Newett & Newett - [2019] FamCAFC 102

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

2018

APPEAL NUMBER:

NOA

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

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.

Continue reading Newett & Newett

Details

AGLC: Newett & Newett [2019] FamCAFC 102
Case: [2019] FamCAFC 102
Decision Date: 17 June 2019

CaseChat Overview and Summary

The appeal before the Family Court of Australia was brought by the father against the mother regarding parenting orders made by the court. The mother had been awarded sole parental responsibility of the child, and the father was given access. The father sought to appeal these orders on the grounds that they were not in the best interests of the child and were based on insufficient evidence. The mother argued that the appeal was futile as the parenting matters were proceeding to a final trial, and the interim orders would not have any lasting effect.

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

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.

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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