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 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newett & Newett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
Before the Court are a number of applications. There is an enforcement application by the husband in the proceedings (filed on 18 May, 2022), the effect of which is to provide for the payment out of Court of certain funds to him and to the respondent to his application. I will come to that application shortly. There is an application by the wife seemingly in response to that. The most current iteration of that application seems to be an amended response to an application in the proceeding filed by the respondent wife on 1 August, 2022. There is also before the Court applications by the husband in respect of an amended application in the case filed by the wife on 8 July, 2022, but which was filed in its original form in 2021.
The applications before me have as their genesis some orders that were made for property adjustment between these parties by Baumann J. Those property adjustment orders have been the subject of appeal. The appeal was unsuccessful. It was dismissed by a Full Court. According to the material before me, there has since been an application for special leave to appeal the Full Court’s decision to the High Court of Australia made by the wife. That application for special leave is still pending.
She has also commenced proceedings in the original jurisdiction of the High Court for the issue of constitutional writs against Baumann J and others, I think. I say I think because copies of that material is not before me. It is referred to in the wife’s affidavit material, but copies of the relevant documents are not before me. It was said in the course of argument that I might be able to get access to them or I could get access to them, but the fact of the matter is that I cannot, because those documents are filed in a separate court to this one and not in this court. But it does not much matter.
I propose to deal with the applications that are set out by the wife in her amended response filed on 1 August, 2022. The first order that she seeks is that the application in the proceeding filed by 18 May, 2022 by the applicant, Mr Newett , be dismissed. I will deal with that order shortly. Order number 2 is in these terms,
That in the event that the Application in a Proceeding filed 18 May 2022 by the Applicant, Mr Newett is not dismissed, that the operation of orders of Justice Baumann made 20 May 2021 as relate to the Final Property Orders in the BRC2179/2018 matter be stayed until final determination of the full High Court Constitutional and Other Writ matter as lodged on 10 June 2022 and High Court Appeal of NOA26/2021 lodged 13 June 2022 is complete.
That claim for relief is allied to the claim for relief in paragraph number 3 of the amended response. I will deal with those together. It is, in a sense, a stay application. The power to grant the stay was not identified in the material before me.
There is no power to grant a stay in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 in respect of an application for special leave to the High Court of Australia. There is power in the High Court Rules for the High Court to grant a stay (see in particular rule 8 of the High Court Rules 2004) but that power is not available to this Court.
In any event, even if I did have power to order a stay of enforcement, I would nonetheless refuse the stay. That is because no basis for the operation of the stay has been made out. Aldridge & Keaton (2009) 42 Fam LR 369 is a decision of the Full Court of the Family Court of Australia that sets out the principles that apply to the stay of execution of judgments where the Full Court of the Family Court is called upon to decide an appeal from a decree of the Court. Adapting those principles, one might quickly conclude that no basis is made out here for the stay. The judgments below are presumed to be correct and the husband is entitled to the fruits of his judgment. I do not know the grounds of the special leave application or the basis upon which constitutional writs are sought, but having regard to the written submissions made by the wife and the affidavit material referred to by her, it seems that her case is one of fraud and collusion. She has set out in her affidavit in support of this application and the other affidavits to which she has referred in that affidavit a large number of complaints about what she says is fraud, contempt and criminal conduct, not just by the husband, but by his lawyers and by the various judges who have from time to time had anything to do with the case. The only two judges who seem to have escaped her opprobrium are Judge Cassidy and myself.
On the issue of her affidavit material, the wife has said in her primary affidavit filed with this amended response that she relies on all of the affidavits that she has filed in these proceedings. Leaving aside affidavits of service, she has filed, it seems, about 93 affidavits. I have not read all of them. I have read those to which she has made specific reference in her written submissions and the affidavits that were specifically relied upon in these proceedings, but I have not, and do not intend to, read all 93 of the affidavits that she has filed since the inception of this case back in 2018. I should also add that the 93 affidavits do not include those that she has filed in any appeals.
Even if there was a proper identification of the grounds of the special leave application that is sought to be pursued or the grounds upon which constitutional writs are sought, the material before me suggests that those applications are likely to be unsuccessful. I reach that conclusion, because in her affidavit filed on 8 July, 2022 the wife sets out what she says is the basis of her claims to success and her claim that the orders made by Baumann J, affirmed by the Full Court, ought to be set aside.
The first complaint that the wife makes is that there was a failure by Baumann J to issue written orders promptly following a procedural hearing on 16 June, 2022. She complains the orders lack specificity and that she was prejudiced because a formal record of the orders that were pronounced on 16 June, 2022 was not produced until 5 or 6 July, 2022. The problem with that argument is that there was no obligation and there is no obligation on the Court to produce orders in a written form in such circumstances. Further, the production of a written record of orders does not affect a party’s obligation to comply with orders.
Rule 10.19(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides that:
(1) An order is made:
(a)in a hearing or trial–when it is pronounced in court by the judicial officer; or
(b)in any other case–when it is signed and sealed.
(2) An order takes effect on the date it is made, unless otherwise stated.
(3) A party is entitled to receive:
(a)a sealed copy of an order; and
(b)if the order is rectified by the court—a sealed copy of the rectified order; and
(c)a copy of any published reasons for judgment.
(4) Subrule (3) does not apply to a procedural order.
The orders in this particular case followed an interlocutory hearing and so those orders were made when they were pronounced in Court by Baumann J. The order does not provide for any other date from which they should take effect and so it takes effect on the date it was made, namely, 16 June, 2022. Arguably, subrule 10.19(3) creates an obligation to provide a sealed copy of an order in writing, but subrule 10.19(4) negates that argument. The orders of Baumann J made on 16 June, 2022 were procedural orders and so to the extent that subrule (3) creates an obligation to provide written orders to a party, that obligation did not apply in any event.
So the wife’s complaint that she did not have adequate time to prepare what she says are particulars of her s 79A case has no basis. Moreover, she complains that she was not told by the Judge what it was that she had to do. However, it is simply not the case that it was for the Judge to tell her what to do. As the applicant in the s 79A application, it was for her to prosecute her case and to advance it in whatever way she saw fit. Given the nature of a s 79A application and the requirements of ss 79A(1) and (2), it is of little wonder that there was a requirement to provide some particulars as to the basis upon which it was said that the pre-existing property adjustment orders ought to be set aside. It is commonplace for particulars or further specificity in respect of s 79A applications to be ordered.
Notwithstanding what the wife says are difficulties, she then proceeds in her affidavit to address the basis of her s 79A application, which according to that affidavit, is fraud and deceit throughout the case since it was first decided by Judge Middleton. After setting out relevant statutory and case law definitions of fraud and the like, the applicant wife says at paragraph 27 of her affidavit, filed 8 July, 2022 the following:
Due to the short notice of compliance with order 1 made 16 June 2022 but only provided to me on 6 July 2022, I read and rely upon the following affidavits which address matters of fraud as they arose throughout the case. This list is not exhaustive, but addresses much of the fraud matters as provided to the Court throughout the case, which have never been honestly addressed by any judicial officer:
a.The exception to this was the stay on orders issued by Jarrett J in October 2019 to prevent the sale of the marital property upon the fraudulent statements of the husband, his instructing solicitor and counsel made against the wife;
b.This was further clarified by Tree J in his appeal judgment where it was found Middleton J (sic), the husband and his legal team all committed fraudulent misrepresentation in the matter and attributed false claims toward the wife.
Those paragraphs are a fair representation of many of the other allegations made by the wife in this case against the husband, his lawyers and some of the judges in this case. However, the assertions are wholly inaccurate. There was no finding by Tree J in his appeal judgment that Judge Middleton, the husband or his legal team had committed fraudulent misrepresentation. In fact, what his Honour found is set out in paragraph 64 and onwards in his reasons. It is that there had been a misapprehension by the trial judge about the wife’s position at that point in time in the case. The issue that was being dealt with by the trial judge was whether there should be an order for the sale of the parties’ former matrimonial home. His Honour misunderstood the wife’s position. He thought that she was agreeing to an order for sale of that property at that point in the case. As Tree J points out at paragraph 64 and onwards of his judgment, whilst the wife was seeking an order for sale of the former matrimonial home, her case was that it should not occur until final orders were made. There was an error by the trial judge and, indeed, it was that error that led me to grant a stay of Judge Middleton’s orders for the sale of the relevant property in the first place. But to characterise that as a fraudulent misrepresentation or, indeed, a misrepresentation of any form, is entirely inappropriate. It is a complete and utter mischaracterisation of the appeal judgment.
The affidavit relied upon by the wife details a number of other matters that she says demonstrates contempt and a contravention of various orders made from time to time. Paragraphs 32 through to paragraph 50 deal with various matters arising out of the parenting proceedings in which these parties were engaged. In my view, they have no bearing at all on the applications that are currently before me and they have no bearing at all on the s 79A application.
It will, of course, be remembered that s 79A requires an applicant for relief under that section to demonstrate that there has been a miscarriage of justice as a result of one of a number of different matters, fraud, suppression of evidence and the like. The authorities are clear that the miscarriage of justice must occur at the time the orders are made. It was not explained in the applicant’s written submissions or her affidavit material how the complaints that the wife makes about the parenting proceedings, what occurred during those proceedings and what she perceives to be the husband’s non-compliance with some orders from time to time bears upon the test that needs to be satisfied to succeed under s 79A of the Act.
Before passing from these matters arising from the parenting proceedings, however, it is necessary to make a couple of observations. At paragraph 37 through to paragraph 50, or thereabouts of her affidavit, there are a number of assertions made by the wife about the provision of a psychiatric report by Dr A. What she says in paragraph 37 of her affidavit is this:
In the hearing before Jarrett J on 12 July 2018 his Honour noted verbally the psychiatrist, Dr A, was to be engaged by joint instruction on agreement from the mother only:
a. This Joint Instruction was never agreed upon, yet the father’s solicitor lied to me and threatened me with contravention of a non-existent order if I did not attend.
b. I attended the appointment under duress and trickery (hence fraud).
c.The ICL and father’s solicitor misrepresented his Honour Jarrett J. and stated the Court had ordered the report of Dr A, where his Honour Jarrett J. did no such thing.
What in fact occurred in the hearing before me is reflected in the transcript of the hearing that occurred on 12 July, 2018 which I have been able to access. Before I deal with that transcript, it is as well to deal with the terms of the order that I made. On that day I ordered the appointment of a court expert for the purposes of valuing some real property. Paragraph 2 of the order says this:
The father shall meet the costs of the report to be prepared by in the first instance, but the ultimate incidence of those costs be reserved to trial.
I then made another order of some substance and a procedural order. The record of the orders carried the following notation:
1. The parties have organised to attend upon Dr A in early September for the purposes of procuring a family report.
The record of the order properly reflected what occurred in the proceedings before me on that day. The transcript reveals that the independent children’s lawyer commenced submissions at my invitation and said this:
For instance, it’s agreed between the parties that there should be some psychiatric assessments made. There is a proposal that that occur with Dr A in dates in about the middle of August. That’s to address certain anxiety suffered by both of the parents and to try and assess how that affects their parenting capacities and, in turn, how it’s affecting these children. There’s also a recommendation that the mother would maintain the assistance of her own psychiatrist and follow any prescriptions and recommendations made by that psychiatrist and that is also agreed.
Those comments were made in the context of the independent children’s lawyer informing the Court of the recommendations made by a family report writer, Mr B. Later in that hearing, counsel for the husband, in the context of discussing what was pressed to be variations to the then parenting orders, said this:
So that’s the position, really, in relation to the children’s matter. As Mr AQ has outlined, my client agrees to there being a psychiatric assessment by Dr A. The mother may say that she can’t afford to pay for that. My client will pay in the first instance, but have that taken into account in the property settlement in due course.
Subsequently, I heard from the wife. She was representing herself. I said to the wife at one point the following:
Can we just deal with what we need to deal with at hand? In terms of the parenting issues, I’m told that everything is agreed more or less, except for the rearrangement of the time.
The wife then went on to address me on the rearrangement of the time. Her submissions did not deal with anything to do with the psychiatric assessment. Despite my attempts to redirect her, she continued to address me on things that were not able to be dealt with on that morning. Subsequently, in the course of discussions I said, after appointing a court expert for the purposes of valuing the real property, the following:
Now, there’s also – there was – I’m told there’s an agreement about getting Dr A to do some reports. Mr McGregor mentioned that the cost is going to be met by his client in the first instance, but your costs of your report will come out of your property settlement. Any difficulty with that?
The wife said:
Yes, I do.
I then said:
What’s wrong with that?
The wife then said:
Mr Newett’s eroding – has been eroding the property value by creating fake loans with his dad and all sorts of things.
There was then further discussion about the need for a forensic accountant and the wife continued to complain that the husband was spending all of the parties’ money. Notably, there was no contention made by the wife that there was no agreement that the parties would both be assessed by Dr A as the independent children’s lawyer had suggested and the husband’s counsel had affirmed. I then said this:
All right. Well, the costs will be met – for Dr A’s reports will be met by the husband, but the ultimate incidents will be reserved to trial, as well. Now, what else needs to be done today as far as you’re concerned, leaving aside the question of whether the current time ought to be rearranged?
The wife then went on to address the need for forensic accounting. Significantly, she did not cavil with the proposition that Dr A was the person who was to prepare the psychiatric reports. Also significantly, there was not one scintilla of mention in the transcript of the hearing that Dr A was to be engaged by “joint instruction on agreement from the mother only” as she now suggests. That is simply a misrepresentation of what occurred.
The wife then says in her present affidavit at paragraph 38 that the husband colluded with his lawyer, the independent children’s lawyer and the psychiatrist to produce a false psychiatric report against her. She asserts at paragraph 40 of her affidavit the creation and publication of that report was a contravention of a:
spoken order made by Jarrett J on 12 July 2018 where the lawyers were instructed of the bounds in which they were permitted to obtain that report and failed to observe their required code of conduct.
There is no basis for that assertion.
The wife continues the theme in paragraph 47 of her affidavit where she says that:
The contempt made by Mr Armstrong and the ICL Mr AQ to the orders of Jarrett J. in relation to the procurement, duress and publication of the untested psychiatric report resulted in strategic undermining of the Court and the law itself, resulting in Spelleken J’s (sic) breach of section 60CG and section 60CA Family Law Act mandatory requirement to protect victims and children from risk of physical, sexual, or psychological harm at all times.
(emphasis in the original)
At paragraph 48:
The result of that hearing, including the transfer of the Children to an environment of abuse was directly procured by major fraud, collusion and conspiracy to defraud.
Those allegations simply cannot be made out having regard to what occurred on 12 July, 2018 before me. In any event, they are entirely irrelevant to the arguments under s 79A of the Family Law Act 1975 and the property adjustment orders.
In paragraph 50 of her affidavit and onwards the wife addresses aspects of the property adjustment orders or, at least, the property hearing and the preparation for it. She points out what she says are anomalies in relation to orders that I made and the way in which the husband went about thwarting them. The relevant order that I made was the stay order, which, stayed the operation of the orders made by Judge Middleton for the sale of the parties’ former matrimonial home. My orders were to operate until the appeal that the wife brought against those orders was completed.
She says, however, that the husband contravened those orders because he had signed a “Voluntary Surrender Acknowledgement” of the property (then solely owned by the husband) to the mortgagee, who was pressing for payment. She says that the voluntary surrender acknowledgement document was fraudulent and that the husband and his solicitor were complicit in the fraud.
It is difficult, however, to understand the argument because whatever it is that the husband and his solicitor might have done – and I will turn to that shortly – the fact of the matter is that the property at Suburb C was not sold until 14 August, 2021 – that is, sometime after the stay order that I had made and after the final property adjustment orders had been made by Baumann J. So whatever conduct the husband and his solicitor had engaged in in November, 2019 it had no effect upon the outcome of the proceedings and could not possibly found an argument that there had been a miscarriage of justice by reason of any fraud or suppression of evidence by the husband.
On that point and in any event, the conduct about which the wife complains that occurred in November, 2019 does not amount to fraud or misconduct or contravention of any orders. The wife’s case relies upon what the husband swore in various affidavits, but which is probably best represented in his affidavit of 4 February, 2020 filed in the appellate jurisdiction for the purposes of placing fresh evidence before the Appeal Court. At paragraph 6 of that affidavit through to paragraph 9 he sets out what occurred in respect or the Suburb C property. He says that on 9 October, 2019 he received two default notices from BN Lawyers on behalf of the ANZ Bank in respect of the mortgages held over the property. The default notices are exhibited to the affidavit. So, too, is the letter from BN Lawyers. On 7 November, 2019 his solicitors sent correspondence to BN Lawyers in response. He says that on 11 November, 2019 he signed a voluntary surrender acknowledgement with the ANZ Bank and on 20 November, 2019 he received a further default notice from BN Lawyers on behalf of the ANZ Bank. What subsequently transpired and what was apparent from the reasons for judgment of Baumann J and the Full Court was that the husband was able to organise with the bank not to take action against the property until the property adjustment proceedings had been completed. There is nothing unusual about that. That is a commonplace occurrence in this place.
The wife says that the letter written by the solicitors on 7 November, 2019 to BN Lawyers should be looked at with some suspicion. First of all, she complains that it is not on letterhead and that of itself raises suspicions. That is not suspicious. Solicitors often keep copies of correspondence on their files that do not include their letterhead. That is something of a common experience of lawyers practicing in any jurisdiction.
The content of the letter has been entirely mischaracterised by the wife. What the letter says, relevantly, is this:
Mr Newett is the sole owner of the property secured against the above credit contracts, namely, R Street, Suburb C.
A Caveat is registered on the title in the name of Ms Newett. Ms Newett continues to reside in that property.
On 12 August 2019, amended 16 August 2019, our client obtained Orders from the Federal Circuit Court for the immediate sale of that property and the removal of the Caveat lodged by Ms Newett (a copy of those orders is enclosed).
On 4 September 2019, Ms Newett filed a Notice of Appeal in the Full Court of the Family Court appealing against the orders made on 12 August 2019 (Amended on 16 August 2019).
On 2 October 2019, Ms Newett obtained a stay order from the Federal Circuit Court of Australia in respect of the sale orders pending the outcome of the Appeal.
On 4 November 2019, Orders were made in the Full Court of the Family Court requiring the filing of all material by all parties in respect of the Appeal by 24 January 2020.
The Appeal is likely then to be listed for hearing in February or March 2020.
Our client is contesting the Appeal and in the event the appeal is upheld is seeking the Full Court re-exercise their discretion and make further sale Orders, including Orders for Ms Newett to vacate the property.
Our client intends to and is taking all steps available to him to cause the [Suburb C] property to be sold with the credit contracts to be satisfied in full.
He is at present being frustrated by the appeal and by Ms Newett’s refusal to remove the caveat and/or vacate the property.
We respectfully ask that your clients consider the above before commencing any enforcement proceedings and/or before determining to list the default with any credit reporting body.
None of that is remarkable. It simply sets out the history of the matter, says that the husband intends, and is taking steps available to him, to cause the property to be sold, but is being frustrated in those attempts by the appeal and by the wife’s refusal to remove the caveat. That is not a contempt or a contravention of the orders made by me, but is simply a statement of fact. There is no suggestion in that letter that the husband attempted to do or intended to do anything with the property pending the appeal.
The purpose of setting all of this out is to demonstrate that the wife’s case for a stay is built upon assertions and allegations by her in respect of matters that have been completely mischaracterised and taken out of context. There is no basis in the material upon which the wife relies to suppose that she will be able to properly establish at all that there has been a miscarriage of justice by reason of any of the matters that are set out in s 79A(1) of the Act. There is no basis, then, for the granting of the stay orders that the wife seeks in her amended response.
The next order that she seeks is that:
Order 2 made on 17 May 2022 be discharged and the husband’s application for such funds be dismissed on the basis the Family Court has no right to determine the order of payment of the wife’s debts and many other debts preceding the claim of the husband. The husband would need to file civil claim for any moneys he believes he is owed.
I decline to make that order, because I do not have power to discharge an order made by the Full Court.
Order 5 asks for the following:
That the wife’s application filed 3 June 2021, so far as it seeks relief pursuant to section 79A of the Family Law Act, to set aside or vary final property orders made 20 May 2021 be heard and fully determined prior to the operation of the final property orders made 20 May 2021 pursuant to the judgment of 22 August 2021 of Tree J made against Baumann J at 52 in Newett & Newett [2021] FamCAFC 55:
52.Even accepting that the primary judge’s reasons were, of necessity, delivered ex tempore, I could not conclude that the appeal is wholly without merit, in that his Honour, in reality, simply refused to deal with the mother’s application, which had been filed first in time.
Those comments by Tree J were made in the context of competing applications for security for costs of the appeal between the husband and the wife. It was an interlocutory judgment in respect of which different tests applied than the test that applied ultimately when the appeal was heard and determined. To extract paragraph 52 of Tree J’s judgment in that proceeding in the way in which the wife has done now is yet another example of the way in which she has taken out of context various aspects of various judgments and other material to suit her own ends. It is no basis for granting any form of a stay of enforcement or execution of the property adjustment orders made by Baumann J and affirmed by the Full Court.
Order 6 is an application for an order to similar effect. It seeks the staying of the s 79A application, or the adjournment of that application until the determination in the High Court of the proceedings that the wife has commenced there. I will deal with that shortly.
Order 7 of her amended response to an application in the proceeding filed on 1 August seeks that a judge other than Baumann J hear the s 79A application. I do not intend to deal with that. If the matter ultimately is listed before Baumann J, then, of course, the wife has the ability to bring an application for his Honour to disqualify himself from further participation in the case. But it is not for me sitting on this interlocutory application to make such an order.
The next order, order 8, seeks that the wife’s application filed 3 June, 2021 (subsequently amended on 8 July, 2022) – that is the s 79A application, be heard and fully determined prior to the distribution of any moneys in any form to the parties. I will deal with that too, shortly
Finally, she seeks an order for costs. The amended response adds an application for security for costs of the husband’s application in a proceeding filed on 18 May, 2022 and a consequential order about the stay or dismissal of that proceeding in the event he does not lodge the security. I do not intend to order security. There is no suggestion that the wife has any legal costs and, in those circumstances, an order for security for costs in her favour is simply inappropriate.
The orders that are set out in the amended response to the application in a proceeding filed on 1 August, 2022 by the wife that I have not dealt with I will now deal with together, because they require a determination of the husband’s application for enforcement of the orders. It requires me to deal with the husband’s response to an application in a proceeding filed on 22 July, 2022.
His amended response seeks orders for security for costs of the wife’s application in a proceeding filed on 3 June, 2021 – that is the 79A application. Alternatively, he seeks an order that the wife’s application in a proceeding filed 3 June, 2021 and the amendment of that application filed on 8 July, 2022 be summarily dismissed pursuant to part 10.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules.
As I have already indicated, the amended application in a proceeding filed by the wife on 8 July, 2022 seeks a stay pending the outcome of the High Court proceedings, it seeks an order that the s 79A application be heard by a judge other than Baumann J, it seeks an order that the final orders made by Baumann J on 20 May 2021 be set aside and it seeks:
6.That any rectification of any and all matters in relation to the final orders made by 20 May 2021 by his Honour Justice Baumann be paid by;
a) the Applicant Husband, and/or
b) the Applicant Husband’s legal representation, and/or
c) the Family Court of Australia, and/or
d) his Honour Justice Baumann
Further, she seeks an order that the property trial held on 1 December, 2020 be declared a mistrial, that the matter be transferred to Sydney and that there be a new trial of the proceedings.
As I have indicated, earlier on 16 June, 2022 Baumann J made an order that the wife should within three weeks of that order file and serve an amended application pursuant to s 79A of the Act supported by an affidavit which particularises the grounds relied upon by her to establish the miscarriage of justice or any other circumstance said to be a basis to consider the setting aside or variation of the final property orders made on 20 May, 2022. I have already recorded that on 8 July, 2022 the wife filed an amended application in a proceeding and she filed an affidavit. I have referred already extensively to the affidavit.
To succeed on an application under s 79A of the Act an applicant must demonstrate that there has been a miscarriage of justice by reason of one of a number of matters. Those matters include fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance. Alternatively, an applicant might show that circumstances have arisen since the order was made that make it impracticable for the order to be carried out or part of the order to be carried out. They might demonstrate that a person has defaulted in carrying out an obligation imposed on that person by the order and in circumstances that arisen as a result of that default it is just and equitable to vary the order. It might also be necessary to vary an order in circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage.
The husband applies under part 10.3 of the rules for summary dismissal. Subrule (1) of rule 10.09 provides that:
(1)A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
…
(c) there is no reasonable likelihood of success.
I have already canvassed the evidence relied upon by the wife in these proceedings in support of her s 79A application that has been filed by her in response to the orders of Baumann J. I am satisfied, and I find, that she has no reasonable likelihood of succeeding in establishing that there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, including a failure to disclose relevant information, the giving of false evidence or any other circumstance. Having regard to the content of her affidavit that she has filed and the content of her written submissions filed the day before the hearing before me, it is clear that the basis upon which she advances her s 79A application is confined to s 79A(1)(a). It is not suggested that any of the other subsections of s 79A(1) are, or could be, engaged.
The fraud about which she complains in her affidavit material goes to the parenting proceedings. Even if she could establish the relevant fraud (something about which I am comfortably satisfied she could not having regard to her evidence) it is not apparent at all how that fraud might have impacted upon the property adjustment proceedings and the outcome of them. To the extent that she points to the husband’s conduct in respect of the sale of the Suburb C property after the orders that I made for the stay of execution of Judge Middleton’s orders, for the reasons I have already given, her case about that is entirely misconceived. Moreover, there is no attempt by her to demonstrate how there has been a miscarriage of justice by reason of that conduct when the final orders were made.
I am satisfied that there is no reasonable likelihood of the applicant wife succeeding on her s 79A application. The amended application in a proceeding filed on 8 July, 2022 has no reasonable likelihood of success and it should be dismissed on that basis. I so dismiss it.
I turn then to the husband’s application filed on 1 June, 2022. Having dismissed the s 79A application, there is no reason established in the evidence for enforcement of the orders made by Baumann J to be withheld. It might be said by the wife that notwithstanding the dismissal of her s 79A application it is necessary to withhold enforcement of those orders until such time as the High Court has dealt with her application for special leave and her application for the issue of constitutional writs, but for the reasons I have already given, I do not have details of the nature or extent of those applications, the basis upon which they are made, and if the basis upon which they are made is that set out in her affidavit to which I have already referred extensively, then my conclusion is that those proceedings have very little prospect, if any, of success.
That being so, there is no reason to withhold enforcement of the orders made by Baumann J affirmed by the Full Court and amended by the Full Court as I have earlier recounted. The relief sought by the husband in his application in a proceeding filed on 1 June, 2022 is entirely appropriate, having regard to the affidavit in support of that application filed with it. I am satisfied I should make orders 1, 2 and 3 as set out in that application in a proceeding.
In the absence of an appearance by Ms Newett on the telephone and in the absence of an appearance by the husband’s solicitor, who I understood was on the line, but may have for technical reasons been disconnected after the commencement of my reasons, I will direct that any applications for costs that either party wish to make should be made in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett delivered on 19 August, 2022. Associate:
Dated: 19 August, 2022.