Carmen & Carmen

Case [2025] FedCFamC1A 128

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 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR CARMEN

Appellant
AND:

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AGLC
Carmen & Carmen [2025] FedCFamC1A 128
Case
[2025] FedCFamC1A 128
Decision Date

CaseChat Overview and Summary

The appeal in the matter of Carmen & Carmen involved the appellant, Mr Carmen, and the respondent, Ms Carmen, who had been married and separated. The primary dispute centred around the relocation of their nine-year-old daughter to Tasmania, which Ms Carmen proposed, and Mr Carmen opposed. The case was heard in the Federal Circuit and Family Court of Australia.

The legal issues before the court were whether the primary judge had erred in his handling of the case, including allegations of procedural unfairness due to the appellant's legal representatives, apprehension of bias, and inadequate consideration of certain facts. The appellant also argued that the primary judge's orders were impractical and that the primary judge had not adequately considered the child's views or had given disproportionate weight to Ms Carmen's position. The court needed to determine if these issues warranted an appeal against the primary judge's orders.

The court dismissed the appeal, finding no merit in the appellant's claims. The court held that there was no evidence of procedural unfairness or bias on the part of the primary judge, and that he had adequately considered all relevant facts and the child's views. The court also found that the primary judge's orders were practical and in the best interests of the child. Consequently, the appeal was dismissed, and Mr Carmen was ordered to pay Ms Carmen's costs.

Orders

Orders of the court

NAA75 of 2025

BRC6137 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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