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 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

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 JUDGMENT
AUSTIN 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…

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 77
Decision Date

CaseChat Overview and Summary

In the matter of Newett and Newett (No. 3), the appellant, a litigant in person, brought an appeal against an order made by a judge of the Federal Circuit and Family Court of Australia (Division 1). The appeal was dismissed, except in so far as it contended appealable error in the dismissal of the applicant's alleged oral disqualification application. The appeal arose from a single order dismissing the applicant's application to re-open the evidence in proceedings between the parties under Part 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 appeal was brought from an order made on 29 September 2021, dismissing the applicant's application to re-open the evidence. The appeal was listed to afford the applicant an opportunity to submit why the appeal should not be summarily dismissed. However, the applicant's lengthy submissions, filed 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. The applicant contended she made an oral application to the primary judge for his Honour's disqualification, which was rejected. An appeal would separately lie from the dismissal of such an application under s 26(1)(h) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

The court found that the dismissal order was not an order from which an appeal competently lies. 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)), 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 Part 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). 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.

Orders