Steen & Crespo

Case [2025] FedCFamC1A 90

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Steen & Crespo [2025] FedCFamC1A 90

Appeal from: Steen & Crespo [2025] FedCFamC2F 51
Appeal number: NAA 48 of 2025
File number: NCC 193 of 2023
Judgment of: CAMPTON J
Date of judgment: 23 May 2025
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where during the trial the father amended his final orders sought for the children to live with him and sought the same interim order – Where the mother contends that the judge's intervention in the trial occasioned a denial of procedural fairness occasioning a miscarriage of justice – Where the mother prosecutes other grounds as to apprehended bias, a failure to afford procedural fairness, error of fact, and an error of law – Where the father and the Independent Children’s Lawyer oppose the appeal – Where an interim hearing was conducted during the trial with orders made for the children to continue to live with the mother – Where there was a hiatus in the trial, it being adjourned part-heard – Where orders were made as to the filing of further evidence – Where findings were made that the children continuing to live with the mother posed an unacceptable risk of harm to their emotional and/or psychological safety – Where the mother’s case as to the amelioration of risk was not accepted – Appeal dismissed – Mother to pay the costs of the father and the Independent Children’s Lawyer in a fixed sum.  
Legislation:

Family Law Act 1975 (Cth) Pt VII, Div 12A, ss 60CC, 68LA, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23

Cases cited:

A v A (1998) FLC 92-800; [1998] FamCA 25

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221

Bienstein v Bienstein (2003) FLC 93-124; [2003] HCA 7

CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67

Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29

Cizek & Mihov (2024) FLC 94-206; [2024] FedCFamC1A 151

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Finch & Finch (2020) FLC 93-949; [2020] FamCAFC 60

Galea v Galea (1990) 19 NSWLR 263

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32

Hatfield & Rivas (2024) FLC 94-224; [2024] FedCFamC1A 202

Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84

Helbig & Rowe [2016] FamCAFC 117

House v The King (1936) 55 CLR 499; [1936] HCA 40

Huda & Huda and Laham (2018) FLC 93-837; [2018] FamCAFC 85

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Johnson v Johnson (2000) 201 CLR 488;

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AGLC
Steen & Crespo [2025] FedCFamC1A 90
Case
[2025] FedCFamC1A 90
Decision Date

CaseChat Overview and Summary

In the case of Steen and Crespo, the Federal Circuit and Family Court of Australia's Appellate Division considered an appeal concerning parenting arrangements for the children of the separated parties. The mother, Ms Steen, contested the primary judge's decisions during the trial, arguing that the judge's interventions in the proceedings led to a miscarriage of justice and denied her procedural fairness. She also raised issues of apprehended bias, failure to provide procedural fairness, errors of fact, and errors of law. Both the father, Mr Crespo, and the Independent Children's Lawyer opposed the appeal.

The legal issues before the court included whether the primary judge's interventions during the trial were excessive and prejudicial, leading to a miscarriage of justice and a denial of procedural fairness. The court also considered whether there was apprehended bias, and if there were any errors in fact or law that warranted the appeal being upheld.

The court found that the mother's appeal lacked merit. It determined that the primary judge's interventions, while perhaps more frequent than ideal, did not amount to a miscarriage of justice or a denial of procedural fairness. The court concluded that the primary judge's actions fell within the acceptable bounds of judicial intervention in family law proceedings. Furthermore, the court rejected the mother's claims of apprehended bias, finding no evidence to support such a contention. The appeal was dismissed, and the mother was ordered to pay the costs of the father and the Independent Children's Lawyer in fixed sums.

In summary, the Federal Circuit and Family Court of Australia's Appellate Division dismissed the mother's appeal and ordered her to pay the costs of the father and the Independent Children's Lawyer. The court upheld the primary judge's decisions, finding no grounds for the appeal based on the issues raised concerning procedural fairness, bias, or errors in fact or law.

Orders

Orders of the court

NAA 48 of 2025

NCC 193 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS STEEN

Appellant

AND:

MR CRESPO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

23 MAY 2025

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. Within 28 days of the date of these orders, the appellant pay the respondent’s costs fixed at $34,175.

3. Within 28 days of the date of these orders, the appellant pay the Independent Children’s Lawyers costs fixed at $4,290.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, the appeal will be dismissed.BACKGROUND The father was born in 1979 and is currently 45 years old. The mother was born in 1981 and is currently 43 years old. They married in mid-2012 and separated in April 2021 (at [10]). The parents and children were living in a rural community. Prior to separation, the father commenced a relationship with Ms C. Ms C was employed in the father’s business and had a close relationship with the mother. Ms C’s daughter, was X’s best friend. The relationship between the parents in the post-separation period was characterised by significant conflict and acrimony, principally influenced by the circumstances of the separation and the mother’s animosity to the father’s new partner (at [11]–[13]). The primary judge found that in the weeks following separation the father displayed limited insight into how his decisions affected the children, however that he had thereafter developed insight into his actions and expressed some remorse (at [15]). The primary judge recorded that from the time of separation until the Family Report interviews in November 2023, the mother engaged in behaviours which “were averse to the parties’ coparenting relationship and/or the children’s relationship with the father” (at [18]). The parents agreed to the mother moving with the children one and a half hours away from the rural community upon the basis of the children spending time with the father. This initially occurred every weekend, and then every alternate weekend, the change being a function of distance and logistics. No interim parenting orders were in place prior to the trial. Findings were made that the children settled well into their new homes and schools and whilst they had a loving relationship with the father, X had shown resistance to, and was negative about, spending time with the father. Issue existed as to whether the mother had capacity to facilitate, encourage, and support the children’s relationship with the father, particularly X, considering her negative expressions about the father. Both parties sought that the children live with them. A Family Report dated 29 November 2023 recommended that the children continue to live with the mother and spend time with the father, subject to qualifications as to the mother’s alcohol use (which dissipated as an issue at trial) and as to whether the mother could facilitate a meaningful relationship between X and the father. On 30 May 2024 the father amended his response seeking an order for the children to live with the mother. At the time of the trial the father was living with Ms C and her three children. The mother had remarried and was living with Mr D and his two children. At the commencement of the trial the mother sought orders for sole decision-making responsibility, for the children to live with her and spend specified time with the father. The father sought equal shared parental responsibility, for the children to live with the mother and spend specified time with him. The preliminary position of the Independent Children’s Lawyer (“the ICL”) broadly adopted the orders sought by the father.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ground 6 as amended has no merit. It fails.CONCLUSION The appeal, as amended, fails. It will be dismissed.COSTS In the event the appeal was unsuccessful, both the father and the ICL sought the mother pay their costs fixed in the sum of $34,175 and $4,290 respectively. The relevant principles as to costs are well settled. While the starting position established by s 117(1) of the Act is that each party pays their own costs, s 117(2) allows the Court to make such orders as to costs as it considers just if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 117(2A) of the Act and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 117(2A) has priority, nor must more than one factor be satisfied. Rather, any one factor may be sufficient. The mother opposed the orders for costs, submitting that each party should pay their own costs. The mother identified that on 6 March 2025 she was ordered to pay the costs of the father of $7,000 and the costs of the ICL of $1,479 on her stay application being dismissed. No other submission was made as to the financial circumstances of the mother or the father. The mother has been wholly unsuccessful in the appeal. The circumstances justify an order for costs. In the event costs were ordered against her, she did not dispute the quantum sought by either the father or the ICL. An order will be made for the mother to pay the father’s costs fixed at $34,175 and the ICL’s costs fixed at $4,290, within 28 days.

Ratio Decidendi

Legal Principle Established

The grounds as to a failure to afford procedural unfairness and apprehended bias shall be dealt with first as they are matters which go to the integrity of the trial process (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577).CONSIDERATIONGround 1 – “The learned Trial Judge erred in unduly intervening in the conduct of the trial thereby causing a miscarriage of justice”. The Full Court in Finch & Finch (2020) FLC 93-949 set out the relevant principles in determining whether a primary judge’s interventions amount to a lack of procedural fairness, and thus a basis for appellate intervention (adopting the principles summarised in Galea v Galea (1990) 19 NSWLR 263 (“Galea”) and Royal GuardianMortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 (“Royal Guardian”)). The mother identified the overlap between the contended “undue intervention” by the primary judge and Ground 2 as to apprehended bias, the latter leading to a separate basis of appellate challenge. The mother does not complain as to a frequent degree of intervention by the primary judge. The essence of the ground is that the primary judge’s interventions were sufficient to give rise to a conclusion that there was a miscarriage of justice in the circumstances of this case (Royal Guardian at [220]). The mother contends that the primary judge: (a)Introduced or raised the spectre of a change of the children’s living arrangements, enlarging the litigation to be a “relocation case”;(b)Then encouraged the father to change his relief sought; and(c)Implicitly supported the father, leading the process of conducting an interim hearing during the final trial. In her Summary of Argument the mother cited what the Full Court said in Lainhart & Ellinson (2023) FLC 94-166 (“Lainhart & Ellinson”):28Courts exercising jurisdiction under the Act must decide justiciable disputes, by conventional adversarial procedure, between imperfect litigants on the available evidence according to law by making prescriptive and enforceable orders within statutory power to quell the controversy… In Lainhart & Ellinson the Full Court cited the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635:19The normative structure of the Australian legal system is that it is adversarial in nature… The independence and impartiality of the (court) is protected, in part, by the confining of [the court’s] role to deciding the case on the basis of the evidence which each party elects to tender… the adversarial system… does not permit the judge to engage in ‘an inquisitorial role in which [the judge] seeks… to remedy deficiencies in the case of either side. The judge hear[s] and determine[s] the issues raised by the parties’ and does ‘conduct an investigation or examination on behalf of society at large’. (As per the original) (Footnotes omitted) In support of the ground the mother also identified that said by Austin J in Hatfield & Rivas (2024) FLC 94-224, being an appeal regarding the dismissal of a contravention application:16The normative adversarial process is for the judge to remain detached from the contest and to determine that justiciable cause on the evidence the parties see fit to adduce (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [19]). Excess judicial intervention can vitiate the judgment by transcending the boundaries of the distinct, yet inter-related, doctrines of apprehended bias and the denial of procedural fairness (Edinger & Duy (2023) 68 Fam LR 55 at [20]–[31]; Huda v Huda (2018) FLC 93-837 at [20]–[28]) but, as the father correctly acknowledged, whether the lines are crossed is a “question of fact and degree” in the circumstances peculiar to the case at hand (Edinger & Duy at [21]).