Crick & Bennett

Case [2022] FedCFamC1A 34


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 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…

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Crick & Bennett [2022] FedCFamC1A 34
Case
[2022] FedCFamC1A 34
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Appellate Division) allowed an appeal brought by Mr Crick against orders made by the Family Court in relation to the property known as G Street, Suburb F. The Court set aside the orders made by the primary judge and remitted the matter for rehearing by another judge. The appeal arose out of proceedings concerning the division of property between Mr Crick and Ms Bennett, who were former de facto partners. The legal issues before the Court related to the adequacy of reasons given by the primary judge and whether there was an error in law in the orders made. The Court found that the primary judge's reasons were inadequate and that there was an error in law in the orders made. 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.

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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