Newett & Newett (No 8)
[2023] FedCFamC1A 7
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 Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Newett & Newett [2020] FamCAFC 76
Newett & Newett(No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Newett & Newett (No 2) [2022] FedCFamC1F 439
Newett & Newett (No 6) [2022] FedCFamC1A 70
Newett v Newett [2022] HCASL 135
Olman & Teitzel [2020] FamCAFC 136
Oscar & Traynor [2008] FamCAFC 158
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
Pelerman v Pelerman (2000) FLC 93-037; [2000] FamCA 881
Prantage & Prantage (Costs) [2014] FamCA 850
Re Luck (2003) 203 ALR 1; [2003] HCA 70
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Ritter & Ritter (2020) FLC 93-957; [2020] FamCAFC 86
Santos v Delhi Petroleum Pty Ltd (2002) 225 LSJS 1; [2002] SASC 272
Silk Bros Pty Ltd v State Electricity Commission (Vic) (1943) 67 CLR 1; [1943] HCA 2
Simmons & Simmons (2008) 40 Fam LR 520; [2008] FamCA 1088
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950; [2020] FamCAFC 65
Number of paragraphs: 101 Date of hearing: 7 December 2022 Place: Heard in Brisbane, delivered in Sydney The Appellant: Litigant in person Counsel for the Respondent: Ms Fraser Solicitor for the Respondent: Damien Greer Lawyers ORDERS
NAA 211 of 2022
BRC 2179 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS NEWETT
Appellant
AND: MR NEWETT
Respondent
order made by:
MCClelland DCJ, HENDERSON & HARPER JJ
DATE OF ORDER:
31 January 2023
THE COURT ORDERS THAT:
1.The appellant wife be granted leave to appeal.
2.The appeal be dismissed.
3.The appellant wife pay the respondent husband’s costs of the appeal and the procedural hearing before the appeals judicial registrar on 17 October 2022 as agreed or assessed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newett & Newett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, HENDERSON & HARPER JJ:
INTRODUCTION
By Amended Notice of Appeal filed on 14 November 2022, the appellant wife, Ms Newett (“the wife”), appeals against orders made by the primary judge in a judgment delivered on 19 August 2022. The respondent husband, Mr Newett (“the husband”), resists the appeal.
These proceedings have an extensive history, characterised by a plethora of applications both at first instance and on appeal, primarily by the wife. By reason of the manner in which the wife argued her appeal, it is necessary to give some detail of this history.
The proceedings were originally commenced in the Federal Circuit Court of Australia, as it then was, now Division 2 of the Federal Circuit and Family Court of Australia (“Division 2”), on 1 March 2018. Interim parenting orders were made by judges of that Court for the children of the parties be placed in the care of the husband. As explained below, the primary judge, who was then a judge of Division 2, also made some interim orders in relation to the parties’ property dispute. The proceedings were transferred to the Family Court of Australia (as this Court was known, now Division 1) on 13 January 2020.
On 20 May 2021, Baumann J made final property orders awarding the husband 60 per cent, and the wife 40 per cent, of the property pool after the sale of a property at R Street, Suburb C (“the Suburb C property”), and splitting superannuation. The Suburb C property was sold, and by order of Baumann J on 20 October 2021, the net proceeds were paid into the Federal Court of Australia. The wife appealed the final property orders on some seventeen grounds, which included allegations of criminal conduct, failure to follow the legislative pathway, procedural unfairness, and bias. The wife’s appeal was dismissed on 17 May 2022: Newett & Newett (No 6) [2022] FedCFamC1A 70.
The following day, on 18 May 2022, the husband filed an Application in a Proceeding seeking enforcement of the final property orders made by Baumann J. In her Amended Response filed on 1 August 2022, the wife sought dismissal of the husband’s application or, alternatively, that the final property orders be stayed pending an application for special leave to appeal to the High Court of Australia from the judgment of this Court delivered on 17 May 2022. The wife’s application for special leave was dismissed by the High Court on 8 September 2022 on the ground that her proposed appeal had no prospect of success: Newett v Newett [2022] HCASL 135.
It also appears the wife has made application to the High Court in its original jurisdiction seeking prerogative or constitutional writs against Baumann J, and possibly some other judicial officers. The wife also applied for a stay of Baumann J’s orders pending determination of this application. The fate of this application in the High Court is not clear. The wife made reference to it in a document entitled “Reply to Respondent Summary of Argument” dated 5 December 2022 (“Reply”), but gave no information about its current status in the High Court.
Final parenting orders have also been made by Baumann J, by judgment delivered on 8 July 2022: Newett & Newett (No 2) [2022] FedCFamC1F 439. These orders confirmed that the husband should have the sole care of the children, with the wife to spend supervised time with them at a contact centre. This judgment is also the subject of appeal by the wife, however that appeal has not yet been determined.
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.
The wife filed a Request to attend by electronic communication on 1 December 2022. She had previously been granted this dispensation by the Full Court and at first instance, noting that she makes allegations of issues to do with personal safety and is under the belief that she is not permitted to travel to the State of Queensland. The husband consented and the wife was granted leave to appear by video link.
On 5 December 2022, the wife submitted a document entitled “Reply to Respondent Summary of Argument”, which totalled 40 pages. This was not filed as it was not a document permitted to be filed pursuant to the Rules, nor the procedural orders of 17 October 2022.
At the appeal on 7 December 2022, the wife sought, and was granted leave to rely on her 40 page Reply. She amended the last sentence at paragraph 101 of the document. The wife also made brief oral submissions in support of her grounds of appeal.
At the hearing of the appeal, the wife was not given leave to rely upon the voluminous Contended Appeal Book. However, she raised concerns that five specific affidavits, which she contended the primary judge should have considered, had been excluded from the Amended Appeal Book. We granted the wife leave to refer to those five affidavits (filed on 31 May 2022, 3 June 2021, 4 December 2019, and two on 14 November 2019 at 4.44 pm and 5.54 pm) as an addendum to the Amended Appeal Book. The purpose of doing so was to assist the Court to identify which affidavits the wife argued should have been included in evidence during the s 79A argument before the primary judge.
Two initial points about the competence and nature of the appeal should be made. First, the orders appealed from are properly characterised as interlocutory, both because they were made on applications ancillary to the principal causes between the parties and because, in their legal effect, they did not finally determine rights or obligations between parties on a principal cause: Re Luck (2003) 203 ALR 1 at [4]; Bienstein v Bienstein (2003) FLC 93-124 at [25]. Such orders include the refusal of a stay (Re Luck at [9]), and an order for summary dismissal of an application pursuant to s 79A (Ebner & Pappas (2014) FLC 93-619 (“Ebner & Pappas”) at [29]–[33]). Orders by way of enforcement for the release of funds held in court are also appropriately characterised as interlocutory. Such orders do not finally determine rights or obligations between parties on a principal cause between them, so as, for example, to create an issue estoppel or found a right of appeal: Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248; Santos v Delhi Petroleum Pty Ltd (2002) 225 LSJS 1 at [400]; Castillon v P&O Ports Ltd [2008] 2 Qd R 219 at [55]. Rather, as in this case, such an order enforces rights or entitlements already determined. As we understood the wife’s submissions in her Reply, she accepted the enforcement orders, at least, were interlocutory.
As the husband pointed out, s 28(3)(e)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides that leave to appeal is required from “a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 1) constituted by a single judge”. Regulation 4.02(1)(a) of the Federal Court and Federal Circuit Court and Family Court Regulations 2012 (Cth) is in the following terms:
Leave to appeal--prescribed judgments of the Federal Circuit and Family Court of Australia (Division 2)
(1) For the purposes of paragraphs 28(1)(b) and (3)(e) of the Federal Circuit and Family Court Act, the following judgments are prescribed:
(a) an interlocutory decree (other than a decree in relation to a child welfare matter);
The husband argued that reg 4.02 prescribes interlocutory judgments of single judges of Division 1 for the purposes of s 28(3)(e). The wife denied this, pointing to the heading of reg 4.02 which refers to prescribed judgments of Division 2. She contended that reg 4.02 does not apply because it is limited to Division 2 judgments. We disagree. Headings to a specific regulation are not part of the enacted regulations and are not to be used in construing its meaning: s 13(2)(d) of the Acts Interpretation Act1901 (Cth); Clarence & Crisp (2016) FLC 93-728 at [39]. Where the enacting words are clear and unambiguous, titles or headings must give way, and full effect must be given to the enactment: Silk Bros Pty Ltd v State Electricity Commission (Vic) (1943) 67 CLR 1 at 16; Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 618. The terms of s 28(3)(e) are clear. Section 28(3) of the FCFCOA Act deals only with Division 1 judgments, so the reference to s 28(3) in reg 4.02 would be meaningless if it was construed to refer to, or be limited to, Division 2 judgments. The heading cannot affect this conclusion. Accordingly, the wife requires leave to appeal.
The wife did not formally seek leave to appeal because she did not accept it was necessary. However, in her Reply she argued that if leave is required, such leave should be granted. The discretion to grant leave to appeal is unfettered, however, the Court will generally approach the matter by exploring whether a substantial injustice would arise if some reconsideration was not undertaken, assuming the decision under appeal to be wrong. As discussed below, the wife is herself convinced that a substantial injustice has been perpetrated. We accept that she was, as a self-represented litigant, understandably confused by the heading to reg 4.02. Since the merits of the proposed appeal are an important consideration in deciding whether to grant leave to appeal, consideration of the grounds of appeal and the submissions in support is unavoidable. As will be explained, the wife makes serious allegations of fraudulent conduct. In these circumstances, we are persuaded that she should be granted leave to appeal.
This leads to the second point. The orders appealed from were made in the exercise of discretion. Appellate interference with discretionary judgments may take place only in limited circumstances. The High Court of Australia made clear in House v The King (1936) 55 CLR 499 at 504–505 (Dixon, Evatt, and McTiernan JJ) that:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
For the reasons which follow, we are satisfied that the appeal should be dismissed. This conclusion is reached after careful consideration of the grounds of appeal and the wife’s submissions. They expose no appellable error by the primary judge.
Consequently, we observe in passing here that it is unnecessary to address in any detail a number of specific problems which arise on the face of the orders sought by the wife on appeal. For example, she seeks the setting aside of not only orders of the primary judge, but also procedural orders made on 16 June 2022 by Baumann J, as well as final property and parenting orders made by Baumann J. Other than noting these orders are plainly incompetent, further discussion is not required.
It is necessary to set out the wife’s grounds of appeal in full. However, they can be appropriately grouped as follows.
Ground 6: The primary judge erred at law by acting with bias by providing advantage and favour to the Applicant [husband], by dismissing the case without hearing and providing approximately $360,000 to him despite evidence of likely fraud affecting the primary proceedings.
Ground 9: The primary Judge demonstrated actual bias by making excuses for the Applicant in the breaking his own orders, and making excuses for Baumann [J and a Division 2 judge] and by attempting to change the meaning of their judgments.
Ground 10: The primary Judge demonstrated apprehended bias by making excuses for the Applicant in the breaking his own orders, and making excuses for Baumann [J and a Division 2 judge] and by attempting to change the meaning of their judgments
(As per the original)
These grounds of appeal, one way or another, raise arguments of bias impugning the decision of the primary judge. Grounds 6 and 9 assert actual bias, whilst Ground 10 alleges apprehended bias. It is necessary to deal with these grounds first, because, as the High Court observed in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117], assertions of judicial bias “strike at the validity and acceptability of the trial and its outcome.” If made out, the remedy for actual or apprehended bias must be a rehearing.
Making due allowance for the fact the wife was self-represented, her submissions lacked clarity and were somewhat confusing because she did not clearly distinguish between actual and apprehended bias. The principles in relation to each type of bias are well known but distinct.
In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] (“Jia Legeng”), the High Court made clear that to establish actual bias tainting the decision of the primary judge, the wife must show that his Honour was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.” A finding of bias 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]. It is rare that actual bias will be shown.
Apprehended bias requires consideration of “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Johnson v Johnson (2000) 201 CLR 488 at [11]. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8], the High Court set out the following statement of principle:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. 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. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
As can be seen, in summary, Grounds 6, 9, and 10 assert bias in the primary judge towards the husband by providing “advantage and favour” and “making excuses” for the husband by “breaking his own orders”, and bias against the wife by “making excuses” for two other judicial officers and changing the meaning of their judgments.
In framing the determination of the wife’s contentions concerning bias, it is apposite to repeat what was said by the Full Court in an earlier appeal by the wife: Newett & Newett (No 2) (2021) FLC 94-051:
32. On any view this matter has had an unfortunate and prolonged procedural history which is due, in large part, to the many procedural and interim applications filed by the parties, and in particular, by the mother. For her part, she views these applications as essential in attempting to redress what she sees as a great injustice. She is most aggrieved that these applications have not achieved the outcome she intended.
33.However, the present appeal only concerns the primary judge’s failure to recuse himself and is not a roving commission into what has occurred in the proceedings previously. Whilst we accept that it is implicit in the mother’s submission that the conduct of the primary judge, taken as a whole, indicates that he is biased or alternatively, gives rise to an apprehension that the matter may not be decided on its merits, the conduct and decisions of the Federal Circuit Court judges are not relevant to that issue.
It is apposite to repeat these observations because, before us, the wife’s perception of great injustice perpetrated upon her remained clearly apparent. Many of the wife’s arguments concerning bias again invited this Court to adopt a “roving commission” to investigate previous aspects of the proceedings. At numerous places in her Reply, the wife accused the husband and his solicitor of “Legal Systems Abuse” and of fraudulent and “criminally abusive” conduct during the proceedings. She claimed the husband, in collusion with his solicitor, an Independent Children’s Lawyer, and two “perjurious” witnesses, deliberately caused her trauma by successfully obtaining orders moving the parties’ children into the husband’s care. She claimed the Queensland Police fabricated records against her and failed to lay criminal charges against the husband for “his family violence and child abuse”.
However, the wife reserved many of her allegations for judicial officers. Several examples will suffice to illustrate her arguments in this regard. For example, at paragraph 6 of her Summary of Argument, the wife contended:
For example, [a Division 2 judge] committed fraud by making “claims about the mother that were not found on the evidence” per Appeal Judgement of Justice Tree. Hence everything he ever heard or decided in relation to the case must be considered biased, predetermined and fraudulent.
The references in this paragraph are not entirely clear, but we assume are a reference to the decision of a Division 2 judge which was set aside on appeal by Tree J sitting as the Full Court: Newett & Newett [2020] FamCAFC 76. If so, no arguable species of fraud, said to be perpetrated by the Division 2 judge, can possibly be discerned by the appellate decision of Tree J. Justice Tree at [47] found that the Division 2 judge fell into error because the Division 2 judge did not accurately identify the competing proposals of the parties. The decision of Tree J does not disclose any instance of the Division 2 judge “making claims about the mother that were not found on the evidence”. As Tree J pointed out several times, the Division 2 judge was very courteous to the appellant, but unfortunately misdirected himself about the nature of the applications and issues he should have decided. This is appellable error, not fraud.
At paragraph 7 of her Summary of Argument, the wife gave a further example of what she called fraud:
For example, Justice Baumann in Open Court confirmed he would abuse his power to conceal the criminal acts of the Husband in the Children’s Trial. Hence everything he ever heard or decided in relation to the case must be considered biased, predetermined and fraudulent.
(As per the original)
There is nothing in the material relied upon by the wife on appeal which supports this assertion. Having considered the wife’s material carefully, we are satisfied that the assertion is baseless.
In her Reply at paragraph 123, the wife contended that
… the Full Court, His Honour Justice Baumann and Her Honour Judge Spelleken were affected by fraud, including the fraud and perjury committed by expert witness [Dr A] in collusion with [Mr AQ] (ICL), and as such Judicial Officers made incorrect and improper judgments throughout all proceedings …
(Emphasis in original)
Again, we find these contentions to be baseless. But these examples demonstrate that it was thus the tenor of the wife’s arguments that the decisions of other judicial officers were tainted by fraud of various types, abuse of power, protection of child abusers, and conduct in breach of criminal codes which, so the argument went, impugned the whole proceedings, led to a conclusion of bias not only affecting other judicial officers but also the primary judge, and thereby engaged s 79A(1)(a) of the Act.
A fundamental purpose of the appellate process is the correction of error: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]. This imposes on the appellant an obligation to identify error; it is not for the appellate Court to hunt through the material at first instance: Bahonko v Sterjov (2008) 247 ALR 168 at [3]. We are satisfied that the wife so strongly convinced herself that powerful malign forces had combined to cause her trauma and do her wrong that she was able to discern fraud or other misconduct in objectively routine or innocuous material. This state of mind also had a tendency to distract her both from a rational and measured assessment and understanding of the material she relied upon and, most importantly, from a clear focus on the identification of appellable error in the judgment the subject of this appeal. An indiscriminate jeremiad impugning the husband, his lawyer, an expert, police, and almost every judge who has had some involvement in the proceedings is not a substitute for clarity in identifying error.
We turn then to the wife’s submissions concerning bias which, in addition to what has already been said, can be further summarised as follows.
Regarding the primary judge himself, the wife reached back to July 2018, highlighting the fact that his Honour refused to make orders for forensic accounting and spousal maintenance in her favour at that time. She claimed this was despite being aware that there was a “fraudulent Will” which featured in the original property proceedings, and therefore, by declining to make such orders the primary judge caused her trauma which left her unable to detect and investigate the fraud. The wife contended that this protracted the proceedings and ultimately “may have caused some level of bias or colouring of his view in relation to the fraud, possibly to protect himself from being held partially responsible for the protraction and cost of the case” (Wife’s Summary of Argument, paragraphs 78–79).
She alleges that the primary judge made excuses for other judicial officers in an attempt to change the meaning of their judgments so as to benefit the husband, and to discriminate against her. She further claimed that interim parenting orders placing the children in the care of the husband (“a brain-injured family violence perpetrator”) were made by another judge of Division 2 on the basis of a “fraudulent” psychiatric report. She submitted that the primary judge was aware of child sexual abuse allegations in the primary proceedings, and this imposed upon his Honour a “positive obligation to immediately protect the [Newett] children from harm under s273B.4 Criminal Code Act 1995 (Cth)” (Wife’s Summary of Argument, paragraph 77).
According to the wife, this was relevant to issues of bias “where [the primary judge] should have connected the conduct of Baumann J. to his failure to properly apply the Law in the [Newett] matter.” She submitted that this showed the primary judge to be “supportive of those of those who aid child sexual abuse perpetrators” (Wife’s Summary of Argument, paragraph 77).
The wife then suggested that Baumann J had assisted the husband in contravening State laws in relation to illegal surveillance. Finally, it was submitted that Baumann J’s failure to make findings of family violence in the parenting proceedings and to refer the matter to the Australian Federal Police, despite admissions of violence made by the husband, was further evidence of fraud. Thus, the wife claimed this “lend[s] itself to clear evidence of Actual Bias”, referring to Jia Legeng. This is an allegation of actual bias on the part of Baumann J, not the primary judge.
These arguments are entirely baseless, irrelevant, or exhibit some confusion of thought. As can be seen, the wife’s argument consistently made extreme allegations about the conduct and judgment of other judicial officers, apparently to impugn the judgment appealed from on the basis that the primary judge should have himself accepted the wife’s assertions and somehow challenged and censured earlier judgments. This was impossible. It was no part of the primary judge’s role to conduct an inquisition into, or interrogate other judgments of other judicial officers on the applications brought before him. The allegations against Baumann J, who was not the primary judge, are not only baseless, but also irrelevant to the question of whether some form of bias impugns the decision of the primary judge from which the present appeal is brought. The wife’s submissions consistently seemed to conflate the judgments of Baumann J with the judgment appealed from. Even on a most generous consideration, there is nothing in the material relied upon by the wife which lends any support to a suggestion that the primary judge attempted to change the meaning of other judgments, if such a thing were possible, or contravened his own orders, supported child abusers, or was under any obligation imposed by a criminal code in dealing with the applications before him. None of these allegations or submissions lead to any conclusion of bias, actual or apprehended.
Ground 6 raises matters additional to the issues of bias raised by Grounds 9 and 10. By this ground, the wife contends that actual bias in the primary judge was demonstrated by the manner in which he dealt with her claims of fraud in relation to her stay application and her application pursuant to s 79A, as well as the enforcement orders he made. As best we could understand it, in this regard, she argued that the resistance of the primary judge to accepting her claims of criminal and fraudulent conduct by the husband, his solicitor and other judges, particularly, and again, Baumann J, clearly supported this conclusion.
In her Reply, in support of these claims of bias, the wife argues that the primary judge focused on “extraneous and irrelevant matters” at [6]–[8] of the judgment by refusing her stay application, partly because he did not have the necessary evidentiary material before him, when in truth he did, and took account of an irrelevant matter at [17]–[42] of the judgment, being the psychiatric report of Dr A.
We reject these arguments. It is clear from the reasons of the primary judge at [8] that his Honour read and took account of the affidavits the wife specifically relied upon and referred to in her submissions before him. It is unexplained how the primary judge therefore focused on “extraneous and irrelevant matters”. At the date of the primary judgment, the wife’s special leave application to the High Court had not been determined. As pointed out earlier, it has now been dismissed. Consequently, even if the wife could identify some error in the primary judge’s refusal to grant her stay on the basis of the existence of the special leave application, her appeal in that regard is now futile. Otherwise, we agree the primary judge had no power to grant the stay sought by the wife, and also that she demonstrated no basis for a stay according to well settled principles, as set out in the primary judgment at [8].
The reasons of the primary judge at [17]–[34] disclose careful consideration of the wife’s affidavit material said to be in support of her application pursuant to s 79A. The wife herself raised the psychiatric report of Dr A in this context, as well as what occurred before the primary judge on 12 July 2018. The wife claimed the parenting outcome on 12 July 2018 was procured by “major fraud, collusion and conspiracy to defraud” (at [33]). The wife also relied upon such allegations as the basis of her stay application.
In refusing the stay, his Honour pointed out that the wife mischaracterised what happened on 18 July 2018. At [35]–[41] of his reasons, the primary judge addressed further allegations of fraudulent conduct by the husband and his solicitor and, quite correctly, concluded that the conduct relied upon by the wife was not fraudulent but commonplace in litigation, she mischaracterised the import of particular correspondence, and nothing pointed to by the wife could sustain her allegations of fraud. At [42], his Honour concluded:
The purpose of setting all of this out is to demonstrate that the wife’s case for a stay is built upon assertions and allegations by her in respect of matters that have been completely mischaracterised and taken out of context. There is no basis in the material upon which the wife relies to suppose that she will be able to properly establish at all that there has been a miscarriage of justice by reason of any of the matters that are set out in s 79A(1) of the Act. There is no basis, then, for the granting of the stay orders that the wife seeks in her amended response.
These conclusions were not only open to the primary judge but, with respect, were plainly correct. Contrary to the wife’s submission in her Reply, the existence of her s 79A application did not provide some basis for a stay, especially where the primary judge concluded that application had no reasonable prospect of success.
It is appropriate at this point to turn to the manner in which the primary judge dealt with the wife’s s 79A application. Although also relevant to other grounds of appeal, it is convenient to discuss this in detail here.
The reference in Ground 6 to providing the husband with “$360,000” appears to be a reference to the consequences of not staying the final property orders and making the enforcement orders. Although it was very unclear, release of funds into the husband’s solicitor’s trust account seems to be the basis for the wife alleging in her Reply that, in making this order, the primary judge was motivated by knowledge that the husband had “substantial debts” to his solicitors, had “act[ed] on dictation” by the husband’s solicitor “to appease the Principal of one of [City BN’s] top law firms” and “[t]he Wife’s needs and debts did not matter to [the primary judge] in 2018, but the Husband’s needs and debts mattered to [the primary judge] in 2018” (Wife’s Reply, paragraph 83), which were all matters demonstrating bias.
She concluded by referring to the summary dismissal of her s 79A application in making the following submission:
It is beneficial to the Husband for the [primary judge] to improperly drive the case to complete closure, without justice or equity being applied to the Wife, such that upon delivery of a possible Parenting Appeal judgment in favour of the Wife (Mother), the property has already been dispensed with by the Husband, and the Wife will then find it difficult to re-establish housing stability for the Children in the absence of those funds being applied to her by the Court per s79A(1)(c).
(Wife’s Reply, paragraph 83(f))
As can be seen, this submission appears to suggest actual bias in the primary judge because his decision to summarily dismiss her s 79A application denied her the possibility of accommodation with the children if her appeal against the final parenting orders succeeds, raising s 79A(1)(c).
But, before the primary judge, the wife relied upon s 79A(1)(a). She did not rely upon s 79A(1)(c). She is bound by the manner in which she ran her case before the primary judge: Metwally v University of Wollongong (1985) 60 ALR 68 at 71. Quite apart from this flaw in her argument, neither before the primary judge nor on appeal did she put forward any tenable reason to connect the outcome in her parenting appeal with her s 79A application, apart from bare assertion. Consequently, the primary judge addressed summary disposal in relation to s 79A(1)(a). This subparagraph required the wife to demonstrate that at the time of making the final property orders, there was a “miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance”.
Section 46(2) of the FCFCOA Act empowers the Court to grant summary disposal against a party who has no reasonable prospect of successfully prosecuting a proceeding or part of a proceeding. It is important to stress that to conclude a proceeding has no reasonable prospects of success, it is not necessary to find it is either hopeless or bound to fail (s 46(3)). Rules 10.09 and 10.11 of the Rules also grant a power to summarily dismiss proceedings with no reasonable “likelihood” of success.
The principles governing an exercise of discretion to summarily dismiss proceedings are well known. As can be seen, the legislation has introduced the concept of reasonableness in assessing the prospects of a claim. In Spencer v Commonwealth of Australia (2010) 241 CLR 118, the High Court construed the wording identical to s 46, used in s 31A of the Federal Court of Australia Act 1976 (Cth). At [22], French CJ and Gummow J said “the criterion of a ‘reasonable prospect’ of success has been understood in analogous statutory settings to mean a ‘real’ rather than ‘fanciful’ prospect”, and the expression ‘no reasonable prospects of success’ applies to a case in which the pleadings disclose “no reasonable cause of action and their deficiency is incurable.” Hayne, Crennan, Kiefel, and Bell JJ further held at [52]:
... effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. ... [I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the enquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
Consequently, the threshold for finding a proceeding has no reasonable prospect of success is different and less onerous than for other bases upon which to order summary dismissal. For example, the High Court has recently reiterated that concluding that an issue or cause is vexatious or frivolous requires the satisfaction of a higher threshold than finding it has no reasonable prospects of success: Citta Hobart Pty Ltd v Cawthorn (2022) 400 ALR 1 at [70]–[71].
This means that there may be cases in which although a proceeding is not hopeless or bound to fail, it does not have a reasonable prospect of success. Nonetheless, the power to summarily dismiss must always be exercised cautiously because it is a serious matter to deprive a person of access to courts of law: Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 at 255–256; Bigg v Suzi (1998) FLC 92-799 at 84,974–84,975; Pelerman v Pelerman (2000) FLC 93-037 at [46]; Korsky and Bright (No 2) (2007) FLC 93-352; Simmons & Simmons (2008) 40 Fam LR 520 at [51]; Friar & Friar [2011] FamCAFC 71 at [51]; Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27 at [27]; Ebner & Pappas at [57]; Olman & Teitzel [2020] FamCAFC 136 at [28]; Karlsson & Karlsson [2020] FamCAFC 207 at [38] and [41].
The question of whether a proceeding has no reasonable prospect of success necessitates the making of value judgments “in the absence of a full and complete factual matrix and full argument”, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 259 ALR 319 at [28]. However, the incompleteness of the factual matrix is accommodated in favour of the respondent to the summary dismissal application by taking their evidence “at its highest”. In Ritter & Ritter (2020) FLC 93-957 at [66], the Full Court explained:
The determination of [summary judgment] must only take into account the material on which the respondent seeks to make out the case, or as often expressed takes the respondent’s case “at its highest” unless the respondent’s version is inherently incredible or unreliable (see Munnings v Australian Government Solicitor (1994) 68 ALJR 169 at 171; Bigg & Suzi (1998) FLC 92-799; Webster v Lampard (1993) 177 CLR 598 at 608). …
Therefore, with regard to the wife’s s 79A application, the primary judge had to be satisfied there were reasonable prospects of her succeeding on the basis of her own evidence. As already described above, the primary judge had a vast array of factual material from the wife. In her Reply, the wife argued at paragraph 67 the “fraud was outlined in detail within the affidavits and annexures before [the primary judge]. He also failed to read the 93 Affidavits that would have led to detection of fraud”. But, it has been confirmed many times that a judge cannot be expected to “rummage through a large volume of documents on the off chance that the facts might emerge”: Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950 at [53]. The transcript of the proceedings before the primary judge does not disclose any oral submission by the wife to the effect that the primary judge should read 93 affidavits. At [8], the primary judge made clear that, while he clearly did not rummage through 93 affidavits, he considered the wife’s written argument and read the affidavits the wife specifically referred to and relied upon. These were her affidavit in support of the Amended Application in a Proceeding filed 8 July 2022, the affidavit in support of her Amended Response filed on 1 August 2022, and six affidavits identified in the wife’s written submissions filed on 3 August 2022. These all came to be included in the material considered in this appeal.
As already noted, the primary judge dealt with aspects of the factual material which the wife relied upon not only in relation to her stay application, but also her s 79A application at [14]–[42] of the judgment. His Honour found the wife mischaracterised factual matters or took them out of context. The primary judge returned to the prospects of the wife’s s 79A application at [55]–[60] of the judgment. At [56], the primary judge explained, correctly, the matters which the wife would need to establish in order to succeed on her s 79A application. His Honour then set out his conclusions as follows:
58. I have already canvassed the evidence relied upon by the wife in these proceedings in support of her s 79A application that has been filed by her in response to the orders of Baumann J. I am satisfied, and I find, that she has no reasonable likelihood of succeeding in establishing that there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, including a failure to disclose relevant information, the giving of false evidence or any other circumstance. Having regard to the content of her affidavit that she has filed and the content of her written submissions filed the day before the hearing before me, it is clear that the basis upon which she advances her s 79A application is confined to s 79A(1)(a). It is not suggested that any of the other subsections of s 79A(1) are, or could be, engaged.
59. The fraud about which she complains in her affidavit material goes to the parenting proceedings. Even if she could establish the relevant fraud (something about which I am comfortably satisfied she could not having regard to her evidence) it is not apparent at all how that fraud might have impacted upon the property adjustment proceedings and the outcome of them. To the extent that she points to the husband’s conduct in respect of the sale of the [Suburb C] property after the orders that I made for the stay of execution of [a Division 2 judge’s] orders, for the reasons I have already given, her case about that is entirely misconceived. Moreover, there is no attempt by her to demonstrate how there has been a miscarriage of justice by reason of that conduct when the final orders were made.
60. I am satisfied that there is no reasonable likelihood of the applicant wife succeeding on her s 79A application. The amended application in a proceeding filed on 8 July, 2022 has no reasonable likelihood of success and it should be dismissed on that basis. I so dismiss it.
The wife contended that the primary judge could not possibly have determined there was no reasonable likelihood of success without a contested trial, hearing cross-examination of the husband, and full argument concerning her applications. The fact that his Honour did not, she submits, lends itself to further evidence of actual bias, and that the primary judge’s mind was so committed to a conclusion so as to be incapable of alteration, citing Jia Legeng.
We do not accept this argument. It is clear that the primary judge took the wife’s evidence at its highest, in accordance with authority. He concluded that the wife could not establish any reasonable likelihood of success pursuant to s 79A on the basis of her own material. We agree. The wife, despite extensive allegations of fraud said to have been committed over many years by numerous persons, was unable to demonstrate that any of those allegations were plausible or how the alleged fraud related to the final property orders, for the purposes of s 79A, if indeed any fraud, took place. The fact that the extensive material which she placed before both the primary judge and this Court was devoid of a tenable factual basis for her allegations constituted an insuperable hurdle. Although the wife complained that she had not been afforded the opportunity to cross-examine the husband, no such application was made to the primary judge. In any event, where her evidence was taken at its highest, cross-examination of the husband was beside the point. We reject the wife’s arguments that the reasoning or conclusions of the primary judge concerning her s 79A application disclose any trace of bias.
There is no basis for a finding of either actual or apprehended bias. Grounds 6, 9, and 10 cannot succeed.
Ground 1: The primary judge erred in law by determining the significant contested matter of a Section 79A application without having heard argument in relation to it.
Ground 2: The primary judge was procedurally unfair and erred in law by making determination of a significant contested Section 79A matter based on assumption, having not heard any argument on the matter or testing any evidence in relation to the matter.
Ground 4: The primary judge failed to perform his statutory duty to hear argument in relation to the Response to an Application in a Proceeding filed on 22 July 2022 by the [husband].
(As per the original)
Grounds 1, 2, and 4 can be grouped together, as indeed the wife’s Summary of Argument did. By their terms, these grounds appear to raise a failure to hear and determine the wife’s s 79A application or hear argument relating to the wife’s response as aspects of a denial of procedural fairness. They can be disposed of briefly.
The wife refers to Grounds 1 to 4 at paragraphs 4–8 of her Summary of Argument, which did not illuminate these grounds at great length. Paragraph 9 submits that the primary judge “ignored the evidence provided to him in Affidavit and dismissed the matter with no hearing.” However, the evidence referred to by the wife related to the parenting proceedings, namely her contentions “that the Children were procured by the Husband by fraud.” This, she argues, led the husband to commit child support fraud, “demonstrating an incorrect, inequitable and unjust property allocation in favour of the Husband by Baumann J.” These paragraphs make no reference at all to the judgment of the primary judge.
We do not accept these arguments. As noted above, the wife relied upon s 79A(1)(a), suggesting there had been a miscarriage of justice on the basis of fraud. The primary judge stated clearly his conclusions, which are set out at [63] above.
As discussed at some length at [52]–[65] above, in concluding the wife had no reasonable prospect or likelihood of success, the primary judge acted in accordance with established authority, and came to a conclusion that was not only open, but correct.
The wife also argued that her Amended Response of 1 August 2022, which sought dismissal of the husband’s enforcement application, was dismissed without hearing, whilst the husband’s enforcement orders were granted without a hearing.
However, it was a necessary consequence of the summary dismissal of the wife’s s 79A application that enforcement should proceed. The primary judge addressed this at [61]:
I turn then to the husband’s application filed on 1 June, 2022. Having dismissed the s 79A application, there is no reason established in the evidence for enforcement of the orders made by Baumann J to be withheld. It might be said by the wife that notwithstanding the dismissal of her s 79A application it is necessary to withhold enforcement of those orders until such time as the High Court has dealt with her application for special leave and her application for the issue of constitutional writs, but for the reasons I have already given, I do not have details of the nature or extent of those applications, the basis upon which they are made, and if the basis upon which they are made is that set out in her affidavit to which I have already referred extensively, then my conclusion is that those proceedings have very little prospect, if any, of success.
In her Summary of Argument at paragraph 35, the wife makes reference to s 79A(1)(d), which enlivens the Court’s discretion to set aside property adjustment orders if satisfied:
… in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order.
On that basis, it was her position that the s 79A application should not have been heard until after determination of her parenting appeal, for which judgment is currently reserved. She contended that if her parenting appeal is successful, orders made by Baumann J which allocated the husband $130,000 extra for the care of the children “would then be impractical and would lead to hardship by the Appellant in her care of the children into the future” (Wife’s Summary of Argument, paragraph 33). Therefore, the wife asserted, there could be no way to determine her application under s 79A until after her parenting appeal had concluded.
We do not accept this argument. First, contrary to her submission on appeal, again, the wife did not raise s 79A(1)(d) before the primary judge, and is bound by the manner in which she ran her case. Secondly, and in any event, she failed to explain what circumstances of an exceptional nature had arisen since the final property orders were made. Thirdly, even if she succeeded in her parenting appeal, it was not explained or demonstrated in her evidence how any relevant hardship would exist.
Finally, in her oral submissions, the wife made arguments that the primary judge had failed to accord her procedural fairness by declining to ask her how the hearing should proceed, when the husband had been offered the opportunity to address the primary judge.
However, the transcript discloses that the wife was, in fact, given the opportunity to articulate how she envisaged the hearing proceeding:
HIS HONOUR: Okay. So what does your client say I should do today?
[SOLICITOR FOR THE HUSBAND]: Your Honour, we’re asking that your Honour – we say your Honour can deal with two matters and that is by way of hearing and that is the stay application and the application for the release of funds. So that matter – so effectively that second application can be dealt with and then in relation to the first matter we say that the security for costs and/or summary dismissal application can be dealt with and then obviously depending upon the outcome of that, the substantive 79A application could be dealt with after that.
HIS HONOUR: I see. All right. Thanks. [The wife]. What do you say should happen today?
[THE WIFE]: Well, I’ve actually submitted a written submission – six pages which cover my oral submissions for today.
(Transcript 3 August 2022, p.3 line 45–p.4 line 13)
A further exchange then ensued between the primary judge and the wife, who referred to her six pages of written submissions. There is no evidence to indicate the wife was not accorded procedural fairness.
The wife also contended that at the conclusion of the hearing, the primary judge failed to accord her the right of reply to the husband’s submissions on costs. Although the primary judge did not expressly ask the wife whether she wished to reply to the husband’s submissions, the following exchange occurred:
HIS HONOUR: Okay. All right. Well, I hear what you say, that your written submissions are – cover what you want to say in oral submissions. Is there anything else that you wish to say, Ma’am?
[THE WIFE]: No. Everything is written in that written submission with the exception of what you identified – or – correctly identified, the temporary stay of the proceedings brought by the father would be the appropriate course of action – you know – and that I should have written that in the application instead.
(Transcript 3 August 2022, p.7 lines 25–32)
[THE WIFE]: ..... and the other thing is that the security of costs, I still seek to dismiss that application.
HIS HONOUR: I see. You wish to make any submissions about that?
[THE WIFE]: Yes.
(Transcript 3 August 2022, p.7 line 45–p.8 line 3)
The wife proceeded to make submissions concerning the question of costs.
The primary judge then enquired whether the husband had any reply to the costs submission. The husband submitted:
[SOLICITOR FOR THE HUSBAND]: Only one matter, your Honour, in relation to that last matter raised by [the wife], that is, one of the applications we’re seeking is the release of those funds from court. On our calculations in accordance with the affidavit that has been filed in support of that application, that would result in [the wife] receiving somewhere in the vicinity of $200,000 in cash. That would resolve her issue in terms of being able to pay for legal advice, moving forward.
(Transcript 3 August 2022, p.8 lines 42–47)
However, the wife suggested that she was denied the opportunity to respond to submissions of the husband:
[THE WIFE]: And I have a reply for that.
…
HIS HONOUR: Ma’am, you’ve had your opportunity to - - -
[THE WIFE]: Yes.
HIS HONOUR: - - - make your submissions. I don’t intend to - - -
[THE WIFE]: I would like to reply - - -
HIS HONOUR: - - - hear you further. I’m not going to let you. I’ve concluded the - - -
[THE WIFE]: Okay. I thought I had the right to .....
HIS HONOUR: - - - hearing now. I will – well, you thought wrong. I will consider the matter - - -
[THE WIFE]: Okay. Thank you.
(Transcript 3 August 2022, p.9 lines 3–25)
The wife was given the ordinary opportunity to make her submissions about costs. There was no right to reply which the primary judge denied her.
Grounds 1, 2, and 4 identify no error and cannot succeed.
Ground 3: The primary judge failed to take into consideration material facts available on the evidence in relation to the section 79A application filed on 3 June 2021 and the court ordered Amended Application filed 8 July 2022 and the Amended Response Application filed on 1 August 2022 by the Respondent [Wife].
(As per the original)
According to her Summary of Argument at paragraph 10, under this ground the wife contends the primary judge failed to take into consideration “critical” evidence, being evidence that “the Children were procured…by fraud”. The wife failed to explain how this allegation, even if true, bore on any of the issues before the primary judge.
No error is identified and Ground 3 fails.
Ground 5: The primary judge made findings of fact not available on the evidence (fabricated findings of fact), including but not limited to statements in relation to the judgments by his Judicial Peers.
(As per the original)
This ground can be disposed of briefly. We have already mentioned the arguments of the wife that the primary judge “changed” the judgments of other judges. There is nothing in the material relied upon by the wife which could go any distance to support such a contention. Ground 5 fails.
Ground 7: The primary judge committed fraud (in complicity offences), pursuant to Division 11 Criminal Code Act 1995 (Cth) by the ordering of the release of funds to an alleged perpetrator of fraud, where the s79A Application in a Case filed on the 3 June 2021 (amended 8 July 2022) by the Respondent [wife] was not heard first in time.
(As per the original)
This ground is difficult to understand, and clearly repeats aspects of the matters relied upon by the wife concerning bias. Other than asserting the primary judge was under some obligation to hunt through 93 affidavits, which is wrong, as we explained earlier, the wife failed to elucidate how the primary judge committed fraud or how any criminal code could apply to a federal judicial officer in the discharge of his judicial functions. She clearly misconceives not only what happened before the primary judge but also the fundamental immunities of judicial officers and the application of criminal codes.
Ground 7 fails.
Ground 8: The primary judge improperly exercised discretion by excluding evidence that was before court and was relevant to, and stood as evidence of the matters of fraud and corrupt behaviour in the property settlement proceedings.
(As per the original)
The wife made submissions that both the husband’s legal team and the Court have acted to prevent the contents of her affidavits from being placed before the Court, due to their containing significant evidence of fraud. This, she put in her oral submissions, goes to the exclusion of evidence. However, she did not explain what evidence was improperly excluded and how such evidence could or would have affected the result below.
Ground 8 thus fails.
CONCLUSION
The wife should be granted leave to appeal and the appeal should be dismissed.
COSTS
The husband submitted that if the appeal was dismissed, costs ought to follow the event. He filed a costs schedule on 28 November 2022, pursuant to r 13.53, which provide for a total of $16,437.92.
The relevant principles with respect to costs are well settled, and have been discussed by the Full Court in Parke & The Estate of the Late A Parke (2016) FLC 93-748, followed in Atkins & Hunt (Costs) [2017] FamCAFC 131. The Court has a wide discretion, which is to be exercised judicially.
In proceedings to which the Act applies, the starting point is that each party shall bear his or her own costs: s 117(1). If, however, the Court is of the opinion that there are justifying circumstances, the Court may make such order as to costs and security for costs as the Court considers just: s 117(2).
When considering what, if any, order for costs should be made, the Court must have regard to the factors set out in s 117(2A). It is well settled that no one factor in s 117(2A) has priority, nor must more than one factor be satisfied; rather, any one factor may be sufficient: Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123 at [41]; Prantage & Prantage (Costs) [2014] FamCA 850 at [12].
The husband referred to the wife’s financial circumstances. Order 2(c) made by the primary judge on 19 August 2022 provided for the sum of $195,136.06 to be paid to the wife from funds currently held in the Federal Court of Australia.
The wife submitted that this sum had been applied directly to discharging debts accrued by the husband during the marriage. She argued further that she is on a disability pension and that she has no capacity to pay, particularly in circumstances where the husband and the legal system are said to have exacerbated her underlying vulnerabilities. However, she provided no evidence of this, simply contending she would be willing to pay $1 in costs.
All of the wife’s grounds of appeal have been dismissed. She has been wholly unsuccessful. Order 18 made on 17 October 2022 also reserved the costs of the procedural hearing before the appeals judicial registrar.
Accordingly, we believe it appropriate to make an order for costs in the husband’s favour for both the procedural hearing before the appeals judicial registrar on 17 October 2022, and for the substantive appeal.
We should also note that the wife seeks recovery of her costs. However, the wife was self-represented. She did not explain what circumstances would justify a costs order in her favour or what costs she was arguably entitled to (see for example Oscar & Traynor [2008] FamCAFC 158 at [73]–[92]). No costs will be made in the wife’s favour.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland, and Justices Henderson & Harper. Associate:
Dated: 31 January 2023
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