Cresswell & Conroy (No 2)

Case [2023] FedCFamC1A 201

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Cresswell & Conroy (No 2) [2023] FedCFamC1A 201

Appeal from:

Cresswell & Conroy [2023] FedFamC2F 274

Cresswell & Conroy (No 2) [2023] FedFamC2F 669
Appeal number(s): NAA 92 of 2023
NAA 186 of 2023
File number: PAC 4677 of 2016
Judgment of: MCCLELLAND DCJ
Date of judgment: 22 November 2023
Catchwords: FAMILY LAW – APPEAL – PARENTING AND PROPERTY – De facto relationship – Mental health issues potentially impacting upon presentation of appellant mother as a witness – Where adverse credit findings were made by the primary judge against the self-represented appellant mother based on demeanour – Where limited weight was given to expert evidence as a result of the adverse credit findings – Where the appellant mother suffered an acute stress reaction during the final hearing and was subsequently hospitalised – Where the primary judge found that the child was at risk due to the appellant mother’s dishonesty and manipulation – Delay in delivering judgment – Where the primary judgment was infected by operative delay – Denial of procedural fairness – Inadequate reasons – Related impact upon property settlement orders – Appeal allowed – Costs set aside – Parties and Independent Children’s Lawyer to file submissions in respect to whether matter should be remitted or whether the Full Court should re-hear the proceedings – Written submissions in respect to costs of the appeal.
Legislation:

Family Law Act 1975 (Cth) ss 79A, 90SE, 90SF, 90SM

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

CDJ v VAJ (No 2) (1998) 197 CLR 172; [1998] HCA 67

Cresswell & Conroy (No 2) [2023] FedCFamC2F 669

Cresswell & Conroy [2017] FCCA 912

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25

Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24

Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189

Folett & Langley (2016) FLC 93-738; [2016] FamCAFC 191

Halstron & Halstron [2022] FedCFamC1A 65

HT v The Queen (2019) 269 CLR 403; [2019] HCA 40

Langley and Tarelli (No 4) [2021] FamCAFC 107

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60

Maclean & Greenwood (2022) FLC 94–117; [2002] FedCFamC1A 200

Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61

McCrossen and McCrossen (2006) FLC 93-283; [2006] FamCA 868

MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 7) (2012) 191 LGERA 292; [2012] NSWCA 417

Monie v The Commonwealth (2005) 63 NSWLR 729; [2005] NSWCA…

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AGLC
Cresswell & Conroy (No 2) [2023] FedCFamC1A 201
Case
[2023] FedCFamC1A 201
Decision Date

CaseChat Overview and Summary

The appeal in Cresswell & Conroy (No 2) concerns the parenting and property orders made by the primary judge in proceedings PAC 4677 of 2016. The primary judge’s orders were subsequently appealed by the mother, the appellant, on various grounds, including procedural unfairness and inadequate reasoning. The appeal against the parenting and property orders is NAA 92 of 2023, while the appeal against the costs orders is NAA 186 of 2023. The appeal was heard and determined by the Full Court of the Family Court of Australia.

The central issues before the court were whether the primary judge’s adverse credit findings against the mother, based primarily on her demeanour during the trial, were justified and whether the delay in delivering the judgment impacted the fairness of the proceedings. Additionally, the court had to consider the impact of these issues on the property settlement orders. The mother argued that the primary judge’s generalised adverse credit finding, made in substantial part on demeanour evidence given four years prior to the judgment, was unfair and procedurally unjust. The mother further contended that the delay in delivering the judgment had a detrimental effect on her credibility and the weight given to expert evidence.

The court found that the delay in delivering the judgment had a significant impact on the primary judge's ability to make fair and reasoned adverse credit findings against the mother. The court noted that the primary judge’s generalised adverse credit finding, which was largely based on the mother’s demeanour in court, was unfair given the context of her stress reaction during the proceedings. The court held that the mother’s demeanour on 15 February 2019, when she exhibited signs of acute stress, was not reflective of her general credibility or reliability. The court also found that the primary judge’s decision to give limited weight to expert evidence due to the adverse credit finding was procedurally unfair. The court concluded that the mother had been denied procedural fairness due to the delay and the generalised adverse credit finding.

The court allowed the appeals against both the parenting and property orders, as well as the costs orders. It set aside the primary judge’s orders and directed the parties and the Independent Children’s Lawyer to file submissions on whether the matter should be remitted for re-hearing or whether the Full Court should re-exercise its discretion. Additionally, the court set aside the costs orders and directed the parties to file submissions on the issue of the costs of the appeal. The decision underscores the importance of procedural fairness and the impact of delay on judicial proceedings.

Orders

Orders of the court

NAA 92 of 2023

NAA 186 of 2023

PAC 4677 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS CRESSWELL

Appellant

AND:

MR CONROY

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

22 NOVEMBER 2023

THE COURT ORDERS THAT:

1. Appeal NAA 92 of 2023 and appeal NAA 186 of 2023 are allowed.

2. Orders 1 to 13 of the orders made in proceedings PAC 4677 of 2016 on 15 March 2023 be set aside on and as from the date upon which further orders are made by the Federal Circuit and Family Court of Australia (Division 1) or the Federal Circuit and Family Court of Australia (Division 2).

3. Orders 14 to 21 of the orders made in proceedings PAC 4677 of 2016 on 15 March 2023 be set aside as and from the date of these orders.

4. The costs orders made in proceedings PAC 4677 of 2016 on 16 June 2023 be set aside.

5. Within 14 days of the date of these orders:

(a) The parties and the Independent Children’s Lawyer are to file written submissions, of no more than two (2) pages, in respect to the question as to whether the matter should be remitted for re-hearing before a judge other than the primary judge, or whether the Full Court should re-exercise discretion.

(b) The parties and the Independent Children’s Lawyer are to file written submissions, of no more than two pages, in respect to the issue of costs of the appeal.

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).

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.

Background

Background to the litigation

These reasons address the three different components of the subject matter of the appeal. Firstly, the appeal against the parenting orders made by the primary judge, secondly, the appeal against the property settlement orders made by the primary judge and, finally, the separate appeal (NAA 186 of 2023) against the costs orders made by the primary judge. BACKGROUND The parties are currently in their late 30s. They met in high school and began a relationship in or around 2003, but never married. The appellant mother is an educator and the respondent father is a transport worker. On ... 2014, the child was born. The nature and extent of the party’s relationship was essentially left undetermined by the primary judge who concluded at [296] that “[n]otwithstanding any arguments about the legal status of their relationship, [the parties] remained together for many years (even though there have been a number of periods of separation)”. Following separation and prior to the mother commencing proceedings in October 2016, the child lived with the mother as the child’s primary carer. The parties lived within a few blocks of each other in City C. An issue of controversy in the substantive proceedings had been the determination of the date of the party’s separation. The mother asserted that the parties separated “on a final basis on 1 October 2014”,[1] but the father contended that the parties separated on 26 July 2015.[2] Her Honour held that she had resolved the issue of the date of separation in her judgment delivered on 9 May 2017 which was in the context of an application for interim parenting orders, finding that the parties separated in mid to late 2015. It has been unnecessary to resolve the ground of appeal which contends that the primary judge erred in relying on that earlier finding made in respect to the interim application as creating an issue estoppel against the mother in respect to the date of separation.[3] [1] Mother’s affidavit filed 16 July 2018, paragraph 3.[2] Respondent’s Summary of Argument filed 1 September 2023, paragraph 7.[3] Cresswell & Conroy [2017] FCCA 912 at [35]. The mother commenced the proceedings and sought parenting orders in accordance with her Application for Final Orders filed 6 October 2016 that was subsequently amended on 16 July 2018. In Reply, the father sought spend time orders with the child. In circumstances where the father worked a flexible roster in his occupation as a transport worker, the spend time arrangements became problematic. It was found that the mother failed to adequately cooperate in facilitating the child’s time with the father. That finding has not been disputed in this appeal. The final hearing commenced on Monday, 11 February 2019, with the mother being self-represented. The proceedings continued until Wednesday, 13 February 2019 with the next day of hearing being Friday, 15 February 2019. On 15 February 2019, the matter was adjourned as the primary judge became concerned by the mother’s presentation during cross-examination.

Evidence

Evidence Before The Court

In that context, it is generally accepted that “an adverse finding about an aspect of a particular witness’ evidence does not mandate that his or her evidence must or should be rejected on all issues”.[39] While the making of a generalised adverse credit finding against the mother has not been identified as a specific ground of appeal, her Honour’s approach, in the particular circumstances of this case, is relevant to my consideration of the impact of delay in the publication of her judgment. This is because of the mother’s legitimate concern that the ability of the primary judge to differentiate between the circumstances in which the mother gave evidence in the stress of a courtroom, while self-represented, needed to be differentiated from statements that she separately made to experts in a clinical setting. No such differentiation has occurred as a result of the generalised adverse credit finding which, itself, has been infected by the effect of delay in delivering judgment.[39] Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128 at [188].Generalised adverse credit finding resulted in diminished weight being given to expert evidence Significantly, the primary judge stated that she gave reduced weight to expert evidence due to her Honour’s finding of the mother’s general lack of credibility. Specifically, the primary judge inferred that the information provided by the mother to the experts must have been inaccurate. In that respect, for instance, the primary judge referred to a report prepared by the mother’s treating psychologist, Dr J, who opined that:Throughout our sessions, [the mother] has presented as appropriately concerned about her circumstances and aware of the complexities of the legal pursuits. This has been nonetheless profoundly confronting, and I am aware of at least one further episode of acute stress reaction which prompted supportive family members to seek urgent medical advice. [The mother] has good support from her family and this, as well as the support of clinicians - […] - will continue to help build up her coping skills in managing the challenges around Court proceedings, liaison with [the father], and her care of [the child].[40][40] Report of Dr J dated 25 April 2019. The primary judge stated at [90] that the Report of Dr J carried “very limited weight”. The reason for this included the primary judge’s assessment that the mother had demonstrated a “tendency to give evidence to the Court in a manner which suited her case” (at [88]). Her Honour, for similar reasons, also stated at [187] that she gave “little weight” to the recommendations of Ms N, a private clinical psychologist, who had been engaged to provide a single expert report in the proceedings. The appeal does not raise a specific weight challenge regarding Ms N’s evidence, but it was nevertheless procedurally unfair for the primary judge to give little weight to Ms N’s evidence on the basis of a generalised adverse credit finding when that finding was based, in substantial part, on demeanour findings made by her Honour. This is particularly so when the witness’s evidence was given in February 2019, four years prior to the judgment being delivered.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

For reasons which I will subsequently explain, I am satisfied that a “practical injustice”,[26] to the mother has occurred, such that the appeal should be upheld. This is in circumstances where adverse credit findings have been made, in large part, on the primary judge’s assessment of the mother’s demeanour when giving evidence some four years before judgment delivery.CONSIDERATION [26] HT v The Queen (2019) 269 CLR 403 at [17]–[18] (Kiefel CJ, Bell and Keane JJ).Additional scrutiny In considering this appeal, consistent with the first proposition that I have applied from Monie, I record that I have subjected the reasons for judgment of the primary judge to a heightened level of scrutiny than would otherwise have been the case. That is, I have departed from the principle that an appellate court generally accepts that there is a strong presumption in favour of the correctness of the primary judgment subject of appeal, and that it is based on an advantage that the primary judge would ordinarily have in assessing the credibility of witnesses.[27] The additional scrutiny that I have applied has, unfortunately, resulted in a lengthier judgment than would otherwise be the case in an appeal of this nature.[27] Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627.Operative delay impacting ability to make adverse credit finding based on demeanour The primary reason that I have upheld the appeal relates to the second proposition that I have applied from Monie. That is, I respectfully agree with the submissions of counsel for the mother that, in the broader context, to which I have earlier referred, there was an operative delay that resulted in the mother being denied procedural fairness. It is clear that adverse credit findings were made against the mother, in substantial part, as a result of evidence which she gave some four years prior to the delivery of judgment, and which included the assessment by the primary judge of the mother’s demeanour in giving that evidence. Significantly, that adverse credit finding was also relevant to the decision of the primary judge to reject the findings and recommendations of experts that were favourable to the mother’s case. The adverse credit finding was also relevant to the finding by the primary judge that the mother was “manipulative” which, in turn, influenced the decision of the primary judge to make orders limiting the child’s time with the mother. The mother’s demeanour when giving evidence is particularly relevant in circumstances where it is undisputed that the mother was dysregulated in the giving of her evidence on 15 February 2019. As earlier noted, the mother’s presentation on 15 February 2019 was such that the primary judge made urgent interim orders removing the child from her care and placing the child in the care of the father. While no formal judgment was delivered by the primary judge in making those orders, her Honour’s reasons for doing so were explained to the mother on 15 February 2019. The primary judge’s explanation included the statement that: I’m persuaded by the submissions that have been made by the evidence that I have heard so far, but significantly by your demeanour in the witness box, that there may be an underlying organic problem that gives rise to the way that you have carried yourself during these proceedings. If it’s not that, and it may just be that you are - I don’t want to speculate as to why you are behaving the way that you are, but it gives me sufficient concern such that I have formed the view that at least in the interim period, it is in [the child’s] best interest that he live with his father and spend supervised time with you.[28](Emphasis added) [28] Transcript 15 February 2019, p.151 lines 29–36.