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 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FedCFamC1A 139
Decision Date

CaseChat Overview and Summary

This is an appeal against parenting orders that were made in the Federal Circuit and Family Court of Australia. The mother, the appellant, is seeking orders in relation to the provision of transcripts, evidence and compliance with the Criminal Code Act 1995 (Cth). The primary issues for the court to decide were whether the judge should recuse themselves from the case due to the apprehension of bias and whether the court should provide the transcripts for the hearing of the parenting proceedings before the primary judge. The court dismissed the application for recusal and the application for the provision of transcripts. The court found that the apprehension of bias asserted by the applicant was not substantial enough to justify the judge recusing themselves from the case. The court also found that the applicant could use her share of the outcome of the property proceedings to acquire the transcript, and therefore, she should not be exempt from the usual rule that the court is not funded to provide transcripts to litigants. 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. The court otherwise dismissed the application.

The court's decision in this case highlights the importance of the principle that 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. The court also emphasised that litigants do not have the right to pick and choose judges according to their perception as to the way that their choice might advantage or disadvantage their opponents. The court's decision also reinforces the well-established rule that the court is not funded to provide transcripts to litigants, and the provision of transcripts is only in clear and substantial cases. The court's decision in this case provides guidance on the circumstances in which the court may provide transcripts and the relevance of the material in the transcripts to the grounds of appeal.

Orders