Newett & Newett (No 6)
[2022] FedCFamC1A 70
•17 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Newett & Newett (No 6) [2022] FedCFamC1A 70
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, HOGAN & HARPER JJ Date of judgment: 17 May 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – Whether the primary judge followed the legislative pathway – Allegations of fraud –
Procedural fairness – Jurisdiction – Adequacy of reasons –
Allegation of actual and apprehended bias – No error established – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.Legislation: Civil Law and Justice Legislation Amendment Act 2018 (Cth)
Family Law Act 1975 (Cth) ss 75(2), 79, 90XT, 102NA
Explanatory Memorandum to the Civil Law and Justice Legislation Amendment Bill 2017 (Cth)
Cases cited: Bahonko v Sterjov (2008) 247 ALR 168; [2008] FCAFC 30
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Hickey and Hickey and Attorney-General (Cth) (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Newett & Newett (No 3) [2021] FamCA 187
Newett & Newett [2021] FamCAFC 55Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Newett & Newett (No 3) [2021] FamCAFC 164
Newett & Newett (No 4) [2021] FedCFamC1A 78
Newett & Newett (No 5) [2022] FedCFamC1A 2
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Hanbury, H G, Modern Equity (Stevens, 6th edition, 1943)
Number of paragraphs: 151 Date of hearing: 1 February 2022 Place: Brisbane (via video link), delivered in Sydney The Appellant: Self-represented litigant Counsel for the Respondent: Mr McGregor 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, HOGAN & HARPER JJ
DATE OF ORDER:
17 MAY 2022
THE COURT ORDERED ON 1 FEBRUARY 2022 THAT:
1.The appellant is granted leave to rely on the written submissions dated 31 January 2022, which the Court accepts in lieu of oral submissions.
2.The VV Pty Ltd trial balances from the period of February 2018 to October 2021 be added to the Appeal Book and form part of Exhibit 4.
3.The appellant’s application on 31 January 2022 to file and rely upon a second appeal book, along with the five affidavits attached to it, is dismissed.
4.The appellant’s application to file and rely upon an affidavit dated 27 January 2022 is dismissed.
5.The respondent’s application on 31 January 2022 to rely upon an aide memoire is dismissed.
THE COURT FURTHER ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $14,113.50 and that these costs be paid from the share of the funds being held by the Court in this matter, prior to the payment to the appellant of the balance.
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 6) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, HOGAN & HARPER JJ:
INTRODUCTION
This is an appeal from property settlement orders made by a judge of the Family Court of Australia (as it was then known) on 20 May 2021 in proceedings between Mr Newett (“the husband”) and Ms Newett (“the wife”).
The primary judge found that the parties had net assets available for division of $389,860 which consisted largely of a house at Suburb C (“the Suburb C property”) and the parties’ superannuation entitlements.
His Honour ordered that the husband’s superannuation entitlement of $156,826 be split by the allocation of a base amount of $50,000 to the wife pursuant to s 90XT of the Family Law Act 1975 (Cth) (“the Act”). The effect was that the husband’s superannuation entitlements became $106,826 and the wife’s became $70,000.
As to the balance of the property, the primary judge ordered that the Suburb C property be sold with the net proceeds being divided so that the husband was to receive 60 per cent of the net divisible property and the wife to receive 40 per cent. The order took this form because the wife asserted that the property was worth significantly more than the existing valuation, which was not recent, and because the house was in the process of being sold by the mortgagee, who was in possession of the property.
The division took into account the fact that the parties’ three children were in the care of the husband and had been since March 2019 (noting that the final parenting proceedings are yet to be determined).
The wife has appealed against these orders and proposes that instead the proceedings be reheard, and notwithstanding the remittal, there be orders with the immediate effect that she receive:
·All of the net proceeds of sale of the Suburb C property;
·A payment, by way of restitution, from the husband’s solicitors for an amount equal to one half of the net proceeds of sale;
·Reimbursement of the costs of her vehicle rental, removalists, relocation costs, accommodation and storage expenses for 2020–2022, together with compound interest at 20 per cent and the full cost of relocating her remaining personal items and the purchase of a replacement vehicle;
·Payment of all her costs in the family law proceedings and related cases in other jurisdictions, together with compound interest at 80 per cent;
·Payment of a sum equivalent to all revenue received by the husband’s solicitors in each of those matters, together with compound interest at 80 per cent; and
·The trust account statement, itemised transaction record and all contracts between the husband and his solicitors.
BACKGROUND
In order to understand the wife’s contentions in the appeal, many of which focus on the conduct of the primary judge, it is necessary to set out the procedural history of the proceedings. Whilst there has been a plethora of proceedings in other jurisdictions involving the parties and the husband’s solicitors, some of which involve personal protection orders or private criminal prosecutions taken by the wife against the husband, his solicitors, witnesses, police officers and the Independent Children’s Lawyer (“the ICL”), we shall concentrate on the property proceedings themselves.
The proceedings were fixed for a final hearing on 30 November 2020 for five days to deal with both parenting and property issues. On 26 October 2020, the primary judge ordered that each party file and serve by 4.00 pm on 16 November 2020, one affidavit setting out his or her evidence in chief as to both parenting and property matters, as well as a Financial Statement and an affidavit from each proposed witness. Additionally, a Case Outline was to be filed by 26 November 2020.
Previously, on 8 June 2020, his Honour noted that due to the existence of personal protection orders, s 102NA(2) of the Act applied to prevent each party from personally cross-examining the other. This did not cause difficulty for the husband who had already engaged lawyers, but it caused difficulties for the wife who was now representing herself. A grant of legal aid was made to the wife pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme to enable her to be represented. At the time of the procedural orders dated 26 October 2020, the wife’s solicitors were the third firm who had acted for her since the grant of legal aid.
Difficulties arose between the wife and her solicitors. On 19 November 2020, the wife filed a Notice of Address for Service and on the following day, her solicitors filed a Notice of Ceasing to Act.
No affidavits were filed by or on behalf of the wife as had been required by the orders of 26 October 2020, notwithstanding that she had been legally represented between 23 October 2020 and 20 November 2020.
The wife filed a Case Outline on 28 November 2020 which was 45 pages long, containing her proposed final orders of 10 pages and an extensive chronology of some 35 pages.
The hearing on 30 November 2020 commenced by the primary judge noting that the wife had filed on Application in a Case on 18 November 2020 seeking an adjournment of the hearing, as well as other more substantive orders. After confirming that the wife had also filed an affidavit and a written submission over that weekend, his Honour said that he had not read them and “I will put those aside just at the moment” (Transcript 30 November 2020, p.3 line 24).
The ICL then rose to make an application that he be permitted to withdraw from the proceedings as he was now the subject of a criminal prosecution taken against him by the wife. After some considerable discussion, orders were made discharging the ICL.
A lengthy discussion between the primary judge and counsel for the husband then occurred, during which his Honour explored how the proceedings could continue and whether, if an adjournment was granted, the wife would be likely to receive a fourth grant of legal aid. As to the first, his Honour concluded the wife was precluded from cross-examining the husband herself in both the parenting and property aspects of the proceedings.
After further extensive discussion, the primary judge asked the wife to provide submissions on the proposition that the parenting aspect of the proceedings be adjourned but that the property proceedings proceed with the wife being able to rely on the chronology in her Case Outline, provided she was prepared to swear to its accuracy in lieu of an affidavit. The wife did this in her affidavit sworn on 1 December 2020, which became Exhibit 6.
After a short adjournment there was a discussion between the primary judge and the wife about the proceedings she had commenced in the Supreme Court of Queensland against a witness who had provided psychiatric reports for use in the proceedings. This led to the wife making submissions to the effect that Legal Aid had indicated that they would not make a further grant of aid to the wife, which decision she said was unlawful (Transcript 30 November 2020, p.58 lines 20–21; 36–37 and p.60 line 19 to p.61 line 23).
The wife submitted that the property proceedings could not proceed as the husband was in contempt because he had failed to provide specific documents to her which he had been specifically ordered to provide. It later emerged, to the satisfaction of the primary judge, that the documents had been sent to the wife’s former solicitors at the time but the wife had not seen them because her solicitors had not opened the relevant email.
The upshot was that his Honour decided that the property matter would proceed on the following day. The primary judge required the husband to give to the wife copies of the documents which had previously been sent to the wife’s former solicitors as just discussed. The primary judge indicated that the wife’s mother (“the maternal grandmother”) could give evidence first, even though the husband was the applicant, so that she could then assist the wife.
On the following morning the wife again applied for an adjournment because she had been unable to find a lawyer to act for her. The wife had prepared an affidavit overnight, on which she relied, as well as written submissions of 18 pages in length filed over the previous weekend.
The primary judge decided that the affidavit raised no matter that required reconsideration of the decision to proceed. His Honour indicated that he would give the wife half an hour to read the documents that had not yet been provided to the wife by the husband.
Before the primary judge adjourned the proceedings for half an hour, his Honour took the wife to the property orders that she was seeking and sought to point out the difficulties that he saw with them. In the course of that discussion, the following occurred:
[THE WIFE]: I – I’m sorry your Honour. I’m leaving.
HIS HONOUR: Madam, if you leave, that’s your choice. I will give you half an hour to read the documents that are going to be produced to you.
[THE WIFE]: Sorry, your Honour. I’m not coming back.
(Transcript 1 December 2020, p.15 lines 10–15)
The primary judge then immediately adjourned the proceedings for half an hour. The wife did not appear when the matter resumed. The hearing proceeded and the primary judge reserved his decision in respect of the property proceedings.
On 8 April 2021, the primary judge delivered a set of reasons identifying the property of the parties and made findings as to contributions and the factors under s 75(2) of the Act (Newett & Newett (No 3) [2021] FamCA 187 (“Reasons for judgment of 8 April 2021”)). His Honour was not satisfied that he should make the orders proposed by either the wife or the husband. Instead, he considered that a superannuation splitting order might be just and equitable. The matter was accordingly adjourned to 10 May 2021 for further submissions.
The wife appeared at the hearing on 10 May 2021. She had filed 86 pages of written submissions on 7 May 2021. In addition, both the wife and counsel for the husband made oral submissions.
As can be seen, the proceedings have had a most unfortunate, complicated and involved procedural history, involving at least 27 directions hearings in the year or so they had been before the primary judge. The wife had received three grants of legal aid, but for whatever the reasons, the solicitors had not stayed the course. Again, whether it be the solicitors’ fault or the wife’s fault, no evidence was filed by her as required by the Court’s directions.
Additionally, the mortgagee in possession of the Suburb C property was pressing for payment.
On 14 December 2020, the wife filed a Notice of Appeal against the orders of 1 December 2020 and in particular the primary judge’s order dismissing the wife’s Application in a Case filed on 18 November 2020 and his Honour’s refusal to grant an adjournment. The husband’s application seeking security for his costs of the wife’s appeal was granted by Tree J on 22 April 2021 (Newett & Newett [2021] FamCAFC 55). On 25 August 2021, the Full Court dismissed the appeal since the wife did not comply with the security for costs orders (Newett & Newett (No 3) [2021] FamCAFC 164).
There is no ground of appeal that asserts that the primary judge erred by refusing the adjournment generally and otherwise proceeding as he did, although adjournment is mentioned in Ground 5 and it is implicit in some of the grounds. A more fundamental objection is that in Appeal No. NOA 84 of 2020, the wife appealed against the failure to adjourn and the order dismissing the Application in a Case file on 18 November 2020, which has also been raised in the grounds of appeal. As noted above, that appeal was dismissed because the wife failed to comply with an order for the payment of security of costs (Newett & Newett [2021] FamCAFC 55; Newett & Newett (No 3) [2021] FamCAFC 164). These issues cannot now be raised again.
We will, however, deal with Grounds 5, 10, 11, 12 and 15 briefly together even though they go to issues that were already dealt with by Appeal No. NOA 84 of 2020, because the way some are worded could be seen as encompassing later events.
APPLICATIONS TO RELY ON FURTHER MATERIAL IN THE APPEAL
The Appeal Book comprises of some 4775 pages despite the limited evidence that was relevant to the property proceedings and which was filed in accordance with the directions of 26 October 2020. Nonetheless, the wife was dissatisfied with the contents and brought two applications to expand the content of the Appeal Book which were each dismissed (Newett & Newett (No 4) [2021] FedCFamC1A 78 and Newett & Newett (No 5) [2022] FedCFamC1A 2).
Shortly before the hearing of this appeal, the wife lodged a Second Appeal Book, consisting of 956 pages, with the appeal registry which most unfortunately lacked an index. The wife also lodged affidavits sworn by her on 4 December 2019, 1 December 2020 and 6 January 2022 and affidavits sworn by the husband on 7 February 2019 and 11 February 2019 on which she wished to rely.
When asked why this material should be received in circumstances where it was not before the primary judge, the wife responded that her affidavit filed on 27 November 2020, which she relied upon in support of her Amended Response to Final Orders should her adjournment application be dismissed, referred to all previous affidavits which were, accordingly, before the primary judge. The wife also sought to adduce an affidavit affirmed on 27 January 2022 which also asserted that all previous affidavits in the proceedings should be regarded as evidence.
In her written submissions in place of oral submissions dated 31 January 2022, the wife relied upon her affidavit filed on 27 November 2020, in which she stated:
3.As my lawyers at … withdrew formally from the case on 12 November 2020, without having performed any work on my case; I have been unable to merge my affidavits into a single Affidavit in Chief that aligns properly with the Family Law Act provisions.
4.I therefore, unfortunately, have to rely on all my previous Affidavits, and those of my witnesses, and the Appeal materials; and will be responding to all Affidavits that have ever been submitted to this Court by [the husband], and all his witnesses, and the lawyers on the case.
(Wife’s affidavit filed on 27 November 2020, paragraphs 3–4) (As per the original)
This affidavit was not referred to in the proceedings on 30 November 2020, 1 December 2020 or on 10 May 2021. It was therefore not before the Court. The mere fact that an affidavit has been filed is not enough to make it evidence in particular proceedings. It must be clearly introduced into the proceedings by being “read” in them or otherwise clearly identified as being relied upon, such as being listed as evidence to be relied on and set out in a Case Outline.
The wife had not complied with the direction of 26 October 2020 and accordingly required leave of the Court to rely on any other evidence in the property proceedings.
Further, even if that affidavit was in evidence it would not operate to introduce into evidence that which was contained in the further affidavits. That would make a nonsense of a trial judge’s ability to control proceedings with proper and effective case management. It would entirely subvert the primary judge’s order that there be one affidavit per witness.
Finally, the wife did not raise this point with his Honour but rather proceeded to verify the chronology contained in her Case Outline, and included in her affidavit filed on 1 December 2020 (Exhibit 6), which would have been unnecessary had all the previous affidavits been evidence in the property proceedings.
We therefore reject the proposition that the evidence in the property proceedings included everything on which the wife now seeks to rely.
It might be thought that the material sought to be relied upon by the wife is relevant to her assertion that the judgment of the primary judge was obtained by fraud, which can be a basis for the orders being set aside.
In Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, Kirby P (as his Honour then was) with the agreement of Hope and Samuels JJA, set out the principles that apply to such applications. The second principle was described in the following terms at 538:
Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment. …
(Citations omitted)
The wife asserts that the husband has been fraudulent in many ways. Examples drawn from her written submissions in place of oral submissions dated 31 January 2022 include:
·Criminal cyberstalking (paragraphs 1(f) and 2(b));
·Criminal retention of the children (paragraph 2(a));
·Conspiracy to defraud (paragraphs 8(a)–(b));
·Theft of business assets (paragraphs 8(a)–(c));
·Fraudulent conversion and larceny by a servant (paragraphs 8(a)–(c)); and
·Taxation fraud (paragraphs 9 and 36).
All of the material sought to be relied upon by the wife to prove those assertions existed at the time of the hearing and accordingly falls foul of the above principle. We should add that fraudulent conduct by the husband to the wife or taxation fraud are not the same thing as the obtaining of a judgment by fraud.
We were not satisfied that any of the proposed documents were before the primary judge or were otherwise relevant to the appeal and we dismissed the wife’s application to rely on them at the hearing.
The husband sought to rely on an “aide memoire” which, in fact, sought to provide evidence as to the sale of the Suburb C property and as to costs orders made against the wife. The wife agreed that the property had been sold and that the Court was presently holding $554,130.40 from its sale. We dismissed the application to rely on the aide memoire as it had no other relevant and uncontroversial purpose.
The wife argued that the VV Pty Ltd trial balance ought to have formed part of Exhibit 4, to which the husband agreed. Accordingly, orders were made adding Exhibit 4 to the Appeal Book.
Finally, the wife sought to rely upon on an audio file, which improperly recorded extracts from the hearing on 10 May 2021. We will address this application under Ground 16.
THE APPEAL
Although the wife filed a Summary of Argument on 14 January 2022 in accordance with the orders of the appeal registrar and the relevant Practice Direction, the wife was of the view that 15 pages of submissions were inadequate to encapsulate her submissions and sought to expand them by relying on a document headed “Appellant Written Submission in Place of Oral Submission” consisting of 111 pages. We acceded to her request and took the document in lieu of oral submissions, although the wife did make oral submissions in reply to those made by the husband.
As said above, we will deal with the grounds of appeal that were raised under Appeal No. NOA 84 of 2020 because they bear upon the other grounds.
It will be of assistance to set out the grounds of appeal in full.
Grounds of appeal which were dealt with by Appeal No. NOA 84 of 2020
Ground 5: His Honour acted with procedural unfairness in proceeding to knowingly conduct an unfair trial of the BRC 2179/2018 Property Matter; including but not limited to the obstruction of discovery items that would provide evidence for the Wife’s case, failing to hear the Wife’s Rice v Asplund Application filed 18 November 2020, failing to adjourn until both Parties could be cross examined equally, and failing to provide the Wife with Barro or Hogan orders for representation, and advocating for the Husband in Property Proceedings by posing leading questions to the Husband’s Counsel.
(As per the original)
In her Summary of Argument, the wife complains about the orders for discovery made on 8 June 2020 and 26 October 2020 and the failure to make an interim costs or property order for the payment of her legal fees pursuant to an application filed on 29 January 2021. We note that the orders of 8 June 2020 did not provide for discovery. However, in any event, there is no appeal against these orders. The wife’s Amended Notice of Appeal simply challenges the orders made on 20 May 2021.
The wife also submitted that she should have been given more than half an hour to read the documents given to her on 1 December 2020. These were the documents to which we have already referred, which were attached to the email that was not opened by her solicitors at the time. His Honour, having seen the documents after spending some time considering them, clearly thought that the time he allowed was reasonable. After receiving them, the wife did not ask for additional time but simply left the hearing. Again, however, the fundamental difficulty is that this issue was raised in Appeal No. NOA 84 of 2020 and now cannot be raised again.
As to the wife’s “Rice v Asplund application filed 18 November 2020”, the primary judge made clear that if the wife’s application to adjourn the final hearing did not succeed, it would render her interim application futile. In any event, the authority relates to parenting.
Lastly, the wife’s contention that the primary judge posed assumptions and leading questions to the husband’s counsel was not supported by any specific examples, save for referring us to an extract of the transcript of 45 pages (Transcript 1 December 2020, p.118–165), by which time she had already left the Court. A perusal of that portion of the transcript reveals many occasions on which the submissions of counsel for the husband were indeed tested and, at times, rejected.
We are unable to see any error in the course taken.
This ground does not succeed.
Ground 10: His Honour acted with discrimination and procedural unfairness on the basis of the Respondent Wife’s PTSD/Anxiety disability.
Ground 11: His Honour committed an act of deliberate torture (intentional psychological harm) consistent with the Wilkinson v Downton (1897) case authority.
(As per the original)
It is convenient to deal with these grounds together.
The wife submitted:
105.Where despite the need for Special Witness provisions, the Wife was expected to run a trial without representation, and to be put on the witness stand where Counsel was being instructed by a vexatious Solicitor who was under active criminal charges by the Respondent Wife for criminal acts he directly committed against the Respondent Wife during the course of the Family Law matter. (Per Ground 1 and 2).
(Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 105) (As per the original)
She also asserted that his Honour “caused an act of deliberate provocation and torture to abuse the Wife’s known PTSD disability …triggering her well-known Flight Mode” (Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 107).
We have already set out the circumstances in which the first hearing was adjourned. The wife decided to leave. We are quite unable to discern any malicious intention, discrimination, procedural unfairness or torture of any kind on the part of the primary judge from the transcript or otherwise.
These grounds do not succeed.
Ground 12: His Honour failed his duty at law to provide his Reasons for Judgement for his orders made 1 December 2020.
(As per the original)
We do not understand this ground. There is no present appeal against these orders which reserved the reasons in the property case, adjourned the parenting case, permitted a copy of the orders of 30 November 2020 to be given to Legal Aid Queensland, discharged a number of subpoenas and dismissed the wife’s Application in a Case filed on 18 November 2020. Again these orders were the subject of Appeal No. NOA 84 of 2020.
The reserved judgment was delivered on 8 April 2021.
The transcript of 1 December 2020 records that after extensive submissions made by counsel for the husband, the orders just noted were made (Transcript 1 December 2020, p.70 line 23 to p.71 line 3).
The maternal grandmother then made an oral application for orders that would enable the children of the parties to visit the maternal grandfather who was then in a very poor state of health. After further discussion, the matter was stood down briefly so that counsel for the husband could obtain instructions. There was further discussion on resumption at 2.11 pm, which continued until his Honour said:
HIS HONOUR: Just make it happen. Just make it happen, don’t overwork it, let the kids enjoy it, and I’m sure [the husband’s] got a bit of time to think about maybe the little girls bringing something to him, a little card or a little something that make them – I understand that he’s special to them, and I’m sure he is special to them. Okay? I guess leave it where it is. I’m not making any orders. I thank you, [counsel for the father], for getting past your level of uncomfortableness, which I understand in an ethical perspective. I think that’s a good way to leave it. Thank you. Stand adjourned.
(Transcript 1 December 2020, p.82 lines 15–21)
The primary judge left the bench at 2.18 pm.
The transcript then records that the matter resumed at 2.26 pm when a judgment was delivered, and then the “matter adjourned at 3.55pm indefinitely” (Transcript 1 December 2020, p.82 line 35).
The wife’s complaint is that when she asked for a copy of the transcript of the judgment she was provided with a “Transcript in place of Reasons” (Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 114).
The property reasons had been reserved, the parenting proceedings adjourned and no orders were to be made about the children’s time with the maternal grandfather. Therefore the judgment appears to have no relation to the orders the subject of this ground.
Given that difficulty and those noted at [80] of these reasons, this ground does not succeed.
Ground 15: His Honour failed to exercise jurisdiction and made error of jurisdiction in his application of statue (s79) and the both the common law (eg. Weir v Weir, Ascot Investments v Harper) and law of equity (“clean hands maxim”); negatively impacting the legitimate public expectation of competence, independence and impartiality of Judicial Officers in a Chapter III Court.
(As per the original)
Under this ground, the wife relied on the submissions made under Ground 5 and it is unnecessary to deal with them further.
In addition, the wife submitted that the husband had understated his income and, in doing so relied on the VV trial balance (see [86] and following).
The wife does not explain how she arrived at the supposed income of $247,500, which she asserted was demonstrated by the trial balances. She did not come to grips with the proposition that the trial balances are interim accounts and that regard should be given to the final accounts (which were in evidence) instead. This issue could have been explored in cross-examination with the husband’s accountant, especially given the wife was not precluded from
cross-examining him, but the wife chose to leave the hearing.
In short, the wife has not demonstrated error in the primary judge’s findings as to the husband’s income and this ground fails.
The remaining grounds of appeal
Ground 1: His Honour knowingly and recklessly committed a criminal act in the making of Orders of 20 May 2021 per s11.2(1) Criminal Code Act 1995 (Cth), by providing a known perpetrator of self-admitted fraud and conspiracy to defraud (as available on the evidence) with financial proceeds of crime in the making of his property orders:
The underlying offence committed by the conspirators is applicable under s3AA Crimes Act 1914: State offences that have a federal aspect, with the State offence being s408C Criminal Code 1899 (Queensland): Fraud.
The underlying offence committed by the conspirators is also applicable under s130 and s135 Criminal Code Act 1995 (Cth).
Ground 2: His Honour committed a criminal act during the conduct Trial of 1 December 2020 and in the making of Orders of 20 May 2021 per s11.5 Criminal Code Act 1995 (Cth) per s11.5 Criminal Code Act 1995 (Cth).
(As per the original)
We reject outright the suggestion that the primary judge colluded or conspired with the husband or his lawyers. There is no basis at all for such a serious allegation. Although the wife may see it differently, the primary judge’s decision not to accept the wife’s contentions cannot be explained only by collusion or conspiracy. Quite simply, these extraordinary contentions cannot be made out by the evidence that was before the primary judge at the property hearing, which was, on the wife’s part, her verified chronology and her Financial Statement filed on 27 November 2020.
Even if the asserted crimes said to have been committed by the husband and his lawyers were established on the evidence, which is not the case, that would fall well short of establishing that the primary judge had colluded or conspired with their commission. Rather, the wife put it as:
17. His Honour; by acting with complicity under s11.2(1), and conspiracy (s11.5) to on behalf of the Husband dishonestly defraud the Wife (s408C Criminal Code 1899 Queensland, and s3AA Crimes Act 1914 Cth) to obtain financial advantage, by dishonestly influencing a public official in the exercise of official duties, with intent to dishonestly obtain gain from a Commonwealth entity (Court), and dishonestly cause a loss to the Commonwealth (in causing protracted proceedings); is abusing the processes and institution of the Family Court, likely for some private gain or benefit.
(Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 17) (As per the original)
There is simply no evidence to support such extraordinary allegations.
Further, as we shall explain more fully shortly, contrary to the wife’s submission that the collusion is proven by the fact that the primary judge acted at the dictation of the husband and his lawyers, many of the husband’s proposed orders and contentions were rejected.
We shall endeavour to deal with the major points raised by the wife.
On 10 May 2021, which was the second round of hearing, the primary judge terminated the hearing saying “I have tolerated your personal abuse and your inability to be able to concentrate on the issue that clearly this matter was dealt with today” (Transcript 10 May 2021, p.34 lines 19–21). His Honour reserved his decision and adjourned. According to the transcript, four minutes later he returned to the Bench and said that he would just give some brief reasons, which he did. The wife complains that she has not been able to obtain a copy of these reasons. The wife’s submission is that because only four minutes had elapsed “the judgment was clearly pre-written in favour of the Husband, indicating His Honour acting under the dictation of the Husband, bias towards the Husband, and/or with malicious intent toward the Wife” (Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 2(g)).
At that time, the only matter outstanding was the delivery of further reasons in the property matter. In those circumstances, the only inference is that the reasons then recorded on 10 May 2021 were a draft of the final reasons delivered on 20 May 2021. In that circumstance, the wife’s submissions cannot be accepted. The mere fact that a draft was created shortly after the hearing but not delivered for some time thereafter does not indicate acting under a party’s direction.
The wife submits that because the primary judge referred to “voodoo economics” and an “arrangement with the Bank” in the course of oral submissions on 1 December 2020, that information could only have “become known to His Honour via private discussion between Counsel and His Honour” and “demonstrates the collusive criminal practices of His Honour” (Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 21).
When looked at in context, the phrase “voodoo economics” was clearly used by his Honour as a criticism of the submissions made at the time by the husband’s counsel who was seeking to have a company debt included in the parties’ assets and liabilities (Transcript 1 December 2020, p.61 line 44).
The husband’s evidence described that the mortgagee had served default notices in October 2019 but that no further action has been taken. It is a reasonable inference that, as no mortgage payments were being made by the husband, the lack of action was as a result of the husband asking the bank to wait. When this was put to counsel for the husband he agreed that was the case (see Transcript 1 December 2020, p.51 lines 15–45). The exchange referred to by the wife is therefore entirely explicable even if, possibly, it was slightly mistaken.
It is impossible to draw an inference that there had been a communication between his Honour and the husband’s lawyers from those passages.
VV Pty Ltd
It is convenient to deal with this issue here although it is raised in a number of grounds. The wife contends that the husband was fraudulent in his dealings with the wife and with one of her companies, which fraud was endorsed by the primary judge in his findings, and thereby meant that his Honour became complicit in the fraud. We reject entirely any contention that the primary judge endorsed fraud or that he was complicit in any asserted fraud.
The wife had conducted at least part of her business through a company, SS Pty Ltd (“SS”). According to the primary judge, based on the evidence that was before him, the following occurred (Reasons for judgment of 8 April 2021 at [34]–[40]):
·In October 2017 the husband commenced work as an IT contractor providing services to TT Pty Ltd (“TT”);
·Those services were provided through SS, but the cash flow to that company was, at that time, generated by the husband’s personal exertion;
·On 2 February 2018, VV Pty Ltd (“VV”), a company owned and controlled by the husband, became the contractor to TT, with the husband continuing to perform the work; and
·The husband drew approximately $180,000 per annum as director’s fees, and paid tax of $53,691.11, leaving his net income at approximately $130,000.
The wife did not seek to challenge these primary facts.
The wife asserted that the above facts demonstrate that the husband fraudulently converted $900,000 of business revenue from SS, which was owned by her. This overlooks the finding of the primary judge that the husband was the one providing the services through SS. Even if the wife was correct, the husband would have been entitled to recompense from SS for those services.
The wife submitted that the fraud is proven by the trial balances of VV (which the husband agreed should form part of Exhibit 4, as said above). They certainly show payments, including wages and salaries as well as other expenses being made by the company, but that falls well short of establishing fraud.
The wife asserts that the trial balances show $130,000 in retained earnings which were not taken into account, but such a figure does not appear in the final accounts (Affidavit of Mr WW filed on 16 November 2020, Annexure A, p.5). They show that the only significant asset of VV was a director’s loan (Affidavit of Mr WW filed on 16 November 2020, Annexure A, p.6). Trial balances are just that and are not the final accounts.
Finally, the wife asserted that the husband was “committing obvious Taxation Fraud per [VV] Trial Balance per the ‘Other Expenses’ line item” (Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 9). Contrary to this, the trial balance does not establish taxation fraud by the husband. As that paragraph of the written submissions makes clear, the contention is founded on many assertions not based on the evidence.
The primary judge was aware of the wife’s contentions but rejected them correctly saying that “[n]o evidence to sustain that allegation has been offered to the Court” (Reasons for judgment of 8 April 2021 at [34]).
These grounds have no merit.
Ground 3: His Honour failed to follow the legislative pathway for determination of a Property matter.
(As per the original)
The “pathway” relied upon by the wife is not legislative but rather that set out in the
well-known case of Hickey and Hickey and Attorney-General (Cth) (Intervener) (2003) FLC 93-143. That is an example of what is said to be the preferred approach but it is not mandatory.
In any event, contrary to the submission of the wife, the primary judge did:
·Make findings as to the identity and value of the property, liabilities and financial resources of the parties (Reasons for judgment of 8 April 2021 at [42]–[46]);
·Identify and assess the contributions of the parties (Reasons for judgment of 8 April 2021 at [27]–[41] and [48]–[52]);
·Identify and assess the relevant matters referred to in s 79(4) of the Act (Reasons for judgment of 8 April 2021 at [53(a)]–[53(g)]); and
·Consider the effect of the findings and resolve what order was just and equitable in the circumstances (Reasons for judgment of 8 April 2021 at [54]–[57] and the reasons for judgment of 20 May 2021).
The wife’s real complaint is that the primary judge did not make the findings she sought. That does not demonstrate error.
This ground has not been made out.
Ground 4: His Honour, in a Court of Equity, breached equitable maxims and doctrines in the application of his Judgment and Orders against the evidence.
(As per the original)
The Court is described as a court of law and equity (s 21(2A) of the Act which applied at the relevant time and now s 9(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). The intent of the amendment made by the Civil Law and Justice Legislation Amendment Act 2018 (Cth) was to ensure consistency with equivalent provisions relating to other federal courts (cl 121 of the Explanatory Memorandum to the Civil Law and Justice Legislation Amendment Bill 2017 (Cth)). The description is relevant to the scope of the Court’s implied powers.
The maxims of equity remain as principles which “are the fruit of observation of developed equitable doctrine” (H G Hanbury, Modern Equity (Stevens, 6th edition, 1943) at p.45) and are to be applied in that context. They are, of course, part of the common law (using that phrase in the broad sense) and are subservient to statute. As short hand statements of principle, they can be apt to mislead unless care is taken to understand the principle for which they stand.
The wife’s submissions merely identify a number of equitable maxims, each of which is followed by a series of broadly stated assertions, some of which betray a misunderstanding of the relevant principle. At no stage did the wife identify a relevant finding made by the primary judge in the property determination (as opposed to other proceedings) which was said to be wrong on the correct application of a maxim, let alone explain why it was said to be erroneous.
For example, which will suffice, under the heading “[h]e who seeks equity must do equity” appears the submission “Wife equity to a settlement – married wom[a]n has full right on her property and it is not consolidated with her husband’s property” (Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 50(b)). No one suggested that the wife’s property was consolidated with the husband’s property, rather it was divided under s 79 of the Act.
It is for the wife to identify error and not for us to follow the wife down every rabbit hole suggested by her on the chance such an error might present itself (Bahonko v Sterjov (2008) 247 ALR 168 at [3]).
This ground does not demonstrate error.
Ground 6: His Honour made prejudicial determination of the BRC2179/2018 Financial Matter, indicated by his statement at the conclusion of proceedings on 10 May 2021.
(As per the original)
The wife submits that because the primary judge told the wife at the end of submissions that she was entitled to appeal (Transcript 10 May 2021, p.33 lines 17–21) it was clear that the “[f]inal decision had been made without due consideration of the written and oral submissions” (Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 89) and that the primary judge was “going to wrongly apply the law to deliberately invoke an [a]ppeal” (Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 90).
These inferences cannot be drawn from these statements and this ground fails. We see no error in a primary judge advising a self-represented litigant of the existence of the statutory right of appeal.
Ground 7: His Honour acted with discrimination on the basis of demography / financial status.
(As per the original)
The wife’s Summary of Argument and written submissions in place of oral submissions described this as Ground 9.
Essentially, the complaint made is that the primary judge described VV as a small business (Transcript 26 October 2020, p.18 line 38) when the primary judge refused to require the husband to provide audited accounts of the company unless the wife paid for the audit.
Whilst the business of VV may not be seen as small by the wife, the fact remains that because of its size and structure, its accounts did not have to be audited each year. Further, the court regularly deals with companies that have values and turnovers in the hundreds of millions of dollars.
The wife did not suggest that the comment was erroneous and it is not. Even if it was, it had no impact on the orders that were made. As his Honour pointed out, neither the wife nor the husband could afford an audit so, quite simply one could not have occurred.
This ground is not made out.
Ground 8: His Honour acted under dictation of the Husband (and/or Counsel).
(As per the original)
The wife’s Summary of Argument and written submissions in place of oral submissions referred to this as Ground 7.
The wife submitted that the ground is confirmed:
91.… by the Husband’s counsel making oral applications from the bar on 10 May 2021 and orally applying new untested evidence as reasoning for an upward adjustment in favour of his client, and his Honour making immediate judgment in favour of the Husband to his exact Orders Sought.
(Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 91) (As per the original)
The transcript relied on by the wife is part of the transcript where counsel for the husband deals with the orders the husband sought, which were based on the findings made by his Honour in the reasons for judgment of 8 April 2021. That is an entirely unremarkable course. We are unable to see where new evidence was adduced. His Honour did not give judgment immediately (as already explained) and the orders were not exactly as sought by the husband. It must be recalled that on 8 April 2021, his Honour declined to make the orders sought by either the husband or the wife and instead proposed a superannuation splitting order. Further, there was no “upward adjustment” in favour of the husband, all that happened was that the primary judge made orders that an aspect of entitlement be taken by way of superannuation split.
This ground does not succeed.
Ground 9: His Honour failed to deal with the matter of Contravention by the Husband during Trial.
(As per the original)
The wife’s Summary of Argument and written submissions in place of oral submissions described this as Ground 8.
On 26 October 2020, the primary judge referred to the four outstanding contravention applications which had been filed by the wife and said “[b]ut they are consumed by the trial, madam, in my view, and there’s no utility in them being heard as contravention applications” (Transcript 26 October 2020, p.14 lines 40–42). They were dismissed on that day by Order 6.
There is no appeal against that order. The wife’s submissions do not deign to say why that approach was in error or how any failure to deal with the contraventions affected the property settlement orders.
This ground has not been established.
Ground 13: His Honour failed to make Adverse Findings against the Husband due to a Party’s failure to provide Evidence – the rule in Jones v Dunkel.
(As per the original)
This ground fails at the outset because the wife does not identify the adverse finding that she contends should have been made. She simply refers to VV and the husband’s failure “to adduce evidence of …detailed transactions per the Order 17 of 26 October 2020” (Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 117).
Order 17 required the husband to produce “any management statements or MYOB reconciliation prepared for [VV] Pty Ltd from February 2018”. It did not require the husband to adduce evidence.
In any event, the husband produced the VV trial balances which have already been discussed and obviously fall within the definition of management accounts.
There is no substance in this ground.
Ground 14: His Honour failed to apply the law as required per s42 Family Law Act 1975, and made judgment in excess of jurisdiction and/or jurisdictional error where Orders of 20 May 2021 were made ultra vires.
a.As applied before His Honour in submissions; upon identification in the evidence prior to judgment of 20 May 2021 of serious Commonwealth offences (and serious State offences that have a federal aspect), including Fraud crimes committed by the Applicant Father and Officers of the Court, His Honour proceeded to make Orders servicing the Father with Proceeds of Crime, and failed to hold the Court Officers accountable for their deliberate protraction of the case (fee and cost maximisation) and fraudulent actions throughout their conduct of the case;
And;
b.Where his Honour was notified by the Respondent Wife on 10 May 2021 that he would be aiding and abetting a criminal offence, and that would then amount to misfeasance of public office for which he may be personally sued; and this statement was redacted from the transcript as “inaudible” (in possible deliberate evidence tampering)
c.His Honour failed to apply s79 Family Law Act 1975, in relation to:
i.Exclusion of the [VV] Business as an asset of the marital pool, under the assumption the business was a legitimate post-separation contribution from the Husband, rather than an ongoing joint marital asset to which the Wife was entitled to a greater than 50% share in revenue of the past four years – revenues approximating $900,000.
ii.Exclusion of the Wife’s $410,000 direct contribution to the Marital Home calculated as her 53% unencumbered stake in the [R Street, Suburb C] marital home, to which she was owed a 53% return on investment in the full value of the sale price of $1.435m.
iii.Exclusion of the debt held by the Husband outstanding to the Wife in relation to his equity loan for a previous joint company The [Adlam Newett] Group Pty Ltd.
iv.Inclusion of the Mortgage on [Suburb C property] as a joint marital debt, where the mortgage was not in the Wife’s name, and the mortgage was a choice of the Husband alone who had resources to purchase the home outright. The home was intended to be repayment to the Wife of prior debts owed to her.
v.Failure of His Honour to incorporate the value of the Wife’s two previous properties as pre-marital assets, property now worth a combined value of approx. $1.6m+.
vi.Failure of His Honour to consider the $1m+ dollar inheritance due to the Husband in 2013 which was due towards the marriage, and examine the evidence of Testamentary Fraud (deliberate hiding of money with his Mother) in relation to such;
vii.Failure of His Honour to consider the multi-million dollar future inheritance due to the Husband upon the death of his parents, who are both in their 80’s and have short life expectancy.
viii.Failure of His Honour to consider the Wife’s continued payment of marital credit cards on behalf of the Husband.
ix.His Honour refused to return the Wife’s own vehicle stolen by the Husband, and allowed the Husband to retain both vehicles in his Orders of 20 May 2021, and keep the full benefit from having sold an additional motorbike in 2019.
x.His Honour allowed for the sale of the marital home which the Wife wanted to retain for herself and the Children upon settlement.
xi.His Honour did not consider the serious economic abuse, false mental health allegations, stalking, coercive control and threats made to the Wife’s life by the Husband and his associates endured over a four year period to date as relevant to a Kennon v Kennon argument. His Honour failed to test the matter as part of the financial trial.
xii.His Honour failed to assess the future needs of the Wife considering her Total Disability (PTSD/Anxiety), caused by the ongoing direct abuse of the Husband, and Court Officer and Police Officer actions also caused by the Husband.
xiii.His Honour made property orders prior to Children’s orders such that the future needs calculations of each Party could not be prudently made. His Honour made prejudicial assumption the Children would remain living with the Husband without testing family violence matters pertaining to the living arrangements of the Children.
xiv.His Honour failed to run or consider the Contravention hearings as part of the Trial in relation to the Husband’s continual contravention of Court Orders, and failed to make adverse findings of credit against the Husband.
xv.His Honour failed to consider the defamation of the Wife, perjury, and deceit by the Husband throughout proceedings as relevant to the requirement to cross examine him on the witness stand.
xvi.His Honour failed to consider the Wife’s losses caused by the Husband during the conduct of the case as relevant to the distribution, Judgment and Final Orders.
xvii.Failure of His Honour to consider both Taxation Fraud, Centrelink Fraud and Child Support Fraud committed by the Husband in the continual false reporting of his income, expenses and other data to various statutory authorities.
xviii.His Honour made a downward adjustment in the Superannuation distribution to the Wife (by over $18,000) inconsistent the splitting formula in the Family Law Act, without giving any reason as to why the adjustment was fairer and more equitable.
d.His Honour failed to apply case authorities McDonald v McDonald (1965) 113 CLR 529, McCann v Parsons (1954) 93 CLR 418, Ascot Investments v Harper and Weir v Weir (1992) 16 FamLR 154.
e.His Honour failed to apply the law (s79) where in his 21 years of experience as a Judge, was fully aware of the Statute and Case Law requirements, due to his own published article “[2005]FedJSchol1”, therefore he knowingly and with intent attempted to deceive a self-represented litigant in relation to her Financial and Legal Rights.
f.His Honour was fully aware of the impact and importance of considering every dollar in the equation, on the basis of equity.
g.The orders made are therefore criminal (collusive with the Applicant Husband) in nature, not judicial, as His Honour was given sufficient opportunity to demonstrate his willingness to fully investigate the matter by ordering a further Trial Sitting to correct the matters and allow for prudent discovery and cross examination, so fair distribution of assets could be made.
(As per the original)
Under this ground the wife repeated her submissions as to the criminal conduct of the primary judge, which we shall not address again.
The wife submitted that his Honour had failed to apply s 79 of the Act in that he failed to accede to various contentions made by her (Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 120(a)–(g)).
First, while the findings were identified in the ground itself, the wife’s submissions merely repeated them and did not proceed to explain why the findings were wrong. Error is not shown simply by stating a contention as to what the appropriate finding should have been.
Secondly, many of the assertions set out in this ground are based on assertions that have no support in the evidence, such as the value of VV, or the value of the assets held by the wife prior to the marriage or the inheritance that the husband might receive.
Thirdly, the assertions set out in the ground misconceive the law. For example, even assuming that the wife contributed to 53 per cent of the purchase of the Suburb C property (contrary to the findings of the primary judge in the reasons for judgment of 8 April 2021 at [32]), that does not mean that, in proceedings under s 79, she was entitled to receive 53 per cent of its current value. There is no statutory or other requirement that financial contributions are to be assessed so as to result in a dollar-for-dollar conclusion.
The fact that the wife asserted that she wished to retain the Suburb C property as her home, “given the inequities and economic abuse of the Husband” (Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 120(k)), does not that mean the primary judge was obliged to make that order. Further, the interests of the mortgagee and the action taken by it had to be taken into account.
Fourthly, many of the wife’s complaints as asserted in this ground are based on evidence that was not before the primary judge.
Finally, the wife submitted that the outcome was not just and equitable. In the particular circumstances, where there was little property available for division and given the husband’s care of the children, we are quite unable to say that the outcome was unreasonable or plainly wrong.
This ground is not established.
Ground 16: His Honour acted with hostile and malicious intent, deliberately abusing his judicial power by improper application of the law, improper application of discretionary powers, and improper abuse of Court Rules to bias case outcomes; negatively impacting the legitimate public expectation of complete competence, independence and impartiality of Judicial Officers in a Chapter III Court.
(As per the original)
This is an allegation of actual bias. To establish such bias the wife must establish that the primary judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]). Such a finding is a grave matter, which should not be made lightly and requires cogent evidence (Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]).
The wife referred to the part of the transcript where the primary judge looked at the documents to be provided to the wife which had been disclosed to her solicitors but not her. As to some of them his Honour said “[q]uick”’ and once “[i]t might take her five minutes to read that. She’s a very clever lady” (Transcript 1 December 2020, p.9 lines 15–16).
His Honour’s comment that “I have tolerated your personal abuse” (Transcript 10 May 2021, p.34 lines 19–20) was relied upon, as was the fact that the primary judge made a superannuation splitting order.
These matters fall well short of demonstrating actual bias.
As requested by the wife, we have listened to the portions of the exchanges between the wife and the primary judge which she asserts support her position.
The portions of the hearing so identified were conducted by Microsoft Teams, which, in our experience, is associated with difficulties of more than one person speaking at a time. Such was the case here with the wife in particular interjecting and talking over the top of others, including the primary judge. On many occasions his Honour attempted to control the hearing and to direct the wife to the relevant issues. At times his Honour spoke forcefully and firmly, but politely. It is, after all, the obligation of the judge to control the proceedings. We were, however, quite unable to detect any tone or demeanour that was improper.
This ground is not made out.
Ground 17: His Honour, in consideration of Grounds 1–14 above, failed to apply the law per s42 Family Law Act 1975, failed to act with Impartiality, acting with Apprehended Bias per Case Authorities Johnson v Johnson and Ebner, and other like cases, where a
fair-minded lay observer would reasonably determine the presence of bias.(As per the original)
The wife asked the primary judge to disqualify himself from the further hearing of the matter. That application was dismissed on 25 February 2021. An appeal from that decision was dismissed on 17 September 2021 (Newett & Newett (No 2) (2021) FLC 94-051).
Under this ground, the wife contends that the decision of the Full Court was wrong. That is not a submission capable of acceptance.
Of course, it may be that things said and done by the primary judge since 25 February 2021, by themselves or when seen in the light of the earlier behaviour or comments, might cause a fair-minded lay observer to reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the question to be decided (Johnson v Johnson (2000) 201 CLR 488).
The fact that a judge may have acted on a wrong principle, does not in itself suffice to meet this test.
The only other matters relied upon by the wife under this ground are:
·The primary judge saying the wife had been the author of some of her own misfortune in this case (Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 165(a));
·His Honour asking the maternal grandmother if Suburb AT is the flash part of City EE (Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 165(b)); and
·The primary judge saying, to the maternal grandmother, “Well, I can tell you, madam, for kids to have to see someone they love dribbling, or incoherent, or not being able to communicate, you know. And because the focus for me is not what is in the best interests of your husband and you” (Wife’s written submissions in place of oral submissions dated 31 January 2022, paragraph 165(c) and Transcript 1 December 2020, p.73 lines 44–46).
These comments were made by the primary judge to the maternal grandmother, who was a party in the parenting proceedings, and in the course of an application made by her for orders that would enable the children to visit the maternal grandfather who was very ill and suffering from a terminal disease.
As to the first point, as his Honour explained to the maternal grandmother at the time, the parenting proceedings had been adjourned because of the withdrawal of the ICL, which in turn had been caused by the wife launching a criminal prosecution against him (Transcript 30 November 2020, p.11 lines 29–33).
As to the second and third point, the phraseology was unfortunate, even in the context of a long and difficult morning. However, we do not see these comments as mocking the parties or the grandfather. Indeed, as to the latter, it was a poorly expressed concern for the children.
The critical point is to identify the link between the comments and the feared deviation from impartial decision making (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337). In this case, the relevant decision was the determination of the property proceedings. We do not accept that the comments are such that would cause the reasonable bystander to apprehend a want of impartiality.
This ground is not established.
It follows that the appeal will be dismissed.
COSTS
The appeal has been wholly unsuccessful.
In the circumstances we consider it just that the wife pay the husband’s costs fixed in the sum of $14,113.50 and that these costs be paid from the share of the funds being held by the Court in this matter, prior to the payment to the wife of the balance. It is only by means of such an order that it is likely that the costs will be paid.
I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Hogan & Harper. Associate:
Dated: 17 May 2022
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