Newett & Newett (No 8)

Link copied
Case Copied 47 min read

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Newett & Newett (No 8) [2023] FedCFamC1A 7

Appeal from: Newett & Newett (No 4) [2022] FedCFamC1F 624
Appeal number: NAA 211 of 2022
File number: BRC 2179 of 2018
Judgment of: McClelland DCJ, HENDERSON & HARPER JJ
Date of judgment: 31 January 2023
Catchwords: FAMILY LAW – APPEAL – Appeal from decision of primary judge dismissing appellant wife’s application under s 79A of the Family Law Act 1975 (Cth) – Whether leave to appeal required – Allegations of actual and apprehended bias – Allegations of fraud by primary judge and other judicial officers – Allegations of denial of procedural fairness in failing to conduct a full trial of wife’s applications – Allegations of errors in findings of fact – No error established – Leave granted to appeal – Appeal dismissed – Appellant to pay respondent’s costs as agreed or assessed.
Legislation:

Acts Interpretation Act1901 (Cth) s 13(2)(d)

Family Law Act 1975 (Cth) ss 79A(1)(a), 79A(1)(c), 79A(1)(d), 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28(3)(e), 46(2), 46(3)

Federal Court of Australia Act 1976 (Cth) s 31A

Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) Pt 10.3, rr 10.09, 10.11, 13.53

Federal Court and Federal Circuit Court and Family Court Regulations 2012 (Cth) reg 4.02(1)(a)
Cases cited:

Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229

Atkins & Hunt (Costs) [2017] FamCAFC 131

Bahonko v Sterjov (2008) 247 ALR 168; [2008] FCAFC 30

Bienstein v Bienstein (2003) FLC 93-124; [2003] HCA 7

Bigg v Suzi (1998) FLC 92-799; [1998] FamCA 14

Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20

Castillon v P&O Ports Ltd [2008] 2 Qd R 219; [2007] QCA 364

Citta Hobart Pty Ltd v Cawthorn (2022) 400 ALR 1; [2022] HCA 16

Clarence & Crisp (2016) FLC 93-728; [2016] FamCAFC 157

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Friar & Friar [2011] FamCAFC 71

House v The King (1936) 55 CLR 499; [1936] HCA 40

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Karlsson & Karlsson [2020] FamCAFC 207

Korsky and Bright (No 2) (2007) FLC 93-352; [2007] FamCA 1512

Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 259 ALR 319; [2009] FCAFC 117

Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251; [1996] HCA 14

Lysaght Building Solutions…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Newett & Newett (No 8) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2023] FedCFamC1A 7
Decision Date

CaseChat Overview and Summary

In the matter of Newett & Newett (No 8), the wife sought to vary or set aside the final property orders made in the context of her divorce from the husband. This case involved the Federal Circuit and Family Court of Australia, which was tasked with determining whether to enforce the final property orders or to grant a stay based on the wife's application under section 79A of the Family Law Act 1975. The husband sought security for costs and summary dismissal of the wife’s application, arguing that it was an abuse of process. The central legal issues before the court were whether the wife had demonstrated sufficient grounds for a stay of the final property orders and whether the application constituted an abuse of process warranting summary dismissal.

The primary judge found that there was no basis for staying the final property orders, as the wife had not demonstrated any of the well-established principles required for such a stay as outlined in cases like Aldridge & Keaton. Consequently, the primary judge dismissed the wife's application for a stay. Additionally, the primary judge summarily dismissed the wife's section 79A application under Part 10.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, concluding that it was an abuse of process. The court also found no justification to withhold enforcement of the final property orders, and thus made orders for enforcement, directing specific payments to be made from the asset pool to both parties.

The wife appealed the primary judge's decision, relying on ten grounds of appeal. During the appeal process, the wife was granted leave to file a Contended Appeal Book, which was extensive, containing over 13,000 pages of material. The wife's applications for the appeals judicial registrar to recuse herself and for leave to file a Summary of Argument and List of Authorities up to 30 pages were dismissed. The court's reasoning and the final orders in this case will depend on the merits of the wife's appeal and the arguments presented regarding the primary judge's decisions on the stay, abuse of process, and enforcement of property orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The wife had on foot another Application in a Proceeding, originally filed on 3 June 2021 and amended on 8 July 2022, seeking orders pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) to vary or set aside the final property orders. On 16 June 2022, Baumann J made procedural orders for the wife to particularise her s 79A claim by 7 July 2022. By his Response filed on 22 July 2022, the husband sought security for costs and summary dismissal of the wife’s application filed on 8 July 2022 pursuant to Pt 10.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the Rules”). It is these applications, together with the husband’s application filed on 18 May 2022 and the wife’s Amended Response, which were the subject of determination by the primary judge on 19 August 2022.THE PRIMARY JUDGMENT The primary judge was not satisfied he had power, either pursuant to the Rules or any other jurisdiction of the Court, to order a stay of the final property orders, nor, even if he did have power, had the wife demonstrated any basis for a stay according to the well-established principles expounded in Aldridge & Keaton (2009) FLC 93-421. His Honour dismissed the stay application. He also made orders summarily dismissing the wife’s s 79A application pursuant to Pt 10.3 of the Rules. Having reached those conclusions, the primary judge found no reason to withhold enforcement of the final property orders. Accordingly, the primary judge made orders for enforcement and declined to make any other orders sought by the wife. The husband supported his application for enforcement orders with an affidavit sealed on 18 May 2022, which set out the asset pool following the sale of the Suburb C property, and a calculation of the amount to be received by him and the wife according to the final property orders. On the basis of this evidence, the enforcement orders were limited to ordering two amounts, being $334,880.84 and $24,113.50, to be paid into the trust account of the husband’s solicitors from the fund held in the Federal Court of Australia, with a third amount, $195,136.06, to be paid to the wife from the same fund.THE APPEAL The wife filed a Notice of Appeal on 16 September 2022, which was amended on 14 November 2022. As explained below, she relied on a total of ten grounds. On 17 October 2022, an appeals judicial registrar conducted a procedural hearing in which the wife was granted leave to file a Contended Appeal Book. The wife did so, filing seven volumes with over 13,000 pages. The Contended Appeal Book comprised, in effect, every document filed, a transcript of every hearing, exhibits tendered, emails, and other material relating to all the primary proceedings, as well as proceedings in a number of state courts and the High Court. On that date, the appeals judicial registrar also dismissed an oral application by the wife for the appeals judicial registrar to recuse herself, as well as an application seeking leave to file a Summary of Argument and List of Authorities up to 30 pages.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.