Newett and Newett (No. 3)

[2021] FamCAFC 164

FAMILY COURT OF AUSTRALIA

Newett & Newett (No. 3) [2021] FamCAFC 164

Appeal from:	Transcript of hearing on 1 December 2020; Newett & Newett & Anor (No. 6) [2020] FamCA 1056
Appeal numbers:	NOA 84 of 2020 NOA 85 of 2020
File number:	BRC 2179 of 2018
Judgment of:	ALDRIDGE, AUSTIN & TREE JJ
Date of judgment:	25 August 2021
Catchwords:	FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Security for costs – Where the appellant has not complied with orders for the security of costs – Appeals stayed until payment is made by the appellant – Substantive issues remain before the Court – No likelihood the orders will be complied with – Where there is no utility in appeals from interim orders being indefinitely stayed – Appeals dismissed.
Legislation:	Family Law Rules 2004 (Cth) r 22.45
Division:	Appeal Division
Number of paragraphs:	20
Date of hearing:	25 August 2021
Place:	Brisbane (via video link)
The Appellant:	Self-represented litigant
Counsel for the First Respondent:	Mr Selfridge with Mr Hartnett
Solicitor for the First Respondent:	Damien Greer Lawyers
The Second Respondent:	Self-represented litigant
Counsel for the Independent Children’s Lawyer:	Mr Dodd
Solicitor for the Independent Children’s Lawyer:	Norman & Kingston Solicitors

ORDERS

NOA 84 of 2020
NOA 85 of 2020
BRC 2179 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS NEWETT

Appellant

AND:

MR NEWETT

First Respondent

MS ADLAM

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, AUSTIN & TREE JJ

DATE OF ORDER:

25 AUGUST 2021

THE COURT ORDERS THAT:

1.Appeal No. NOA 84 of 2020 be dismissed.

2.Appeal No. NOA 85 of 2020 be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Newett & Newett (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

ALDRIDGE J:

1. Appeals NOA 84 of 2020 and NOA 85 of 2020 are listed before the Court today for consideration of their summary dismissal.

2. Appeal NOA 84 of 2020 is against orders made by the primary judge on 1 December 2020, where his Honour:

   ·Reserved judgment in the property proceedings between the parties which were heard on that date, substantially in the absence of the appellant;

   ·Adjourned the parties’ competing parenting applications to a Case Management Hearing on 29 January 2021;

   ·Ordered that a copy of the orders giving the Independent Children’s Lawyer (“the ICL”) leave to withdraw be provided to Legal Aid Queensland with a request to appoint a substitute ICL;

   ·Discharged a number of subpoenas to witnesses to attend to give oral evidence; and

   ·Dismissed the appellant’s Application in a Case filed on 18 November 2020 which sought interim orders.

3. A Notice of Appeal was filed on 14 December 2020.

4. Appeal NOA 85 of 2020 concerns orders made on 9 December 2020. The proceedings concerned the parties’ children who were born in 2011, 2013 and 2014. At the time, orders of the Court provided for the children to live with the respondent and to spend time with the appellant each alternate Saturday and Sunday between 9.00 am and 5.00 pm. Changeover was to occur at a contact centre.

5. The children spent time with the appellant in accordance with the orders on 6 December 2020. At 4.15 pm she advised the contact centre and the respondent that she would not be returning the children.

6. On 9 December 2020, the primary judge made a recovery order for the return of the children to the respondent, restrained the appellant from removing the children from the respondent’s care until further order and suspended the time the children were to spend with the appellant.

7. A Notice of Appeal was filed on 14 December 2020.

8. The respondent filed an Application in an Appeal in each appeal seeking orders for security of costs on 21 December 2020. That application was granted by Tree J on 22 April 2021 and the appellant was required to lodge $15,000 with the Brisbane Registry as security for costs in appeal NOA 84 of 2020 and another $15,000 in appeal NOA 85 of 2020. Both appeals were stayed until the payment was made.

9. The payment has not been made.

10. On 27 July 2021, the Regional Appeals Registrar wrote to the appellant noting that the appeals were listed for hearing and that the orders of Tree J had not been complied with. The letter advised the appellant that the Court would, at the hearing of the appeals, consider whether they should be summarily dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth).

11. Pursuant to r 22.45(2)(a)(i), the Court may dismiss an appeal if the appellant has failed to comply with an order in relation to an appeal and may do so on its own initiative.

12. The letter served as notice that the Court would consider such a course.

13. The appellant submits that appeals NOA 84 of 2020 and NOA 85 of 2020 essentially raise the same points as appeal NOA 11 of 2021, which has been heard today also, and they will therefore require no additional expenditure by the respondent. She also submits that the order will stifle the appeals because she cannot afford to pay the sums as ordered. These are arguments that substantially seek to challenge the orders for security themselves. It is not our task to review those orders.

14. More broadly, the appellant asserts that the children are at a grave risk of harm living with the respondent and she seeks orders in each appeal that the children be returned to live with her. That issue is the subject of continuing proceedings in the Court. The parenting aspect of the orders, which are the subject of the appeal, are an order for their adjournment, dismissal of an interim application and the issue of a recovery order which has been executed.

15. The substantive issue of what parenting orders are in the best interests of the children remains before the Court. In these circumstances, it would be most unlikely that this Court would embark itself on testing and weighing that evidence to determine the appropriate orders but would remit any outstanding parenting issues for hearing by a trial judge. In short, dismissal of these two appeals will not affect the trial process that is underway.

16. There is no likelihood that the orders of Tree J will be complied with in the foreseeable future. There is no utility in appeals from interim orders being indefinitely stayed.

17. Taking these matters into account I consider that both appeals should be dismissed and I propose orders to that effect.

    AUSTIN J:

18. I agree with the orders proposed and the reasons given by Aldridge J.

    TREE J:

19. I also agree.

    ALDRIDGE J:

20. The orders of the Court will be:

    (1)Appeal No. NOA 84 of 2020 be dismissed.

    (2)Appeal No. NOA 85 of 2020 be dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justices Aldridge, Austin & Tree.

Associate:

Dated:       26 August 2021