Newett & Newett - [2021] FamCA 82

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Newett & Newett (No. 2) [2021] FedCFamC1A 11

Appeal from: Newett & Newett [2021] FamCA 82

Appeal number(s):

NOA 11 of 2021

File number(s):

BRC 2179 of 2018

Judgment of:

ALDRIDGE, AUSTIN & TREE JJ

Date of judgment:

17 September 2021

Catchwords:

FAMILY LAW – APPEAL – DISQUALIFICATION – Appeal against dismissal of recusal application – Actual bias – Reasonable apprehension of bias – Dissatisfaction with outcomes does not amount to bias – Matters were decided on their merits – Primary judge did not err by refusing to disqualify himself – Appeal dismissed – Appellant to pay first respondent’s costs in a fixed sum.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – No relevance – Application dismissed.

Legislation:

Criminal Code Act1995 (Cth) Div 273B

Family Law Act 1975 (Cth) Pt VII, ss 42, 102NA

Family Law Rules 2004 (Cth) Sch 3

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3

Cases cited:

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

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

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Newett & Newett and Anor [2020] FamCA 470

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Number of paragraphs:

83

Date of hearing:

25 August 2021

Place:

Brisbane (via video link), delivered in Sydney

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 11 of 2021
BRC 2179 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS NEWETT

Appellant

AND:
MR NEWETT

First Respondent

MS ADLAM

Second Respondent

AND:
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, AUSTIN & TREE JJ

DATE OF ORDER:

17 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.The application for relief contained in paragraphs 5, 6, 10, 11, 13, 14, 15 and 16 of the Amended Application in an Appeal filed on 2 August 2021 is dismissed.
2.The appeal is dismissed.
3.The appellant pay the first respondent’s costs fixed in the sum of $8,762.61.

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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newett &…

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.

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Details

Case: [2021] FamCA 82
Decision Date: 17 September 2021

CaseChat Overview and Summary

The case of *Newett & Newett* concerned an appeal brought by the mother against a decision of Justice Baumann. The primary dispute revolved around the mother's application for Justice Baumann to recuse himself from proceedings. The appeal was heard by Aldridge, Austin, and Tree JJ.

The central legal issue before the Full Court was whether Justice Baumann erred in dismissing the mother's application for recusal. This required the court to consider the grounds upon which a judicial officer may be disqualified from hearing a matter, particularly in the context of family law proceedings.

The Full Court found no error in Justice Baumann's decision. The court reasoned that the mother's allegations lacked merit and did not establish any apprehended bias or a reasonable apprehension of bias that would necessitate recusal. The court therefore dismissed the mother's appeal.

Consequently, the Full Court ordered that the mother pay the father's costs, fixed at $8,762.61.

Orders

Orders of the court

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

25 FEBRUARY 2021

THE COURT ORDERS:

1. That the mother’s application for recusal of the Honourable Justice Baumann in these proceedings be dismissed.

2. That the father shall file and serve a Response to the amended Application in a Case filed 29 January 2021 within fourteen (14) days, supported to the extent necessary, by an affidavit.

3. That the mother’s amended Application in a Case filed 29 January 2021 be listed for further directions and hearing at 1.00pm on 19 March 2021 in the Family Court of Australia at Brisbane.

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 7 Newett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

The mother did not wish to make oral submissions at the appeal but sought instead to rely on two documents headed “Amended Written Submission in lieu of Oral Submission” sent to the Appeal Registry on 23 August 2021 and “Written Reply to Submission of the Respondent Father” sent to the Appeal Registry on 24 August 2021, in addition to her Amended Summary of Argument filed on 5 July 2021. There was no opposition to that course and leave was granted for the mother to rely on the documents, although the mother did make some brief oral submissions as well.BACKGROUND In order to understand the appeal it is helpful to set out a basic chronology. The following is taken from the reasons of the primary judge in an earlier decision and appears not to be controversial (Newett & Newett and Anor [2020] FamCA 470). The parties have three children born in 2011, 2013 and 2014. The parties separated in January 2018. Interim orders were made by a judge of the Federal Circuit Court of Australia (“the Federal Circuit Court”) on 18 April 2018 which provided for the parties to have equal shared parental responsibility for the children, who were to live with the mother and spend five nights a fortnight with the father. Later that year in November 2018, a final hearing was fixed for 17 June 2019, with an estimate of three days. On 7 February 2019, the father filed an Application in a Case seeking that the children live with him and spend only supervised time with the mother. In doing so, he relied upon evidence of a person who provided services to the mother and that person’s daughter, who also provided services to the parties. If accepted, that evidence would indicate that the children may be at a risk of harm if they were to continue living with the mother. Their evidence is entirely disputed by the mother and, as the primary judge noted, remains untested (at [10(d)]). On 6 March 2019, the orders sought by the father were made. The mother’s appeal against these orders was dismissed on 17 June 2019 due to a lack of utility because the parenting hearing was scheduled to start on the same day. The parenting hearing was, however, adjourned to 12 August 2019 with no change to the interim orders made on 6 March 2019. The mother was admitted to the mental health ward at the City T Hospital (“the mental health ward”) on 27 May 2019 and was discharged three days later. She was diagnosed with an “‘acute stress reaction’ with probable [post-traumatic stress disorder] ‘due to the past traumatic domestic events’” (at [10(f)]). The mother was again admitted to the mental health ward on 2 August 2019 and discharged on 5 August 2019. On that day, she was recorded as having a “stable mental state” and that she did not pose “any imminent risk of harm to [her]self or others” (at [10(i)]). The mother disputes that there was any need for her to be taken to the mental health ward on either occasion or that there was any basis for her to be retained there for three days.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

We do not agree.CONCLUSION AND COSTS We see no error in his Honour’s decision not to disqualify himself. The appeal will be dismissed. The appeal has been wholly unsuccessful. The appropriate order is that the mother pay the father’s costs fixed in the sum of $8,762.61, which was calculated at the time of the hearing pursuant to Sch 3 of the Family Law Rules 2004 (Cth) (which is now Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Newett & Newett [2021] FamCA 82
Appeal number(s):	NOA 11 of 2021
File number(s):	BRC 2179 of 2018
Judgment of:	ALDRIDGE, AUSTIN & TREE JJ
Date of judgment:	17 September 2021
Catchwords:	FAMILY LAW – APPEAL – DISQUALIFICATION – Appeal against dismissal of recusal application – Actual bias – Reasonable apprehension of bias – Dissatisfaction with outcomes does not amount to bias – Matters were decided on their merits – Primary judge did not err by refusing to disqualify himself – Appeal dismissed – Appellant to pay first respondent’s costs in a fixed sum. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – No relevance – Application dismissed.
Legislation:	Criminal Code Act1995 (Cth) Div 273B Family Law Act 1975 (Cth) Pt VII, ss 42, 102NA Family Law Rules 2004 (Cth) Sch 3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3
Cases cited:	Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Newett & Newett and Anor [2020] FamCA 470 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Number of paragraphs:	83
Date of hearing:	25 August 2021
Place:	Brisbane (via video link), delivered in Sydney
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

NOA 11 of 2021 BRC 2179 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS NEWETT Appellant
AND:	MR NEWETT First Respondent MS ADLAM Second Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	ALDRIDGE, AUSTIN & TREE JJ
DATE OF ORDER:	17 SEPTEMBER 2021