Newett & Newett (No. 3)
[2021] FedCFamC1A 77
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Newett & Newett (No. 3) [2021] FedCFamC1A 77
Appeal from: Order dated 29 September 2021 Appeal number: NAA 45 of 2021 File number: BRC 2179 of 2018 Judgment of: AUSTIN J Date of judgment: 6 December 2021 Catchwords: FAMILY LAW – APPEAL – Practice and Procedure – Summary dismissal – Where the subject order is not one from which an appeal competently lies – Where the proceedings were listed to afford the applicant an opportunity to submit why the appeal should not be summarily dismissed – Where the applicant’s submission did not address the question of the appeal’s incompetence – Where the applicant contended she made an oral disqualification application to the primary judge – Where an appeal would separately lie from the dismissal of such an application – Where the applicant will be able to pursue the appeal but only in so far as it contends appealable error in the dismissal of the disqualification application – Otherwise the Notice of Appeal is dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 26
Cases cited: Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Driclad Pty Ltd v Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91
Number of paragraphs: 9 Date of hearing: 6 December 2021 Place: Newcastle (via video link) The Appellant: Litigant in person The First Respondent: Litigant in person The Second Respondent: Litigant in person The Independent Children’s Lawyer No appearance ORDERS
NAA 45 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
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
6 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 25 October 2021 is dismissed, save in so far as it contends the primary judge was in error by dismissing the applicant’s oral application for his Honour’s disqualification for apprehended bias.
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 (No. 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These appeal proceedings, filed on 25 October 2021, were listed to afford the applicant an opportunity to submit why the appeal should not be summarily dismissed.
The appeal is brought from a single order made on 29 September 2021 by a judge of the Federal Circuit and Family Court of Australia (Division 1) in these terms:
1.That the mother’s Application in a Case filed 27 September 2021 seeking to re-open the evidence, be dismissed.
As the terms of the challenged order imply, it dismissed the applicant’s application to re-open the evidence in proceedings between the parties under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of their children, after judgment was reserved following the completion of the trial on 22 September 2021.
The dismissal order is not an order from which an appeal competently lies so any anterior questions about whether leave to appeal is needed or ought be granted are superfluous. Appeals (with or without leave) only lie from “judgments” (ss 7 and 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)), narrowly defined to encompass only orders or decrees amounting to operative judicial acts which dispose of the justiciable dispute between the parties, or at least an identifiable part of it (Driclad Pty Ltd v Commissioner of Taxation (1968) 121 CLR 45 at 64).
The dismissal of the applicant’s application to re-open the evidence was not an order which concluded any part of the parties’ justiciable dispute under Pt VII of the Act. The order was merely a procedural ruling made during the course of the proceedings and so is not amenable to appeal (Commonwealth v Mullane (1961) 106 CLR 166 at 169).
Any appeal the applicant may wish to bring will only lie from the orders the primary judge is yet to pronounce, so as to finalise the cause under Pt VII of the Act.
The lengthy submissions filed by the applicant just before the listing date, on 3 December 2021, did not address the question of the appeal’s incompetence, but instead comprised a litany of detailed complaints about the primary judge’s conduct of the proceedings and her beliefs about the improper dismissal of her application to re-open the evidence. If at all, such submissions could only have relevance to any appeal brought from the orders eventually made by the primary judge to conclude the parenting proceedings.
In oral submissions today, the applicant contended she made an oral application to the primary judge for his Honour’s disqualification, which was rejected. Without the benefit of transcript, I must accept that occurred, though it is unverified. An appeal would separately lie from the dismissal of such an application under s 26(1)(h) of the FCFCA Act. However, an appeal on that basis should be distinguished from one of the existing proposed grounds of appeal which alleges the primary judge “acted with apprehended bias” when dismissing the application to re-open the evidence (Ground 3), because that ground alleges the inference of bias arises from how the primary judge determined the re-opening application; not from judicial conduct which preceded and was the catalyst for the disqualification application.
With that solitary exception, it must follow the proposed appeal is incompetent. The applicant will be able to pursue the appeal, but only in so far as it contends appealable error in the dismissal of the applicant’s alleged disqualification application. Otherwise, the Notice of Appeal filed on 25 October 2021 is dismissed. In due course, the Appeal Registrar will make procedural orders to ensure the appeal is prepared for hearing on that confined basis.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 7 December 2021
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