Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Newett & Newett (No 9) [2023] FedCFamC1A 23
Appeal from: Newett & Newett [2022] FedCFamC1F 439 Appeal number: NAA 152 of 2022 File number: BRC 2179 of 2018 Judgment of: ALDRIDGE, KARI & BRASCH JJ Date of judgment: 13 March 2023 Catchwords: FAMILY LAW – APPEAL – Allegations of corruption, fraud, judicial kidnapping and concealing crimes – Bias and discrimination – Ultra vires – Discretion – Errors of law – s 237B.4 of the Criminal Code Act 1995 (Cth) and application to judicial officers – Suppression of evidence – Fabricated findings – No error established – Appeal dismissed – Appellant to pay first respondent’s costs in a
fixed sum.Legislation: Criminal Code Act1995 (Cth) ss 273B.4, 273B.4(1)(b)
Evidence Act 1995 (Cth) ss 50,140
Family Law Act 1975 (Cth) ss 4AB, 42, 60B, 60CC, 69ZN(7), 69ZX(3)(b), 93A, 102NA, 117(2A)(e)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
CDJ v VAJ(1998) 197 CLR 172; [1998] HCA 67
D & D (Costs) No 2 (2010) FLC 93-435; [2010] FamCAFC 64
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Gronow v Gronow(1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Isles& Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Moose & Moose (2008) FLC 93-375; [2007] FamCA 714
Newett & Newett (No 6) [2022] FedCFamC1A 70
Newett & Newett (No 7) [2022] FedCFamC1A 139
Newett & Newett and Anor (No. 5) [2020] FamCA 1023
Newett & Newett [2019] FCCA 619
Norbis v Norbis(1986) 161 CLR 513; [1986] HCA 17
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Number of paragraphs: 186 Date of hearing: 29 September 2022 Place: Brisbane, delivered in Sydney The Appellant: Self-represented litigant Counsel for the First Respondent: Mr McGregor Solicitor for the First Respondent: Damien Greer Lawyers The Second Respondent: Self-represented litigant Counsel for the Independent Children's Lawyer: Mr Taylor 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
Appellant
AND: MR NEWETT
First Respondent
MS ADLAM
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALDRIDGE, KARI & BRASCH JJ
DATE OF ORDER:
13 march 2023
THE COURT ORDERS THAT:
1.The appellant is granted leave to rely on:
(a)The Amended Summary of Argument filed 26 September 2022, which the Court accepts in lieu of oral submissions;
(b)the Addendum to Submission and Critique sent to the Court on 27 September 2022;
(c)the List of Evidence sent to the Court on 26 September 2022 and Contended Appeal Book sent to the Court on 27 September 2022, but only to the extent that the List identifies evidence in the Contended Appeal Book and will be subject…
Keep reading for free
Create a free CaseChat account to read Newett & Newett (No 9) 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2023] FedCFamC1A 23
- Decision Date
CaseChat Overview and Summary
In the matter of Newett & Newett (No 9), the appellant, Ms Newett, sought to appeal the orders made by the primary judge on 8 July 2022, which included changing the residence of their children to the first respondent, Mr Newett, and imposing restrictions on the appellant’s contact with them. Ms Newett contended that the primary judge had erred in various ways, including by excluding certain evidence and making findings that were not supported by the evidence. The appeal raised several legal issues, including whether the primary judge had acted without integrity, whether he had erred in his exercise of discretion, and whether he had failed to make findings that the appellant had urged him to make.
The court rejected the appellant’s contention that the primary judge had acted without integrity, finding that he had not fabricated evidence or findings. The court also rejected the appellant’s contention that the primary judge had erred in his exercise of discretion, finding that the findings he had made were open on the evidence and that his failure to make certain findings was not an error. The court found that the primary judge had not failed to make findings that the appellant had urged him to make, and that the appellant had not demonstrated that the primary judge’s failure to make those findings had resulted in a miscarriage of justice.
The court dismissed the appeal, finding that the primary judge’s orders were correct and that there was no merit in the grounds of appeal. The court did not make any orders in relation to the appellant’s requests for various reliefs, including the return of the children to her care and the imposition of restrictions on the first respondent’s contact with them. The court also did not make any orders in relation to the appellant’s requests for declaratory findings of fact, child support, or costs. The appeal was dismissed with costs.
The court rejected the appellant’s contention that the primary judge had acted without integrity, finding that he had not fabricated evidence or findings. The court also rejected the appellant’s contention that the primary judge had erred in his exercise of discretion, finding that the findings he had made were open on the evidence and that his failure to make certain findings was not an error. The court found that the primary judge had not failed to make findings that the appellant had urged him to make, and that the appellant had not demonstrated that the primary judge’s failure to make those findings had resulted in a miscarriage of justice.
The court dismissed the appeal, finding that the primary judge’s orders were correct and that there was no merit in the grounds of appeal. The court did not make any orders in relation to the appellant’s requests for various reliefs, including the return of the children to her care and the imposition of restrictions on the first respondent’s contact with them. The court also did not make any orders in relation to the appellant’s requests for declaratory findings of fact, child support, or costs. The appeal was dismissed with costs.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
If the appeal is upheld, the appellant sought the following orders:(1)Set Aside all Orders of [the primary judge] made 8 July 2022;(2)Make Replacement Orders pursuant to House v King case authority;(3)Immediate return of the Children (and their personal possessions) to Live with [the appellant];(4)Sole Parental Responsibility of the Children to be shared between [the appellant] and [the second respondent];(5)Strict No Contact Orders against [the first respondent] for protection of [the appellant] and Children;(6)Strict Safety Provisions against [the first respondent] for protection of [the appellant] and Children;(7)Permission to Relocate to Private Location;(8)Permission to Change Name of Children;(9)Permission to procure Passports without permission of [the first respondent];(10)Referral of [the first respondent], [the primary judge] and other Court Officers (including both ICL’s in the case, and [the first respondent’s lawyers]) to the Australian Federal Police for criminal acts involving breach of s273B.4 Criminal Code Act 1995 (Cth) and other criminal acts of collusion / corruption;(11)Detailed declaratory findings of fact to be made on the available evidence;(12)Express Orders for substantial Child Support by [the first respondent] until the Children turn 18, and repayment of all Child Support provided to [the first respondent] by [the appellant];(13)Cost Certificate and Repayment of all Legal and Ancillary Expenses incurred throughout BRC2179/2018 to [the appellant] and [the second respondent] Only;(14)That the matter is not remitted for re-Trial (protecting [the appellant] and Children from Legal Abuse);(15)Any further Court Attendance is to be by Electronic Communication for the Safety of [the appellant] and Children; and(16)Apply Vexatious Litigant Order against [the first respondent] pursuant to s102QB Family Law Act.(Appellant’s Amended Notice of Appeal filed 26 August 2022, p.5) (As per the original)BACKGROUND The first respondent, Mr Newett, was born in 1975. The appellant, Ms Newett, was born in 1977. In 2003 the parents commenced a relationship, and commenced cohabitation in mid-2005. In 2008 the parties married. In 2018 the parties separated on a final basis. Interim parenting orders of 6 March 2019 immediately changed the residence of the children from the appellant to the first respondent, with the children to have supervised time with the appellant (Newett & Newett [2019] FCCA 619). Thereafter, the matter has a long history of litigation, which is well and fairly summarised in Newett & Newett (No 6) [2022] FedCFamC1A 70 at [7]–[28]. On 8 June 2020, the primary judge made orders pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”), which prevented each party from personally cross-examining the other. The first respondent has been legally represented throughout these proceedings, but the s 102NA ban has caused difficulties for the appellant. She was granted aid pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme to enable her to be represented. For whatever reason, three different sets of lawyers have been appointed for the appellant, but each has filed notices of ceasing to act.
Evidence
Evidence Before The Court
These grounds fail. Suppression of evidence or fabricating findings ·Ground 4: Suppression and Exclusion of Child-related Evidence and Medical Evidence resulting in a miscarriage of justice·Ground 6: Fabrication of Medical Definition for “Emotional and Psychological Abuse” inconsistent with the World Health Organisation definitions and Child Safety expert definitions resulting in fabricated findings of fact and miscarriage of justice·Ground 29: Fabricating findings of fact against [the appellant] (resulting in defamatory findings not available to be made on the evidence)·Ground 30: Fabricating findings of fact against the Second Respondent (resulting in defamatory findings not available to be made on the evidence)·Ground 31: Fabricating findings of fact in favour of [the first respondent] (resulting in positive findings not available to be made on the evidence)·Ground 36: Failure to afford procedural fairness to [the appellant] to tender her Trial Bundle, after allowing the ICL to admit his Tender bundle on the Friday before Trial in surprise, where [the appellant’s] Tender Bundle was in response to that of the ICL, and the Parties had been notified in advance.·Ground 40: Apprehended bias in applying the use of evidence not adduced at Trial for the benefit of [the first respondent] while refusing same for [the appellant] ·Ground 41: Fabricating Findings of Fact that [the appellant] is unwilling to facilitate a Relationship with [the first respondent], as obvious on the Orders Sought by [the appellant], in comparison to the sought by [the first respondent] We have already considered and rejected Ground 4 in so far as it concerns the appellant’s allegations of sexual abuse. As for the medical evidence, the appellant cross-examined the single expert psychiatrist trying to draw a link between the first respondent’s medical issues and his allegedly controlling and coercive behaviour. She was unable to join the dots with the expert, and unable to persuade the primary judge. The evidence was not suppressed – it was simply not able to be adduced by the appellant. That part of Ground 4 which relates to medical evidence being supressed also fails. We have also rejected all notions that the primary judge acted without integrity. The same applies to the grounds here which contend the primary judge fabricated findings. Under the theme of “Discretion” we have determined that the findings made by the primary judge (contrary to the appellant’s views) and his failure to make findings (urged by the appellant) were all open on the evidence. We will not engage with grounds based on defamation and abuse. Ground 6 is supported in the Amended Summary of Argument at paragraph 199 and following. It includes the proposition that:199.…“Emotional Harm”. The AIFS and WHO definition of emotional abuse does not include this as a definition. His Honour fabricated findings using his unqualified opinion to define a term, when he is not a medical expert. (Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 199)
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.