Newett & Newett
[2021] FedCFamC1A 10
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTIONNewett & Newett [2021] FedCFamC1A 10
Appeal from: Newett & Newett [2021] FamCA 82 Appeal number(s): NOA 11 of 2021 File number(s): BRC 2179 of 2018 Judgment of: ALDRIDGE J Date of judgment: 15 September 2021 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Review of decision – Where an Appeal Judicial Registrar declined to file the applicant’s application – No relevance or connection to the substantive appeal – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 94AAA(6)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36(1)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.40
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 27 Date of hearing: 15 September 2021 The Applicant: Self-represented litigant Solicitor for the First Respondent: Damien Greer Lawyers The Second Respondent: No appearance Solicitor for the Independent Children’s Lawyer: Norman & Kingston Solicitors ORDERS
NOA 11 of 2021
BRC 2179 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS NEWETT
Applicant
AND: MR NEWETT
First Respondent
MS ADLAM
Second Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
15 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 9 September 2021 is dismissed.
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 & Newett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
This is the hearing of an Application in an Appeal filed on 9 September 2021 (“the Application in an Appeal”) by Ms Newett (“the mother”) seeking to review the decision of an Appeal Judicial Registrar who declined to file the application (“the proposed application”). The review is pursuant to r 13.40 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and is a hearing de novo.
The proposed application seeks the following orders:
1.That Leave be granted to adduce further evidence for consideration by the Honourable Appellate Court of these Orders Sought.
2.That Leave be granted for the Appellant and Second Respondent to appear by Microsoft Teams.
3.That [the primary judge] be restrained from any further participation in BRC2179/2018 until the Judgment of Appeal NOA11/2021 is handed down.
4.That the Honourable Appellate Court adopt the Consolidated Orders Sought by the Appellant as applied in the “AMENDED Written Submission in place of Oral Submission” filed 25 August 2021 in the determination of the Appeal NOA11/2021, particularly due to further evidence, and immediate requirement to remove the Children from risk of sexual harm.
5.That the Trial set down for 20 September 2021 be adjourned until the conclusion of the Human Rights and High Court matters (currently being filed as Initiating Applications on instruction from the High Court registry), particularly in relation to the matters against the State of Queensland including Police Misconduct, Queensland Health Misconduct, and false application of a Domestic Violence Order against the Appellant rather than the Respondent.
6.That at Attorney General Cost Certificate be provided to supply unlimited subpoenas sought by the Appellant in BRC2179/2018.
7.That the Honourable Appellate Court apply financial hardship provisions and waive all fees for the Subpoenas sought by the Appellant in the matter of BRC2179/2018.
8.That the s102NA Certificate for the Appellant be supplied to NSW Legal Aid.
9.That the Second Respondent be supplied a s102NA Certificate under NSW Legal Aid.
10.That at Attorney General Cost Certificate be provided to supply all transcripts and audio files to the Appellant.
11.That all Subpoena materials and a copy of the whole File held in relation to the Case be made available electronically to the Appellant directly (not in Subpoena room due to COVID restrictions).
12.That leave be granted for Audio Files of all hearings be provided electronically to the Appellant directly (not in Subpoena room due to COVID restrictions).
13.That barristers of Brisbane Chambers and Damien Greer Lawyers, be restrained from any further participation in BRC2179/2018 due to serious misconduct throughout the Case.
(As per the original) (Emphasis in original)
The Application in an Appeal is opposed by Mr Newett (“the father”). The Independent Children’s Lawyer did not take a position on the application and did not advance any submissions.
If the Application in an Appeal is successful, the proposed application will be filed and listed for hearing by the Court that has heard Appeal No. NOA 11 of 2021, but is yet to deliver the reasons for judgment.
The parties are engaged in protracted parenting proceedings in Division 1 of the Federal Circuit and Family Court of Australia. On 29 January 2021, the mother filed a Further Amended Application in a Case which, amongst a number of interim orders, sought the disqualification of the judge who had conduct of the matter. That application was dismissed on 25 February 2021. The mother’s appeal from that decision is Appeal No. NOA 11 of 2021. It was heard on 25 August 2021 and the reasons for judgment remain reserved.
As the proposed application is sought to be filed in that appeal, it must have some relevance or connection to it before it can be properly filed.
An immediate difficulty arises with the proposed Orders 3–13.
The Full Court is exercising appellate jurisdiction. It may affirm, reverse or vary the judgment appealed from and may make such order, as in all the circumstances, it thinks fit (see s 94AAA(6) of the Family Law Act 1975 (Cth) and the s 36(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). The Court is however only entitled to make such further orders if it first finds error (see Warren v Coombes (1979) 142 CLR 531 at 552–553). Relevantly, in Appeal No. NOA 11 of 2021, if error is established the Court can remit the question of recusal to the primary judge for reconsideration, or it can decide that question itself. That is the extent of its jurisdiction.
This jurisdiction is different to the original jurisdiction of the court which is to hear and determine parenting disputes and which is exercised by single judges.
The proposed Orders 3–13 are not orders that relate to the exercise of appellate jurisdiction or to Appeal No. NOA 11 of 2021. For example, even if the Full Court was to decide that prior to 20 September 2021 the primary judge should have disqualified himself that would not prevent the final parenting proceedings commencing on that day before another judge. Further, Orders 5–13 clearly relate to the conduct of the parenting proceedings themselves and can be aptly be described as procedural orders to be made in the course of them.
As to Order 7, the Full Court does not have the power to waive any fees that might apply to subpoenas. In any event, that issue is not relevant to the appeal.
The Full Court was asked to make the “Consolidated Orders” by the mother at the hearing of the appeal on 25 August 2021. Thus the proposed Order 4 is otiose.
The Full Court is not seized with a supervisory jurisdiction which enables it to control the acts of other judges of the court such as by prohibiting them from sitting on a particular matter or for specified periods. The legislature has only granted Division 1 of the Federal Circuit and Family Court of Australia appellate jurisdiction, the nature of which I have already described. Therefore the proposed Order 3 could not be made as it is beyond power.
Proposed Order 2 is entirely mechanical and relevant only if the appeal is relisted for hearing.
This brings me to the proposed order to adduce further evidence in the appeal itself, which is Order 1.
The purpose of adducing further evidence in an appeal is to demonstrate error or to provide material relevant to the re-exercise of the court’s power if error is shown (CDJ v VAJ (1998) 197 CLR 172). Here, the primary judge was either correct to refuse to disqualify himself or not. If error is shown it is very difficult to see what further evidence could be relevant as to what appropriate order should be made.
The proposed new evidence extends to 563 pages. It appears to consist of an Amended Application in a Case filed on 31 August 2021 seeking the immediate return of the children to the mother, a vacation of the hearing date of 20 September 2021 and an indefinite adjournment of the parenting proceedings, together with an assortment of related orders and a contempt application against the father’s solicitor and supporting affidavits.
It is not immediately apparent how any of this bears on any question raised in the appeal.
The mother identified the new evidence to be relied upon as the allegation of sexual behaviour found in the new Family Report (“the Report”) dated 20 August 2021 and released to the parties on 25 August 2021. A copy of the Report is annexed to the mother’s affidavit in support of the proposed application. At paragraph 57 of the Report, the report writer recorded:
57.[The maternal grandmother] further reported that she observed behaviour from the children in December 2020 when the mother withheld them, that she perceived to be concerning and raised doubt about the father’s parenting. She noted she has not shared this with anyone, including the mother, until now. [The maternal grandmother] reported that she observed the children to rub their private areas whilst dancing around the bathroom naked.
The mother says that the behaviour was in fact worse than this because the middle child was mimicking male masturbation whilst the youngest was in fact masturbating herself.
The mother submits that these actions clearly establish that the children are being sexually abused by the father. This, she contends, should have been obvious to the primary judge who should have immediately removed the children from the care of the father upon reading the Report. Instead, it is said that his Honour attempted to conceal the risk of sexual abuse by delaying the release of the Report until after the hearing of the appeal.
The relevant question is how this new evidence bears on the issues in the appeal which are whether the primary judge ought to have disqualified himself from the further hearing of this matter for actual or apprehended bias.
There is no evidence that the primary judge was aware of the mother’s version of events of December 2020. Thus, the evidence, which his Honour was aware, is a report that the children danced naked and rubbed their private areas. A failure to act immediately on such an allegation does not lead easily to a finding of bias. There could be many explanations as to why a judge would not act prescriptively, especially when a final parenting hearing was to follow in about three weeks. Further, even if such a decision was entirely wrong that does not establish bias.
A large part of the evidence in support of the proposed application is a contempt application brought by the mother against the father’s solicitor and the supporting affidavits. That application was heard and dismissed by Howard J after the hearing of the appeal.
The mother said that this material was relevant to the appeal because it shows how the solicitor for the father completely corrupted the proceedings and that, although the primary judge was apprised of this, it was not taken into account by his Honour.
Most, if not all, of this evidence was available to be adduced before the primary judge which is a sufficient reason for it not to be received on an appeal. Further, the premise on which the submission is based, that the lawyer behaved improperly and that such behaviour completely corrupted the proceedings, is not one that is based in findings that have been made and remains untested.
I am not satisfied that the proposed new evidence has the necessary relevance and connection to the appeal to justify the filing of the proposed application. Taking all these matters into account, the Application in an Appeal filed on 9 September 2021 is dismissed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 17 September 2021
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