Cassell & Kolar
[2025] FedCFamC1A 118
•3 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cassell & Kolar [2025] FedCFamC1A 118
Appeal from: Cassell & Kolar (No 9) [2025] FedCFamC1F 147 Appeal number: NAA 141 of 2025 File number: MLC 4879 of 2019 Judgment of: AUSTIN, ALTOBELLI & CAMPTON JJ Date of judgment: 3 July 2025 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Parenting – Where the applicant mother requires leave to appeal from interlocutory orders – Where most of the orders appealed are only procedural directions – Where none of the grounds of appeal overtly challenge the decision not to abort the trial and annul earlier orders – Where no ground of appeal challenges the decision of the primary judge to refuse to disqualify himself – Where no question of general principle arises – Where the proposed grounds of appeal lack any merit – Leave to appeal refused – Appeal dismissed – No orders as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII, s 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 36
Cases cited: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615; [2023] HCA 26
Commonwealth v Bank of NSW (1949) 79 CLR 497; [1949] ALR 925
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91
Faldyn & Badenoch [2022] FedCFamC1A 170
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Number of paragraphs: 33 Date of hearing: 3 July 2025 Place: Melbourne The Applicant: Litigant in person Counsel for the Respondent: Ms Metherell Solicitor for the Respondent: Arkadia Family Law The Independent Children's Lawyer: Did not participate ORDERS
NAA 141 of 2025
MLC 4879 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CASSELL
Applicant
AND: MR KOLAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, ALTOBELLI & CAMPTON JJ
DATE OF ORDER:
3 JULY 2025
THE COURT ORDERS THAT:
1.The application for leave to appeal is refused and the Notice of Appeal filed on 27 March 2025 is dismissed.
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 Cassell & Kolar has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN, ALTOBELLI & CAMPTON JJ:
These reasons explain why an application for leave to appeal from a series of procedural orders, made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 27 February 2025 whilst the trial of the proceedings between the parties under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) was part-heard, must be dismissed.
Background
Proceedings between the parties were started by the mother in 2019.
As the litigation progressed, interim orders were made for the parties’ child to only spend supervised time with the mother.
The trial of the parenting cause began in August 2022. An interlocutory order had earlier been made under s 102NA of the Act, so both parties were legally represented. On the third day of trial, the mother was still under cross-examination. That day, her lawyers applied for and were granted leave to withdraw their representation, in consequence of which the trial was adjourned part-heard to enable her to acquire new lawyers.
She failed to do so. In February 2023, the State Legal Aid agency advised the Court it would not appoint any further lawyer to represent the mother (at [11]).
The trial was due to resume in April 2023. Just beforehand, in March 2023, the primary judge ordered that a litigation guardian be appointed for the mother to aid her conduct of the trial once it resumed, but no litigation guardian could be engaged in time and so the new trial dates were vacated (at [13]).
In May 2023, the primary judge appointed the mother’s friend as her litigation guardian. The appointment was made in satisfaction of the friend’s application, to which the father and the Independent Children’s Lawyer (“the ICL”) both consented, and the trial was then re-listed to resume in September 2023.
Upon resumption of the trial in September 2023, the primary judge dismissed the litigation guardian’s adjournment application (at [17]). However, the following day, orders were made granting the litigation guardian’s application to discharge her from the role, striking out the mother’s parenting application (subject to the grant of leave for her to seek its re-instatement within the next 12 months), and adjourning the trial again (at [18]).
Of course, in the interregnum, the interim parenting orders continued to operate, so the child was only seeing the mother under professional supervision.
It was not until nearly a year later, in August 2024, that the mother applied to re-instate her parenting application, which application was granted in December 2024. The proceedings were re-listed before the primary judge in February 2025 to make procedural directions in readiness for resumption of the part-heard trial.
One week before the directions hearing on 27 February 2025, the mother filed an interlocutory application relevantly seeking this relief:
(a)the vacation of the directions hearing (proposed Order 3);
(b)a declaration that the “Final Hearing of this matter [is] invalid” (proposed Order 5);
(c)an order that the “Final Hearing be restarted afresh” before a different judge (proposed Order 6); and
(d)a declaration that all orders made in the proceedings between 9 March 2023 and 19 December 2024 be “set aside” (proposed Order 7).
The interlocutory application was listed for consideration at the directions hearing and was opposed by both the father and the ICL. The application was entertained and dismissed by the primary judge. Relevantly, his Honour:
(a)ordered the part-heard trial to resume in July 2025 (Order 2);
(b)declared the mother was at liberty to confer with new lawyers for the purpose of engaging them for the resumed trial, even though she was still under cross-examination (Order 3);
(c)gave the parties leave to update their evidence from when the trial was last adjourned in September 2023 (Order 4);
(d)ordered an updated Family Report (Orders 5–12);
(e)permitted the ICL to issue a subpoena (Order 13);
(f)referred any subpoena objections to the registrar (Order 14);
(g)dismissed the mother’s application for transcript of the hearing conducted that day (Order 15);
(h)reserved costs (Order 16); and
(i)otherwise dismissed the mother’s application (Order 17).
The orders effectively refused the mother’s application to vacate the directions hearing and dismissed her multiple allied applications to abort the part-heard trial, to disqualify the primary judge, and to annul past interim orders from which she had not appealed.
By a Notice of Appeal filed on 27 March 2025, the mother sought leave to appeal from all orders made on 27 February 2025.
Disposition
Leave to appeal from the orders should be refused for the following reasons, which are given in short form because no question of general principle arises (s 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)).
Most of the orders (Orders 3–16) are procedural directions and are incapable of being construed as appealable “judgments” (Faldyn & Badenoch [2022] FedCFamC1A 170 at [9]–[20]).
The orders which (in part) reflect the primary judge’s refusal to vacate the directions hearing and to resume the part-heard trial in July 2025 (Orders 2 and 17) are not “judgments” from which an appeal can validly lie (s 26(2)(b) of the FCFCA Act).
Only the orders which (in part) reflect the dismissal of the applications to abort the trial, to annul earlier orders, and to disqualify the primary judge (Orders 2 and 17) are judgments which are capable of being appealed. But for the intended appeal to be competent, the grounds must identify some appealable error to vitiate the three separate decisions to: first, refuse to abort the trial; secondly, refuse to annul earlier orders; and thirdly, refuse to disqualify.
Unfortunately for the mother, none of the grounds of appeal are directed to that narrow purpose. They are only a loose catalogue of grievances she advances in respect of the conclusions reached by the primary judge at the hearing in February 2025 and at much earlier times in the litigation. Appeals only lie from judgments, not reasons (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615 at [34]; Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; Commonwealth v Bank of NSW (1949) 79 CLR 497 at 625).
No ground of appeal overtly challenges the decision not to abort the trial. The mother’s simple dissatisfaction with the way the trial was unfolding did not provide either a valid legal or factual premise to abort it and pretend the five days of hearing in August 2022 and September 2023 had not occurred, as the primary judge correctly observed (at [25]).
No ground of appeal overtly challenges the decision not to annul earlier orders. There was no valid legal or factual premise to annul the interlocutory orders formerly made between March 2023 and December 2024. Such orders were not specifically identified by the mother, though they were either incapable of supporting an appeal because they were entirely procedural or, if substantive and capable of supporting an appeal, no appeal or application for leave to appeal was ever brought from them. The mother made this written submission to the primary judge, which plainly did not warrant the immediate discharge of any operable orders:
5.… The current interim orders, which have remained largely unchanged for four years, are outdated and fail to reflect [the child’s] evolving needs, wishes, and circumstances. The Court has an obligation under section 60CC of [the Act] to make determinations based on current evidence, yet this has not been done.
(Mother’s written submissions filed on 26 February 2025)
Nor does any ground of appeal challenge the decision which amounts to a refusal to disqualify.
The mother’s application for the trial to start afresh with another judge implied her application for the primary judge’s disqualification, but the application was and remains misconceived. His Honour heard and dismissed two prior disqualification applications brought by the mother in November 2022 and September 2023, from which the mother did not appeal (at [9], [15]–[16] and [33]), despite orders dismissing disqualification applications being appealable “judgments” (s 26(1)(h) of the FCFCA Act).
Any allegations of his Honour’s bias at times up to and including the dismissal of the second disqualification application on 5 September 2023 must necessarily have been subsumed by the two former disqualification applications which were dismissed and not appealed. Ancient complaints, already resolved, cannot be revived.
The trial resumed on 18 and 19 September 2023. No disqualification application was made to the primary judge on either of those two days on account of judicial conduct allegedly implying bias. The next and only other Court event over which the primary judge presided before the hearing in February 2025 was on 20 December 2024, at which time his Honour granted the mother’s application to re-instate her parenting application, enabling her to resume active participation in the proceedings (at [20] and [33]–[36]). The mother could hardly have any rational complaint of the primary judge’s bias against her then, when she was granted the relief she sought but, to the extent she does now complain, the primary judge gave a factual account of what occurred in Court that day by reference to corroborative parts of the transcript (at [36]–[52]). In determining the mother’s application for leave to appeal, her contrary recollection of events cannot be accepted in preference to that of the primary judge, corroborated by transcript.
The mother’s desire to disqualify his Honour is only divined from the contents of her affidavit filed in conjunction with the Application in a Proceeding on 20 February 2025, in which she relevantly deposed this:
8.Since the commencement of Final Hearing in August of 2022, excessive judicial intervention has resulted in significant violations of procedural fairness, prejudicing this matter and fundamentally undermining the validity of current proceedings. This requires urgent intervention.
…
32.[The primary judge’s] excessive intervention in these proceedings since the commencement of Final Hearing in August 2022 includes the improper appointment of a litigation guardian without legal or evidentiary basis; the subsequent appointment of a litigation guardian who is a listed witness; and a number of procedural errors and decisions disproportionately prejudicial to my case, giving rise to the apprehension of bias.
33.An application for the recusal of [the primary judge] on the grounds of apprehended bias was filed on 7 June 2023, relying upon evidence deposed by both myself, in my affidavit filed 7 June 2023; and evidence deposed by [the wife’s friend] in her affidavit filed 7 June 2023 and 17 July 2023.
…
52.On 20 December 2024, [the primary judge] rolled his eyes and shook his head in response to my statement that I wouldn’t provide the father with personal details due to concerns for my safety. When I raised this with him, he replied with words to the effect of “I shook my head at you because I disagree with your submission”. For His Honour to openly shake his head, making admissions of it and disagree with a litigant speaking of exercising their right to safety, particularly when that litigant is listed as the [affected family member] on current [Family Violence Intervention Order], raises significant concerns regarding His Honour’s ability to oversee matters regarding family violence.
It will be immediately noticed that, save for [52] which is addressed below, she did not make any specific complaint about the events which transpired at Court on 18 September 2023, 19 September 2023 or 20 December 2024.
The remainder of the mother’s affidavit did not address bias and concerned the asserted need for urgency, asserted legal errors, asserted procedural anomalies, the allegedly improper appointment of the litigation guardian, and her beliefs about the child’s best interests.
In her written submissions filed on 26 February 2025, the mother asserted judicial bias in these terms:
41.[The primary judge] has openly dismissed safety concerns, failed to properly engage with critical evidence, and displayed inappropriate and unprofessional conduct, including rolling his eyes in response to submissions regarding domestic violence. This behaviour is not isolated but has been a sustained pattern since the Final Hearing commenced in August 2022, demonstrating a clear inability or unwillingness to approach this matter with the neutrality required of a judicial officer.
…
52.The conduct of this Court…in these proceedings has been nothing short of a calculated effort to obstruct justice, silence me, and facilitate ongoing abuse …
…
56.[The primary judge’s] conduct has further reinforced this systemic bias. [The primary judge] has openly dismissed safety concerns, refused to engage meaningfully with critical risk assessments, and demonstrated clear judicial prejudice through his treatment of my evidence and witnesses. His Honour’s behaviour does not reflect impartial adjudication but rather an entrenched pattern of bias and judicial overreach designed to silence me and protect his failings and liability in favour of the father.
…
66.It is evident that this Court, rather than acting as an impartial adjudicator, has actively enabled abuse by ignoring key legal principles, obstructing due process, and suppressing the truth…
The alleged “eye rolling” referred to in both the mother’s affidavit and written submissions was expressly explained and rejected by the primary judge (at [39]–[52]). The other generic assertions of dissatisfaction with judicial performance fell far short of particularising judicial acts of either actual or apprehended bias. Glib allegations will never do.
The proposed grounds of appeal are mistaken complaints of discretionary error, variously alleging failures to properly consider or weigh submissions made by the mother. Even the grounds specifically alleging the denial of procedural fairness (Grounds 2 and 7) are incorrectly particularised as being the “failure to properly consider” the mother’s emphasis of certain historical events and by placing “undue weight” on other aspects of the case which she found inconveniently unfavourable.
The proposed grounds of appeal lack any apparent merit and there is no reason to doubt the efficacy of the orders made on 27 February 2025. Even if there was reason for doubt, the mother experiences no “substantial injustice” by having to proceed with the part-heard trial before the primary judge in July 2025 (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]). Supposing she is dissatisfied by the ultimate judgment of the primary judge under Pt VII of the Act, she will have a right of appeal from that judgment and, within that appeal, may raise complaints about interlocutory events which she can show materially influenced the result (s 36(5) of the FCFCA Act; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482–484 and 494–497).
The father did not seek costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justices Austin, Altobelli & Campton. Associate:
Dated: 4 July 2025
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