Aslett & Coren
[2025] FedCFamC1A 92
•10 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Aslett & Coren [2025] FedCFamC1A 92
Appeal from: Coren & Aslett (No 3) [2024] FedCFamC1F 735 Appeal number: NAA 385 of 2024 File number: BRC 1530 of 2022 Judgment of: MCCLELLAND DCJ, JARRETT & STRUM JJ Date of judgment: 10 June 2025 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals orders for the child to live with the mother and permitting the mother to relocate with the child if the mother’s visa is not approved – Where the mother was granted sole decision-making responsibility for major long-term issues for the child – Where there was an order pursuant to s 102NA of the Family Law Act 1975 (Cth) – Where the father did not obtain representation during the trial – Where father alleges numerous grounds of appeal – Where the grounds of appeal are either incomprehensible and/or incompetent or do not establish appellable error – Appellant wholly unsuccessful – Appeal dismissed at the hearing – Costs order made against appellant. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 60CG, 60I, 102NA, 117
Family Law Amendment Act 2023 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 8.14, 13.02, 13.10, 13.23
Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.04
Cases cited: Aitken v Aitken (2023) 66 Fam LR 314; [2023] FedCFamC1A 69
Australia Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Bachman & Self [2023] FedCFamC1A 50
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Bartram & Marsden [2023] FedCFamC1A 207
Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62
HJ Heinz Co Australia Ltd v Turner [1998] 4 VR 872
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kaba & Zemin (No 2) [2024] FedCFamC1A 169
Kabir & Kabir [2023] FedCFamC1A 45
Keighley & Keighley [2023] FedCFamC1A 146
Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322
Pickford & Pickford (2024) FLC 94-230; [2024] FedCFamC1A 249
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Scrymegeour & Scrymegeour (2014) FLC 93-600; [2014] FamCAFC 130
Sieger & Department of Communities and Justice [2020] FamCAFC 172
Sofia & Treacy (No 2) [2025] FedCFamC1A 10
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Victoria v Bacon [1998] 4 VR 269
Watapaldeniya v Transport Accident Commission [2022] VSCA 50
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; [1996] HCA 18
Aldisert, Ruggero, Opinion Writing (West Publishing, 1990)
Number of paragraphs: 79 Date of hearing: 30 April 2025 Place: Heard in Brisbane, delivered in Sydney The Appellant: Litigant in person Counsel for the Respondent: Ms Varshney Solicitor for the Respondent: Women’s Legal Service Queensland Counsel for the Independent Children’s Lawyer: Mr McGregor Solicitor for the Independent Children’s Lawyer: ELR Law ORDERS
NAA 385 of 2024
BRC 1530 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ASLETT
Appellant
AND: MS COREN
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, JARRETT & STRUM JJ
DATE OF ORDER:
30 APRIL 2025
ON 30 APRIL 2025, THE COURT ORDERED THAT:
1.The appeal is dismissed.
2.Within 28 days of the date of these orders, the appellant is to pay the costs of the respondent in the sum of $7,808.90.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Aslett & Coren has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, JARRETT & STRUM JJ:
INTRODUCTION
This is an appeal from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 11 December 2024 (“Orders”), giving effect to reasons for judgment delivered on 27 November 2024 (“Reasons”).
At the conclusion of the appeal hearing, we made orders dismissing the appeal and ordering the appellant father to pay the respondent mother’s costs fixed in the sum of $7,808.90. These are our reasons for those orders.
Section 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) relevantly provides, in effect, that if, in dismissing an appeal, the Full Court is of the opinion that the appeal does not raise any question of general principle, it may give its decision in short form. For the reasons explained below, this appeal does not raise any such question. Most of the grounds of appeal are incompetent and those that are not, or arguably are not, do not establish any appellable error. Accordingly, our reasons are in short form, addressing only those issues which we consider require comment. See Bartram & Marsden [2023] FedCFamC1A 207 at [18] and Sofia & Treacy (No 2) [2025] FedCFamC1A 10 at [14]).
The Orders the subject of the appeal relate to the child of the parents’ relationship, X (“child”), born in Australia in early 2021, who was nearly four at the time the Orders were made. The child is an Australian citizen but is also eligible for citizenship in Country C.
The Orders provide, in summary, for the respondent to have sole decision-making responsibility for major long-term issues (upon prior notice to the appellant); for the child to live with her and, if her appeal against the refusal of a protection visa enabling her to remain in Australia is dismissed, for her to be at liberty to remove the child from the Commonwealth of Australia to Country C; and for the child to spend time with the appellant in Australia or Country C.
The appellant was born in Australia and the respondent was born in Country C. The respondent came to Australia in 2019 on a student visa. They met in or about March 2020. They commenced cohabitation in or about June 2020. By May 2021, they had separated under the one roof, and they remained living under the one roof until August 2021. On any view, whether at the time of separation under the one roof or physically, the child was then only a few months old. The proceedings at first instance were instituted in early 2022.
In late 2023, the respondent applied for a protection visa. In September 2024, the Delegate of the Minister for Home Affairs rejected her application, against which she has appealed.
THE FIRST INSTANCE JUDGMENT
The trial before the primary judge took place over four days in late October 2024. The respondent and the Independent Children’s Lawyer were represented by counsel. The appellant was self-represented, notwithstanding that an order pursuant to s 102NA of the Family Law Act 1975 (Cth) (“Act”) was made on 5 February 2024 which provided, inter alia, that neither party would be permitted to personally cross-examine the other. However, that order enabled him to apply for legal representation at trial pursuant to the Commonwealth Family Violence and Cross-examination of Parties Scheme and a notation to the orders made that day records that he intended to do so. He nevertheless appeared at trial without legal representation. Accordingly, he was statutorily proscribed from cross-examining the respondent and her evidence was unchallenged. That posed an insurmountable difficulty for him at trial and, consequently, on appeal.
The primary judge recorded at [7] of his Reasons that, during the course of the trial, both the appellant and the respondent amended their position in relation to the parenting orders they sought.
The respondent sought orders for “sole parental responsibility”; that the child live with her; that, if required to return to Country C, she have leave to relocate the child with her; and that the child spend time with the appellant, whether in Australia or in Country C, initially supervised and progressing to unsupervised time (respondent’s proposed final orders, Exhibit 12 at first instance).
The appellant sought an increase in his time with the child, initially to be supervised at a contact centre twice per week, graduating to an equal time arrangement, week-about, from September 2026 (appellant’s proposed final orders, Exhibit 3 at first instance).
As the trial took place after 6 May 2024, the case was required to be, and was, determined in accordance with the provisions of Pt VII of the Act, as amended by the Family Law Amendment Act 2023 (Cth), which amendments commenced operation on that date.
At [14]–[21] of the Reasons, the primary judge referred to s 60B of the Act, which specifies the objects of Pt VII of the Act; to s 60CA of the Act, which provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration; to s 60CC of the Act, which specifies the matters the Court must consider in determining what is in a child’s best interests; and to s 60CG of the Act, which provides that:
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
The primary judge said at [22] that he had considered all of the relevant provisions of Pt VII of the Act and that “[t]he fact that I may not specifically refer to any particular section does not mean I have not considered that section” (see also at [67] of the Reasons). Notwithstanding the reduction of the appellant’s grounds and sub-grounds of appeal in his amended Notice of Appeal to 25 grounds (which we consider below), it was not contended by him that his Honour did not follow the required statutory framework. Nevertheless, we consider that it would have been far preferrable for his Honour to have made, and that trial judges should make, the implicit explicit.
The primary judge said at [23] that he had “taken into account the evidence of allegations of family violence”. The term “family violence” is defined in s 4AB(1) of the Act to mean “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful” (emphasis in original). Section 4AB(2) provides non-exclusive examples of behaviour that may constitute family violence. Section 4AB(3) provides that “a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence” (emphasis in original). Section 4AB(4) provides non-exclusive examples of situations that may constitute a child being exposed to family violence. The issue of what constitutes family violence for the purposes of the Act was considered by the Full Court in Pickford & Pickford (2024) FLC 94-230, in separate judgments by McClelland DCJ, Aldridge and Carew JJ, and Austin and Williams JJ. However, the meaning of family violence, as statutorily defined or otherwise, was not in issue before the primary judge or on appeal.
In relation to the respondent’s allegations of family violence, the primary judge observed at [23] that there was “a good deal of animosity between the parents”. His Honour said that he was not satisfied, to the requisite standard of proof, of certain of the respondent’s allegations. However, his Honour was so satisfied in relation to other allegations of family violence, namely, “behaviour by a person that … controls a member of the person’s family” (s 4AB(1) of the Act), comprised of various instances of the father withholding the child from the mother (at [24]–[25]).
His Honour identified and considered those instances at [25]–[39] of the Reasons.
In relation to one instance of over-holding, across approximately nine days in early 2022, shortly prior to the child’s first birthday, the primary judge said:
30… In my view the father did not have a sufficient reason to withhold the child. There is no evidence to suggest that the mother was not able to care for the child at that point in time. There is no evidence to suggest that the mother could not afford food. There is no evidence that the mother did not have appropriate accommodation for herself and the child. .... Unfortunately, the conclusion I have reached is that the father has been constantly on the look out for reasons to criticise the mother.
31Withholding the 12 month old child from the mother – in circumstances where the mother was one of the child’s primary attachment figures – shows a lack of understanding on the part of the father as to the developmental needs of the child.
At [36]–[38], the primary judge considered another instance of over-holding by the appellant, across approximately 18 days in early 2024, and concluded at [39] that “there was no proper justification for the father holding the child over”.
The primary judge continued:
40The Family Report Writer, … was of the opinion that the father’s conduct in withholding the child shows that the father lacked insight. It shows that the father lacked insight into the developmental needs of the child. It showed that the father lacked insight into the harm that can be done to the child by keeping the child away from one of her primary attachment figures.
41The father’s lack of insight can also be seen in relation to another aspect of the evidence. After the making of interim Orders of 30 January 2024 by Senior Judicial Registrar Best – the child’s time with the father was to be supervised. The father decided not to take up the opportunity of seeing the child at the contact centre. By the Order itself (30 January 2024) the father could have seen the child once a week supervised at the contact centre.
42The father was asked during the course of the trial about his reasons why he did not attend at the contact centre. The final hearing in this case commenced on Friday 25 October 2024. The father had not seen the child since 30 January 2024. That is, for a period of nine months the father chose not to see the child at the contact centre. This meant that the father had not seen the child for most of 2024. The father gave the following reasons, -
1.The father complained that every time Senior Judicial Registrar Best made an Order – the father felt that he had ended up worse off.
2.Secondly, the father said that the mother had made many accusations against him.
3.Thirdly, the father said that he was worried about what the contact centre would say about any visits between himself and the child at the contact centre.
4.Finally, the father said that he has had terrible experiences at contact centres in the past.
43I came to the conclusion the father’s decision not to spend time with the child at the contact centre during 2024 was not a child focussed decision. The decision had more to do with the father’s own needs, wants and perceptions. Again, this shows a lack of insight on the part of the father. By failing to spend time with the child during 2024 (after 30 January) the father has, once again, failed to appreciate the developmental needs of the child. The father has, in the past, been one of the two significant adults in the child’s life. There is evidence from [the family report writer] (which I accept) to the effect that both parents were, effectively, primary attachment figures for the child. For the father then to deprive the child of time with him during 2024 was a decision that could potentially cause emotional harm to the child.
44In relation to the father withholding the child (on the occasions outlined earlier in these Reasons for Judgment) and in relation to the father’s decision not to spend any time with the child at the contact centre during 2024 – each of these decisions by the father shows that the father lacks insight. Each of these decisions by the father shows that the father is not child focussed.
45In relation to both the withholding of the child and the failure by the father to see the child at the contact centre during 2024 – I accept the evidence of the Family Report Writer to the effect that, because such conduct can be construed as an attempt by the father to control the situation and because such conduct had the potential to cause the child emotional harm and because of the father’s history of criticising the mother – for those reasons that type of conduct by the father can be seen to be a form of family violence. Note section 4AB(a) [sic] of the Act. The father’s failure to spend time with the child at the contact centre during 2024 was not, I find, a step taken by the father with the intention of causing harm to the child. This is where the difficulty comes in for the father. The harm to the child was caused by the father’s lack of insight. At the very least I think it is fair to say that the father was reckless in his decision. Reckless in the sense that he failed to adequately take into account the emotional development and the emotional wellbeing of the child – when he decided not to spend time with the child at the contact centre during 2024.
(Footnotes omitted)
The primary judge concluded at [46] that the appellant’s conduct could “be characterised as creating a risk of harm to the child – in particular to the emotional wellbeing of the child”, namely, by reason of his “decision to withhold the child (on many occasions) and … not to spend time with the child at the contact centre during 2024”.
His Honour considered at [46]–[58] what orders, if any, could be made to minimise the risk of harm to the child. This was within the context of the appellant’s amended application, by the conclusion of the trial, whereby he only sought a graduated increase in his time with the child to equal time, rather than that the child live primarily with him. His Honour recorded that it was common ground between the parties that the appellant’s time with the child be supervised initially: the appellant proposed one month; the respondent proposed six months; and the Independent Children’s Lawyer proposed three months, which proposal was ultimately accepted by the primary judge, whose reasons therefor are set out at [47].
His Honour recorded (at [55]) the opinion of the family report writer that “this was not an appropriate case for an equal time order” and that “[t]he lack of meaningful communication between the parents was one of the primary reasons”.
At [56], his Honour said that he accepted this evidence and continued:
… I do not consider that this is an appropriate case for an equal time order. For an equal time order to work successfully – the parents would have to be able to communicate in a civil and meaningful way. These parents have not been able to demonstrate an ability to do this in the past. In addition, the father’s lack of insight and lack of child focus are also matters that militate against the making of an equal time order. It will be in the best interests of the child for the father’s time to be limited to alternate weekends. There should also be an order for half school holidays. This seems to me to be within the general scope of the opinions proffered by [the family report writer]. An order for half school holidays is also sought by both of the parents and the Independent Children’s Lawyer.
At [58], the primary judge concluded that a progression from supervised time to daytime contact and then to alternate weekend time would maintain stability for the child, the need for which was highlighted by the evidence of the family report writer.
Albeit referring to old nomenclature, namely, “sole parental responsibility”, the primary judge said at [57]:
This is a case where the mother, who will be the primary carer, will also have sole parental responsibility. The father’s lack of insight (as outlined earlier); the father’s criticism of the mother; the father’s attempts to control the living arrangements for the child; and the poor level of communication between the parents – all of these findings lead me to conclude that in the best interests of the child, the mother must have sole parental responsibility.
The primary judge then considered what orders would be appropriate in the event the respondent were required to leave Australia and her appeal against the refusal of a protection visa enabling her to remain in Australia being dismissed. Given the manner in which the case was conducted and the evidence at trial, his Honour unsurprisingly said at [60]:
The overwhelming weight of the evidence leads me to conclude, that, in the event that the mother must leave Australia – then the best interests of the child will be served if the child travels with the mother to live in [Country C]. …
The primary judge said that he was well aware that there was evidence that the child had a good and close relationship with both parents (at [60]), which his Honour had earlier said he accepted (at [48]) but said that, in the circumstances, there was “really no alternative” (at [61]). We consider that was manifestly so. His Honour continued:
… The inevitable outcome, in the event that the mother is forced to leave Australia, will be that the child will accompany the mother to live in [Country C]. This is also the view of the family report writer.
His Honour said at [62] that he was –
… encouraged by the fact that, in that eventuality, the father has indicated to the Court that he will take steps to move to live either in South America (he suggested [Country E]) or in North America (he suggested the United States of America). At least he would be in a similar time zone to the child and there would be the possibility of more frequent contact.
However, his Honour recorded at [63] that the appellant “had not given any indication during the course of the trial that he was planning on moving to live in [Country C]”, as opposed more generally to South America or North America.
At [68], the primary judge said that he would “direct that the Independent Children’s Lawyer forward to the Court a draft order to reflect the Reasons for Judgment” and his Honour ordered accordingly.
In Aitken v Aitken (2023) 66 Fam LR 314 at [32], the Full Court referred to Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 11, where the High Court of Australia described the function of Commonwealth Judicial Power in the following terms:
… The function of the federal judicial branch is the quelling of justiciable controversies, whether between citizens (individual or corporate), between citizens and executive government (in civil and criminal matters) and between the various polities in the federation (21). This is discharged by ascertainment of facts, application of legal criteria and the exercise, where appropriate, of judicial discretion (Fencott v Muller (1983) 152 CLR 570 at 608; 46 ALR 41 at 67–8). The result is promulgated in public and implemented by binding orders. …
(Emphasis in original)
The Full Court in Aitken continued at [35], stating that:
… delegating responsibility to the parties to conceive the nature and form of the orders required to quell the controversy between them arguably amounted to an abdication of judicial duty. In that respect, we respectfully disagree with the statement made by the primary judge during the course of the proceedings that “it’s not [his Honour’s] job to draft the orders; it’s the representatives’ jobs”.
(Footnote omitted)
The Full Court concluded in this respect at [36]:
Other than in limited and exceptional circumstances, we caution against the practice of delegating to parties the responsibility to agree upon the nature and form of orders required to give effect to views expressed by a trial judge in reasons for judgment. …
However, it may be that such circumstances existed in this case, as the primary judge explained at [66] that:
Before finalising this matter I would like to hear further from the parties in relation to the possibility of orders being made both in Australia and also in [Country C]. I will hear further from the parties and each party will be given a chance (along with the Independent Children’s Lawyer) to make a submission.
Further, at [68] his Honour said that the parties would “be given a further opportunity to make another submission (as noted) relating to the possibility of the making of orders – or the registering of orders – in [Country C]”. Accordingly, it was for that reason that his Honour directed the Independent Children’s Lawyer to forward to the Court a draft order to reflect his reasons for judgment. A fortnight later, on 11 December 2024, the primary judge made orders giving effect to his reasons for judgment.
THE APPEAL
This is an appeal from a discretionary judgment. There is a strong presumption that a primary judgment is correct and free of error: Australia Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627.
It is well-settled that appeals from discretionary judgments must establish the type of error identified by the High Court of Australia in House v The King (1936) 55 CLR 499 at 504–505, namely:
… 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. …
This passage was distilled by the Full Court in Aitken at [40], as follows:
… [A]appellate intervention may be required where, in the exercise of a discretionary power, the primary judge:
•Acts upon a wrong principle;
•Allows extraneous or irrelevant matters to guide or affect the decision;
•Mistakes the facts;
•Fails to take into account some material consideration; or
•Makes a decision that, upon the facts, is unreasonable or plainly unjust.
The appellant, who was self-represented at trial before the primary judge, was also self-represented in these appellate proceedings, including the drawing of his amended Notice of Appeal and his Summary of Argument. Together with his oral submissions, they were of little assistance to him or, in turn, to us.
We are cognisant that, in Re F: Litigants in Person Guidelines (2001) FLC 93-072 at [242], the Full Court said:
It should be recognised that persons who represent themselves are almost always at a disadvantage in legal proceedings. Advocacy is a professional skill that has almost always been performed by highly trained lawyers in our legal system. They not only bring those skills to bear but also professional objectivity that a litigant in person lacks, particularly in family law proceedings. It is simply not possible to create a level playing field where one party is represented by a professional and the other is not. …
In Keighley & Keighley [2023] FedCFamC1A 146 at [67], the Full Court referred to this passage from Re F: Litigants in Person Guidelines and, nevertheless, said that the fact that the appellant, in that appeal, was self-represented, it was “no defence to the criticisms of his further amended Notice of Appeal, his written Summary of Argument or his limited oral submissions” (at [68]). Those observations similarly apply to this appeal.
The appellant’s amended Notice of Appeal reduced his grounds of appeal from 61 grounds and sub-grounds, to 25 grounds and sub-grounds. Even with those amendments, it is apt to observe that, in Scrymegeour & Scrymegeour (2014) FLC 93-600 at [24], Ryan and Austin JJ cited with approval McHugh J in Tame v New South Wales (2002) 211 CLR 317 at [70] where his Honour said (citing Ruggero Aldisert J, Opinion Writing (West Publishing, 1990, p.89) that, where there is “an appellant’s brief containing seven to ten points or more, a presumption arises that there is no merit to any of them” (emphasis in original). In Scrymegeour at [25], their Honours also referred to the decision of Campbell JA in the NSW Court of Appeal in Durham v Durham (2011) 80 NSWLR 335 at 353, with whom Tobias and Young JJA both agreed at 341 and 353, to similar effect. See also Sieger & Department of Communities and Justice [2020] FamCAFC 172 at [19]–[22]).
There is no provision in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) governing the contents of a Notice of Appeal or, in particular, the grounds of appeal therein. Rule 13.02(1) merely provides that a person may start an appeal by filing a Notice of Appeal. Rule 13.10(1) provides that “[t]he grounds of appeal and the orders sought in a Notice of Appeal may be amended without permission at any time up to and including the date fixed for filing of the summary of argument by the appellant”. This is so, even though neither r 13.02(1), nor any other rule, governs the grounds of appeal, as opposed to the Notice of Appeal within which they are contained.
However, in Watapaldeniya v Transport Accident Commission [2022] VSCA 50, at the commencement of the hearing of an application for leave to appeal, the applicant applied for leave to add an additional ground of appeal, as follows (at [1]):
The decision that the applicant’s right shoulder injury did not constitute a serious injury either misunderstood the evidence or failed to correctly apply the evidence to the relevant legal principles.
Their Honours, Beach and Kennedy JJA and O’Meara AJA said:
2The proposed ground of appeal is not a proper ground of appeal. It is impermissibly vague and general. It does not comply with the rules of Court. It is not (as the rules require) a specific and concise statement of the point sought to be argued by the applicant. It is, instead, in a form which has long been deprecated by this Court and other courts exercising appellate jurisdiction: see Motor Accidents Board v Coutts, Australian Telecommunications Corporation v Lambroglou, Victoria v Bacon and, more recently, Lloyd v Healthscope Operations Pty Ltd.
3The vague references to the judge having either misunderstood unspecified evidence, or having failed to correctly apply that evidence (whatever that evidence might be) to unidentified so-called ‘relevant legal principles’ in a proposed ground of appeal, in respect of which leave is sought to add at the eleventh hour, are entirely unsatisfactory.
(Footnotes omitted)
Accordingly, their Honours concluded at [4] that it was not in the interests of justice to grant the applicant leave to add his proposed additional ground of appeal. That decision was referred to with approval by the Full Court in Bartram & Marsden at [21] and in Keighley at [72].
Rule 64.04(c)(i) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides that a notice of appeal must, inter alia, “set out specifically and concisely … the grounds of appeal”.
Whilst, as we have observed above, there is no equivalent provision in the Rules in relation to Notices of Appeal in this Court, nevertheless, r 13.23(2)(a) provides that, subsequently, a Summary of Argument in an appeal must:
set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant pages of the appeal book and transcript) …
Further, r 13.23(3) provides that, if a party intends to challenge any findings of fact, the Summary of Argument must:
(a)identify the error (including any failure to make a finding of fact); and
(b)identify the finding that the party contends should have been made; and
(c)state concisely why the finding, or failure to make a finding, is erroneous; and
(d)refer to the evidence to be relied on in support of the argument (including any reference to the relevant pages of the appeal book and transcript).
Rule 13.23(4) provides that an issue which is not identified in the Summary of Argument may not be advanced at the hearing of the appeal except with the leave of the appeal court. No such leave was sought or granted.
On 7 March 2025, the appellant filed a document titled “Appellant’s Summary of Argument”. On 25 April 2025, he attempted to file a document styled “Appellant’s Updated Summary of the [sic] Argument”. The latter document was rejected for filing because it was not filed by him “at least 28 days before the first day of the sittings in which the appeal is listed for hearing”, as required by r 13.23(1)(a) of the Rules.
No Application in an Appeal was filed by the appellant for leave to file and rely upon his amended Summary of Argument. Nevertheless, at the commencement of the hearing of the appeal, after discussions with the appellant and counsel for the respondent and for the Independent Children’s Lawyer, we granted leave to him to rely upon his amended Summary of Argument (Exhibit A in the appeal). However, for reasons which were not at all apparent to us, he thereupon advised us that he nevertheless wished to rely only upon his original filed Summary of Argument and he did so. Neither the Summary of Argument, nor the abandoned amended Summary of Argument, remotely complied with r 13.23(2)(a) or r 13.23(3). Further, the Summary of Argument merely sought to re-agitate and re-argue issues for trial.
In Keighley at [69], the Full Court said of the appellant’s Summary of Argument, that:
… it is confused and confusing and, if anything, obscures rather than illuminates his grounds of appeal. Endeavouring to disentangle it is akin to endeavouring to wade in treacle.
Again, in this appeal, the appellant’s Summary of Argument, is confused and confusing, and obscures, rather than illuminates his grounds of appeal.
So too, in Bachman & Self [2023] FedCFamC1A 50 at [17], as in this appeal, the grounds of appeal were described by the Full Court as being “numerous, prolix and poorly drawn, on occasion to the point of being quite impenetrable”.
In Bartram & Marsden the Full Court said at [19]:
It is important for an appellant to properly particularise the asserted error which they contend was made by the primary judge. In circumstances where the primary judge was exercising a broad discretion reposed by Part VII of the Family Law Act 1975 (Cth), this requires the identification of an error of principle, or a material error of fact, or, if no specific error can be identified, demonstration that the decision is “unreasonable or plainly unjust”: House v The King (1936) 55 CLR 499 at 505 (“House v The King”).
(Footnote omitted)
The Full Court there referred to Victoria v Bacon [1998] 4 VR 269 (Phillips JA); HJ Heinz Co Australia Ltd v Turner [1998] 4 VR 872; Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540.
The Full Court in Bartram & Marsden continued at [21] that the grounds of appeal in that case failed to set out “a specific and concise statement” of the points sought to be argued by the appellant; rather they contended that a few orders were, in the appellant’s opinion, inappropriate or objectionable. However, no House v The King error was identified, nor did the grounds of the appeal identify where a miscarriage of justice had occurred as a result of the manner in which the proceedings were conducted.
As in this case, the Full Court said at [22] that the problem was compounded by the fact that the appellant’s Summary of Argument further clouded, rather than clarified, his grounds of appeal.
In dismissing the appeal, the Full Court in Bartram & Marsden said:
24As has been noted on many occasions by this Court, an appellate court cannot be expected to rummage through the broadly expressed contentions and arguments that are set out in an appellant’s summary of argument with a view to distilling a specific and concise ground or grounds of appeal: Newett & Newett (No 2) (2021) FLC 94-051 at [34] quoting Bahonko v Sterjov (2008) 166 FCR 415 at [3].
25The father’s Summary of Argument sets out, what is in the nature of a chronology, or as described by the father himself, a timeline of what the father contends to be relevant events. Some of those events, he contends, were not considered by the primary judge. No reference is made, however, to where the relevant evidence was presented or how the particular factual contentions set out in the father’s Summary of Argument may have been relevant to the outcome of the proceedings or why the orders which are the subject of the appeal are erroneous.
In Kaba & Zemin (No 2) [2024] FedCFamC1A 169, the appellant, as in this case, was self-represented. The Full Court said at [25]:
… His Amended Notice of Appeal was prolix, confusing and unclear. His Summary of Argument did not comply with r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) requiring a statement of the arguments setting out the points of law or fact and the authorities relied on, together with references to the relevant pages of the appeal book and transcript. We fully appreciate that a “frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy” (Neil v Nott (1994) 121 ALR 148 at 150). Despite this, the Full Court stated in Newett & Newett (No 2) (2021) FLC 94-051 at [34] that:
… whilst we accept that the mother is acting for herself, it is not for us to rummage around in the many affidavits, transcripts and decisions which the mother seeks to place before us in order to find material which may be relevant to the questions in the appeal. Unless an error is reasonably obvious, it is for an appellant to identify and establish the asserted errors. This was explained by the Full Court of the Federal Court of Australia in Bahonko v Sterjov (2008) 166 FCR 415 …
In Sieger & Department of Communities and Justice at [22], the Full Court said:
The Full Court of the Federal Court of Australia said this in Australian Olympic Committee Inc v Telstra Corporation Ltd (2017) 258 FCR 104 at [115]), endorsing what was earlier said by the New South Wales Court of Appeal in Liverpool City Council v Turano (2008) LGERA 16 at [160]:
…the role of this Court on appeal should not be misunderstood. The analysis of a judgment for appellate purposes does not require a fine parsing exercise and does not require overzealous analysis…
Similarly, in Kabir & Kabir [2023] FedCFamC1A 45 at [14], citing Bahonko v Sterjov (2008) 166 FCR 415 at [3], the Full Court said:
… It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
The respondent, in her Summary of Argument, submits at paragraphs 14 and 15 that certain grounds of appeal are incomprehensible; the majority do not articulate a justiciable error; and that the appeal is incompetent and ought to be dismissed. We agree. The Independent Children’s Lawyer, at paragraphs 1 and 2 of their Summary of Argument, supports and adopts the respondent’s Summary of Argument.
As we have observed above, in the circumstances of this appeal, s 36(2) of the FCFCOA Act provides that we may give our decision in short form. We see no utility in setting out the very many of the 25 grounds and sub-grounds of appeal that are either incomprehensible and/or do not articulate a justiciable error and are therefore incompetent. Several of the appellant’s complaints are also duplicated throughout the amended Notice of Appeal. A few examples will suffice, some of which do not merit comment, and others of which are incapable of comment, namely:
·“The court erred in making orders without the informed consent of the [appellant]”. We observe that the Orders were made by the Court, after a contested trial, and not by consent; accordingly, the consent of the appellant thereto, informed or otherwise, was irrelevant.
·“Pre-filing requirements, including the s 60I certificate, were not met”. Even if this be the case, no jurisdictional or other error arises therefrom (see s 60I(11) of the Act).
·“Critical evidence filed by the [appellant] was improperly safeguarded and later disappeared from the FCFCOA portal”. The so-called “critical evidence” referred to is not identified and the allegations that it was “improperly safeguarded” and that it later disappeared from the portal are entirely unparticularised and unexplained.
·“A Final Judgement was issued through the Registrar despite being under judicial jurisdiction”. As is the case with orders made by the Court, the Orders made by the primary judge on 11 December 2024 bear the signature of a Registrar and the seal of the Court (albeit that the seal does not distinguish between the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2)).
·“The [Aslett] family has had to manage constant accusations from State, Federal, and Non-Profit Organisations as well as Health & Justice Partnerships throughout this matter, none of which resulted in charges. These baseless accusations have caused undue prejudice against the [appellant] and his family in court proceedings”.
·“The [Country C] Consulate provided the mother with a counselor [sic], who then reported claims of financial abuse. However, multiple police visits to the father and daughter’s home found no evidence of Domestic Violence despite several accusations made by the mother. This repeated lack of substantiation undermines the credibility of the allegations presented in court”.
·“Numerous moments throughout this matter raised the question of conflicts of interest involving the [appellant’s] legal representation. Applications to multiple law firms and Legal Aid were hindered by their existing relationships with entities such as Women’s Legal Services and Health and Justice Partnership arrangements, which compromised the [appellant’s] ability to secure independent and unbiased legal support”.
·“Inconsistent findings were made on identical evidence presented across hearings”.
·“The [appellant] and his family were unjustly labeled [sic] as ‘alleged perpetrators’ under the Temporary Visa Domestic Violence Pilot Program, a mischaracterization [sic] that materially impacted their ability to support the child and pursue professional and personal stability”.
·“The child was withheld from the [appellant] and placed into a daycare that serves families experiencing Domestic Family Violence. This placement occurred against the [appellant’s] wishes and highlights a lack of proper consideration for alternative arrangements that aligned with the child’s established care and welfare”.
·“The ICL and the mother’s legal representation have been found by two judges to cherry-pick evidence from reports provided by the Child Impact Expert and Family Report Writer. Further the Child Impact Expert reported that the mother accused the father of being willing to kill and of being a misogynist, solely based on the [appellant’s] uncorroborated claims. This selective and unfounded evidence undermined the fairness of the proceedings”.
·“The initiating application filed by the opposing party was procedurally deficient and contained conflicting timelines”.
The grounds of appeal which might merit some, albeit brief, consideration are as follows; however, ultimately, we consider each of them to be devoid of merit.
Insofar as the appellant complains that “[i]ncomplete and unreliable evidence in the tender bundle was accepted and relied upon”, nowhere in his amended Notice of Appeal, his Summary of Argument or his oral submissions to us did he identify such evidence, nor where, in the primary judge’s reasons, it was accepted and relied upon.
Insofar as the appellant complains that “[d]uring the final hearing, the Independent Children’s Lawyer … was observed having extensive discussions with [the family report writer] before she took the stand”, we observe that there is no property in a witness. Further, albeit irrelevant in the circumstances, we were not pointed to any passage(s) in the transcript where any complaint in this regard was made by the appellant. The appellant continues, contending that the family report writer “then presented accusations of specific types of Domestic Violence allegedly occurring during a timeframe when the [appellant] had no direct contact with the mother” and that “[t]his raises concerns about the reliability and impartiality of evidence presented during the hearing”. We were not pointed to any passage(s) in the transcript where the family report writer, in the course of her oral evidence, is said to have presented such accusations, nor were we provided with any particulars whatsoever regarding any resultant concerns about the evidence of the family report writer or the respondent.
Insofar as the appellant contends that the primary judge “failed to critically evaluate false claims regarding the [appellant’s] involvement in the child’s life”, we were not pointed to any evidence whatsoever said to constitute “false claims”. Further, in circumstances where the appellant was statutorily proscribed from cross-examining the respondent, and failed to avail himself of the ability to apply for legal representation at trial, pursuant to the Commonwealth Family Violence and Cross-examination of Parties Scheme, as the notation to the orders made on 5 February 2024 records that he intended to do, the respondent’s evidence was unchallenged.
Insofar as the appellant contends that his “proactive actions and insight into the child’s welfare were overlooked”, again, we were not pointed to any evidence that he contends was overlooked, nor is it otherwise apparent to us.
Insofar as the appellant contends that the primary judge “did not consider the child’s broader familial relationships, including access to her grandparents and friends, who play a critical role in her emotional and social development” and that “[e]vidence in the uploaded documents demonstrates insightful actions taken by both the [appellant] and the child’s grandfather to ensure her well-being in connection to her extended family”, we were not pointed to any evidence in this regard. Indeed, from the Appeal Book, it appears that the only affidavits filed by the appellant were ones deposed by him, and none by any family members including, in particular, his parents.
Insofar as the appellant contends that “[d]uring the final hearing, [the primary judge] commented that the long-term orders proposed by the [appellant] were the best document submitted by him”, if that be the case, that may reflect poorly on his other documents, including the affidavits filed by him. The Appeal Book contains eight affidavits filed by the appellant between 24 December 2022 and 23 October 2024, albeit that his unsealed and undated Outline of Case Document (Final Hearing) in the Appeal Book only lists five such affidavits. Unfortunately, it is unclear from the primary judge’s reasons which of those affidavits were in evidence before him at trial, in circumstances where r 8.14 of the Rules provides that an affidavit filed with an application may be relied on in evidence only for the purpose of the application for which it was filed. The evidence relied upon by first-instance judges should be self-evident to an appeal court from their reasons for judgment.
We were not pointed to any passage in the transcript evidencing the comment by the primary judge alleged by the appellant.
The appellant continues, contending that “[d]espite this acknowledgement, these orders were not properly considered, and misrepresentations by opposing counsel undermined their evaluation”. The appellant did not identify the orders to which he referred. The Appeal Book contains a Minute of Proposed Final Orders tendered by the appellant and marked Exhibit 3 on 28 October 2024, being the second day of trial, which sought orders, inter alia, that he have sole decision-making responsibility for the child with respect to health and medical issues; that, from September 2026, the child spend equal time with the respondent and him; and that provided for international travel, it being implicit therefrom that he opposed any relocation of the child to Country C with the respondent. The primary judge’s reasons, delivered on 27 November 2024, made it clear that the appellant was unsuccessful in respect of each of those matters, and why this was so. Submissions filed by the appellant on 4 December 2024, albeit in the form of an affidavit, which are contained in the Appeal Book, were not directed to the form of orders to give effect to the primary judge’s reasons; rather, they sought to re-agitate matters in respect of which his Honour had already ruled in his reasons.
Lastly, in this regard, the alleged “misrepresentations by opposing counsel”, whether for the mother or for the Independent Children’s Lawyer, were not identified, including by any reference to the transcript.
In circumstances where many of the grounds of appeal were incomprehensible and/or did not articulate a justiciable error and were therefore incompetent, and, in respect of the others, no appellable error was established, we dismissed the appeal at the conclusion of the hearing thereof.
COSTS
At the conclusion of the hearing of the appeal, the respondent (but not the Independent Children’s Lawyer) sought an order for costs in the modest sum of $7,808.90.
In circumstances where the appellant was wholly unsuccessful (s 117(2A)(e) of the Act), and for the reasons above, we were of the opinion that there were circumstances that justified the making of such an order pursuant to s 117(2) of the Act and we so ordered.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Jarrett and Strum. Associate:
Dated: 10 June 2025
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