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
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- Case
- [2023] FedCFamC1A 7
- Decision Date
CaseChat Overview and Summary
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.
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