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…

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 Creswell & Conroy (No 3)

Details

AGLC: Creswell & Conroy (No 3) [2023] FedCFamC1A 233
Case: [2023] FedCFamC1A 233
Decision Date: 20 December 2023

CaseChat Overview and Summary

The matter of Creswell & Conroy (No 3) involved an appeal against decisions made in family law proceedings. The appellant, Ms Cresswell, sought to appeal aspects of the original decisions, leading to a review by the Federal Circuit and Family Court of Australia, Division 1 Appellate Jurisdiction. The respondent, Mr Conroy, and the Independent Children's Lawyer were also parties to the appeal. The primary concern in this appeal was whether the Full Court should re-exercise its discretion given the potential introduction of new evidence during the rehearing.

The court was required to decide whether the matter should be remitted for rehearing before a different judge in Division 2 of the Federal Circuit and Family Court of Australia, especially considering the contentious nature of the new evidence likely to be presented. Additionally, the court needed to determine the appropriate allocation of costs associated with the appeal, encouraging dispute resolution where possible.

In its decision, the court allowed the appeal and decided to remit the matter for rehearing by a different judge in Division 2, excluding the original primary judge. The court also addressed the issue of costs, granting certificates to the appellant, respondent, and the Independent Children's Lawyer in relation to the appeal. However, the court clarified that these costs certificates would not apply to the rehearing. The decision emphasised the importance of dispute resolution and noted that the original orders made in the proceedings were set aside pending further orders from the court.

The final orders of the court mandated the rehearing of the matter before a different judge in Division 2, set aside the original orders, and granted costs certificates to the appellant, respondent, and the Independent Children's Lawyer for the appeal. The court's decision underscored the need for careful consideration of new evidence and the procedural steps necessary for fair and just outcomes in family law matters.

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:

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.

Background

Background to the litigation

Full text does not contain this section.

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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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

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

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	20 DECEMBER 2023