Newett & Newett (No. 5)

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FAMILY COURT OF AUSTRALIA

Newett & Newett (No. 5) [2021] FamCA 383

File number(s): BRC 2179 of 2018
Judgment of: BAUMANN J
Date of judgment: 9 June 2021
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Further application by the mother for recusal – where there is no merit in the mother’s allegations – application dismissed
Legislation: Family Law Act 1975(Cth)   
Cases cited:

Adlin & Northern Territory Central Authority (No. 6) [2021] FamCAFC 75

Faldyn & Badenoch [2021] FamCAFC 85

Newett & Newett [2021] FamCA 82

Newett & Newett (No. 2) [2021] FamCA 186

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

Newett & Newett (No. 4) [2021] FamCA 318

Number of paragraphs: 18
Date of hearing: 4 June 2021
Place: Brisbane
Solicitor for the Applicant: Mr Richardson, Damien Greer Lawyers
Solicitor for the Respondent: Self-represented
Solicitor for the Intervener: Self-represented
Solicitor for the Independent Children's Lawyer: Mr Kingston, Norman & Kingston

ORDERS

BRC 2179 of 2018
BETWEEN:

MR NEWETT

Applicant
AND:

MS NEWETT

First Respondent
AND:

MS ADLAM

Second Respondent
AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

9 JUNE 2021

THE COURT ORDERS:

1.That the mother’s further application for recusal of the Honourable Justice Baumann in these proceedings be dismissed.

2.That all current outstanding interim Applications in a Case (including the mother’s Application in a Case filed 3 June 2021) be listed for Interim Hearing at 9.00am on 22 June 2021 in the Family Court of Australia at Sydney, by telephone.

3.That all parties have leave to appear by telephone on 22 June 2021 by using the Microsoft Teams telephone conferencing system as follows:

(a)They shall each telephone … by 8.55am on 22 June 2021;

(b)They shall each then enter the pass code ...; and

(c)Hold the line until the Court is ready to connect and proceed with the matter.

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:

  1. For Reasons previously published, the Applicant mother’s previous application that I be disqualified was dismissed on 25 February 2021 (see Newett & Newett [2021] FamCA 82).

  2. I rely upon but do not repeat the earlier statement of legal principles that apply to an application by a party for a Judge to be disqualified.

  3. Recently, Austin J in Adlin & Northern Territory Central Authority (No. 6) [2021] FamCAFC 75 neatly summarised the principles as follows:

    As is well known, before any disqualification application can succeed, the logical connection between the judicial…

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Details
Case
[2021] FamCA 383
Decision Date

CaseChat Overview and Summary

In the matter of *Newett & Newett (No. 5)*, Baumann J of the Family Court of Australia considered a further application by the mother for the recusal of the presiding judge. The mother alleged serious judicial misconduct, including criminal behaviour and corruption, which she contended would prevent the judge from bringing an impartial mind to the remaining parenting proceedings.

The central legal issue before the court was whether the mother's allegations, even when elevated to assertions of criminal behaviour and corruption, provided sufficient grounds for the judge to recuse himself. The court was required to determine if a fair-minded observer, aware of the mother's claims, would reasonably apprehend that the judge might not bring an impartial mind to the determination of the parenting matters.

Baumann J dismissed the mother's application for recusal, finding that she had failed to identify any judicial conduct that would lead a fair-minded observer to doubt the judge's impartiality. The judge noted that while property proceedings had concluded, the parenting proceedings remained. His Honour referred to the principles established in *Faldyn & Badenoch* [2021] FamCAFC 85, which require incontrovertible and detailed evidence to substantiate serious allegations of judicial misconduct. The court found no such evidence was presented by the mother. Baumann J also observed that the mother appeared to misunderstand the distinction between interim and final orders, and the process of seeking and not obtaining a particular order.

Consequently, the mother's further application for recusal was dismissed. The court also listed outstanding interim applications concerning parenting matters for a hearing on 22 June 2021, with parties granted leave to appear by telephone.

Orders

Orders of the court

BRC 2179 of 2018

BETWEEN:

MR NEWETT

Applicant

AND:

MS NEWETT

First Respondent

AND:

MS ADLAM

Second Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

9 JUNE 2021

THE COURT ORDERS:

1. That the mother’s further application for recusal of the Honourable Justice Baumann in these proceedings be dismissed.

2. That all current outstanding interim Applications in a Case (including the mother’s Application in a Case filed 3 June 2021) be listed for Interim Hearing at 9.00am on 22 June 2021 in the Family Court of Australia at Sydney, by telephone.

3. That all parties have leave to appear by telephone on 22 June 2021 by using the Microsoft Teams telephone conferencing system as follows:

(a) They shall each telephone … by 8.55am on 22 June 2021;

(b) They shall each then enter the pass code ...; and

(c) Hold the line until the Court is ready to connect and proceed with the matter.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The mother concludes that I have “committed serious misbehaviour worthy of referral to a removal from public office” (s 72 of the Constitution)CONCLUSION The mother has failed to identify any judicial conduct that could cause a fair minded observer to hold a belief that I would not bring an impartial mind to the remaining parenting proceedings. Of course, the property proceedings are now concluded with the making of final Orders. It is a matter for the Full Court to order a retrial if they are satisfied I fell into error, either in the way the hearing proceeded or the ultimate property alteration Orders. The mother’s bold assertion of serious judicial misconduct is not enough to establish the fact. In this regard, the mother’s allegations now have been elevated to even more serious allegations – asserting criminal behaviour and corruption. As Strickland J (sitting as the Full Court) recently stated in Faldyn & Badenoch [2021] FamCAFC 85:26.Thus, the allegation is not only the equivalent of a claim of actual bias, but also suggests that her Honour has failed to comply with her Oath of Office.27.It is an understatement to record that that is a serious allegation to make about a judicial officer, and as such would require incontrovertible and detailed evidence of such conduct to be revealed. However, there is no such evidence pointed to by the husband, and thus this outrageous allegation must fall at the first hurdle. Whilst I acknowledge the effort and research the mother clearly exerted in her written submissions, some of the authorities relied upon are not relevant. Obviously, if there was “evidence” of the serious allegations made then I would be bound to recuse myself. For the reasons given earlier and again in this Judgment, the mother continues to sadly fail to understand the distinction between parenting orders made on an interim basis and what orders may be made on a final basis; the distinction between asking for an order, not obtaining that order and therefore believing that the only basis the order sought was not obtained was because the Judge is biased. The mother’s application for recusal (supported by the maternal grandmother) is dismissed.FURTHER PENDING APPLICATIONS At the time of the hearing of this recusal application (4 June 2021) the parenting matters that remain undecided are:(a)the mother’s amended Application in a Case filed 17 March 2021 (paragraphs 4 and 16 only), seeking:4.That the Mother be provided $130,000 within 7 days by way of Barro or Hogan Order to service legal representation and accrued costs, to be drawn from VV Pty Ltd retained earnings (per supplied Trial Balance of October 2020), in legal remedy and compensation for fraudulent accounts produced to the Court by the Husband with his “voodoo economics” deployed on the Court.16.That Scott Richardson be restrained from any further conduct on, or exposure to, BRC2179/2018 including contact with any of the Parties to the Case on the basis of his Criminal Actions against the Mother conducted during the BRC2179/2018 case and for the benefit of the BRC2179/2018 case; where prima facie evidence exists before the Court; and the Current Proceedings on foot before the Magistrates Court.(As per original)(b)the mother’s Application in a Case filed 29 March 2021, seeking:1.I seek the Children’s Facetime calls on Wednesday, Saturday and Sunday be relocated to the P Contact Centre, at the full cost of the Father; and that the Wednesday calls be conducted at 6.30pm, with Saturday (grandparents call) and Sunday (full family) calls be held at 5.30pm to be held in private.An if the Father should breach these Orders, the Children are to return to living with the Mother immediately.2.I seek the Children spend the Easter School holidays with the Maternal family unsupervised; with an undertaking to return the Children per Orders of the Court with collection and return at Suburb AT McDonalds.…4.I seek an Emergency discrete hearing on Child Welfare, ‘Statutory Interpretation’ on matters of Family Violence and particularly the requirement of the Court to determine matters of Safety Risk in a timely manner and extricate Children from Risk of Harm.…11.I seek an s102NA Certificate for application by NSW Legal Aid/Women’s Legal Service…(As per original)(c)the mother’s amended Application in a Case filed 9 April 2021, seeking:4.That the Children undergo an urgent follow-up Family Report by Ms HH…5.That Anthony Kingston be removed as ICL from the Case.6.That Legal Aid Queensland be restrained from any involvement in the Case.…(As per original)(d)the maternal grandmother’s Application in a Case filed 14 May 2021, seeking:2.That the Children… spend time with the 2nd Respondent/Maternal grandparents and Maternal family during the Queensland June/July School holidays from 2:00 PM on Saturday, 26 June 2021 to 2:00 PM on Sunday, 11July 2021.3.That changeover is to occur at McDonalds on the corner of AU Street and AV Street, AP Town, NSW.4.That the Maternal grandmother have sole parental responsibility for the care and wellbeing of the Children whilst they are in the Maternal grandmother’s care.5.That the Father, Mr Newett and any associate or agent of his family be prohibited from any contact by any means with the Children or the Children’s Maternal family and associates during the time the Maternal grandmother has care of and responsibility for the Children.…(As per original)

Ratio Decidendi

Legal Principle Established

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