Newett & Newett - [2021] FedCFamC1A 10

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Newett & 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 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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…

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.

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Details

Case: [2021] FedCFamC1A 10
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia recently considered an application from the mother in protracted parenting proceedings to adduce further evidence, appear by Microsoft Teams, and for various other orders, in light of an appeal from a decision disqualifying the primary judge. The father opposed the application, while the Independent Children’s Lawyer did not take a position. The mother sought various orders including leave to adduce further evidence, appear via Microsoft Teams, and restrain the primary judge and others from further participation in the proceedings, among others. The legal issues included whether the mother was entitled to further evidence, appear via Microsoft Teams, and for the various other orders sought.

The court considered the nature of the evidence sought and the mother's reasons for seeking it. The court emphasised the importance of the principle of open justice and the need for parties to present their cases in person unless there are exceptional circumstances. The court found that the mother had not demonstrated any exceptional circumstances warranting the relief sought. The court also noted that the mother had not provided any new evidence or grounds for the appeal, and that the application was an attempt to relitigate issues that had already been determined. The court held that the application was an abuse of process and dismissed it.

The court dismissed the application in its entirety and made no orders in favour of the mother. The court emphasised the importance of respecting the judicial process and not using it as a means to achieve tactical advantage. The court also noted that the mother had not demonstrated any urgency or immediate need for the relief sought, and that the application was an attempt to delay the proceedings. The court held that the application was an abuse of process and dismissed it.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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

NOA 11 of 2021 BRC 2179 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	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