Newett & Newett (No. 2) - [2021] FamCAFC 98

FAMILY COURT OF AUSTRALIA
Newett & Newett (No. 2) [2021] FamCAFC 98

Appeal from: Newett & Newett [2021] FamCA 82

Appeal number(s): NOA 11 of 2021

File number(s): BRC 2179 of 2018

Judgment of: TREE J

Date of judgment: 24 June 2021

Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where the appellant mother seeks for this Court to purchase transcript for the purpose of her appeal – Where the transcript is not necessary for the determination of the appeal – No exceptional circumstance to justify the Court funding the provision of transcript – Where the requirement for the mother to obtain transcript be dispensed with – No order as to costs.

Legislation:
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) rr 1.12, 22.18

Cases cited:
Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189

Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220

Division: Appeal Division

Number of paragraphs: 21

Date of hearing: 22 June 2021

Place: Cairns

The Appellant: Self-represented

Solicitor for the First Respondent: Damien Greer Lawyers

The Second Respondent: Self-represented (no appearance)

Solicitor for the Independent Children’s Lawyer: Norman & Kingston Solicitors
ORDERS

NOA 11 of 2021
BRC 2179 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:
MS NEWETT

Appellant

AND:
MR NEWETT

First Respondent

MS ADLAM

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE J

DATE OF ORDER:

24 JUNE 2021

THE COURT ORDERS THAT:
1.Insofar as the orders of a Registrar made 17 May 2021 require the appellant mother to obtain and file transcript of the proceedings before the primary judge on 11 and 25 February 2021, they be discharged.
2.The requirement of r 22.18 of the Family Law Rules 2004 (Cth) be dispensed with in this appeal.
3.Otherwise the appellant mother’s Application in an Appeal filed 16 June 2021 be 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newett & Newett (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION

On 25 February 2021, a judge of the Family Court of Australia dismissed an application by Ms Newett (“the mother”) that he recuse himself from further dealing with extant parenting and property proceedings between the mother, Mr Newett (“the father”), Ms Adlam (“the maternal grandmother”) and an Independent Children's Lawyer. By Notice of Appeal filed 12 March 2021 the mother has appealed from that order.
In the course of preparing that appeal for hearing, on 17 May 2021 a Registrar made 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.

Keep reading for free

Create a free CaseChat account to read Newett & Newett (No. 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FamCAFC 98
Decision Date: 24 June 2021

CaseChat Overview and Summary

In Newett & Newett (No. 2), the appellant, Ms Newett, sought an order for the court to purchase a transcript for her appeal. The appeal involved ongoing litigation between the parties regarding their children and property. The primary judge had already provided extensive written and oral reasons for judgment in the case. The mother applied for the primary judge to recuse himself, and the matter was eventually transferred to the Family Court of Australia. The mother's application for a transcript arose from a requirement in the rules that she obtain and file a transcript of the proceedings before the primary judge on 11 and 25 February 2021.

The legal issue before the court was whether the transcript was necessary for the determination of the appeal and whether there were any exceptional circumstances that would justify the court funding the provision of the transcript. The court noted that it was not funded to pay for transcripts for appellants, and there was no express provision in the Family Law Act 1975 (Cth) or the Family Law Rules 2004 (Cth) that permitted it. The court acknowledged that it had a discretion to provide a transcript if the interests of justice required it, but this would usually only be in exceptional circumstances.

The court found that the determinative issue was whether any part of the transcript of 11 February or 25 February 2021 was necessary for the appeal. The court concluded that the transcript was not necessary for the determination of the appeal, and there were no exceptional circumstances that would justify the court funding the provision of the transcript. The court also noted that the mother had not addressed the factors listed in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542, such as the proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s), and the prima facie merits of the appeal. Therefore, the court discharged the orders of a Registrar made 17 May 2021 that required the appellant mother to obtain and file transcript of the proceedings before the primary judge on 11 and 25 February 2021 and dispensed with the requirement of r 22.18 of the Family Law Rules 2004 (Cth) in this appeal. The mother’s Application in an Appeal filed 16 June 2021 was dismissed.

Orders

Orders of the court

NOA 11 of 2021

BRC 2179 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS NEWETT

Appellant

AND:

MR NEWETT

First Respondent

MS ADLAM

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE J

DATE OF ORDER:

24 JUNE 2021

THE COURT ORDERS THAT:

1. Insofar as the orders of a Registrar made 17 May 2021 require the appellant mother to obtain and file transcript of the proceedings before the primary judge on 11 and 25 February 2021, they be discharged.

2. The requirement of r 22.18 of the Family Law Rules 2004 (Cth) be dispensed with in this appeal.

3. Otherwise the appellant mother’s Application in an Appeal filed 16 June 2021 be 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

On 22 June 2021 I heard the mother’s application and reserved my decision. This is that decision and the reasons for it.BACKGROUND The parties have been engaged for some years in torrid and acrimonious litigation in relation to their children and property. It is unnecessary to traverse the detail of that, but suffice to say that after the matter was transferred from the Federal Circuit Court of Australia to the Family Court of Australia, the primary judge, who became seized of the matter, has attempted to ready it for trial, and hear that trial. In the course of doing so, the primary judge had, prior to the 25 February decision, already published six sets of written reasons for judgment, in addition to providing oral reasons which were not subsequently published, on another two occasions. The mother’s application that the primary judge recuse himself from further involvement in the litigation was, according to the primary judge’s reasons, based upon a wide raft of the primary judge’s previous dealings with the matter, as set out at [11]–[15] of his Honour’s reasons. Further matters advanced by the maternal grandmother and the mother are recited at [16]. It is unnecessary to repeat them in these reasons. SHOULD THE COURT OBTAIN THE TRANSCRIPT This Court is not funded to pay for transcript for appellants, and indeed there is no provision in either the Family Law Act 1975 (Cth) or the Family Law Rules 2004 (Cth) (“the Rules”) which expressly permits it. However the authorities establish that the Court has a discretion to provide transcript if the interests of justice require it, but that will usually only be in exceptional circumstances (Forbes & Bream (2008) 222 FLR 96 at [36]; Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 (“Sampson & Harnett”) at [14] and [83]). The Full Court in Sampson & Hartnett has provided some guidance as to the factors that a Court may take into account in determining whether or not to exercise such discretion to provide transcript, namely (at [16]):(a)Whether the case is a financial or parenting case;(b)Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal;(c)The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript; (d)The proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s); (e)The prima facie merits of the appeal;(f)Whether the question of providing a transcript can be left to the Full Court hearing the appeal;(g)Any other relevant facts or circumstances. Save for evidence as to the cost of obtaining a transcript for 11 February 2021 (said to be $2,428) and evidence as to her impecuniosity, neither the mother’s material nor argument addressed the factors listed in Sampson & Hartnett. However on this occasion it is unnecessary for me to traverse all of those matters, as the determinative issue is whether any part of the transcript of 11 February or 25 February 2021 is necessary for the appeal.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Newett & Newett [2021] FamCA 82
Appeal number(s):	NOA 11 of 2021
File number(s):	BRC 2179 of 2018
Judgment of:	TREE J
Date of judgment:	24 June 2021
Catchwords:	FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where the appellant mother seeks for this Court to purchase transcript for the purpose of her appeal – Where the transcript is not necessary for the determination of the appeal – No exceptional circumstance to justify the Court funding the provision of transcript – Where the requirement for the mother to obtain transcript be dispensed with – No order as to costs.
Legislation:	Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 1.12, 22.18
Cases cited:	Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189 Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Division:	Appeal Division
Number of paragraphs:	21
Date of hearing:	22 June 2021
Place:	Cairns
The Appellant:	Self-represented
Solicitor for the First Respondent:	Damien Greer Lawyers
The Second Respondent:	Self-represented (no appearance)
Solicitor for the Independent Children’s Lawyer:	Norman & Kingston Solicitors

NOA 11 of 2021 BRC 2179 of 2018
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:	MS NEWETT Appellant
AND:	MR NEWETT First Respondent MS ADLAM Second Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	TREE J
DATE OF ORDER:	24 JUNE 2021