FAMILY COURT OF AUSTRALIA
| NEWETT & NEWETT | [2019] FamCAFC 102 |
| FAMILY LAW – APPEAL – PARENTING – Appeal from parenting orders – Where the appeal lacks any utility given the parenting proceedings are proceeding to a final trial – Futility of the correctness of interim orders being subjected to review on appeal when those orders will terminate in effect given the trial – Appeal dismissed for lack of utility. FAMILY LAW – COSTS – Whether justifying circumstances for costs orders to be made – Orders for costs made. |
| Family Law Act 1975 (Cth) ss 68L, 68LA, 94AAA(7), 117 Family Law Rules 2004 (Cth) 19.18(1) |
| Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33 Idoport Pty Ltd v National Australia Bank Limited, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23 Stoian & Fiening(Costs) [2014] FamCA 944 |
| APPELLANT: | Ms Newett |
| RESPONDENT: | Mr Newett |
| INDEPENDENT CHILDREN’S LAWYER: | Carter Farquar Mediation & Family Law |
| FILE NUMBER: | BRC | 2179 | of | 2018 |
| APPEAL NUMBER: | NOA | 30 | of | 2019 |
| DATE DELIVERED: | 17 June 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 10 June 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 March 2019 |
| LOWER COURT MNC: | [2019] FCCA 619 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Selfridge with Mr Hartnett |
| SOLICITOR FOR THE RESPONDENT: | Damien Greer Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Damien Carter, Carter Farquar Mediation & Family Law |
Orders
That the appeal and all extant applications in the appeal be dismissed.
The mother pay the father’s costs of and incidental to the appeal in the fixed sum of $10,000.
The mother pay the costs of the ICL of and incidental to the appeal in the fixed sum of $920.
The mother’s obligation to make payment of the costs as ordered be deferred until the property settlement proceedings between the father and the mother have been finally determined by order or agreement.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 30 of 2019
File Number: BRC 2179 of 2018
| Ms Newett |
Appellant
And
| Mr Newett |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Ms Newett (“the mother”) and Mr Newett (“the father”) are engaged in parenting[1] and property settlement proceedings in the Federal Circuit Court of Australia (“the FCC”).
[1] Pursuant to Part VII of the Family Law Act 1975
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- AGLC
- Newett & Newett [2019] FamCAFC 102
- Case
- [2019] FamCAFC 102
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the appeal had any utility given that the parenting matters were proceeding to a final trial, and if so, whether the orders appealed were in the best interests of the child. The court found that the appeal lacked any utility as the parenting proceedings were proceeding to a final trial, and the interim orders would terminate in effect. The court also found that the mother’s obligation to pay the father’s costs of the appeal was justified as the appeal was found to be without merit and was an abuse of the court process.
The court dismissed the appeal for lack of utility and ordered the mother to pay the father’s costs of the appeal in the fixed sum of $10,000, and the costs of the Independent Children’s Lawyer in the fixed sum of $920. The court deferred the mother’s obligation to make payment of the costs as ordered until the property settlement proceedings between the father and the mother had been finally determined by order or agreement. The court noted that the form of the order was subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
That the appeal and all extant applications in the appeal be dismissed.
2.
The mother pay the father’s costs of and incidental to the appeal in the fixed sum of $10,000.
3.
The mother pay the costs of the ICL of and incidental to the appeal in the fixed sum of $920.
4.
The mother’s obligation to make payment of the costs as ordered be deferred until the property settlement proceedings between the father and the mother have been finally determined by order or agreement.
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
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