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Cresswell & Conroy

Cresswell & Conroy

Case [2023] FedCFamC2F 274 15 March 2023

Best interests of child

Parental Responsibility

Parenting Capacity

Willingness to facilitate relationship with other parent

Assessment of Contributions

Just and equitable

Real Property

Mortgages & Security Interests

Family Law

Property Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cresswell & Conroy [2023] FedCFamC2F 274

File number(s): PAC 4677 of 2016

Judgment of: JUDGE OBRADOVIC

Date of judgment: 15 March 2023

Catchwords:
FAMILY LAW – CHILDREN – Final Parenting - Assessment of risk – Allegations of family violence – Mental health issues – Credit of mother – Best interests of child – Parenting capacity – Willingness to facilitate relationship with other parent – Issues in complying with parenting orders – Ability to make joint decisions – Parental Responsibility

FAMILY LAW – PROPERTY – De facto relationship – Property adjustment – Length of relationship – Assessment of contributions – Just and equitable

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA,65DAA, 90SF, 90SM

Cases cited:
Aldrin & Celona [2021] FedCFamC1A 16

Banks & Banks [2015] FamCAFC 36

Bevan & Bevan [2014] FamCAFC 19

Black & Kellner [1992] FamCA 2

Blandford & Esmore [2022] FedCFamC1A 67

Chapman & Chapman [2014] FamCAFC 91

Cresswell & Conroy [2017] FCCA 912

Dickons v Dickons (2012) 50 Fam LR 244

In the Marriage of Briese[1985] FamCA 23

In the Marriage of Weir (1992) 16 FamLR 154

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR v GR [2010] HCA 4

Oamra & Williams [2021] FamCAFC 117

Oriolo v Oriolo [1985] FamCA 54

Peters & Walker [2015] FamCA 732

Russell & Russell (1999) FLC 92-877

Scott & Danton [2014] FamCAFC 203

Slater & Light [2011] FamCAFC 1

Stanford v Stanford [2012] HCA 52

Teal & Teal [2010] FamCAFC 120

Division: Division 2 Family Law

Number of paragraphs: 323

Date of last submission/s: 19 November 2021

Date of hearing: 11-13 and 15 February 2019, 18-21 May 2020, 2-4 November 2020, 12 August 2021, 18-19 November 2021

Place: Parramatta

Appearing for the Applicant: In person (11-13 and 15 February 2019)

Counsel for the Applicant: Ms Houghton (18-21 May 2020, 2-4 November 2020, 12 August 2021)

Solicitor for the Applicant: Wilkinson, Throsby & Edwards (18-21 May 2020, 2-4 November 2020, 12 August 2021, 18-19 November 2021)

Counsel for the Respondent: Ms Breeze

Solicitor for the Respondent: STC Legal

Counsel for the Independent Children's Lawyer: Ms Stollier

Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates

Table of Corrections

02 May 2023 In paragraph 265, “Mr Cresswell” has been replaced with “Mr Conroy”.
ORDERS

PAC 4677 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CRESSWELL

Applicant

AND:
MR CONROY

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE OBRADOVIC

DATE OF ORDER:

15 MARCH 2023

THE COURT ORDERS THAT:
Parenting
1.The Respondent father have sole parental responsibility for the child X born in 2014.
2.In respect of any decisions that need to be made concerning the child’s education and medical treatment (except in the case of an emergency), the father is to:
(a)Advise the Applicant mother and if practicable provide the mother with 14 days’ notice of his intended decision;
(b)Invite and take into consideration any view expressed by…

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 Cresswell & Conroy

Details

AGLC: Cresswell & Conroy [2023] FedCFamC2F 274
Case: [2023] FedCFamC2F 274
Decision Date

CaseChat Overview and Summary

The case of Cresswell & Conroy involved complex and protracted proceedings before the Family Court of Australia. The primary issues before the Court were the determination of parenting arrangements and property settlement for the parties, Ms Cresswell and Mr Conroy, who have one child, X. The Court heard extensive evidence over multiple days of final hearing and considered expert reports and other documentation. The Court found that Ms Cresswell was not a credible witness and her evidence was often unreliable. The Court preferred the evidence of Mr Conroy and the experts who provided opinions on Ms Cresswell's mental health and parenting capacity. The Court found that while Ms Cresswell had experienced acute psychotic episodes, she was capable of caring for X and that there was no unacceptable risk to X in her care. However, the Court found that Ms Cresswell's behaviour and conduct during the proceedings, as well as her reluctance to comply with court orders and facilitate a relationship between X and Mr Conroy, were concerning. The Court ordered that X live with Mr Conroy and spend supervised time with Ms Cresswell. The Court also made property settlement orders, finding that an overall adjustment in favour of Mr Conroy was appropriate given the contributions of the parties and future needs. The Court reserved the issue of costs for later determination.

Orders