Wife granted leave to appeal family court decision based on serious allegations of fraud
Newett & Newett (No 8) [2023] FedCFamC1A 7 (31 January 2023)
The wife has made several appeals and sought writs against judges in relation to property and parenting orders. She has been granted leave to file a Contended Appeal Book, but was only permitted to refer to five specific affidavits at the appeal. The court has granted the wife leave to appeal based on serious allegations of fraudulent conduct, but appellate interference with discretionary judgments is limited.
Facts:
The wife has appealed against orders made by the primary judge in a judgment delivered on 19 August 2022. This is not the first appeal related to the proceedings; the wife has appealed the final property orders made by Baumann J on 20 May 2021 and the final parenting orders made by Baumann J on 8 July 2022. The wife has also sought prerogative or constitutional writs against Baumann J in the High Court, and has made an application to vary or set aside the final property orders pursuant to s 79A of the Family Law Act 1975Cth). The husband has resisted the wife's appeal and sought summary dismissal of her application.
The wife was granted leave to file a Contended Appeal Book, which contained every document filed, a transcript of every hearing, exhibits tendered, emails, and other material relating to all the primary proceedings. The wife was also granted leave to appear by video link due to concerns about personal safety. At the appeal, the wife was not given leave to rely upon the voluminous Contended Appeal Book, but was granted leave to refer to five specific affidavits.
The husband argued that a specific regulation prescribes interlocutory judgments of single judges of Division 1 for the purposes of a certain section, but the wife denied this. The court granted the wife leave to appeal and will consider the merits of the proposed appeal, as there are serious allegations of fraudulent conduct. The orders appealed from were made in the exercise of discretion, and appellate interference with discretionary judgments may take place only in limited circumstances.
Issue:
The wife was granted leave to file a Contended Appeal Book, but was not allowed to rely on it during the appeal. The husband argued that a specific regulation prohibits the use of interlocutory judgments of single judges of Division 1 for the purposes of a certain section, but the wife denied this, and the court granted her leave to appeal.
Applicable law:
Analysis:
The wife is alleging bias on the part of the primary judge due to perceived injustices in the proceedings leading up to the appeal. However, the court notes that the previous conduct and decisions of Federal Circuit Court judges are not relevant to the issue of bias. The wife makes many allegations of fraud and abusive conduct by the husband, his solicitor, and other parties involved in the case, including judicial officers. The court finds that the wife's assertions of fraud are baseless and unsupported by the evidence presented.
The wife made several allegations against other judicial officers, including that one judge had made orders based on a "fraudulent" psychiatric report and another judge had failed to make findings of family violence in the parenting proceedings. However, the court finds that these arguments are baseless, irrelevant, or exhibit some confusion of thought. The allegations against other judges are not relevant to the question of whether some form of bias impugns the decision of the primary judge from which the present appeal is brought.
Conclusion:
The court has ruled that the appellant wife be granted leave to appeal, however the appeal has been dismissed. The appellant wife is responsible for the costs of the appeal and the procedural hearing before the appeals judicial registrar on 17 October 2022.
Case: Newett & Newett (No 8) [2023] FedCFamC1A 7
Judgment of: McClelland DCJ, HENDERSON & HARPER JJ
Counsels:
