Newett & Newett (No. 6) - [2021] FamCA 436

FAMILY COURT OF AUSTRALIA
Newett & Newett (No. 6) [2021] FamCA 436

File number(s): BRC 2179 of 2018

Judgment of: BAUMANN J

Date of judgment: 30 June 2021

Catchwords:
FAMILY LAW – PROPERTY – Application for stay of final property Orders – partial stay granted – Application for relief under s 79A adjourned to after the Appeal of final property Orders is determined

FAMILY LAW – CHILDREN – Application for telephone time to occur at a contact centre – Application dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – Application to discharge Independent Children’s Lawyer – Application dismissed – Application for father’s solicitor to be restrained from further representing the father – Application dismissed

FAMILY LAW – COSTS – Application for a legal costs payment – Application dismissed

Legislation: Family Law Act 1975 (Cth) ss 79A

Cases cited:
Aldridge & Keaton (Stay appeal) [2009] FamCAFC 106

Barro& Barro (unreported, Family Court of Australia, Strauss J, 15 September 1980)

Hogan & Hogan (1986) FLC 91-704

Lloyd & Lloyd & Child Representative (2000) FLC 93-045

Newett & Newett and Anor (No. 5) [2020] FamCA 1023

Newett & Newett [2021] FamCA 82

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

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

Pitman & Hynes and Anor [2018] FamCA 760

Pitman & Hynes and Anor(No. 2) [2018] FamCA 1015

Trahn & Long (No. 2) [2008] FamCAFC 194

Number of paragraphs: 62

Date of hearing: 22 June 2021

Place: Brisbane

Solicitor for the Applicant: Mr S Richardson, Damien Greer Lawyers

Solicitor for the First Respondent: Self-represented

Solicitor for the Second Respondent: Self-represented

Counsel for the Independent Children’s Lawyer: Mr M Taylor

Independent Children’s Lawyer: Mr A 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:

30 JUNE 2021

THE COURT ORDERS:
1.That the wife’s Application filed 3 June 2021, so far as it seeks relief pursuant to s 79A of the Family Law Act 1975 (Cth) to set aside or vary final property Orders made 20 May 2021, is adjourned to a date to be fixed and re-listed for directions after the wife’s pending Appeal against the property Orders made 20 May 2021 is determined.
2.That the mother’s application to discharge Mr Kingston as the Independent Children’s Lawyer is dismissed.
3.Order 1 of the Orders dated 20 May 2021 is conditionally stayed pending determination of the wife’s Appeal against those Orders, to order that any nett proceeds remaining from the sale of the former family home at Suburb C shall not be distributed to the parties but held in Trust on behalf of the husband and the wife pending determination of the wife’s Appeal.
4.That the wife’s application to stay Order 9(a) of the Orders dated 20 May 2021 is dismissed.
5.That the wife’s application for a legal costs payment of $130,000 is dismissed.
6.That the mother’s application for the father’s…

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: [2021] FamCA 436
Decision Date: 30 June 2021

CaseChat Overview and Summary

In the matter of *Newett & Newett (No. 6)*, Baumann J of the Family Court of Australia considered applications made by the mother (first respondent) and the father (applicant) concerning property orders, children's matters, and procedural issues. The primary dispute involved the mother's attempt to set aside or vary final property orders made on 20 May 2021, and her pending appeal against those orders.

The court was required to determine several legal issues, including whether to grant a stay of the final property orders pending the outcome of the mother's appeal, whether to adjourn the mother's application for relief under section 79A of the *Family Law Act 1975* (Cth) until after the appeal was determined, and whether to dismiss various other applications. These applications included the mother's requests to discharge the Independent Children's Lawyer, to restrain the father's solicitor from further representation, for a legal costs payment, and to vary interim children's orders. The court also considered an application for telephone time to occur at a contact centre.

Baumann J reasoned that the mother's application to set aside or vary the final property orders under section 79A should be adjourned to await the determination of her appeal against those orders. A partial stay was granted in relation to the net proceeds from the sale of the former family home, requiring these funds to be held in trust pending the appeal's outcome. The court dismissed the mother's applications to discharge the Independent Children's Lawyer, to restrain the father's solicitor, and for a legal costs payment. The application for telephone time at a contact centre was also dismissed. Other applications made by the mother were dismissed, with costs reserved to the trial.

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:

30 JUNE 2021

THE COURT ORDERS:

1. That the wife’s Application filed 3 June 2021, so far as it seeks relief pursuant to s 79A of the Family Law Act 1975 (Cth) to set aside or vary final property Orders made 20 May 2021, is adjourned to a date to be fixed and re-listed for directions after the wife’s pending Appeal against the property Orders made 20 May 2021 is determined.

2. That the mother’s application to discharge Mr Kingston as the Independent Children’s Lawyer is dismissed.

3. Order 1 of the Orders dated 20 May 2021 is conditionally stayed pending determination of the wife’s Appeal against those Orders, to order that any nett proceeds remaining from the sale of the former family home at Suburb C shall not be distributed to the parties but held in Trust on behalf of the husband and the wife pending determination of the wife’s Appeal.

4. That the wife’s application to stay Order 9(a) of the Orders dated 20 May 2021 is dismissed.

5. That the wife’s application for a legal costs payment of $130,000 is dismissed.

6. That the mother’s application for the father’s solicitor, Mr Scott Richardson, to be restrained from further representing the father is dismissed.

7. That the mother’s application to vary, on an interim basis, Orders 25(a), 25(f) and 27 of the Orders dated 19 March 2021 is dismissed.

8. That other than ordered in this Order, the mother’s Application in a Case filed 29 March 2021, amended Application in a Case filed 9 April 2021 and Application in a Case filed 3 June 2021 are dismissed.

9. That the costs of the parties are reserved to the trial.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As to the ancillary documents the mother seeks the Court to order Ms HH view, I refuse to so order for these reasons:(a)Order 20 gives leave to the Family Consultant to inspect subpoena documents produced to the Court;(b)The Family Consultant has access to the file which includes affidavits and Reasons for Judgment;(c)The amount of material filed in this Court since the first family report dated 7 August 202 and published 13 August 2020 is so voluminous and, at times, repetitive, that it would be onerous and oppressive to expect a Family Consultant to read the lot. In accordance with the usual practice, the Family Consultant will clearly identify what she has read;(d)The mother’s “Judicial Review” application to the Supreme Court is attached to the mother’s submissions filed 9 April 2021. There is no evidence of its status or if it has been accepted for filing by the Supreme Court. It is a critique of the Appeal Judgment of the District Court Judge, that dismissed the mother’s appeal against Orders made by the Magistrate on 5 December 2019 granting the father’s application for a Domestic Violence Order but refusing the mother’s application. It could not assist the Family Consultant any more than viewing Appeals of applications in Appeals filed by the mother.(e)A Family Consultant is not the person who ultimately determines facts – that is the role of the Judge. The Family Consultant is not applying legal skills or interpreting the law. The Family Consultant’s role is to apply their skills, professional training and experience through a process of interviewing parties and particularly children (including observations), and providing any opinions or recommendations. I have no doubt in this difficult matter that the Family Consultant who is allocated the task of complying with my Order to prepare an updated report will do their duty according to law.CONCLUSION I make the Orders which appear at the commencement of these Reasons. I reserve the costs of the parties to the trial.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRC 2179 of 2018
Judgment of:	BAUMANN J
Date of judgment:	30 June 2021
Catchwords:	FAMILY LAW – PROPERTY – Application for stay of final property Orders – partial stay granted – Application for relief under s 79A adjourned to after the Appeal of final property Orders is determined FAMILY LAW – CHILDREN – Application for telephone time to occur at a contact centre – Application dismissed FAMILY LAW – PRACTICE AND PROCEDURE – Application to discharge Independent Children’s Lawyer – Application dismissed – Application for father’s solicitor to be restrained from further representing the father – Application dismissed FAMILY LAW – COSTS – Application for a legal costs payment – Application dismissed
Legislation:	Family Law Act 1975 (Cth) ss 79A
Cases cited:	Aldridge & Keaton (Stay appeal) [2009] FamCAFC 106 Barro& Barro (unreported, Family Court of Australia, Strauss J, 15 September 1980) Hogan & Hogan (1986) FLC 91-704 Lloyd & Lloyd & Child Representative (2000) FLC 93-045 Newett & Newett and Anor (No. 5) [2020] FamCA 1023 Newett & Newett [2021] FamCA 82 Newett & Newett(No. 3) [2021] FamCA 187 Newett & Newett (No. 5) [2021] FamCA 383 Pitman & Hynes and Anor [2018] FamCA 760 Pitman & Hynes and Anor(No. 2) [2018] FamCA 1015 Trahn & Long (No. 2) [2008] FamCAFC 194
Number of paragraphs:	62
Date of hearing:	22 June 2021
Place:	Brisbane
Solicitor for the Applicant:	Mr S Richardson, Damien Greer Lawyers
Solicitor for the First Respondent:	Self-represented
Solicitor for the Second Respondent:	Self-represented
Counsel for the Independent Children’s Lawyer:	Mr M Taylor
Independent Children’s Lawyer:	Mr A Kingston, Norman & Kingston

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:	30 JUNE 2021