Newett & Newett (No 4) - [2022] FedCFamC1F 624

Federal Circuit and Family Court of Australia
(DIVISION 1)
Newett & Newett (No 4) [2022] FedCFamC1F 624

File number(s): BRC 2179 of 2018

Judgment of: JARRETT J

Date of judgment: 19 August 2022

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Application for summary dismissal– section 79A application –failure to particularise basis upon which application prosecuted – s79A application dismissed for want of reasonable likelihood of success.

FAMLY LAW – PRACTICE AND PROCEDURE – Application for stay pending determination of application for special leave to appeal to High Court and constitutional writs – no basis to conclude any reasonable prospects of success in High Court applications – stay refused.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for orders by way of enforcement of property adjustment orders – no basis demonstrated to withhold enforcement.

Legislation:
Family Law Act 1975 (Cth), ss 79A(1)(a), 79A(2)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021, rr 10.09(1), 10.09(2), 10.09(3), 10.09(4), 10.11(1), 10.19(1)

High Court Rules 2004, r 8

Cases cited: Aldridge & Keaton (2009) 42 Fam LR 369

Division: Division 1 First Instance

Number of paragraphs: 63

Date of hearing: 3 August 2022

Place: Brisbane

Solicitor for the Applicant: AZ Lawyers

Solicitor for the Respondent: Litigant in person
ORDERS

BRC 2179 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR NEWETT

Applicant

AND: MS NEWETT
Respondent

order made by:

JARRETT J

DATE OF ORDER:

19 aUGUST 2022

THE COURT ORDERS THAT:
1.On the Response to an Application in a Proceeding filed on 22 July, 2022 by the applicant Mr Newett:
(a)orders 1 and 2 thereof be dismissed;
(b)pursuant to rule 10.11(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Amended Application in a Proceeding filed on 8 July, 2022 by the respondent Ms Newett be dismissed; and
(c)save in respect of costs, the Response to an Application in a Proceeding filed on 22 July, 2022 be otherwise dismissed.

2.On the Application in a Proceeding filed on 18 May, 2022 by the applicant Mr Newett:
(a)the sum of $334,880.84 be paid from the sum held in the Federal Court of Australia, to the trust account of AZ Lawyers, who shall account to the applicant therefor;
(b)the sum of $24,113.50 be paid from the sum held in the Federal Court of Australia, in respect to costs in accordance with the orders of 17 June, 2019 in NOA30 of 2019 and 17 May, 2022 in NOA26 of 2021, to the trust account of AZ Lawyers, who shall account to the applicant therefor;
(c)the sum of $195,136.06 be paid to the respondent or her nominees from the sum held in the Federal Court of Australia.

3.The Amended Response to an Application in a Proceeding filed on 1 August, 2022 by the respondent Ms Newett be dismissed.
4.Any applications for costs shall be made in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Note: The form of…

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: [2022] FedCFamC1F 624
Decision Date

CaseChat Overview and Summary

The case of Newett & Newett (No 4) was before Jarrett J in the Federal Circuit and Family Court of Australia. The applicants were Mr Newett and Ms Newett, and the case involved multiple applications related to property adjustment orders, enforcement of those orders, and potential stays pending other proceedings. The court was required to determine the validity and merits of the various applications, particularly focusing on whether there was a reasonable likelihood of success for the applicants, and whether enforcement of certain orders should be stayed pending the outcome of other legal actions.

The court found that Ms Newett's application for a stay pending the determination of her application for special leave to appeal to the High Court and her constitutional writs lacked a basis for reasonable prospects of success. The court reasoned that the allegations of fraud and collusion presented by Ms Newett were mischaracterized and taken out of context. Furthermore, the court dismissed Ms Newett's application under section 79A of the Family Law Act 1975 for want of a reasonable likelihood of success. The court concluded that there was no evidence to support the claims of fraud, suppression of evidence, or any other circumstances that would justify setting aside the property adjustment orders. Consequently, the court refused to withhold enforcement of the orders and directed the payment of specified sums to the respective parties.

In summary, the court dismissed the applications for a stay and the section 79A application for lack of reasonable prospects of success and ordered the enforcement of the property adjustment orders as requested by Mr Newett. Any applications for costs were to be made in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Orders