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Cresswell & Conroy (No 2)

Cresswell & Conroy (No 2)

Case [2023] FedCFamC2F 669 16 June 2023

Costs

Limitation Periods

Unconscionable Conduct

Non-disclosure

Misleading the Court

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cresswell & Conroy (No 2) [2023] FedCFamC2F 669

File number(s): PAC 4677 of 2016

Judgment of: JUDGE OBRADOVIC

Date of judgment: 16 June 2023

Catchwords: FAMILY LAW – COSTS – Application for indemnity costs – Application for ICL’s costs – Scale costs ordered

Legislation: Family Law Act 1975 (Cth) s 117

Cases cited:
Cochrane & Cochrane [2012] FMCAfam 984

Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 801

Collins & Collins [1985] FamCA 15

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158

Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] FCA 364

Greedy and Greedy [1982] FamCA 41

I & I (No.2) [1995] FamCA 80

Jensen &Jensen [1982] FamCA 57

Kohan & Kohan [1992] FamCA 116

Latoudis v Casey [1990] HCA 59

Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157

Munday v Bowman (1997) FLC 92-784

Penfold & Penfold [1980] HCA 4

Ragatta Developments Pty Ltd v Westpac Banking Corporation [1993] FCA 115

Renald & Renald (Costs) [2018] FamCAFC 4

Stasiuk & Guild [2021] FamCAFC 62

Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd [1991] FCA 225

Division: Division 2 Family Law

Number of paragraphs: 43

Date of last submission/s: 17 May 2023

Date of hearing: In Chambers

Place: Parramatta

Counsel for the Applicant: Ms Houghton

Solicitor for the Applicant: Wilkinson, Throsby & Edwards

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
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:

16 JUNE 2023

THE COURT ORDERS THAT:
1.Within 3 months, the applicant, Ms Cresswell, pay the costs of the respondent, Mr Conroy, assessed in the amount of $178,743.
2.Within 28 days, the applicant, Ms Cresswell, pay the costs of the Independent Children’s Lawyer assessed in the amount of $18,115.
3.Within 28 days, the respondent, Mr Conroy, pay the costs of the Independent Children’s Lawyer assessed in the amount of $16,465.

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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Cresswell &…

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 (No 2)

Details

AGLC: Cresswell & Conroy (No 2) [2023] FedCFamC2F 669
Case: [2023] FedCFamC2F 669
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia, Division 2, presided over by Judge Obradovic, was presented with a case concerning the costs associated with family law proceedings between Ms Cresswell and Mr Conroy. The Independent Children's Lawyer also made a submission for costs. The central issues before the Court were whether costs should be awarded, and if so, the nature and quantum of such costs. The Court examined the relevant legal principles under the Family Law Act 1975, focusing on section 117(2A) which lists factors the Court must consider when making a costs order. The Court also considered the principles concerning indemnity costs, which are exceptional and require specific circumstances such as improper conduct or fraudulent allegations.

In its determination, the Court assessed the conduct of both parties during the proceedings. It found that Ms Cresswell's conduct, including non-disclosure of relevant financial information and unreliability as a witness, justified a costs order against her. The Court noted that the proceedings were protracted due to Ms Cresswell's conduct, and that she had opportunities to avoid significant costs by accepting earlier settlement offers. The Court rejected the respondent's application for indemnity costs, finding that while there were justifying circumstances for a costs order, they did not reach the exceptional threshold required for indemnity costs. Instead, the Court ordered that Ms Cresswell pay the respondent's costs in the amount of $178,743, and that both parties contribute equally to the costs of the Independent Children's Lawyer, amounting to a total of $36,229. These costs were to be paid within specified timeframes.

In summary, the Court awarded costs against Ms Cresswell based on her conduct during the proceedings but did not grant indemnity costs. The orders reflected the Court's consideration of the factors under the Family Law Act and the principles governing costs in family law matters.

Orders