Creswell & Conroy (No 3)

[2023] FedCFamC1A 233

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Creswell & Conroy (No 3) [2023] FedCFamC1A 233

Appeal from:

Creswell & Conroy [2023] FedCFamC2F 274

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

Appeal numbers:

NAA 92 of 2023
NAA 186 of 2023

File number:

PAC 4677 of 2016

Judgment of:

MCCLELLAND DCJ

Date of judgment:

20 December 2023

Catchwords:

FAMILY LAW – APPEAL – Powers and discretion of Full Court – Where the appeal was allowed and the parties and Independent Children’s Lawyer were invited to file submissions in respect of whether the matter ought to be remitted for rehearing – Whether the Full Court ought re-exercise its discretion – Where controversial fresh evidence is likely to be adduced – Matter remitted for rehearing before a judge of Division 2, other than the primary judge.

FAMILY LAW – APPEAL – Costs – Where the parties were invited to file written submissions in respect to the issue of costs on the appeal – Dispute resolution strongly encouraged – Costs certificates granted to the parties and Independent Children’s Lawyer in relation to the appeal, but not the rehearing.

Legislation:

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

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9

Cases cited:

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

Number of paragraphs:

12

Date of last submissions:

6 December 2023

Date of hearing:

Determined on the papers

Place:

In Chambers

Counsel for the Appellant:

Mr Livingstone

Solicitor for the Appellant:

Joshua Blom Lawyers

Counsel for the Respondent:

Ms Breeze

Solicitor for the Respondent:

STC Legal

Counsel for the Independent Children’s Lawyer:

Ms Stolier

Solicitor for the Independent Children’s Lawyer:

Brian Samuel & Associates

ORDERS

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:	20 DECEMBER 2023

THE COURT ORDERS THAT:

1.The matter is remitted to a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge, for rehearing.

2.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to appeal NAA 92 of 2023 and appeal NAA 186 of 2023.

3.The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to appeal NAA 92 of 2023 and appeal NAA 186 of 2023.

4.The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the respondent Independent Children’s Lawyer in relation to appeal NAA 92 of 2023 and appeal NAA 186 of 2023.

THE COURT NOTES THAT:

A.By Order 2 of the orders made on 22 November 2023:

a.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).

B.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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 the pseudonym Cresswell & Conroy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

MCCLELLAND DCJ:

INTRODUCTION

1. By orders made on 22 November 2023, I upheld the appeal in respect to both parenting and property adjustment orders that had been made by a primary judge on 15 March 2023. The primary basis upon which the appeal was upheld was that the appellant mother had been denied the opportunity to have her case properly considered as a result of delay in giving judgment. The delay occurred in circumstances where adverse credit findings were made against the mother, including as a result of the mother’s demeanour, when giving evidence approximately four years prior to the publication of the judgment.

2. Given the parties emotional and financial resources have been depleted as a result of being engaged in litigation since October 2016, I provided the parties with an opportunity to address me as to the practicality of my re-exercising discretion pursuant to s 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). In inviting the parties to consider that issue, I indicated that my preliminary view was that such a course of action would be practicable only if there was a reasonable possibility of the parties agreeing upon the evidence updating their circumstances in the period subsequent to the conclusion of the hearing.

3. I also invited the parties to address me in respect to the issue of costs of the appeal. 

   To re-exercise discretion or remit the matter for rehearing

4. The potential re-exercise of discretion by the appellate court is in the nature of a rehearing based on evidence as at the date of that rehearing. In those circumstances, the parties must be given an opportunity to adduce fresh evidence: Allesch v Maunz (2000) 203 CLR 172 at [31] (“Allesch v Maunz”).

5. Where that evidence is likely to be controversial, it is common for the “appellate court to remit the matter for rehearing rather than, itself, exercise the discretion in question”: Allesch v Maunz at [30].

6. Having considered the helpful submissions of each of the parties, I am satisfied that the fresh evidence that would be adduced in the event of the appellate court rehearing the matter would be controversial. In relation to the parenting proceedings, this would include:

   ·Issues relating to the child – including his views, level of maturity, and relationships;

   ·Issues relating to the parents – including their involvement in decision making, time spent with the child, fulfillment of responsibility to physically and emotionally support the child;

   ·Their attitude to parental responsibility and their parental capacity;

   ·The potential effect of change; and

   ·Any current practical difficulty of implementing potential orders.

7. In relation to the property adjustment aspect of the proceedings, this would include:

   ·The identification of the current balance sheet, including the obtaining of updated valuations;

   ·The identification and assessment of the parties’ post separation contributions; and

   ·Consideration of any potential revision of parenting orders and the impact this might have on the assessment of the future needs of the parents.

8. Accordingly, I am of the view that the appropriate course of action is for this matter to be remitted for rehearing by a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge.

9. It was submitted by the respondent that this matter should be remitted for re-hearing to a judge of the Federal Circuit and Family Court of Australia (Division 1) rather than a judge of the Federal Circuit and Family Court of Australia (Division 2). This was because, it was submitted, the case is likely to require approximately seven days of hearing. That application was, with respect, misconceived in circumstances, where the appeal is from orders made by a judge of Division 2 and the application would need to be made to a judicial officer sitting as a judicial officer of that Court.

   COSTS

10. In circumstances where the appeal has been successful as a result of an error of law and not as a result of fault or error on the part of either of the parties or the Independent Children’s Lawyer (“the ICL”), I am satisfied that it is appropriate for the parties and the ICL to be granted a costs certificates in relation to the appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

11. In the context of the history of this litigation, I sincerely hope that the parties will give consideration to participating in dispute resolution with a view to resolving issues in dispute, rather than to expend yet further emotional and financial resources in the litigation process. In those circumstances, I do not propose to grant costs certificates in respect to the rehearing of the matter.

    ORDERS

12. Accordingly, for these reasons, I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.

Associate:

Dated:       20 December 2023