodic child support departure and spousal maintenance is dismissed. My reasons follow.BACKGROUND There are three children of the marriage, namely:(a)Y, aged 14 at the time of trial;(b)X, aged 12 at the time of trial; and(c)Z, aged 10 at the time of trial. Pursuant to orders made by consent on the first day of the trial, the children live primarily with the wife and spend time with the husband each alternate week. Y spends time with the husband each alternate week from after school on Thursday until the commencement of school on Monday, and X and Z each alternate week from after school on Friday until the commencement of school on Tuesday. The children spend equal time with their parents during school holidays. The parties commenced cohabitation in 2007 at the husband’s apartment at AN Street, Suburb AO (“the Suburb AO apartment”). In 2008, the parties purchased AP Street, Suburb AQ for approximately $850,000 (“the Suburb AQ property”). In 2008 the Suburb AO property was sold for approximately $390,000. The parties married in 2008. In 2010, the parties sold the Suburb AQ property for approximately $1,250,000. In 2010, the parties purchased AR Street, Suburb AS (“the Suburb AS property”) for $1,775,000. In 2014, the parties purchased a property at CC Street, Suburb C (“the Suburb C property”) for $3,100,000 and shortly thereafter, sold the Suburb AS property for $2,000,000. Following the purchase of the Suburb C property, they lived in a rental property located in Suburb AT to allow the Suburb C property to be tenanted and renovated, until they moved to Suburb C in 2017. The wife contends that the parties separated on a final basis on 26 August 2017, the husband says it was on or around 1 September 2017. Nothing turns on the differences between the parties’ asserted date of separation. The parties divorced in 2019. The husband has re-partnered and lives with his de-facto partner Ms E. They have a child, W, who was born in 2021. Proceedings were commenced on 29 August 2018 by way of the wife filing an Initiating Application in the (then) Family Court of Australia. ORDERS SOUGHT BY THE PARTIESApplicant wife The wife’s orders sought are included below at Schedule 1. The wife sought orders in accordance with her Amended Initiating Application filed 22 April 2024 seeking a division of property of 70/30 in her favour. She contended that the parties’ contributions were equal and sought an adjustment of 20 per cent in her favour on the account of the s 75(2) factors. She sought payment of the settlement sum within 35 days of the date of the orders and that the husband retain the Suburb C property. Failing payment within 35 days of the orders, the wife sought orders for the sale of the property. The wife further sought a child support departure order requiring the husband to pay the fixed sum of $750 per week by way of periodic child support, with such amount to reduce pro rata as each of the children turn 18. Additionally, she sought an order for the payment of tuition and incidental curricular costs and payment of health-related costs of the children.

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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