Newett & Newett (No. 5)
[2022] FedCFamC1A 2
•18 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Newett & Newett (No. 5) [2022] FedCFamC1A 2
Appeal from: Newett & Newett (No. 4) [2021] FamCA 318 Appeal number(s): NOA 26 of 2021 File number(s): BRC 2179 of 2018 Judgment of: ALDRIDGE J Date of judgment: 18 January 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks the filing of a Further Contended Appeal Book and the disqualification of appeal registrars – No relevance in showing error on the part of the primary judge – Further evidence proposed to be relied on is not identified – No application for the disqualification of appeal registrars to review – Application dismissed – Costs reserved to the Full Court. Legislation: Family Law Act 1975 (Cth) s 79A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.04
Number of paragraphs: 35 Date of hearing: 18 January 2022 Place: Sydney (via video link) Counsel for the Appellant: Self-represented litigant Solicitor for the Respondent: Damien Greer Lawyers ORDERS
NOA 26 of 2021
BRC 2179 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS NEWETT
Appellant
AND: MR NEWETT
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
18 JANUARY 2022
THE COURT ORDERS THAT:
1.The appellant have leave to provide the Court on or before 24 January 2022 an electronic copy of the VV Pty Ltd trial balances that the appellant submits ought to have been included as Exhibit 4.
2.The Application in an Appeal filed on 6 January 2022 is otherwise dismissed.
3.The consideration of costs of this application are reserved to the hearing of the appeal on 1 February 2022.
NOTATION
A. The appellant will file on or before 24 January 2022 a copy of the transcript of proceedings of 26 October 2020.
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. 5) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
By an Application in an Appeal filed on 6 January 2022, the appellant seeks leave to file a Further Contended Appeal Book to remove certain items from the Appeal Book and to disqualify two appeal registrars from acting further in the appeal. Order 5 as sought in the application was not pressed.
The appeal is from property settlement orders made by a judge of the Family Court of Australia (as it was then known) on 20 May 2021. Procedural orders were made by an appeal registrar on 12 November 2021 and the appeal is listed for hearing before the Full Court on 1 February 2022.
By an Application in an Appeal filed on 29 November 2021, the appellant sought a number of orders in relation to the composition of the Appeal Book and transcript. That application was heard and was determined by Austin J on 6 December 2021 and orders were made expanding somewhat the Appeal Book but otherwise dismissing the application.
This is therefore the second application in this appeal dealing with the composition of the Appeal Books. This should have been done in the one application and now gives rise to the difficulty that if any amendments to the Appeal Book are to be made at this late stage, it puts both the Court and the respondent in a more difficult position because of the time pressure that is now coming to bear.
Order 1 seeks an order that the appellant be permitted to serve a Further Contended Appeal Book “consistent with her needs and her argument” in the appeal. The appellant filed a Summary of Argument on 14 January 2022. It makes no reference in direct terms to any documents that ought to be before the Full Court on the hearing of the appeal whatsoever, other than a reference to the VV Pty Ltd trial balance, to which I will refer shortly.
That absence of relevant detail, that is, a complete failure to describe in the application itself the documents sought to have put before the Full Court, ordinarily would be fatal to the application. Nonetheless, I permitted the appellant to try to identify with precision the documents that she proposed to place before the Full Court.
In order to identify those documents, the appellant provided a copy of an Application in an Appeal which she says was lodged for filing with the Court but was ultimately not filed by it. It seeks that there be included in the material before the Full Court evidence relating to:
3. …
(a)ongoing coercive and psychologically abusive conduct of the Judicial Officer towards the Appellant, requiring her to proceed with Appeal rather than manage the issue under a s79A Application within the Primary Court, and
(b) in relation to the Court’s duty towards payment to the Appellant for full Costs (including liability for payment of time and other damages) of this Appeal.
The appellant explained that this was a reference to an application made by her after the delivery of reasons and the making of the orders the subject of the appeal and was in relation to an application to set aside those orders on the ground of fraud under s 79A of the Family Law Act 1975 (Cth) (“the Act”). The appellant explained that the primary judge has adjourned that application pending determination of this appeal.
The appellant has raised issues of fraud generally against the primary judge himself, but also against the respondent. Whether or not there is such fraud is a matter yet to be determined, but I do not see how the making of an application under s79A of the Act and the material relied upon bears on whether or not there were errors in the making of the orders the subject of the appeal and in particular, any refusal of the trial judge to proceed with the hearing of an application under s 79A of the Act prior to the determination of the appeal.
The appellant explained that she considered that the material was relevant to the issue of costs. If that is the case, the issue of whether this material could be relied upon when considering the issue of costs is something that can be determined at that stage.
I am not satisfied that there is anything in that material that is relevant to showing error on the part of the primary judge, as asserted in the Amended Notice of Appeal filed on 14 January 2022.
The appellant then said that she wished to rely on audio recordings which would demonstrate, she says, the primary judge yelling at her and specifically on 10 May 2021, when his Honour is said to have yelled words to the effect “you can just appeal”. Those words do not appear in the transcript of that date, although there is a possibility that they may appear in the judgment that was given at that time, which has not yet been transcribed.
I have indicated to the appellant that in certain circumstances where the Full Court is satisfied that there are circumstances that justify doing so, it can listen to portions of the transcript in order to appraise the tone and nature of the primary judge’s conduct.
However, in order to do so, it first must be persuaded and secondly, will only listen to particular excerpts as precisely identified by the appellant. The appellant is not in a position today to identify any such passages and that is a matter, if she wishes to pursue it, to raise with the Full Court.
The appellant wishes to rely on an affidavit and Application in a Case both filed on 18 November 2020, which she says are relevant to the adjournment of the proceedings. It is true that those documents are not in the Appeal Book and are relevant in that they sought an adjournment of the proceedings. That application for adjournment was determined by the primary judge on 1 December 2020.
The appellant appealed and orders were made by Tree J for the provision of security for costs by the appellant. That order was not complied with and on 25 August 2021, the appeal against the orders refusing the adjournment made on 1 December 2020 was dismissed.
Therefore, they directly have no relevance to the present appeal.
I am unable to see, albeit on a very limited appraisal of the material, that the appellant subsequently sought to rely on that affidavit again at a further application for an adjournment, but if that is the case that can be revisited at the hearing of the appeal.
The next document is conveniently described as the VV Pty Ltd trial balance, although as explained to me by the appellant, it is in fact a copy of all of the trial balances prepared by that company, which is an entity associated with the respondent.
There were obviously some issues as to the discovery of documents and their production. At the hearing on 30 November 2020, a letter dealing with discovery was tendered and marked as ‘Exhibit 4’. In the comments leading up to that tender, counsel for the respondent said:
[COUNSEL FOR THE RESPONDENT]: Can I hand up to your Honour a copy of a letter that was sent to [the mother’s former solicitors] on 5 November 2020 by email? Attached to it are a number of emails under the cover of which disclosed documents were sent to the mother’s then lawyers. The first of those documents is the [MYOB trial] balances.
(Transcript 30 November 2020, p.81 lines 37–40)
The letter sent on 5 November 2020 was then marked as an exhibit. A discussion of the trial balances followed and copies of them were then given to the appellant. The appellant asserts, first that the trial balances play an essential part in her allegations of fraudulent conduct against the respondent and secondly, that they have been omitted from Exhibit 4.
The question arises as to whether they did in fact become Exhibit 4. The letter is clearly marked as an exhibit. I do not have it before me on this application, so I am unable to say whether or not it attached the trial balances.
It will be a matter for the Full Court to determine whether or not the trial balances were tendered as part of Exhibit 4. The preferred course of conduct, therefore, is to direct the appellant to provide an electronic copy of the trial balances that she asserts were part of Exhibit 4, so that they will be available to the Full Court if it decides that they in fact were part of that exhibit. It seems to me that there is no point in preparing a Further Contended Appeal Book for the sake of those documents alone.
Finally, the appellant wished to rely on the transcript of 26 October 2020, as transcripts do not ordinarily form part of the Appeal Book. The appellant has already filed a number of days of transcript and there can be no objection to her adding to that bundle 26 October 2020, but I will make a note to that effect, just for the avoidance of doubt.
The appellant seeks the disqualification of two appeal registrars from taking further steps in the appeal. It is unlikely that there are any further steps to be taken in the appeal by registrars, but there are more fundamental difficulties with the application than that. Although it has not been the subject of submissions, it seems to me that there are likely to be real difficulties in a judge directing that a registrar can no longer act.
The scheme under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) is that decisions made by an appeal registrar in relation to the conduct of an appeal or the rejection of a document are reviewable by the Court under r 13.40 of the Rules. There has been no application for the disqualification of the registrars to them and nothing, therefore, to review. Secondly, any decisions a registrar can make are subject to review simply by application, so the occasion for seeking a general disqualification of a registrar is remote.
That is sufficient to deal with that application and I do not propose on this application to descend into the evidence relied upon by the appellant because in the light of those findings, it is now irrelevant.
As I have said, Order 5 was not pressed.
There are a number of affidavits in the Appeal Book by the Independent Children’s Lawyer. They are not sought to be relied on by either parties. Rather than have a new appeal book prepared, I will simply note that neither party wishes to rely on the affidavits or on the evidence of Mr AQ as set out in the Appeal Book.
In addition to these documents, the appellant wishes to rely on emails passing between the parties and chambers, and also some emails directly between them. The difficulty is that in the absence of having the emails before the Court, it is impossible to determine whether or not they are relevant to any of the issues before the Court.
Such affidavits would constitute further evidence and although the appellant has put a cross on the box that says her application is in relation to the provision of further evidence, the further evidence proposed to be relied on is not identified. In an application to adduce further evidence, the specific evidence to be relied on, that is to say the specific emails, must be identified and copies provided because it is only in that way that a decision can be made whether or not that evidence fits into the statutory construct that permits the reception of further evidence.
As the emails are not even identified and let alone a copy of them provided, this aspect of the application cannot be taken further and must fail.
Therefore I will give the appellant leave to provide to the Court on or before 24 January 2022 an electronic copy of the VV Pty Ltd trial balances that the appellant submits ought to have been included as Exhibit 4.
I note that the appellant will on or before 24 January 2022 file a copy of the transcript of 26 October 2020.
The Application in an Appeal filed on 6 January 2022 is otherwise dismissed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 25 January 2022
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