Newett & Newett

Case [2021] FamCAFC 55

FAMILY COURT OF AUSTRALIA

Newett & Newett [2021] FamCAFC 55

Appeal from:

Transcript of hearing on 1 December 2020;

Newett & Newett and Anor (No. 6) [2020] FamCA 1056

Appeal number(s): NOA 84 of 2020;
NOA 85 of 2020
File number(s): BRC 2179 of 2018
Judgment of: TREE J
Date of judgment: 22 April 2021
Catchwords:

FAMILY LAW – APPLICATIONS IN AN APPEAL – SECURITY FOR COSTS – Where the father seeks security for his costs of the appeals brought by the mother – Where both the mother’s appeals lack merit and are futile – Where the mother’s financial means are likely to be insufficient to meet an order for costs against her – Where the relevant matters strongly militate in favour of an order for security for costs in favour of the father – Applications granted.

FAMILY LAW – EVIDENCE – Where the mother objected to affidavit evidence obtained by the father in support of his applications for security – Where that evidence related to the mother’s civil and criminal proceedings in the State courts – Privacy – Where proceedings in State courts are public and are able to be searched and copied – Where it is an essential part of the openness of the administration of justice that State proceedings be conducted in public – Where no breach of privacy found – Where certain statements in the affidavit struck out on the basis of inadmissible hearsay.

FAMILY LAW – COSTS – Where the father is in a better financial position than the mother – Where his applications for security for costs were successful – No order as to costs of the Applications in an Appeal.

Legislation:

Evidence Act 1995 (Cth) ss 75, 138

Family Law Act 1975 (Cth) ss 67ZBA, 67ZBB, 117

Justices Act 1886 (Qld) s 154

Criminal Practice Rules 1999 (Qld) r 57

Uniform Civil Procedure Rules 1999 (Qld ) rr 980, 981
Cases cited:

Atkins & Hunt (Security for Costs) (2015) FLC 93-646; [2015] FamCAFC 66

John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465

Luadaka v Luadaka (1998) FLC 92-830; [1998] FamCA 1520

Newett & Newett (No. 5) [2020] FamCA 1023

Newett & Newett [2020] FamCAFC 76

Re F: Litigants in Person (2001) FLC 93-072; [2001] FamCA 348

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Russell & Close [1993] FamCA 62
Division: Appeal Division
Number of paragraphs: 64
Date of hearing: 9 March 2021
Place: Cairns
Solicitor for the Applicant: Damien Greer Lawyers
The First Respondent: Litigant in person
The Second Respondent: Litigant in person

ORDERS

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

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR NEWETT

Applicant
AND:

MS NEWETT

First Respondent

MS ADLAM

Second Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

22 APRIL 2021

THE COURT ORDERS THAT:

1.Within 30 days of the date of these orders, the first respondent mother lodge with the Registry Manager in the Brisbane Registry, Family…

Continue reading Newett & Newett

Sign in free to access the full text

Details
AGLC
Newett & Newett [2021] FamCAFC 55
Case
[2021] FamCAFC 55
Decision Date

CaseChat Overview and Summary

The matter before the court involved an appeal brought by the mother against orders made by the primary judge in family law proceedings concerning her three children with the father. The father sought security for his costs of the appeals, which the mother opposed. The legal issues for the court to decide were whether the mother's appeals lacked merit and were futile, whether the mother's financial means were likely to be insufficient to meet an order for costs against her, and whether the relevant matters strongly militated in favour of an order for security for costs in favour of the father. Additionally, the court had to consider whether certain affidavit evidence obtained by the father was admissible and whether any costs should be awarded to the father.

The court found that the mother's appeals were without merit and were futile, as they were based on contentions that the primary judge had already addressed in his judgment. The court also found that the mother's financial means were likely to be insufficient to meet an order for costs against her. Given these factors, the court determined that the relevant matters strongly militated in favour of an order for security for costs in favour of the father. The court rejected the mother's objections to the affidavit evidence obtained by the father, finding that the evidence was relevant and admissible as it related to the mother's civil and criminal proceedings in the State courts, which were public and able to be searched and copied. The court struck out certain statements in the affidavit on the basis of inadmissible hearsay. The court did not award any costs to the father as he was in a better financial position than the mother.

The court ordered that the mother lodge with the Registry Manager in the Brisbane Registry, Family Court of Australia the sum of $15,000 as security for costs of her appeal in appeal no. NOA 84 of 2020 and appeal no. NOA 85 of 2020 within 30 days of the date of these orders. The court also ordered that in the event that the mother did not comply with Order 1, appeal no. NOA 84 of 2020 be stayed, and in the event that the mother did not comply with Order 2, appeal no. NOA 85 of 2020 be stayed.

Orders

Orders of the court

ORDER MADE BY:

TREE J

DATE OF ORDER:

22 APRIL 2021

THE COURT ORDERS THAT:

1. Within 30 days of the date of these orders, the first respondent mother lodge with the Registry Manager in the Brisbane Registry, Family Court of Australia the sum of $15,000 as security for costs of her appeal in appeal no. NOA 84 of 2020.

2. Within 30 days of the date of these orders, the first respondent mother lodge with the Registry Manager in the Brisbane Registry, Family Court of Australia the sum of $15,000 as security for costs of her appeal in appeal no. NOA 85 of 2020.

3. In the event that the first respondent mother does not comply with Order 1, appeal no. NOA 84 of 2020 be stayed.

4. In the event that the first respondent mother does not comply with Order 2, appeal no. NOA 85 of 2020 be stayed.

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 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

On 9 March 2021, I heard the competing applications, and reserved my decision. This is that decision.BACKGROUND The mother is presently 43 years of age, and the father is 45. They commenced cohabitation in 2005, were married in 2008, and separated in January 2018. Their three children are presently aged ten, eight and six years respectively. Some of the procedural history of this matter was set out in my reasons for judgment delivered in Newett & Newett [2020] FamCAFC 76 at [6]–[20] (albeit in relation to an appeal against earlier orders) as follows:6.To understand the nature of the hearing conducted by the primary judge, it is necessary to have a little more history of the matter. 7.Since separation, the mother has made a number of allegations against the father, including that the father has sexually abused the children. 8.The proceedings were commenced by the father in the Federal Circuit Court on 1 March 2018. By her Response filed 10 April 2018, the mother sought interim parenting orders, to the effect that she have sole parental responsibility for the children, who would live with her, and spend time with the father on alternate weekends. On 18 April 2018, Judge Cassidy made interim orders providing for the parties to have equal shared parental responsibility, for the children to live with the mother, but spend five nights per fortnight with the father. No appeal was brought from those orders. 9.On 10 July 2018, a family report was released, which recommended that “[the mother] engage with a psychiatrist and possibly also her psychologist to assist in the management of anxiety, particularly with respect to her beliefs about [the father’s] capacity to care for the three girls into the future”. 10.On 13 November 2018, the matter was listed for trial to commence on 17 June 2019 in the Federal Circuit Court in Brisbane.11.Then, on 6 February 2019, the father withheld the children, following discussions with their nanny about concerns she had surrounding the welfare of the children when in the mother’s care. 12.The father then filed an application on 7 February 2019, seeking a change of residence for the children, and following a hearing on 26 February 2019, on 6 March 2019, further interim parenting orders were made in the Federal Circuit Court for equal shared parental responsibility, and for the children to live with the father, but spend two hours per week supervised with the mother. The mother appealed from these orders.13.On 18 April 2019, the mother filed a further Application in a Case, by which she sought an order staying the 6 March 2019 orders until her appeal was determined, and in the interim, for the children to return to her care, but after a moratorium, resume spending time with the father under the orders of Judge Cassidy of 18 April 2018. On 24 May 2019, that Application in a Case was dismissed by Judge Spelleken. 14.By then, by Application in a Case filed on 22 May 2019, the mother had sought that the trial date be moved from June to November 2019. That application was listed for the first day of trial on 17 June 2019. 15.On 17 June 2019 the mother’s appeal from the orders of 6 March 2019 was dismissed, due to the fact that the final hearing of the primary proceedings was set down to commence before a judge that day, hence rendering the appeal futile (Newett & Newett [2019] FamCAFC 102).16.Later that day, when the trial was called on, it transpired that the primary judge was conducting another trial. However, he heard from the parties, and investigated whether or not the matter was actually ready for trial, which appeared problematic given that there were 900 pages of the mother’s further material which had not been provided to either of the two relevant experts. In the course of the discussion on that day, the primary judge suggested that the mother, who self-represented, overnight should “just dot point the points that you want to make as to why the adjournment should happen and any other orders that you’re seeking on an interim basis” (Transcript 17 June 2019, p.9 lines 22–24).17.When the matter was then called on the following day, the mother handed such a document up to the court (Transcript 18 June 2019, p.3) although it does not appear to have been marked or otherwise retained on the court file, perhaps because it seems that his Honour was without an associate at that particular moment.18.The mother’s application for an adjournment was supported by the Independent Children's Lawyer. However during argument, the primary judge, on more than one occasion, told the mother that, if the trial was adjourned, he would not be undertaking a further interim hearing (Transcript 18 June 2019, p.9 lines 8–26, and p.11 line 1). That said, the father’s (and Independent Children's Lawyer’s) position was that, if an adjournment was granted, then pending the trial commencing, there needed to be an interim determination in relation to whether the father should have sole parental responsibility, whether he should be permitted to change the children’s school, and whether the Suburb C property should be sold. Arguments were advanced by the parties in relation to those matters. 19.Ultimately, his Honour intimated that he intended to adjourn the trial (Transcript 18 June 2019, p.37 line 7), before saying “I will reserve my decision about these things today that we’ve discussed – that is, the sale of the property, the moving of the school and whether there should be an order for sole parental responsibility, and you will get my decision very soon about that” (Transcript 18 June 2019, p.41 lines 5–8).20.In due course the primary judge delivered his reserved judgment on 12 August 2019.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I did not understand it to be controversial that an order for costs would practically stifle the litigation. Other considerations The litigation does not involve a matter of public importance, there has been no delay in bringing the application, and it did not appear to be controversial that the likely costs of $15,000 in the appeal would be unenforceable, as the mother is in a poor financial position.Evaluation I am satisfied that the demonstrable lack of merit to the appeal, combined with the likely inability of the mother to meet any order for costs that may be made in the appeal if it were dismissed, strongly militates in favour of an order for security, and I will so order.THE APPLICATION FOR SECURITY IN APPEAL NO. NOA 85 OF 2020Overview Many of the observations which I made generally in relation to appeal no. NOA 84 of 2020 also pertain to appeal no. NOA 85 of 2020. Particularly, the observations and findings which I made in relation to the capacity of the mother to satisfy an order for costs if she is unsuccessful in the appeal, the parties’ financial circumstances, whether the litigation involves a question of public importance, whether there has been delay and whether there would be difficulty in enforcing an order for costs, equally apply to this appeal. I will therefore only address the prospects of the appeal succeeding, the mother’s bona fides in bringing the appeal, and whether or not an order for costs would stifle the appeal.The merits of the appeal It will be recalled that this appeal arises out of the primary judge making a recovery order on 9 December 2020. By then the mother had filed an Application in a Case on 3 December 2020 which sought to revisit the interim parenting arrangements for the children, such that they would live with the mother. Whilst it is unnecessary to recite all of the grounds of appeal, in substance what the mother appears to complain of is that her Application in a Case filed 3 December 2020 ought to have been determined prior to the father’s Application in a Case filed 7 December 2020. Her grounds of appeal appear to contend that, by doing so, the primary judge was procedurally unfair (Grounds 1, 10 and 14), demonstrated apprehended bias (Grounds 2, 11 and 13), failed to address the risk of harm to the children by making the recovery order (Grounds 3, 4, 5, 6, 8 and 9), made jurisdictional error in relation to the rule in Rice and Asplund (Ground 7) and failed to consider other alternatives such as ordering the children into the care of the maternal grandmother (Grounds 12, 13 and 14). In the primary judge’s ex tempore reasons for judgment at [9] his Honour referred to the mother’s Application in a Case filed 3 December 2020 as follows:In my view, the application of 18 November is not properly before me today, but, in any event, I have allowed the mother, almost uninterrupted, to identify why she says the incident which I now discuss justified her actions. I have heard those submissions. I have read her affidavit that she relies upon in respect of her Application in a Case filed 3 December and the Affidavit of her mother, Ms Adlam. It is fair to say that there is a repeat in the mother’s affidavit, at least, of some of the allegations earlier made by her which are still yet to be tested.