Newett & Newett (No. 3) - [2021] FamCA 187

FAMILY COURT OF AUSTRALIA
Newett & Newett (No. 3) [2021] FamCA 187

File number(s): BRC 2179 of 2018

Judgment of: BAUMANN J

Date of judgment: 8 April 2021

Catchwords: FAMILY LAW – PROPERTY – Where the wife failed to return to Court for the property hearing – Where the Court proceeded to hear the competing property applications in the wife’s absence – Assessment of contributions – Modest pool – final property adjustment orders to be made after further submissions

Legislation: Family Law Act 1975 (Cth) ss 75, 79, 102NA

Cases cited:
Hickey & Hickey (2003) FLC 93-143

Kowaliw & Kowaliw (1981) FLC 91-092

Newett & Newett & Anor (No. 5) [2020] FamCA 1023

Pierce & Pierce (1998) FLC 92-844

Stanford & Stanford [2012] HCA 52

Number of paragraphs: 67

Date of hearing: 30 November 2020 and 1 December 2020

Place: Brisbane

Counsel for the Applicant: Mr N McGregor

Solicitor for the Applicant: Damien Greer Lawyers

Solicitor for the Respondent: Self-represented
ORDERS

BRC 2179 of 2018

BETWEEN:
MR NEWETT

Applicant

AND:
MS NEWETT

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

8 APRIL 2021

THE COURT ORDERS:
1.That these proceedings be adjourned for further submissions as to the form of property orders, at 12.00pm (noon) on 10 May 2021 in the Family Court of Australia at Brisbane.

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 has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:

These reasons relate to part of a much larger dispute between the Applicant husband, Mr Newett and the Respondent wife, Ms Newett.
The property and parenting issues were listed for a five day trial commencing Monday, 30 November 2020. The parenting trial could not proceed and the Court decided to bifurcate the proceedings so that the property proceeding could proceed.
The reasons for those actions are more fully set out in the Reasons for Judgment published by the Court (see Newett & Newett & Anor (No. 5) [2020] FamCA 1023).
IMPEDIMENTS
After the Court had decided for the reasons already identified that the property proceedings would proceed, late on the afternoon of Monday, 30 November 2020, the Court directed the solicitors for the husband to again provide the wife with discovery, which she asserted she nor her former solicitors had not received. The solicitors for the husband say full discovery was made.
The Court had received at Exhibit 4 a copy of a letter from the solicitors for the husband to the then solicitors for the wife attaching various documents.

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] FamCA 187
Decision Date: 8 April 2021

CaseChat Overview and Summary

In *Newett & Newett (No. 3)*, Baumann J of the Family Court of Australia was required to make property adjustment orders between Mr Newett (the applicant) and Ms Newett (the respondent). The proceedings concerned the division of the parties' assets and liabilities. Crucially, the wife failed to attend the property hearing, and the Court proceeded to hear the matter in her absence.

The central legal issues before the Court were to identify the pool of assets and liabilities, assess the parties' respective financial and non-financial contributions, consider the relevant factors under section 75(2) of the *Family Law Act 1975* (Cth), and ultimately determine whether any proposed property adjustment orders were just and equitable. The Court also had to consider evidence regarding distributions from the UU Trust, which was controlled by the wife's mother, Ms Adlam.

Baumann J applied the well-established four-step process for property settlement cases. The Court made findings regarding the UU Trust, accepting Ms Adlam's evidence that her daughter had not received any distributions and had no right to demand them, and that the Trust was a modest entity with its assets largely consumed by a loan to Ms Adlam and her husband. Despite the wife's absence, the Court considered her filed documents, including her case outline chronology, amended response, and financial statements. The Court noted that no specific findings as to credit were made as neither party gave evidence in the witness box.

The Court ordered that the proceedings be adjourned for further submissions regarding the form of property orders, to be heard on 10 May 2021.

Orders

Orders of the court

BRC 2179 of 2018

BETWEEN:

MR NEWETT

Applicant

AND:

MS NEWETT

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

8 APRIL 2021

THE COURT ORDERS:

1. That these proceedings be adjourned for further submissions as to the form of property orders, at 12.00pm (noon) on 10 May 2021 in the Family Court of Australia at Brisbane.

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

Shortly stated, but more concisely and elaborately described in the Full Court decision in Hickey & Hickey (2003) FLC 93-143, in a property settlement case, the Court must adopt a well-known four-step process, essentially:(a)to identify the pool of assets and liabilities generally, and usually at the time of hearing;(b)to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s 79(4);(c)to consider the factors as are relevant contained in s 75(2) of the Act; and(d)finally, consider the ultimate analysis to determine whether the order the Court proposes to make is just and equitable to both parties.BACKGROUND Statements of fact which appear hereafter should be regarded as findings of fact. As I did not have any evidence of either the husband or the wife tested in the witness box, I do not propose to make any specific findings as to credit. In fact, there was one witness tested in cross-examination and that was Ms Adlam, the wife’s mother. I called her for cross-examination in respect of an affidavit she filed in her daughter’s case on 23 November 2020 that related to alleged distributions to the daughter from the UU Trust, a Trust I am satisfied is a Trust operated by and controlled by Ms Adlam and her seriously ill husband Mr Adlam. In respect of this issue, I have no concerns with accepting the evidence of Ms Adlam, namely, that she and her husband controlled the Trust; that she has provided some payments to her daughter towards her legal expenses (see Exhibit 7) but that her daughter has not received any distribution of income from the Trust and has no right to demand any payments from the Trust. The Trust is a modest entity and the balance she had attached to her affidavit reveals effectively, it has a property at Suburb AK, a term deposit and that the total assets of approximately $253,783 is consumed by an unsecured beneficiary loan which I find is a loan owed to Ms Adlam and her husband of $253,771. I now return to the more general background. In so doing, the husband relies upon in this case his affidavit of evidence-in-chief and annexures filed 16 November 2020, the updated financial statement filed 16 November 2020, the affidavit from his accountant and annexures, Mr WW filed 16 November 2020 and a further affidavit from the husband as to discovery filed 12 October 2020. Whilst most of the annexures to his trial affidavit relate to parenting issues, of course, at page 586 of the index to exhibits, a balance sheet is offered to the Court. Also relevantly in this case, at page 626 and thereafter, financial statements for the entity VV Pty Ltd for the year ending 30 June 2020 which incorporates financial statements for the entity. In circumstances where the wife did not participate, I have, however, taken into consideration the wife’s case outline chronology filed 28 November 2020, amended Response filed 27 November 2020, her financial statement filed 27 November 2020 and an earlier financial statement filed 10 April 2018.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRC 2179 of 2018
Judgment of:	BAUMANN J
Date of judgment:	8 April 2021
Catchwords:	FAMILY LAW – PROPERTY – Where the wife failed to return to Court for the property hearing – Where the Court proceeded to hear the competing property applications in the wife’s absence – Assessment of contributions – Modest pool – final property adjustment orders to be made after further submissions
Legislation:	Family Law Act 1975 (Cth) ss 75, 79, 102NA
Cases cited:	Hickey & Hickey (2003) FLC 93-143 Kowaliw & Kowaliw (1981) FLC 91-092 Newett & Newett & Anor (No. 5) [2020] FamCA 1023 Pierce & Pierce (1998) FLC 92-844 Stanford & Stanford [2012] HCA 52
Number of paragraphs:	67
Date of hearing:	30 November 2020 and 1 December 2020
Place:	Brisbane
Counsel for the Applicant:	Mr N McGregor
Solicitor for the Applicant:	Damien Greer Lawyers
Solicitor for the Respondent:	Self-represented

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	8 APRIL 2021