Carmen & Carmen
[2025] FedCFamC1A 128
•23 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Carmen & Carmen [2025] FedCFamC1A 128
Appeal from: Carmen & Carmen [2025] FedCFamC2F 174 Appeal number(s): NAA 75 of 2025 File number(s): BRC 6137 of 2023 Judgment of: WILLIAMS J Date of judgment: 23 July 2025 Catchwords: FAMILY LAW - APPEAL – Where the appellant has filed multiple Applications in a Proceeding – Where the appellant alleges denial of procedural fairness due to failures by solicitor and counsel – Where the appellant alleges apprehension of bias by the primary judge – Where the appellant claims primary judge failed to take into account a material fact and also failed to provide adequate reasons – Where the appellant argues the primary judge made impractical orders – Where the appellant claims the primary judge failed to engage with child’s views and placed heavy weight on the respondent’s position –No ground of appeal established – Appeal dismissed Legislation: Family Law Act 1975 (Cth) Pt VII; ss60, 60CA, 60CC(2)(b).
Federal Circuit and Family Court of Australia Act 2021 S35
Family Law Rules 2021 rr 13.20, 13.39
Cases cited: Aslett & Coren [2025] FedCFam1A 92
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
CDJ v VAJ (No 1) (1998) 197 CLR 172
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Deodes & Deodes (2019) FLC 93-905; [2019] FamCAFC 97
Diamond & Diamond (2024) FLC 94-223; [2024] FedCFamC1A 201
De Winter & De Winter (1979) 23 ALR 211
Edwards & Noble (1971) 125 CLR 296
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fowles & Fowles (No 2) (2024) FLC 94 – 198; [2024] FedCFamC1A 115
Gronow & Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Inger & Lotte [2024] FedCFamC1A 70
Langford & Coleman (1993) FLC 92-346; [1992] FamCA 68
Kennedy v Kennedy [2010] FamCAFC 195
Maddax & Danner [2016] FamCAFC 176
Gilbert, C.A v Estate of the late Gilbert, R.G (1990) FLC 92-125
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550
Robinson and Willis (1982) FLC91-215
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
R and R: Children’s Wishes (2000) FLC 93-000; [2000] FamCA 43
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Vakauta v Kelly (1989) 167 CLR 568
Number of paragraphs: 147 Date of hearing: 12 June 2025 Place: Melbourne The Appellant: Litigant in Person Counsel for the Respondent Ms J Kenny Solicitor for the Respondent Frampton Legal ORDERS
NAA75 of 2025
BRC6137 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CARMEN
Appellant
AND: MS CARMEN
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
23 JULY 2025
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 24 March 2025 is dismissed.
2.The Application in an Appeal filed 23 April 2025 is dismissed.
3.Leave is granted to the appellant to rely on paragraphs 18 –28 of his affidavit filed 24 March 2025 and otherwise the Application in an Appeal filed 27 May 2025 at 2.50 pm is dismissed.
4.The Application in an Appeal filed 27 May 2025 at 4.50 pm is dismissed.
5.The appeal is dismissed.
6.The appellant pay the respondent’s costs fixed at $19,687 within 90 days of these orders.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
By a Further Amended Notice of Appeal filed 21 April 2025 the appellant appeals from orders 6 – 24 made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 17 February 2025 (“the appealed orders”) under Part VII of the Family Law Act (Cth) 1975 (“the Act”).
The appealed orders permit the respondent to relocate the residence of the parties’ 9-year-old daughter from the City B to Tasmania, provide for equal shared decision making, and prescribe the appellant’s time and communication with the child if he lives within 100 kilometres of the respondent’s residence and alternatively if he does not live within 100 kilometres of the respondent’s home.
The appellant contends he was denied procedural fairness, the primary judge demonstrated apprehended bias and the appealed orders are infected by legal, factual and discretionary error.
The respondent opposes the appeal and seeks its dismissal.
For the reasons that follow, the appeal will be dismissed.
BACKGROUND
The parties married in January 2004 and separated in January 2019. During the relationship the family lived on the City B.
Their daughter was born in December 2015 and is aged nine.
During the relationship the appellant travelled overseas for work, sometimes accompanied by the respondent and their daughter. The appellant’s overseas work travel continued after separation. At [5] of the reasons, the primary judge identified the appellant’s own evidence was that his overseas work-related travel increased after separation. In 2019 the appellant worked a minimum of 198 nights overseas.
Both parties agreed that following separation, the respondent made the child available to spend time with the appellant when he was in the country and facilitated communication when the appellant was overseas [6].
The primary judge stated at [7] both parties agreed the child spent two nights a week with the appellant between April 2020 and December 2020, although the time was not consistent.
Between January 2021 and December 2021 at [8], the child’s time with the appellant continued on an ad hoc basis, at the appellant’s request. From January 2022 until January 2023 the child spent two nights per week with the appellant, with the nights nominated by him.
Since either November 2022, according to the appellant, or since January 2023, according to the respondent at [3], the child has lived in a week about arrangement with her parents. On 26 September 2023 interim consent orders were made to give effect to that arrangement.
In January 2022 the respondent met her current husband on a hiking trip in Tasmania. They commenced a relationship in February 2022 and married in July 2024. The respondent first raised the prospect of moving to Tasmania with the child in 2022 [9], which was rejected by the appellant.
From January 2023 the respondent lived on a week about basis on the City B when she had the care of the child, and in Tasmania, when the child was in the appellant’s care [10]. At the time of the trial the appellant lived in Brisbane and when the child was in his care, they commuted each day to the child’s school in City B [11].
In May 2023 the respondent filed an Initiating Application seeking permission to relocate the child to Tasmania. In January 2024 the appellant filed a Response seeking orders the child remain living in City B and that she lives in a week about arrangement with her parents.
The trial was heard by the primary judge on 13 November 2024. On that day the parties also entered into consent orders (orders 1 – 5) and procedural orders were made for the filing of final written submissions by both parties.
On 5 December 2024, the matter was once again before the primary judge when the appellant’s legal representatives (funded by Legal Aid) sought leave to withdraw from acting on his behalf. Leave was granted and the appellant was granted a further 7 days in which to file his final written submissions. The respondent was likewise granted an extension of time to file her reply to submissions, 7 days after receipt of the appellant’s submissions.
Thereafter the appealed orders were made by the primary judge on 17 February 2025, contemporaneously with delivery of reasons.
On 27 February 2025 the appellant filed a Notice of Appeal, on 23 March 2025 he filed an Amended Notice of Appeal and on 21 April 2025 he filed a Further Amended Notice of Appeal. During the appeal hearing, the appellant was granted leave to rely on the Further Amended Notice of Appeal.
Subsequent to the filing of the Notice of Appeal on 27 February 2025, the appellant filed an Application in a Proceeding (amended twice) seeking inter alia a stay of the appealed orders and a recovery order for the child. That application was heard by the primary judge on 19 March 2025, and on 21 March 2025, both applications were dismissed (with costs reserved) because the child had already relocated to Tasmania.
The appeal was heard on 12 June 2025.
APPLICATIONS IN AN APPEAL
The appellant filed five Applications in an Appeal, which I deal with chronologically. It was difficult to discern the relief sought in each of the Applications in an Appeal because the orders sought were often repetitive.
The first Application in an Appeal filed 27 February 2025
The first Application in an Appeal was heard and determined by an Appeals Registrar on 10 March 2025. The first application was dismissed; however, costs were reserved to the appeal and are dealt with below.
The second Application in an Appeal filed 24 March 2025
On 2 April 2025, the second Application in an Appeal was listed before an Appeals Registrar.
On that day orders were made dismissing paragraphs 1 and 2 of the Application in an Appeal (seeking expedition of the appeal) and adjourning the balance of orders sought to the hearing of the appeal.
At the appeal hearing, the appellant sought to adduce as evidence in the appeal, an affidavit filed by him on 24 March 2025 at 2.28 pm. That affidavit refers to proposed procedural amendments and events occurring after 17 February 2025, the child’s departure to Tasmania, and the appellant’s dissatisfaction with the appealed orders. Paragraph 18 – 28 refer to his complaints against his legal representation, which is dealt with in my consideration of the fourth application in the Appeal.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) confers on an appeal court a discretionary power to grant leave to receive further evidence. In CDJ v VAJ(No 1) (1998) 197 CLR 172 (“CDJ v VAJ”) at [111]–[115], the High Court of Australia (“the High Court”) considered the principles relevant to the exercise of the discretion.
As the High Court explained in CDJ v VAJ, the point of further evidence on appeal is to demonstrate error, bolster the reasons under attack, or provide material for any re-exercise of discretion. Recently in Diamond & Diamond (2024) FLC 94-223 (“Diamond & Diamond”) the Full Court per Aldridge, Austin and Carter JJ said at [20]
…….The primary purpose of further evidence being admitted in an appeal is to demonstrate error by the primary judge and to show how its availability at the hearing would have produced a different result. If the proposed evidence does not acquit that purpose there is no utility in its admission (CDJ v VAJ at [109], [111], [140]–[151], [169] and [186.9]).
I am unable to see how the comments about procedural matters, or events occurring after the child’s departure to Tasmania referred to in the affidavit of 24 March 2025, meets the relevant criteria and leave will be refused, to rely on the contents of that affidavit, save for paragraph 18 – 28, which will be dealt with my consideration of the fourth Application in an Appeal.
The second Application in an Appeal will be dismissed.
The third Application in an Appeal filed 23 April 2025
By the third Application in an Appeal the appellant sought leave to file a Further Amended Notice of Appeal, to rely on paragraphs 4 – 12 of his affidavit of 31 March 2025, and expedition of the appeal.
In support of the third Application in an Appeal, the appellant relied upon his affidavit 23 April 2025. The affidavit annexes a Further Amended Notice of Appeal, for which leave was granted, during the appeal hearing. The respondent’s counsel did not object to reliance on the Further Amended Notice of Appeal.
The relief sought in the third application, as to reliance on the 31 March 2025 affidavit, is dealt with my consideration of the fourth Application in an Appeal. The issue of expediting the appeal is dealt with under my consideration of the fourth Application in an Appeal.
The fourth Application in an Appeal filed at 2.50 pm on 27 May 2025
By the fourth Application in an Appeal the appellant sought a raft of orders, and in support thereof, relied on an affidavit filed 27 May 2025.
First, pursuant to r 13.20 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the appellant incorrectly sought leave to adduce evidence concerning urgency and the best interests of the child, as set out in an affidavit filed by the appellant on 27 May 2025. The correct rule is r 13.39.
Noting that the appellant’s first Application in an Appeal seeking an expedited hearing was dismissed by the appeal Registrar on 10 February 2025, I do not propose to permit the appellant to reagitate for an expedited hearing. In any event, the appeal was heard on 12 June 2025 and by that time, the issue of urgency was otiose. The appellant’s application to rely on that part of his affidavit of 24 March 2025 is refused.
Secondly, the appellant sought leave to adduce further evidence, namely paragraphs 4 –12 of his affidavit filed 31 March 2025 and paragraphs 18 – 28 of the affidavit filed 24 March 2025 (which was also a subject of the second and third Applications in an Appeal, discussed above). The appellant contends paragraphs 4 – 12 of the 31 March 2025 affidavit pertain to ground 2 of the Further Amended Notice of Appeal, the apprehended bias on the part of the primary judge at the hearing on 19 March 2025. It is further contended paragraphs 18 – 28 of the 24 March 2025 affidavit pertain to ground 1 of the Further Amended Notice of Appeal, that is a denial of procedural fairness arising from failures by his solicitor and counsel at the hearing below.
I will grant leave to the appellant to rely on paragraphs 18 – 28 of his affidavit filed 24 March 2025, as the contents of those paragraphs attempt to identify challenges to the administration of justice.
I will refuse to grant leave for the appellant to rely on paragraphs 4 – 12 of the 31 March 2025 affidavit, as that affidavit pertains to criticism of the primary judge and his conduct at a hearing subsequent to delivery of reasons and the making of the appealed orders. In any event, the criticism levelled at the primary judge during that hearing is impossible to objectively determine, because the appellant has failed to provide a transcript of that hearing and does not appeal against orders made by the primary judge at that hearing.
Fourthly, the appellant sought leave to rely on his Amended Summary of Argument filed 21 April 2025 and Amended List of Authorities. Leave to do so was granted during the appeal hearing.
The fourth application in an Appeal will be otherwise dismissed.
The fifth Application in an Appeal filed at 4.50 pm on 27 May 2025
By the fifth Application in an Appeal, the appellant also sought a raft of orders, some of which overlapped with the fourth Application in an Appeal, which were not pressed.
The remaining extant application was for leave to rely on an affidavit filed on 27 May 2025 pertaining to the best interest of the child and the practical feasibility and stability of the child returning to Queensland, including the need for urgent determination of the appeal prior to the commencement of Term 3 2025. The appellant’s affidavit annexed an affidavit of the paternal grandmother, wherein she deposed to be willing and financially able to pay the child’s school fees at her previous school in City B.
Applying the relevant criteria identified in CDJ v VAJ, as applied by the Full Court in Diamond & Diamond, I am unable to see how this further evidence demonstrates error by the primary judge or how its availability at the hearing would have produced a different result. The child’s schooling was but one of many considerations taken into account by the primary judge and certainly was not a determinative factor.
Leave to adduce further evidence will be refused and the fifth Application in an Appeal will be dismissed.
THE APPEAL
Unless a material error is established, a judgement is presumed to be correct. The appellant bears the onus of establishing error (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621).
Before turning to the grounds of appeal, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error as to judicial process or procedure or error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) must be established. There, the majority of the High Court said:
…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…
The appellant was self-represented in these appellate proceedings and drafted his three Notices of Appeal and Summary of Argument.
In Re F: Litigants in Person Guidelines (2001) FLC 93-072 (“Re F”) 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 Aslett & Coren [2025] FedCFam1A 92 (“Aslett & Coren”) the Full Court per McClelland DCJ, Jarrett and Strum JJ at [42] said:
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 observations of the Full Court in Aslett & Coren are apposite to this appeal as far as the Notice of Appeal and Amended Notice of Appeal are concerned, which respectively include 21 and 24 separate asserted grounds of appeal.
The Further Amended Notice of Appeal contends the appellant consolidates and restates the appeal into nine distinct and concise grounds, which supersede the original and amended grounds previously filed. Contrary to that statement, many of the consolidated grounds include multiple sub-grounds.
Turning now to the grounds of appeal referred to in the Further Amended Notice of Appeal.
Grounds 1 and 2 (listed in the Further Amended Notice of Appeal as paragraph 51 and 52) assert a denial of procedural fairness and apprehended bias on the part of the primary judge.
I will first deal with the issue of apprehended bias and denial of procedural fairness, then each of the subsequent grounds of appeal. Grounds of appeal in relation to bias and procedural fairness are challenges to the integrity of the administration of justice; thus, they must be dealt with first, before other discrete grounds of appeal: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 581, 611–612 and 634; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10].
Ground 1
Denial of procedural fairness due to serious failures by solicitor and counsel.
Under this ground the appellant complains serious failures by his solicitor and counsel prevented his case from being properly prepared or presented at the trial which caused the court to be deprived of probative evidence.
The appellant contends his solicitor refused to amend his trial affidavit or case Outline to incorporate a detailed parenting chronology and supporting documents, threatened the appellant’s grant of legal aid would be withdrawn unless the appellant signed the documents as drafted by his lawyer and pressured the appellant to sign fallback consent orders under duress.
The appellant also asserts his Counsel was not familiar with the matter, did not utilise documents the appellant was requested to take to court, did not challenge the family report writer on key assumptions, failed to provide accurate information about the appellant’s role as a stable and hands-on parent, failed to test disputed allegations in cross examination, provided no support during the appellant’s own cross examination, failed to object to prejudicial or inaccurate claims and did not seek leave to enable the appellant to rely on his affidavit of September 2023 during the hearing before the primary judge.
According to the appellant, all of the above deprived the court of probative evidence, accurate material and proper submissions, which resulted in the final orders, being made without a fair hearing constituting a miscarriage of justice.
In Inger & Lotte [2024] FedCFamC1A 70 Tree J relevantly discussed the appellate principles where there is an assertion as to the incompetence of counsel. At [21] and [22] His Honour said:
21. An assertion as to the incompetence of counsel is not, of itself, an independent ground of appeal. An appeal may be allowed if it can be demonstrated that the incompetence of counsel was such that the appellant was not afforded a fair trial or it produced a miscarriage of justice (see TKWJ v R (2002) 212 CLR 124)
22.The principles relevant to the question of when an appellate court will allow an appeal on the basis of incompetence of a legal practitioner are set out in OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281 at 298 as follows:
123. We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to so affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a re-trial, regardless of whether the result is apparently fair.
124.On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
The Full Court in Maddax & Danner [2016] FamCAFC 176 confirmed that in a parenting case the effect of OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281 is that an appellant would need to establish:
·Counsel was incompetent or the forensic decisions were wrong;
·Those decisions affected the judgement; and
·But for those matters, a different result would have been reached.
In this case the appellant relies upon paragraphs 18 – 28 of his affidavit filed 24 March 2025, (the evidence the subject of the second and fourth Application in an Appeal), orders made 5 December 2025 permitting the appellant’s legal representatives to withdraw from acting on his behalf, his draft orders, comments made during the trial, cross examination of the family report writer by counsel for the appellant (Transcript 13 November 2024, p. 19 – 27) cross examination of the respondent (Transcript 13 November 2024, p. 28 – 39) and cross examination of the appellant by counsel for the respondent (Transcript 13 November 2024, p. 42 – 63).
The appellant’s complaints are broadly made, generalised and unspecified. There was no attempt to particularise which tactical decisions made by the appellant’s solicitor or counsel, may have had the effect of producing an unfair result, other than his solicitor failing to amend a chronology and trial affidavit and his counsel’s failure to use documents brought to court by the appellant or failure to seek to rely upon the appellant’s affidavit filed in September 2023.
The letter from the appellant’s then solicitor to him dated 8 November 2024 (Annexure 7 to the affidavit of 24 March 2024) answers the appellant’s complaints about failure to amend documents. The solicitor provided a proper and fulsome response why there should be no further amendment to the documents prepared for the trial, including time constraints.
As to the assertion against his counsel that the appellant was pressured to sign fallback consent under duress, the appellant did not specify which orders he was supposedly pressured to sign. Assuming the relevant orders are Orders 6 to 14 of the appealed orders, which were made by consent, Order 6 prescribes entirely orthodox and unremarkable time between the appellant and the child during Tasmania school holidays, Order 7 prescribes regular biweekly electronic time, Orders 8 and 9 provide for time on special occasions, Order 10 provides for changeover, Order 11 provides for each of the parties to provide contact details to the other parent and Orders 12 – 14 relate to passports and international travel.
It is difficult to discern how the additional evidence the appellant asserts he sought to adduce or rely upon, and the conduct of his counsel in failing to formally rely upon the material, would have had any bearing on the making of such non-controversial orders. In any event, an order made by consent cannot be challenged on the basis of correctness or merits, nor will a court enquire whether the orders reflect the intention of the parties (Langford & Coleman (1993) FLC 92-346). Other grounds of appeal remain open, including fraud, mistake, fresh evidence and absence of jurisdiction, none of which were raised by the appellant, other than fresh evidence, which is rejected above (see Gilbert, C.A v Estate of Gilbert, R.G (1990) FLC92-125 and Robinson and Willis (1982) FLC91-215).
Annexure 8 to the relevant affidavit is an email from the appellant referring to attachments of his response to the family report and the respondent’s trial material, and to requesting to chat with his solicitor about text messages. The email does not disclose the contents of the two documents or the text messages, nor does it demonstrate incompetence or a wrong forensic decision, let alone that the failure by his counsel to rely on the documents during the trial affected the orders made.
The appellant further contends he was not afforded an opportunity to file an affidavit he had prepared dated 27 September 2023. That affidavit was not before the court in the appeal hearing and it is not possible to discern whether the contents of that affidavit, if admitted into evidence, would likely affect the ultimate decision. Given that orders were made by consent on 26 September 2023 for the child to live week about with each parent, it is likely not.
The cross examination of both the family consultant and the respondent, as shown in the transcript was unremarkable, entirely orthodox and was not demonstrative of incompetence. Further, the appellant did not attempt to demonstrate how the decisions made by his legal practitioners affected the judgement, or but for those matters, a different result would have been reached.
This ground has no merit.
Ground 2
Judicial Apprehended Bias and unequal treatment of the appellant’s case
Under this ground the appellant complains the cumulative conduct of the primary judge gives rise to an apprehension of bias on his part.
The relevant test to be applied to determine apprehended bias is set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”), where the High Court said at [6]:
… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
(Footnotes omitted)
The application of the apprehension of bias principle involves a two-step analysis. First, the identification of what is said that might lead a decision maker to decide a case other than on its legal and factual merits (the matter), and second, the articulation of a logical connection between the matter and the feared departure from the judge deciding the case on its merits (Ebner at [8]). Per Ebner, once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
His complaints under this ground fall into six discrete sub-grounds which I deal with individually.
First, he complains the primary judge unfairly compressed the trial from a two-day hearing to a one-day hearing, which led to unduly short cross examination, thus denying the parties a proper opportunity to present their cases and thus undermining the fairness and reliability of the fact-finding process.
Whilst it is true the hearing occupied one day, the transcript demonstrates both counsel were afforded an opportunity to cross examine the family report writer, which they both did, and to cross examine the other party. Nowhere in the transcript does the primary judge interject, interrupt or otherwise seek to reduce the time frame of cross examination of either counsel. At the conclusion of cross examination of the respondent, counsel for the appellant (Transcript 13 November 2024, p. 39, line 20) said “Your Honour no further questions”. There is no merit in this complaint.
Secondly, the appellant complains the family report writer was not appraised of the competing proposals prior to commencement of cross examination.
The appellant effectively asserts it was incumbent on the primary judge to do so, when it is not. Both counsel were at liberty to put the case of each party to the family report writer during cross examination. It is clear from the documents perused by the family report writer, referred to in her report and from her cross examination, the family report writer was aware of the competing proposals of the parties, that is, the respondent sought to relocate the child’s residence to Tasmania and the appellant did not. It is of little consequence that she may not have been appraised of the nuanced proposals. There is no merit in this complaint.
Thirdly, the appellant complains following the withdrawal of his lawyers after the conclusion of the trial, on 5 December 2025, he was granted only a 7-day extension of time to file and serve his written submissions, when his former legal representatives were afforded 21 days. The appellant asserts the primary judge failed to consider that the appellant was not represented and did not consider material relevant to the child’s welfare, namely the primary judge failed to take into account a further affidavit dated 12 December 2024 on which the appellant sought to rely, after the conclusion of each party’s case. Again, this complaint is broadly put and is not particularised.
The appellant was certainly provided with an opportunity to provide written submissions, which he did within the stipulated timeframe. Examination of the appellant’s final written submissions discloses comprehensive and well-reasoned submissions demonstrative of considerable legal acuity on the part of the appellant. There is no merit in this complaint.
Fourthly, the appellant submits the failure of the primary judge to inform him it was necessary to seek leave to reopen his case to have regard to the appellant’s affidavit dated 12 December 2024, which was filed with his written submissions, is demonstrative of apprehended bias.
As to the asserted failure of the primary judge to inform the appellant of the necessity to make a fresh application if he sought to reopen evidence, the appellant relied on the guidelines set out in Re: F. Neither the affidavit of 12 December 2024 nor the transcript of the hearing before the primary judge in December 2024 is before this court and it is not possible to discern the relevance of the further affidavit nor what was said at that hearing. Broadly speaking, it is also difficult to discern how the asserted failure of a judge to inform the appellant of the necessity to make an application to reopen evidence can be construed as conduct giving rise to apprehend bias. Even if it were so, there is no attempt by the appellant to address the second step as required by Ebner. There is no merit in this complaint.
Fifthly, the appellant contends the primary judge failed to engage with the appellant’s Notice of Risk filed by him on 27 June 2023. The appellant’s trial affidavit is a comprehensive document and does not assert the respondent poses a risk to the child. The week about arrangement, which existed at the date of the trial, and the appellant’s proposed orders if the child remained living in Queensland, for the child live with her parents on a week about basis, are both entirely inconsistent with the notion the respondent poses a risk to the child. The central issue before the primary judge was whether the child’s home should be relocated to Tasmania and not the risk either parent posed to her welfare. In any event, a trial judge is not required to mention every fact or argument relied upon by the losing party as relevant to an issue (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]). There is no merit in this complaint.
Lastly, the appellant complains the primary judge made two comments which demonstrate apprehended bias. First, the primary judge described the appellant in the reasons at [91] as dogmatic and secondly during the hearing (Transcript 13 November 2024, p. 35 line 3) the primary judge said:
….and the fact that there is a lovely farm down in Tasmania that she might want to visit…
Whilst the appellant identified the comments he asserts give rise to apprehended bias on the part of the primary judge, neither the appellant’s Summary of Argument, nor his oral submissions identified the logical connection between the matters referred to above and the feared departure from the judge deciding the case on its merits (Ebner at [8]), or any factors or considerations relevant to the assessment of the reasonableness of the asserted apprehension of bias. The logical connection is not apparent to me.
Further, the appropriate time to raise objections of bias is at the hearing itself, at the time of the impugned conduct of the judge: Vakauta v Kelly (1989) 167 CLR 568 (“Vakauta”) at 572-574.
In Vakauta, Brennan, Deane and Gaudron JJ said at 572:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to standby until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrain from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it is likely that the judgment would be allowed to stand only if proved to be unfavourable to him or her.
During the hearing, counsel for the appellant did not make any application for disqualification of the primary judge after the lovely farm comments were made, nor did the appellant complain at the hearing on 5 December 2024. The appellant waived the complaint by his silence and is precluded from now raising the complaint for the first time (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76] and [79]; Ebner at 344, 357 and 360; Vakauta at 577–579 and 586–588).
None of the appellant’s complaints, either individually or collectively, amount to apprehended bias on the part of the primary judge. Further, in pursing the individual complaints, the appellant did not even attempt to address the second step as required by Ebner, nor the reasonableness of the asserted bias.
None of these complaints are meritorious.
Ground 3
False finding of residency and parenting history
Under this ground the appellant complains the primary judge’s findings at [37] and [64] that he previously lived overseas were not open on the evidence.
At [37] His Honour said:
…. The [appellant] worked and lived overseas and was based in [City C] until 2019. It is not in contest between the parties that the [appellant] travelled back to Australia regularly and that the [respondent] ensured the child was readily available to him when he was in Australia.
At [64] His Honour said:
The evidence clearly establishes that the parents have lived in separate countries both during the relationship and since separation ….
The evidence as to the appellants work and living arrangements at the relevant times is found in his trial affidavit dated 5 November 2024 at paragraphs 15 (o) and (p), 17(a) – (h) and 21(o). The appellant contends the primary judge ought to have found the appellant maintained a continuous residential base in Queensland since 2015, notwithstanding his own evidence as to the periods of time he was overseas.
The onus is on the appellant to demonstrate that the findings made were not reasonably open to the Court (Edwards & Noble (1971) 125 CLR 296). In doing so he must demonstrate that the impugned finding of fact was either demonstrably wrong by incontrovertible facts or uncontested testimony; glaringly improbable, or contrary to compelling inferences (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]( “Robinson Helicopter”).
I am not satisfied the comments of the primary judge amount to a finding as asserted by the appellant. However, having regard to the appellant’s own evidence, I am satisfied that the words used by the primary judge were open on the evidence before him, particularly when the appellant was overseas for 198 nights in 2019. The appellant has failed to discharge his onus.
In any event, I do not consider the description or characterisation of the appellant’s then living arrangements prior to early 2020, as material to the ultimate decision made about the child’s relocation to Tasmania, or that any misdescription thereof would warrant appellate intervention (De Winter & De Winter (1979) 23 ALR 211 at 217).
There is no merit in this ground.
Ground 4
Failure to recognise the [appellant’s] role as the child’s stable and equal caregiver and failure to provide adequate reasons
The appellant’s complaints under this ground are cast as five sub grounds. First, he complains the primary judge failed to recognise his role in the child’s life and in so doing, did not take into account a material fact. Secondly, the finding at [62] that the respondent’s household provides greater stability is not reasonably open on the evidence. Thirdly, the primary judge failed to accord sufficient weight to the appellant’s role in the child’s life. Fourthly, he complains the primary judge failed to resolve the central factual dispute and lastly, the primary judge failed to provide adequate reasons.
I deal with each individual complaint.
As to the first complaint, the appellant’s trial affidavit (paragraph 28(h)) refers to the child’s week about living arrangements from November 2022, which is reflected at [3] of the reasons, where the primary judge said:
The child has been living in a week about arrangement since either November 2022 on the [appellant’s] case or January 2023 on the [respondent’s] case. In any event consent interim orders were made for the child to live on a week about basis on 26 September 2023.
The reasons are replete with references to the appellant’s caregiving role and attachment to the child. At [36] the primary judge said:
It is also relevant to consider the likely distress of the [appellant] if an order is made for the child to relocate with the [respondent] to Tasmania. It is quite clear on all of the evidence that the appellant not only has a significant close attachment to the child but that he loves her dearly and wants to spend as much time as possible with her.
At [62] the primary judge found that both parents have the capacity to provide for the child’s developmental, psychological, emotional and cultural needs, although he concluded the respondent’s household provided greater stability for the child.
Contrary to the appellant’s contentions, the reasons demonstrate the primary judge was aware of and engaged with the extent of the appellant’s role in the child’s life and took into account that consideration in reaching his decision. There is no merit in this complaint.
As to the second complaint, in Deodes & Deodes (2019) FLC 93-905 at [44] the Full Court stated the following applicable principles:
44.… An appeal court should not interfere with findings of fact which were open on the evidence is well established: Edwards v Noble (1971) 125 CLR 296; Gronow v Gronow (1979) 144 CLR 513. So, too, is the recognition that appellate judges are in a “permanent position of disadvantage as against the trial judge” in assessing the evidence and credibility of witnesses: Fox v Percy (2003) 214 CLR 118 at 142-143.
The onus is on the appellant to demonstrate that the findings made were not reasonably open to the Court (see Robinson Helicopter).
At [62] of the reasons, the primary judge relied on the evidence of the family report writer in reaching his finding. At [90] of the family report, under the heading Evaluation, the family report writer opined that because the child has primarily been raised by the respondent, that if a decision were made for her to live in one household, she would recommend the child lives with the respondent. The primary judge was entitled to rely on that evidence in reaching his finding, noting as well that evidence was not displaced by cross examination of the report writer. There is no merit this complaint.
Thirdly as to the weight challenge, the difficulty of challenging a primary judge’s attribution of weight on appeal is well known. As stated in Gronow & Gronow (1979) 144 CLR 513 (“Gronow”) at 520 per Stephen J:
…An appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessment of matters of weight.
The weight, or importance, given to evidence is a matter quintessentially for the primary judge, unless an appellant can show the primary judge was plainly wrong; see CDJ v VAJ at 230–231 per Kirby J. That an appellate court might have reached a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge, per Gronow at 519:
While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion.
The appellant’s complaint is general and unspecified, and he did not demonstrate nor attempt to address how the primary judge was “plainly wrong”. This complaint is unmeritorious.
It is difficult to discern what is meant by the fourth complaint. The central dispute between the parties was whether or not the child should be permitted to relocate with the respondent to Tasmania, or whether she should remain living in Queensland, as contended by the appellant. The reasons demonstrate the primary judge was well aware of the central dispute of the parties, as reflected by the orders ultimately made.
The fifth complaint pertains to adequacy of reasons. It is broadly cast and fails to particularise the complaint.
The obligation of a primary judge is to provide adequate reasons, but adequacy depends on the circumstances of the case and brief reasons are not necessarily inadequate.
The principles as to what constitutes adequate reasons are well settled. In Fowles & Fowles (No 2) (2024) FLC 94 – 198, the Full Court at [163] and [164] said:
163.... In Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267, the Full Court adopted the principles set out in Sun Alliance Insurance Ltd v Massoud (1989) VR 8, saying:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:—
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.
164.In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, the New South Wales Court of Appeal said:
57.The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “as sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice.
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge “‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
In this case the reasons taken as a whole adequately explain the reasoning process undertaken by the primary judge. There is no merit in this complaint.
Ground 5
Failure to properly engage with the child’s opposition to relocation.
The appellant complains the primary judge failed to have regard to the child’s asserted expressed opposition to relocation to Tasmania and thereby fell into error by failing to engage with a statutory consideration (s60CC(2)(b) of the Act).
Contrary to the appellant’s contention, the reasons demonstrate the primary judge did engage with the child’s views. At [57] and [59] the primary judge discussed the child’s views, age and stage of development. Both parents and the family report writer agreed the child was not emotionally mature enough to make a decision, which was accepted by the primary judge. In any event, at [58] His Honour rejected the appellant’s contention that the child had expressed views opposing relocation.
The obligation under the Act as expressed at s60CC(2)(b) is to consider any views expressed by the child and thereafter afford them appropriate weight. There is no obligation for a primary judge to give effect to the views of a child. As the Full Court said in R and R: Children’s Wishes (2000) FLC 93-000 at [54]
…ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all of the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.
Just because the primary judge reached a different conclusion about the child’s views, to that promulgated by the appellant, does not identify an appealable error. There is no merit in this ground.
Ground 6
Excessive weight to [respondent’s] preference at expense of child’s stability (sic)
Under this ground the appellant contends the primary judge placed excessive weight on the respondent’s preference to relocate and her wellbeing, as opposed to the stability of the child’s living arrangements. In so doing, the primary judge failed to correctly apply s60CA of the Act, which requires the best interests of the child as the paramount consideration in parenting decisions and failed to correctly apply s 60CC(2)(b) of the Act.
Despite the appellant’s attempts to assert legal error, his complaint is really a challenge to the weight afforded by the primary judge to the competing considerations.
I have referred above, under ground 4, to the principles applicable to weight challenges.
The reasons clearly explain the competing considerations taken into account by the primary judge. At paragraph [60] the primary judge acknowledged the child’s well-established arrangements with regard to schooling and friendships, which he considered was an important factor to be taken into account, as was the child’s resilience as identified by the family report writer. At [67] – [68] the respondent’s personal circumstances and separation from her husband were noted as a relevant consideration. At [75] the necessity for the child to change schools was referred to, as was the child’s likely loss of her social group, prior to the primary judge accepting the evidence of the family report writer that the child was resilient and social and would transition quite easily to a new school.
At [70] the primary judge acknowledged the potential difficulty of the outcomes of the competing proposals and at [71] correctly identified his obligation to balance the competing factors and to consider which outcome would provide the child with the greatest opportunity for stability and maintain the high standard of child focused parenting exhibited by the parents.
The appellant did not attempt to demonstrate how the reasoning and balancing of the two proposals and consideration of the relevant factors by the primary judge was plainly wrong. Accordingly, this ground has no merit.
Ground 7
Disregard of expert recommendation for a supported relocation transition
The appellant complains the orders permitting relocation did not provide for a supported transition, contrary to the recommendations of the family report writer and failure to do so was a legal error.
Two issues arise from this complaint. First the appellant’s bald assertion the family report writer clearly recommended a supported transition, so that relocation should only occur with structured preparation, routine and joint parental communication. The appellant relied on the statements in the family report at [110], [111] and [114]. Those paragraphs do not support any such conclusion. The family report writer opines it would be beneficial for the child to be supported by both parents to understand the decision [110], it would be beneficial if the decision could be made before the start of the new school year so any move can be planned and discussed with the child [111] and the decision to move be explained by both parents to the child and that neither parent discuss their feelings (about the decision) with the child [114]. There were no recommendations in the family report as contended by the appellant.
Furthermore, the appellant’s proposed minute before the primary judge did not include supports for a transition and when the family report writer was cross examined by counsel for the appellant, other than stating the child may require support on that transition (Transcript 13 November 2024, p. 22, line 38), she did not further refer to possible supports for the child.
Secondly, even if the appellant’s contention as to clear recommendations were correct (which it is not), a court is not bound to accept a family report, and it is but one piece of evidence to be considered by a primary judge. In Kennedy v Kennedy [2010] FamCAFC 195 at [77] the Full Court stated:
It must be remembered that while the recommendations of a report writer are of considerable weight ultimately it is the role of the judicial officer, who has the advantage of hearing all the evidence, and assessing the demeanour of parties and their witnesses, to determine what is in the best interests of a child. The role of the report writer was discussed by the Full Court in Hall & Hall (1979) FLC 90-713 at 78,819 and approved by subsequent Full Courts (see D & P [2006] FamCA 170 and Andrew & Delaine [2009] FamCAFC 182; Friscioni & Friscioni [2010] FamCAFC 108; Malak & Mairie [2010] FamCAFC 170).
There is no identified appellate error and this ground lacks merit.
Ground 8
Parenting orders based on speculative assumption of [appellant’s] relocation (sic)
Under this ground the appellant challenges the finding of the primary judge as to the appellant’s capacity to relocate to Tasmania. if relocation were permitted. He contends the orders which are founded on speculative assumptions undermines the decision-making process and are contrary to the paramountcy principal enshrined in s60CA of the Act.
At [47] the primary judge referred to the appellant’s evidence that he would most likely move to Tasmania and live within 100 kilometres of the child. The appellant submitted the finding was made despite no evidence in the appellant’s affidavit, case outline or primary proposal that he intended or planned to relocate.
Whilst it is true the appellant’s affidavit and case outline are both silent as to his capacity to relocate to Tasmania, the appellants oral evidence in chief and during cross examination, paints a very different picture.
As to the appellant’s oral evidence in chief, the following exchange occurred between the appellant and his counsel (Transcript 13 November 2024, p. 41 line 31 – p. 42 line 20):
Now, your most recent amendment to your application is that you propose that if [X] is permitted to relocate with the [respondent] to Tasmania, that you have an alternative proposal, bearing in mind that your primary proposal is to remain in [City B], that you might relocate to Tasmania as well. Is that correct?---If the court decided it was in my child’s best interest to be in Tasmania, I would immediately make plans to relocate to Tasmania. The reason for keeping – yes.
Have you made any plans?---I’ve done inquiries on SEEK for employment. I’ve done a check on realestate.com for rental properties and found that [City D] is probably the most appropriate place to find potential employment and accommodation that would be not too far from where the [respondent] proposes to live with the child.
And when you say not too far, what does that mean?---I think it’s around about well, [City D] to [City E]is 70 kilometres. Is that correct?
HIS HONOUR: I don’t know?---If that’s correct, I’m the one saying it.
Okay?---On – on Google Maps, it’s 70 kilometres or 60 kilometres.
HIS HONOUR: 70?---70. 5
70. Got it. Yes. Thank you.
[Counsel]: And your proposal before this court is that then you would seek a week-about arrangement?---That’s right. 10
And do you consider that workable with the whatever inquiries that you’ve done so far about potentially relocating?---Yes. That’s right. I would relocate on the grounds of securing employment, securing a property, a house to live in. And a week-about would be suitable and stable in – under those conditions, yes.
During cross examination by the respondent’s counsel the following exchange occurred (Transcript 13 November 2024, p, 62, line 11):
But it’s possible?---I will do everything – if the court decides it’s in my child’s best interests to be relocated, I will do everything to get there as quickly as I can
In his final written submissions filed 12 December 2024 at 2.17.1.1, the appellant reiterates his capacity and willingness to relocate to Tasmania, in the event relocation is permitted.
While the [appellant] intends to relocate to Tasmania if the court permits the [respondent’s] relocation with [X], there are significant financial and logistical barriers to this.
The primary judge was entitled to rely on the direct evidence of the appellant in reaching his conclusion at [47]. There can not possibly be any suggestion the finding was either demonstrably wrong by incontrovertible facts or uncontested testimony, glaringly improbable, or contrary to compelling inferences. See: Robinson Helicopter.
This ground fails.
Ground 9
Parenting orders are unworkable /incompatible with the child’s best interests
Under this ground the appellant complains about the impractical nature of the appealed orders and that by imposing a regime that is unworkable, the primary judge fell into legal error by misapplication of s60 CA of the Act and s60CC considerations. There is also a complaint about failure to provide reasons for vesting the respondent with sole decision making for school choice.
Underpinning the appellant’s complaint is the inability to travel to Tasmania and to be available for the child during Tasmania school holiday time in Queensland, as well as financial constraints. The appellant does not identify the precise error of fact or law but rather complains about the conclusion reached by the primary judge.
The appellant’s contention the primary judge misapplied the law by failing to give sufficient weight to the child’s meaningful relationship with both parents is essentially a weight challenge, with obvious difficulties.
At [60] – [63] the primary judge has regard to the child’s relationship with the appellant and extended family, and it cannot be argued he failed to have regard to that consideration. The weight attached to that consideration is a matter for the primary judge: see CDJ v VAJ.
As to adequacy of reasons, the complaint is ill founded because there is no such order. To the contrary, order 1 of the orders made by the primary judge, which were made by consent and not the subject of appellate complaint, provide for the parties to have equal shared decision-making responsibility for the child and to consult with each other about the child’s long term are, including education and schooling (order 1(b)). Order 2 prescribes a decision-making process in the event the parents fail to agree to joint long term decisions.
This ground must fail.
Disposition
Because the appeal is wholly lacking in merit, it will be dismissed.
Costs
In the event the appeal was dismissed, the respondent sought an order for costs against the appellant. The Schedule of Costs was amended orally at the hearing and the respondent sought costs of $19,687 of which $5,500 was for costs reserved by the orders of the Judicial Registrar made 10 March 2025 and 2 April 2025.
The appellant opposed any order for costs, and in particular because the Schedule of Costs was filed on 6 June 2025, when orders required it to be filed on 5 June 2025 and because of his limited financial circumstances. The appellant was granted significant leave to rely on documents outside the stipulated timeframe. Impecuniosity does not preclude the making of a costs order. I propose to make an order for the appellant to pay the respondent’s costs incurred in the Applications in an Appeal and the appeal and he will have 90 days to pay the costs.
I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 23 July 2025
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