FAMILY COURT OF AUSTRALIA
| NEWETT & NEWETT | [2020] FamCAFC 76 |
| FAMILY LAW – APPEAL – PARENTING – PROPERTY – Where the primary judge erred in law by determining an application that was already disposed of, wrongly identifying issues, wrongly attributing certain claims to the mother, and determining a significant matter without hearing arguments in relation to it – Where no error of the kind discussed in House v The King (1936) 55 CLR 499 – Where no actual or apprehended bias – Appeal allowed – Costs certificates issued. FAMILY LAW – APPLICATION IN AN APPEAL – Extend time to file an Amended Notice of Appeal – Adduce further evidence – Where the mother incorporated the further evidence into her Summary of Argument – Where the mother is allowed to rely upon her Further Amended Notice of Appeal – Application otherwise dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Adduce further evidence – Where the new evidence relates to events that occurred after the judgment – Application allowed. FAMILY LAW – APPLICATION IN AN APPEAL – Extend time to file the application – Adduce further evidence – Where the new evidence does not assist the court in determining whether or not there was an error made by the primary judge – Application dismissed. |
| Family Law Act 1975 (Cth) s 93A and s 61DA Federal Proceedings (Costs) Act 1981 (Cth) Family Law Rules (2004) (Cth) r 22.39 |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 House v The King (1936) 55 CLR 499; [1936] HCA 40 In the Marriage of Rutherford (1991) FLC 92-255; [1991] FamCA 68 Jess and Ors & Jess and Ors (2014) FLC 93-620; [2014] FamCAFC 227 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Newett & Newett [2019] FamCAFC 102 Newett & Newett [2019] FCCA 2175 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 |
| APPELLANT: | Ms Newett |
| RESPONDENT: | Mr Newett |
| INDEPENDENT CHILDREN’S LAWYER: | Carter Farquar Mediation & Family Law |
| FILE NUMBER: | BRC | 2179 | of | 2018 |
| APPEAL NUMBER: | NOA | 81 | of | 2019 |
| DATE DELIVERED: | 6 April 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 26 February 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 August 2019 |
| LOWER COURT MNC: | [2019] FCCA 2175 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Damien Greer Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Carter Farquar Mediation & Family Law |
Orders
Save that the mother be permitted to rely upon a Further Amended Notice of Appeal, her Application in an Appeal filed 21 January 2020 be dismissed.
The father’s Application in an Appeal filed 4 February 2020 be allowed.
The mother’s Application in an Appeal filed 20 February 2020 be dismissed.
The mother have leave to appeal from orders (8) – (11) of the primary judge made on 12 August 2019.
Appeal NOA 81 of 2019 be allowed.
The orders of the primary judge made on 12 August 2019 be set aside.
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- AGLC
- Newett & Newett [2020] FamCAFC 76
- Case
- [2020] FamCAFC 76
- Decision Date
CaseChat Overview and Summary
The legal issues the court needed to resolve included whether the primary judge erred in law by disposing of an already decided application, misidentifying issues, attributing claims incorrectly, and deciding on a significant matter without hearing relevant arguments. The court also needed to determine whether there was any actual or apprehended bias by the primary judge, and whether the new evidence introduced related to events that occurred before or after the judgment. Furthermore, the court had to consider the applications for extending time to file appeals and further evidence, and whether such extensions were warranted given the circumstances of each case.
The court found that the primary judge had indeed erred in law by disposing of an already decided application, misidentifying issues, and attributing certain claims incorrectly. The court held that there was no actual or apprehended bias by the primary judge, and no error akin to the kind discussed in House v The King (1936) 55 CLR 499. The applications for extending time to file appeals and further evidence were considered on a case-by-case basis. The mother’s application was dismissed because the new evidence did not assist in determining if there was an error by the primary judge, while the father’s application was allowed as the new evidence related to events that occurred after the judgment.
The appeal was allowed, and the orders of the primary judge were set aside. The court granted the mother leave to appeal from certain orders made on 12 August 2019 and allowed the appeal. The matters that were before the primary judge on 18 June 2019 were ordered to be re-heard by the Family Court of Australia at Brisbane. Additionally, the court issued costs certificates to the parties involved, pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The form of the orders is subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
Save that the mother be permitted to rely upon a Further Amended Notice of Appeal, her Application in an Appeal filed 21 January 2020 be dismissed.
2.
The father’s Application in an Appeal filed 4 February 2020 be allowed.
3.
The mother’s Application in an Appeal filed 20 February 2020 be dismissed.
4.
The mother have leave to appeal from orders (8) – (11) of the primary judge made on 12 August 2019.
5.
Appeal NOA 81 of 2019 be allowed.
6.
The orders of the primary judge made on 12 August 2019 be set aside.
7.
Such matters as were before the primary judge on 18 June 2019 be re-heard by the Family Court of Australia at Brisbane.
8.
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 the appellant in relation to the appeal.
9.
The Court grants to the respondent and the Independent Children's Lawyer 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 the respondent in relation to the appeal.
10.
The Court grants to the parties costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the re-hearing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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
Further, it will be remembered that on 17 June 2020, the court requested the mother to provide a dot point summary of the issues for determination, and the orders which she sought on an interim basis. The list in [34] of the judgment bears no resemblance to the interim parenting orders the mother sought in that document titled “Agenda Items – Request to Adjourn Trial to November” at page 5, which were as follows:1a. (i) Children live with the Mother(ii)Children spend time with the Mother and Maternal Grandparents / Family all school holidays(iii)After a 3 month period of medical/psych assessment and rehabilitation; children spend time with the Father in supervised contact at [P Contact Centre] 2 hrs per week outside of school holidays(iv)Children remain in schooling at [Q School](v)That the Mother be appointed medical and Educational Guardian of the Children (vi)That the Mother be permitted to travel on an overseas holiday with the Children and Grandmother in early 2020 (to make up for lost family time from February to June 2019)1b.If (1a) is not ordered,(i)Children live with the Maternal Aunt and Grandmother on a temporary basis until final orders(ii)Children attend schooling temporarily with their CousinsRationale: Children will no longer be used as bargaining tools by the Father, and property and medical matters can be readily assessed and addressed without influence. Children feel safe with their maternal grandparents and have identified grandma’s as their special place in the world.(As per the original) Before me at the hearing of the appeal, no party was able to advise from where the list at [34] of the primary judge’s reasons was derived. Further, at [35] of the primary judge’s reasons, when reciting “[t]he orders sought by the father were as follows” curiously, there is thereafter no reference to the interim parenting orders which the father in fact sought. Rather, they are reflected in the orders which the primary judge said were sought by the Independent Children's Lawyer, recited at [36] of the reasons. At [37] of the primary judge’s reasons, his Honour set out the issues for determination, as follows:37. The issues are as follows; a.Whether the father should have sole parental responsibility. b.Whether the Application in a Case should be dismissed or in the alternative whether orders be made for the children to live with the mother, for the mother have sole parental responsibility. c.Whether I have power to cause the father to be admitted to a mental health ward for assessment. d.Whether I should absolve the mother from any further requirement to attend any form of psychological or psychiatric assessment. e.Whether the father and his legal team and associates should be restrained from any defamatory comment regarding the mother's mental health and whether they should be ordered to retract any statements that have been made. f.Whether the father should be fitted with a tracking bracelet. g.Whether the father should be ordered to relocate to Sydney and thereafter be restrained from entering Queensland unless for court appearances as approved by the Australian Federal Police and thereafter escorted to and from the airport to the courthouse. h.Whether all the father's current liquid assets and income be directed to third party management for use by the mother. i.Whether the father should pay $4950.00 into a third party management service on a weekly basis. j.Whether the father's legal fees should be returned immediately. k.Whether I have the power to order that the father borrow money from his “wealthy parents” for his legal fees. l.Whether I have the power to provide an allowance to the father equivalent to Newstart for his basic living costs. m.Whether I have power to revoke the father's vehicle licence. n.Whether all vehicles should be provided to the mother for sale and that the mother have sole use of those proceeds. o.Whether a forensic accountant should be funded out of the matrimonial pool.