Newett & Newett (No 7)
[2022] FedCFamC1A 139
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Newett & Newett (No 7) [2022] FedCFamC1A 139
Appeal from: Newett & Newett (No 2) [2022] FedCFamC1F 439 Appeal number(s): NAA 152 of 2022 File number(s): BRC 2179 of 2018 Judgment of: ALDRIDGE J Date of judgment: 26 August 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks orders in respect of the provision of transcripts, evidence and compliance with the Criminal Code Act 1995 (Cth) – Oral application for recusal – Apprehension of bias – Recusal application dismissed – Where the circumstances justify the Court funding the provision of transcript – Any question of further evidence to be received on appeal is reserved to the Full Court – Application otherwise dismissed. Legislation: Copyright Act 1968 (Cth)
Criminal Code Act 1995 (Cth) Div 273B
Family Law Act 1975 (Cth) Pt VII
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Forbes & Bream [2008] FamCAFC 189
Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Rajski v Wood (1989) 18 NSWLR 512
Re J.R.L.; Ex-parte C.J.L. (1986) 161 CLR 342; [1986] HCA 39
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Number of paragraphs: 26 Date of hearing: 26 August 2022 Place: Sydney (via video link) The Applicant: Self-represented litigant Solicitor for the First Respondent: Damien Greer Lawyers The Second Respondent: Self-represented litigant Solicitor for the Independent Children’s Lawyer: Norman & Kingston Solicitors ORDERS
NAA 152 of 2022
BRC 2179 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS NEWETT
Applicant
AND: MR NEWETT
First Respondent
MS ADLAM
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
26 AUGUST 2022
THE COURT ORDERS THAT:
1.The applicant’s oral application for recusal is dismissed.
2.Any question regarding the receipt of further evidence on the appeal is reserved to the hearing of the appeal noting that the Rules make provision for applications to adduce further evidence on appeal.
3.The Court will make available to the parties and the Independent Children’s Lawyer the balance of the transcript not held by them of the proceedings before the primary judge on 20, 21, 22 and 29 September 2021.
4.The Amended Application in an Appeal filed on 24 August 2022 is otherwise dismissed.
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 7) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
Introduction
This is the hearing of an Amended Application in an Appeal filed by the mother (“the applicant”) on 24 August 2022 in relation to an appeal that is fixed for hearing on 29 September 2022. The proceedings the subject of the appeal were parenting proceedings which resulted in orders that the parties’ two children, who were born in 2011 and in 2013, live with the father (“the first respondent”) and spend very limited supervised time with the mother, who is the appellant, and with the maternal grandmother, who is the second respondent to the appeal. The application is supported by the second respondent.
Recusal application
At the outset of the hearing of the application, the applicant asked me to disqualify myself and it is, therefore, necessary for me to deal with that first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128).
I have sat on two previous appeals involving the parties. The first was an appeal against property orders made by the primary judge, and the second was an appeal against the primary judge’s refusal to disqualify himself from the proceedings. On each occasion, the appeal was unsuccessful.
The applicant submits that I should disqualify myself because I have decided two matters adversely to her. In her own terms:
(1)I decided, or the bench on which I sat decided, not to search out the evidence before the Court simply because there was not an index to a contended appeal book;
(2)There is bias in the registry;
(3)There is presently extant an application for special leave to appeal to the High Court of Australia against the orders of the Court dismissing the property appeal;
(4)I have wrongfully refused to provide transcripts to other litigants in other matters where the applicant asserts they were in a similar predicament to her;
(5)I have made a contribution to the children’s current predicament and, therefore, I will want to rule in the future in such a way that exonerates my conduct, including what the applicant asserts to be my criminal conduct by way of breach of s 273B(4) of the Criminal Code Act 1995 (Cth); and
(6)I have participated in judgments that have put the children at risk of sexual harm.
As to the second point, that is not a correct understanding of why the proposed further evidence sought to be relied upon by the applicant in the disqualification appeal was refused (see Newett & Newett (No 2) (2021) FLC 94-051 at [35]–[48]). The major difficulty that faced the applicant in that appeal was that she was unable to identify how any of the material in the contended appeal book related to the grounds of appeal. As is plain from what I have already said, I have not sat on an appeal involving parenting orders relating to the children, and I do not see, therefore, how what is said to be any contribution to the children’s predicament arises. The other matters identified by the applicant do not relate to me.
The test for determining whether a judge should disqualify himself or herself on the ground of apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [6]). In Ebner, Gleeson CJ and McHugh, Gummow and Hayne JJ explained the operation of the principle as follows:
8.… Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. …
It is well established that judges have an obligation to sit on matters that are assigned to them, except where there is some good reason, such as actual bias or the reasonable apprehension of bias, for them not to sit. It is not for litigants to pick and choose judges according to their perception as to the way that their choice might advantage or disadvantage their opponents (Rajski v Wood (1989) 18 NSWLR 512 at 519–520; Re J.R.L.; Ex-parte C.J.L. (1986) 161 CLR 342 per Mason J at 352). In Ebner, Gleeson CJ and McHugh, Gummow and Hayne JJ said:
19.Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based on a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
In the present case, the apprehended bias asserted by the applicant is the apprehension that because of my role in the earlier appeals I will not bring an impartial mind to this appeal, and I will, therefore, in effect, have prejudged its outcome. I do not see how, simply because I have decided that the grounds of appeal were not made out in the circumstances then before the Court, indicates that I will not adopt an impartial course to the hearing of this application. Merely because previous decisions have been decided adversely to the applicant provides no basis for a reasonable apprehension that I am doing so, because I am in some way biased or likely to be biased against her.
I do not accept that the applicant’s apprehension as to the children’s predicament, my role in it, or breaches of the Criminal Code Act 1995 (Cth) (“the Criminal Code”), the Copyright Act 1968 (Cth), or provisions of the Family Law Act 1975 (Cth) (“the Act”), as the applicant would have it, raise a substantial issue that justifies me recusing myself. The application for my disqualification is refused.
Application in an Appeal
The application before the Court seeks that the Court provide the transcript for the hearing of the parenting proceedings before the primary judge, the full transcripts of all proceedings for the matter which commenced in 2018, including all registrar’s proceedings and copies of all reasons for judgment of all decisions in the matter, including all decisions of the registrar. The court is not funded to provide transcripts to litigants. Nonetheless, it has been established that from time to time the court will judiciously provide a transcript to the parties where it is demonstrably in the interests of justice to do so (Forbes & Bream [2008] FamCAFC 189 at [28]).
In Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542, the Full Court set out at [16] a number of matters that would ordinarily be taken into consideration in determining an application for the provision of transcript. In this case, I accept the matter is a parenting case and that it is likely that the whole of the transcript will be necessary for the determination of the applicant’s grounds of appeal. I am not in the position to determine the prima facie merits of the appeal and will proceed on the basis that it has reasonable prospects of success.
The difficulty that arises is that pursuant to the orders of Jarrett J that have recently been made, the applicant is presently entitled to a sum of about $195,000, being her share of the outcome of the property proceedings. Indeed, the applicant’s position is that that sum will be greatly increased in the event her application for special leave to the High Court of Australia is granted and the appeal subsequently succeed. Be that as it may, it is clear that the applicant could use those funds to acquire the transcript.
However, she submits that she is not inclined to do so, and should not do so for a number of reasons. I understood the two mains reasons to be that because of what she regards as the fraudulent conduct of the first respondent, the first respondent’s lawyer, the ICL and the Court, she has had to work for the last four and a half years to prosecute the proceedings without being able to work and, therefore, she should not be expected to spend any further money on the proceedings. Secondly, she asserts that the Court has committed a crime by selling her voice to Auscript, the court’s transcript provider, so she cannot therefore, be required to buy it back in effect, and therefore she should be entitled to it for free.
I do not accord either of those submissions any weight, but in the difficult circumstances of this case and having regard to the amount of transcript involved, I consider that justice will be best served by the Court making available to the parties and the ICL the balance of the transcript of the hearing held on 20, 21, 22 and 29 September 2021. I note that the primary judge has already obtained some parts of that transcript, which has been made available to the parties.
I have difficulty seeing how the transcripts of all proceedings in this matter, including the proceedings before the registrar since the commencement of the proceedings, are relevant to the grounds of appeal that are presently before the Court.
I understand that these will not be the grounds on which the appeal is run because the applicant is entitled to, and as I understand it, will amend the Notice of Appeal within the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
Nonetheless, she identified three grounds which would require the earlier transcripts. They are:
·Ground 8 - A failure to exercise jurisdiction including the protection of children from the risk of harm;
·Ground 15 - Procedural unfairness, improper case management leading to trial, and applying the use of evidence not adduced at the trial for the benefit of the first respondent whilst refusing the same for the applicant; and
·Ground 22 - Aiding, abetting and fraudulently concealing the crimes of the first respondent, including surveillance, harassment, intimidation and stalking of the applicant and the second respondent available on the evidence.
The appeal is against orders made by the primary judge on 8 July 2022. They are not appeals against all of the earlier procedural orders. The applicant was at liberty to attempt to adduce all such evidence as she thought was relevant to the proceedings. If any tender of evidence was rejected by the primary judge, then that can be the subject of a ground of appeal and dealt with in the usual way. The court, however, does not and will not conduct, in effect, a royal commission into the conduct of these proceedings as a whole.
I am not satisfied, therefore, that any of the material identified in paragraphs 5 and 6 of the Amended Application in an Appeal is relevant to the hearing. I, of course, say that based only on what I have been told by the applicant in court today and have not looked at it.
If there is anything that is truly relevant in any particular transcript to the orders that were made by the primary judge, that can be the subject of an application to adduce further evidence. The relevance, however, of my finding is that the court, not being funded to provide transcripts and providing transcripts in only clear and substantial cases, does not have the means to provide the transcript of the kind when the identified relevance is so remote. If the applicant disagrees, she has the means to obtain the transcript herself.
Order 7 requires urgent provision to the applicant of a full digital copy of all subpoena material. The time for tendering evidence obtained on subpoena is at the trial. In CDJ v VAJ (1998) 197 CLR 172, it is well established that the ordinary rule is that if evidence was available to be tendered at the hearing but was not, it should not, therefore, readily be admitted on appeal. Further, the documents produced on subpoena are not the court’s documents. They are the documents of the entities that have provided them to the court under subpoena. The court, therefore, in all cases is properly protective of the rights and interests of the parties and, ordinarily speaking, does not holus-bolus simply provide parties with the copies of all of the material. I am not satisfied that Order 7 should be made.
Order 8 is an order that attempts to bind the Full Court hearing the appeal as to what it is to take into account. That is a matter for it. I do not have the power to control what it does and, in the event I did have the power, I would not exercise it in favour of the applicant. It is a matter for the Full Court hearing the appeal on what it takes into account. Similarly, it is a matter for that Court whether or not, it will accept a copy of the applicant’s own recordings of the hearings, although it is unlikely that the Court would endorse such a course.
The applicant also seeks an order that the Court hearing the appeal take into account audio files of the children’s phone calls. I am somewhat confused as to the role these phone calls played in the hearing and, indeed, some are said to have taken place after the hearing. However, insofar as an attempt was made to tender these hearings and they were rejected, those hearings are matters that can properly be raised if there is a ground of appeal that asserts that the tender of those phone calls were improperly rejected. That will be a matter for the Full Court hearing the appeal.
In my opinion, there are many difficulties with proposed Order 11, the least of which in Newett & Newett (No 2) [2021] FedCFamC1A 11 to which I have earlier referred, the Court found that Div 273B of the Criminal Code did not apply to judges hearing proceedings under Pt VII of the Act. As I said earlier, I cannot direct other judges as to who should comprise the Full Court hearing the appeal in this matter, or direct those judges that have been selected whether or not to sit on the appeal.
Therefore, I will reserve any question of the receipt of further evidence on the appeal to the hearing of the appeal, noting that the Rules make provision as to applications to adduce further evidence on appeal.
I note that the Court will make available to the parties and the ICL the balance of the transcript not held by them of the proceedings before the primary judge on 20, 21, 22 and 29 September 2021, and I otherwise dismiss the application.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 7 September 2022
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