FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Crick & Bennett [2022] FedCFamC1A 34
Appeal from: Bennett & Crick [2021] FedCFamC2F 122 Appeal number(s): NAA 65 of 2021 File number(s): PAC 2610 of 2016 Judgment of: ALDRIDGE J Date of judgment: 10 March 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the parties have agreed on the disposition of the appeal – Where this Court is asked to make an order by consent allowing the appeal – Where there is a basis for allowing the appeal – Inadequate reasons – Error in law – Appeal allowed – Matter remitted for rehearing – Costs certificates granted. Legislation: Family Law Act 1975 (Cth) s 90SF(3)
Federal Proceedings (Costs) Act 1981 (Cth) s 6(1)
Cases cited: Cramer v Davies (1997) 72 ALJR 146
Bhatnagar & Riju [2018] FamCAFC 144
Heidari & Ebadi [2020] FamCAFC 316
Number of paragraphs: 13 Date of hearing: 10 March 2022 Place: Sydney (via video link) Counsel for the Appellant: Mr Othen Solicitor for the Appellant: Grover Law Counsel for the Respondent: Ms Druitt Solicitor for the Respondent: Valenti and Valenti Solicitors ORDERS
NAA 65 of 2021
PAC 2610 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CRICK
Appellant
AND: MS BENNETT
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
10 MARCH 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 1–15 made on 21 October 2021 are set aside.
3.The matter is remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing by a judge other than the primary judge.
THE COURT ORDERS BY CONSENT THAT:
4.That on a without admissions basis and pending such rehearing and orders made as to alteration of property interests following such rehearing or further interlocutory order:
(a)Except as otherwise provided for in this Order 4, the appellant be and is hereby restrained from selling, encumbering or further disposing of his interest in the property known as and situate at G Street, Suburb F being more properly described as the property within Folio ID … “the property” or the sale proceeds therefrom (and being the subject of a put and call option by Deed dated 2 September 2021 “the option”);
(b)The appellant be and is hereby directed to forthwith authorise any agent or solicitor/ conveyancer acting on the sale of the property by the option to liaise with and provide information and documents to the respondent through her solicitors, Valenti and Valenti of Suite 4, 3 Ware Street Fairfield NSW or any solicitor then acting for her with respect to the sale of the property;
(c)In the event that the purchaser of the property proceeds to purchase the property pursuant to the option and settlement thereof takes place prior to the rehearing of these proceedings then both parties be and are hereby to direct that any settlement proceeds shall be placed into a Controlled Monies Account by the solicitors acting…
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- AGLC
- Crick & Bennett [2022] FedCFamC1A 34
- Case
- [2022] FedCFamC1A 34
- Decision Date
CaseChat Overview and Summary
The Court found that the primary judge's reasons were inadequate as they did not provide sufficient detail about the basis for the orders made. The Court held that the primary judge's reasons did not adequately explain why the orders made were appropriate in the circumstances of the case. The Court also found that there was an error in law in the orders made as they did not take into account the relevant statutory provisions and case law. The Court held that the primary judge had erred in law by making orders that were not in accordance with the law. The Court held that the appeal had a basis for being allowed and that the matter should be remitted for rehearing by another judge. The Court also granted costs certificates to both parties in respect of the appeal and the new trial ordered.
Orders
Orders of the court
NAA 65 of 2021
PAC 2610 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR CRICK
Appellant
AND:
MS BENNETT
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
10 MARCH 2022
THE COURT ORDERS THAT:
1. The appeal is allowed.
2. Orders 1–15 made on 21 October 2021 are set aside.
3. The matter is remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing by a judge other than the primary judge.
THE COURT ORDERS BY CONSENT THAT:
4. That on a without admissions basis and pending such rehearing and orders made as to alteration of property interests following such rehearing or further interlocutory order:
(a) Except as otherwise provided for in this Order 4, the appellant be and is hereby restrained from selling, encumbering or further disposing of his interest in the property known as and situate at G Street, Suburb F being more properly described as the property within Folio ID … “the property” or the sale proceeds therefrom (and being the subject of a put and call option by Deed dated 2 September 2021 “the option”);
(b) The appellant be and is hereby directed to forthwith authorise any agent or solicitor/ conveyancer acting on the sale of the property by the option to liaise with and provide information and documents to the respondent through her solicitors, Valenti and Valenti of Suite 4, 3 Ware Street Fairfield NSW or any solicitor then acting for her with respect to the sale of the property;
(c) In the event that the purchaser of the property proceeds to purchase the property pursuant to the option and settlement thereof takes place prior to the rehearing of these proceedings then both parties be and are hereby to direct that any settlement proceeds shall be placed into a Controlled Monies Account by the solicitors acting on the sale of the property to abide the further order of the Court;
(d) The respondent is at liberty to lodge a caveat against the title to the property at her expense and the appellant shall do all acts and things and sign all documents necessary to consent to the caveat being lodged including endorsing his consent on the caveat form when so requested by the respondent;
(e) The respondent shall withdraw any such caveat at her own expense on or before the date of settlement of sale of the property by the option or as otherwise ordered; and
(f) Nothing in this Order 4 prevents the appellant from selling the property and otherwise acting in accordance with his obligations under the terms of the option.
THE COURT FURTHER ORDERS THAT:
5. 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 him in relation to the appeal.
6. 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 her in relation to the appeal.
7. The Court grants to each of the parties a costs certificate pursuant to s 8 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 each of the parties in respect of the costs incurred by them in relation to the new trial ordered.
Background
Background to the litigation
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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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