Newett & Newett (No. 5)
[2021] FamCA 383
•9 June 2021
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:
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).
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.
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 conduct identified to be the basis of the apprehension of bias and the feared deviation by the judge from the duty to decide the case on its merits must be clearly articulated (Ebner at 345; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [63]). The bald assertion of it will not suffice.
and further confirmed that “the test is objective” and calls for an assessment of what a “rational fair-minded observer, who is aware of judicial obligations and is neither complacent nor unduly sensitive or suspicious (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232])”, would opine.
THE CURRENT APPLICATION FOR DISQUALIFICATION
Having heard on 11 February 2021 an earlier application for recusal, which I dismissed, but I acknowledge is the subject of an Appeal by the mother, this current application filed 24 May 2021 can only logically:
(a)deal with any of my actions since 11 February 2021; or
(b)perhaps new evidence now available to the mother which was not available at the time of the first refusal application.
As I will observe below, some of the mother’s submissions are similar to (if not the same) as earlier submissions. For the reasons given about events of relevance since 11 February 2021, I do not again analyse those submissions in these Reasons.
Since the delivery of Reasons on 25 February 2021 for dismissing the first recusal application:
(a)on 19 March 2021, I heard submissions and made some further orders, including listing the parenting application before me for Final Hearing for five days commencing 20 September 2021 (see Newett & Newett (No. 2) [2021] FamCA 186), I accept, for the reasons given, a number of the mother’s interim/interlocutory applications contained in her Application in a Case filed 17 March 2021 were dismissed;
(b)on 8 April 2021, I delivered Reasons arising from the property application heard on 1 December 2020 (in the absence of the wife) and adjourned the proceedings for further submissions as to the form of the order to 10 May 2021 (see Newett & Newett (No. 3) [2021] FamCA 187);
(c)on 10 May 2021, I received submissions as to the form of property orders. Furthermore, as the mother’s amended Application in a Case filed 9 April 2021 (which included new relief such as the removal of Mr Kingston as the Independent Children’s Lawyer (“ICL); restraints against Legal Aid Queensland and seeking to join VV Pty Ltd as a party to the property applications) was not able to proceed, that application by the mother was adjourned until 21 May 2021;
(d)on 21 May 2021, I delivered Reasons and made final property Orders (see Newett & Newett (No. 4) [2021] FamCA 318). The wife has informed the Court she has lodged an Appeal against those final property Orders;
(e)On 21 May 2021, when the earlier mentioned Application in a Case was listed before me, the mother at the commencement indicated and made an oral application for an order that I recuse myself. I directed the mother to file a formal Application in a Case seeking such orders (which she did on 24 May 2021). The Application in a Case seeks other orders, however all parties agreed that I should urgently deal with the mother’s recusal application before I hear any further applications. This position was also supported by the maternal grandmother, Ms Adlam, who also has a pending Application in a Case filed 14 May 2021 seeking orders, inter alia, that the children spend the Queensland school holidays with “the maternal family” in New South Wales, with changeovers at AP Town. The maternal grandmother made it clear in her Response to an Application in a Case filed 28 May 2021, that she also seeks my recusal. The Application for time with the children has not been heard yet for obvious reasons;
(f)On 4 June 2021, the recusal application was listed for hearing. I indicated to the mother that, in view of her comprehensive written submissions, I would give her the opportunity to make further oral submissions in reply to any oral submissions by the father or the ICL, neither of whom took up the opportunity to make written submissions in response. Both Mr Richardson, solicitor for the father, and Mr Kingston, the ICL, merely submitted the mother’s Application should be dismissed.
I then reserved my Judgment and the reasons which follow explain why I have determined this Application should be dismissed.
THE ALLEGED JUDICIAL CONDUCT IDENTIFIED TO BE THE BASIS OF THE APPREHENSION OF BIAS
The alleged acts are:
(a)“actively supporting and participating in a criminal syndicate where financial fraud has been identified and child sexual abuse evidence is before” me. The basis of this claim appears to be the continued making of interim Orders preserving the children’s residence with the father and the findings made in the property Judgment;
(b)“actively encouraging and ignoring the presence of Bribery and Corruption”. This appears to be a further restatement of an earlier allegation dealt with in the earlier application for recusal;
(c)“abusing his power to commit criminal acts of Child Stealing and Extortion of the mother”. This allegation has already been dealt with;
(d)the allegation of an “unwillingness to apply s 42 of the Family Law Act 1975” is difficult to understand;
(e)“actively creating a Slush Fund for the lawyers in the case” through, it is asserted, “an extensive and inefficient” case management process. Also the mother asserts I have taken advantage of her as a self-represented litigant. This allegation was dealt with in the earlier Judgment;
(f)the mother asserts I have committed the mother and the maternal grandmother to acts in breach of the Constitution (s 51(xxxiiA)) and the Human Rights Act 2019 (Qld). The apparent foundation for this assertion arises from the mother’s asserted belief that the case management has created a threat of harm against her and the maternal grandmother resulting from “the complete loss of assets of the mother”. Of course, as an example, the property Orders made include the wife retaining a superannuation split and some proceeds from the sale of the home – although as the property Judgment acknowledges, much less than the mother had sought (see paragraph 54);
(g)the mother asserts that I “applied unauthorised sub-delegation, acting under the dictation of the father and his legal team”. This appears to be related to past parenting Orders where I have refused to make interim orders for the children to live with the mother and/or my Recovery Orders requiring the children to return to the father’s care. These issues have already been dealt with;
(h)making “harsh decisions and orders” which would be perceived as bias by a fair minded lay person. This is similar to the earlier and later arguments by the mother about the parenting Orders made by me – where, as has been explained, the Court is not able to test all the evidence until a final hearing;
(i)I “rubber stamped” the father’s property orders – with a slight variation to the superannuation splitting order. The Reasons delivered on 20 May 2021 seek to explain why I found the Order I pronounced achieves justice and equity. I accept the mother disagrees and has exercised her right to file an Appeal. The Court had evidence about the potential for the bank, as a mortgagee in possession, to exercise their rights (especially since the mother began living in New South Wales), and there is no evidentiary foundation that I had meetings/communication with the husband’s solicitors and acted on “external knowledge’ which is an “act of corruption”. Simply no such communication occurred;
(j)I have previously dealt with the mother’s concerns about the hearing conducted in her absence. The property Orders are under appeal and it is for the Full Court to decide if I have fallen into error;
(k)The mother continues to assert that I have failed to properly consider her allegations that she and the children have been victims of abuse by the father. These have been dealt with earlier when making the observation that at a trial, when all the evidence (including the father’s denials on oath) is tested and given context, the orders for parenting will be as the law requires, based on the evidence. No findings of the nature the mother asserts against her have been made – save perhaps for the clear finding that she did not return the children to the father on the Sunday after she had returned them on the Saturday;
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)
These will be listed before me for interim determination, by telephone, at 9.00am on Tuesday, 22 June 2021.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 9 June 2021
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