Newett & Newett (No. 2)

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FAMILY COURT OF AUSTRALIA

Newett & Newett (No. 2) [2021] FamCA 186

File number(s): BRC 2179 of 2018
Judgment of: BAUMANN J
Date of judgment: 19 March 2021
Catchwords: FAMILY LAW – CHILDREN – Where the mother filed an Application in a Case seeking, inter alia, various stays, change of residence, restraint on the father’s solicitor from further acting in the proceedings and transfer to another Registry – Where the stays were not granted – where the matter was not transferred to another Registry – Orders made for telephone time between the children and the mother and between the children and the maternal grandmother.
Legislation:

Family Law Act 1975 (Cth) ss 60CC, 102NA

Family Law Rules 2004 (Cth) rr 11.17, 11.18

Cases cited:

Banks & Banks (2015) FLC 93-637

Goode & Goode (2006) FLC 93-286

Number of paragraphs: 58
Date of hearing: 19 March 2021
Place: Brisbane
Solicitor for the Applicant: Mr S Richardson
Damien Greer Lawyers
First Respondent: Self-represented
Second Respondent: Self-represented
Independent Children’s Lawyer: Mr A Kingston
Norman & Kingston

ORDERS

BRC 2179 of 2018
BETWEEN:

MR NEWETT

Applicant
AND:

MS NEWETT

First Respondent

MS ADLAM

Second Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

19 MARCH 2021

THE COURT ORDERS:

1.That these proceedings be set down for Final Hearing for not more than five (5) days commencing at 10.00am in September 2021 in the Family Court of Australia at Brisbane.

2.That paragraph 2 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

3.That paragraph 3 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

4.That paragraph 4 of the mother’s second further amended Application in a Case filed 17 March 2021 be adjourned to a date to be fixed.

5.That paragraph 5 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

6.That paragraphs 6 through 8 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

7.That paragraph 9 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

8.That paragraph 10 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

9.That paragraph 11 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

10.That paragraph 12 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

11.That paragraphs 13 through 15 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

12.That paragraph 16 of the mother’s second further amended Application in a Case filed 17 March 2021 be adjourned to a date to be fixed.

13.That paragraph 17 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

14.That paragraphs 18 through 21 of the mother’s second further amended Application in a Case filed 17 March…

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Details
Case
[2021] FamCA 186
Decision Date

CaseChat Overview and Summary

In *Newett & Newett (No. 2)*, Baumann J of the Family Court of Australia considered an Application in a Case filed by the mother. The mother sought various orders, including stays of proceedings, a change of residence for the children, the disqualification of the father's solicitor from acting in the proceedings, and the transfer of the matter to another court registry. The father was the applicant, and the mother was the first respondent, with an Independent Children's Lawyer also involved.

The primary legal issues before the Court were whether to grant the requested stays, transfer the proceedings to another registry, and whether to grant orders for telephone time between the children and their mother and maternal grandmother. The Court was also required to determine the procedural steps necessary for the final hearing of the matter, including the appointment of a Family Consultant to prepare a report.

Baumann J dismissed the mother's applications for stays and transfer of the proceedings, finding that these were triable issues that could not be determined on an interim basis. The Court noted the extensive and often disputed history between the parties, including allegations of domestic violence, psychiatric concerns, and differing accounts of events. The Court acknowledged the children's expressed wishes to live with their mother but emphasised that this was only one factor to be considered in determining their best interests. The Court ordered that a Family Consultant be appointed to prepare a report, with specific directions regarding the content of the report, including opinions on interventions to assist cooperative parenting and dispute resolution. The Court also made orders for supervised telephone contact between the children and their mother and maternal grandmother.

The Court set the matter down for a final hearing in September 2021 and made detailed directions regarding the filing of affidavits, case outlines, and the potential cross-examination of the family report writer. The Court also ordered that the children spend time communicating with the mother and maternal grandmother by telephone on specified days and times, under certain conditions, and that no party discuss the proceedings with the children.

Orders

Orders of the court

BRC 2179 of 2018

BETWEEN:

MR NEWETT

Applicant

AND:

MS NEWETT

First Respondent

MS ADLAM

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

19 MARCH 2021

THE COURT ORDERS:

1. That these proceedings be set down for Final Hearing for not more than five (5) days commencing at 10.00am in September 2021 in the Family Court of Australia at Brisbane.

2. That paragraph 2 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

3. That paragraph 3 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

4. That paragraph 4 of the mother’s second further amended Application in a Case filed 17 March 2021 be adjourned to a date to be fixed.

5. That paragraph 5 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

6. That paragraphs 6 through 8 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

7. That paragraph 9 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

8. That paragraph 10 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

9. That paragraph 11 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

10. That paragraph 12 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

11. That paragraphs 13 through 15 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

12. That paragraph 16 of the mother’s second further amended Application in a Case filed 17 March 2021 be adjourned to a date to be fixed.

13. That paragraph 17 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

14. That paragraphs 18 through 21 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

Updated family report

15. That a Family Consultant be appointed by the Senior Family Consultant of the Family Court of Australia Brisbane Registry in this matter to prepare a family report (“report”) pursuant to s.62G of the Family Law Act 1975 (as amended) (“the Act”).

16. That in addition to reporting any matters that the Family Consultant considers important to the welfare of the children, X born in 2011, Y born in 2013 and Z born in 2014 (“the children”) and the factors contained in s.60CC of the Act the following opinions should be included:

(a) what, if any, interventions might assist the parties to achieve a cooperative parenting outcome; and

(b) what, if any, interventions would assist the parties to resolve potential disputes about the parenting orders or the changing needs of the children in the future.

17. That it should be noted a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Family Consultant should also canvass and report the views and likely consequences of and for the children if the Court did not reach a conclusion which accorded with the children’s views.

18. That the parties shall attend appointments with the Family Consultant on a date and time to be advised by the Family Consultant and they shall facilitate the attendance of the children for those appointments (unless otherwise advised).

19. That the Family Court of Australia be responsible for payment of the cost of preparation of the report.

20. That the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.

21. That the Family Consultant has liberty to list the matter for further directions and for the purpose of that mention, the Family Consultant and the parties have leave to appear on the telephone. For the purpose of listing the matter the Family Consultant has leave to contact the Associate to the presiding Judge.

Release of report

22. That upon receipt of the report, the Court will provide a copy to each party (or their solicitor, if any) and to any Independent Children’s Lawyer in the proceedings.

23. That unless a party objects, in writing, within fourteen (14) days of the date of releasing the report, copies of the report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

(a) A Children’s Court;

(b) A child protection authority;

(c) A State or Territory legal aid authority; and

(d) A convener of any legal dispute resolution conference.

24. That unless otherwise ordered, no person shall release the report, or provide access to the report to any other person.

25. That the children shall spend time and communicate with the mother each Wednesday and each Sunday, to commence Sunday, 21 March 2021, between 6.00pm and 6.30pm (Queensland time) by telephone on the following conditions:

(a) the father shall provide to the mother details of the telephone number she should ring to commence the call;

(b) the mother shall initiate the call at the time the call is to commence at the number provided by the father;

(c) if possible, because of the technology available to each party, for the call to occur by FaceTime or other electronic means, that would be Court’s preference;

(d) the father is to ensure the children are available to receive the call from the mother at the time prescribed by this Order and that the device the children use is charged and in an area where the call or contact from the mother can be activated;

(e) all communication between the mother and the children shall not be recorded by either the father or the mother or any other person; and

(f) the children are to have the opportunity to spend time with the mother by telephone in private.

26. That, on the same conditions as those in Order 25, the children shall spend time and communicate with the maternal grandmother each alternate Saturday, to commence 27 March 2021, between 6.00pm and 6.30pm (Queensland time) by telephone.

27. That the mother, father and maternal grandmother shall not discuss these proceedings with the children or raise other issues of adult conflict with the children.

Trial directions

28. That the Applicant pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 23 August 2021.

29. That each party file and serve on each other no later than 4.00pm on 30 August 2021:

(a) one (1) consolidated Affidavit of evidence in chief; and

(b) one (1) Affidavit of each witness intended to be relied upon at trial.

30. That each party file and serve on each other no later than 4.00pm on 13 September 2021, a case outline setting out:

(a) a precise minute of the final orders sought;

(b) a relevant chronology; and

(c) a list of Affidavits and Applications and/or Responses intended to be relied upon at trial.

31. That no party shall be entitled to rely upon any affidavit material not filed in accordance with these directions without leave of the Court.

32. That in the event that either party wishes to cross examine the family report writer at the Final Hearing, that party shall provide written notice to the family report writer of such intention as soon as reasonably practicable, but by no later than 4.00pm on 30 August 2021.

33. That the Independent Children’s Lawyer be at liberty to apply.

34. That these proceedings be adjourned for Judgment Delivery at 1.00pm on 31 March 2021 in the Family Court of Australia at Brisbane.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In so doing, I acknowledge that, again, on an interim basis, it is not possible for the Court to make findings about disputed facts of which in this case there are many. The mother has made it somewhat easier for the Court by having headings in her most recent affidavit which contain, some 306 pages of annexures. I deal with her affidavit in terms of the headings that she sets out:(a)At paragraphs 4 to 32, the mother continues to assert that the evidence is overwhelming, and that the father “cannot assert [she is] a risk to the children”. The mother relies upon, to some degree, a document at page 233 of her recent affidavit, being an unsigned letter by Dr V, a Consultant Psychiatrist. It is not clear how recently Dr V has seen the mother. Nonetheless, I set out his statement in full as follows:This is to state that I am Ms Newett’s treating Psychiatrist, and she has consulted me multiple times over the last 12 monthsShe has developed an Anxiety Disorder in the context of significant stressors mainly related to the ongoing court/ legal proceedings with regards to the custody of her children; and is on treatment for the same.In addition to the anxiety as described above, Ms Newett also has features of PTSD, which had possibly developed in the context of some traumatic experiences in the past.I am given to understand that Ms Newett is currently in NSW and has been asked to return to QLD to appear in Court.My concern is that forcing her to physically attend court in QLD might aggravate her PTSD symptoms and her Mental Health is likely to deteriorate.Thus I would request the Court to allow her to attend the Court proceedings via phone or video.(As per original)The very brief statement by Dr V is not, in any sense, a full psychiatric assessment, nor was it meant to be. It is clear that it was directed to “To whom it may concern” and the material suggests the Court it was directed to initially may have been the Magistrates Court, or maybe the Appeal Court. At no time has this Court asked the mother since she has been living in New South Wales to appear personally before the Court. At this stage, that most recent letter by Dr V, without testing all the evidence, does not provide sufficient background evidence to counteract the other evidence before the Court, including that of Dr A, notwithstanding that may have changed during the course of the proceedings the mother commenced against him in the Supreme Court. All these issues are triable issues and cannot really be dealt with on an interim basis;(b)“Domestic Violence Orders”. Paragraphs 15 to 32. The mother in her affidavit refers to a number of temporary protection orders and other steps taken in or under the State legislation, but what the evidence does show, of course, is that there is a protection order in favour of the father for five years that was made by a Magistrate and survived an Appeal brought by the mother to the District Court. To the extent that the mother seeks to rely on temporary protection orders as a way of saying that s 60CC applies to those but do not apply to the final order that went on Appeal and that Appeal was dismissed, her argument lacks merit. I accept that these parties have had a difficult history and the mother has and continues to ask the Court to make findings about the father’s behaviour, including an alleged strangulation. They are, again, triable issues;(c)“Family Report of Ms HH”. Paragraphs 33 to 41. The mother is correct when she asserts, and the Court has been aware for some time having read Ms HH’s report, that the children did raise concerns about some of the father’s behaviour. The mother says this is a clear example of family violence and so the children should be removed from the father. She takes certain comments made by the children and certain opinions expressed by Ms HH in isolation. I accept that the children have genuinely expressed a view that they wish to live with their mother. For children of this age, as for all children, the wishes to be considered under s 60CC(3)(a) is but one of the factors that the Court must consider in terms of what is in their best interests. Again, the family report of Ms HH is untested. There have been events that have occurred since Ms HH completed her report which may, subject to hearing further submissions from Mr Kingston, the ICL, require an updated report to be prepared;(d)“The Psychiatric Report of Dr A”. Paragraphs 42 to 51. It has been a consistent allegation by the mother that the Court appointed expert psychiatrist, Dr A, who provided a report dated 16 October 2018 to the Federal Circuit Court of Australia “was corrupted by the interference of former Independent Children’s Lawyer”. The mother’s evidence raises issues about that. It is worth noting, of course, that Mr Carter, the ICL who was the subject of the criticisms of the mother, is no longer the ICL in this matter. There is no doubt that the report of Dr A was relied upon by Judge Spelleken, as her Reasons make clear. It was Judge Spelleken who made an interim Order that the children reside with the father, which has been the position now for over two years. She seeks that the report be struck out. It is not clear to me whether the ICL wishes to rely upon the report of Dr A or not. Any discussion as to whether Dr A’s evidence ought be “struck out” is a matter that must be dealt with before the trial, not today. If it is not struck out, of course, the mother will have every opportunity to cross-examine the doctor. It is apparent from earlier comments made by Mr Carter, when he was the ICL, that because of litigation engaged in at the instigation of the mother against Dr A in the Supreme Court of Queensland, that Dr A is not prepared to do an updated report. Whether Mr Kingston, as the new ICL, regards it as appropriate to obtain further psychiatric evidence of either party is a matter he can address me on at a later date;(e)“Removal of Children to Safety – 6 December 2020”. Paragraphs 52 to 72. The mother asserts she removed the children for “safety reasons”. This was the position she articulated on 9 December 2020 when she appeared before me by telephone, having failed to return the children the previous Sunday under the Orders made. It has always been her position that the children are at risk in the father’s care. Reasons were given why the recovery Order was made. I accept that, to some degree, the decision for the recovery, whilst challenged by the mother, is not now the subject of an Appeal because it has been put into effect. I propose to say nothing further about the recovery hearing, lest it be a matter that is still to be determined by the Full Court;(f)“Recovery Day”. Paragraphs 73 to 90. The mother gives evidence that she says the police were told by the father that the mother was “psychotic” and “delusional”, and makes other allegations about what she says the police were told. This may be a matter about which the ICL should obtain further evidence from New South Wales Police and/or Australian Federal Police such as were engaged in the recovery of the children. They are, yet again, allegations strongly made by the mother but yet to be tested. In particular, at paragraph 82, the mother strongly asserted the father had misled the police and committed perjury. At paragraph 86, the mother asserts the father is “delusional” and “paranoid”. The events of that understandably difficult period where the children were required to be returned to the police against the mother’s wishes are matters which might properly be considered by a new report writer or a fresh report if it is thought that it has had a significant effect upon the children. Nonetheless, a trial is the appropriate forum for the allegations made by the mother to be tested. I have already indicated I do not propose to make any further comments about financial matters, some of which are contained at paragraphs 91 to 100;(g)“Domestic Violence Order falsely applied by father in favour of Mr Newett”. Paragraphs 101 to 110. The mother asserts a domestic violence order the father is in possession of is completely irrelevant. Clearly, it is not. Section 60CC(3)(k) requires specifically the Court to consider any family violence order. There is a final order made, as I earlier indicated. The mother asserts at paragraph 109 that the father “is in possession of an unlawfully applied DV Order”. There is no evidence to suggest that the orders, having been initially made by a Magistrate after a trial and then subject to the scrutiny of Appeal, that currently exist had been “unlawfully” applied for. At one stage the mother indicated that the decision of the District Court Judge was under some form of judicial review or appeal. I have no evidence about that at the moment and, in any event, until it is set aside, the Reasons for Judgment and subsequent Orders of the District Court Judge stand firm;(h)“Children’s Rights”. Paragraphs 111 to 119. There is nothing in these paragraphs of the mother’s affidavit, which she conceded in her oral submissions today are a mixture of submissions and evidence, that has not been dealt with previously;(i)“Events in the Father’s Criminal Proceedings to attempt to Pervert the Course of Justice”. Paragraphs 120 to 126. The mother refers to proceedings before a State Magistrate in February 2021. I have no details of that hearing, no transcript and no orders. It is unclear to me whether the orders made by the learned Magistrate related to family violence proceedings or related to the ongoing criminal proceedings privately commenced by the mother against the father and a number of other persons that are referred to in earlier Reasons of this Court. However, simply, the matters relating to the criminal proceedings are matters for the Court that has the power to deal with those matters which is, at this stage, the Magistrates Court. It is worth noting, however, that at paragraph 126 the mother asserts that because “justice cannot be achieved in the State of Queensland” the family law proceedings must be moved to the Sydney Registry. I will deal with that evidence and the other submissions I heard about a change of forum shortly;(j)“Further Abuse and/or Neglect of the Children”. Paragraphs 127 to 134 of the mother’s affidavit sets out what she says are actions which she accuses the father of which represent further abuse and neglect. Because the mother chose to file, for the first time, those allegations in an affidavit of 18 March, the father had already, by that stage, filed his reply affidavit to the initial affidavit. However, I do note, for example, that the mother is concerned (see paragraph 127) that X has a “new lump in her throat” and opines, concerningly, that X is at risk of developing thyroid cancer, and the father may again be “neglecting to give her life-essential medication”. The mother refers to what she says has been medical evidence from a Dr RR, X’s paediatrician. There is no evidence before me that I could rely upon to justify the mother’s concerns in that regard but, again, I would invite the ICL to consider a further subpoena to the child’s paediatrician. Again, these allegations of continued abuse and neglect that the mother hurls at the father will need to be tested at a trial. That is the appropriate forum; and(k)“Valid Legal Reasons”. Paragraphs 135 to 138. The mother seeks the issue of constitutional writs in the form of writ of mandamus from this Court. The application is flawed, even if it had been properly made, which it has not, because it merely finds its way as so much of the relief the mother now seeks to include, in her affidavit. That is a matter she can raise with the Full Court. I propose to say nothing further at this stage.CONCLUSION

Ratio Decidendi

Legal Principle Established

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