Newett & Newett (No 6)

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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 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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…

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Details
Case
[2022] FedCFamC1A 70
Decision Date

CaseChat Overview and Summary

Ms Newett, the wife, appealed against the property settlement orders made by the primary judge in the Federal Circuit and Family Court of Australia. The appeal centred on various allegations, including claims that the primary judge had not followed the legislative pathway, did not ensure procedural fairness, and was biased. The wife sought extensive financial relief and additional orders from the court.

The central legal issues before the court were whether the primary judge had erred in his application of the law, whether there were breaches of procedural fairness, and if the judge had acted with actual or apprehended bias. The wife argued that the primary judge had misapplied equitable maxims, made prejudicial determinations, acted under dictation, and failed to apply the law impartially.

The court found that the primary judge had not erred in his application of the law or procedural fairness. The wife's allegations of bias were also dismissed, as the comments made by the primary judge did not indicate any reasonable apprehension of bias. The court held that the wife had failed to demonstrate any error in the primary judge's conduct or reasoning.

The appeal was dismissed, and the court ordered that Ms Newett pay the respondent's costs in a fixed sum of $14,113.50, to be paid from the funds held by the court before any balance was paid to the appellant.

Orders

Orders of the court

NOA 26 of 2021

BRC 2179 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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).

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.