Newstead & Burns - [2025] FedCFamC1A 79

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Newstead & Burns [2025] FedCFamC1A 79

Appeal from: Newstead & Burns [2024] FedCFamC2F 1872

Appeal number: NAA 379 of 2024

File number: MLC 15879 of 2024

Judgment of: ALDRIDGE J

Date of judgment: 6 May 2025

Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against order permitting the mother to take or send the children overseas – Where previous final orders provided for the children to travel overseas on the provision of 28 days notice and intended itinerary to the other parent – Where the father complains the new order does not retain the notice requirements – Where the primary judge dealt with the point raised by the father – No denial of procedural fairness in the urgent listing – No denial of procedural fairness in making an order beyond those proposed by the parties where the parties had the opportunity for submissions – Formulaic recital of each s 60CC factor not required – Allegations of actual bias – No merit in any of the grounds of appeal – Appeal dismissed.

Legislation: Family Law Act 1975 (Cth) ss 10C, 10D, 10E, 60CC

Cases cited:
House v The King (1936) 55 CLR 499; [1936] HCA 40

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Quintana & Konigsmann [2025] FedCFamC1A 30

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42

U v U (2002) 211 CLR 238; [2002] HCA 36

Willmore & Menendez [2022] FedCFamC1A 73

Number of paragraphs: 42

Date of hearing: 6 May 2025

Place: Sydney (via video link)

The Appellant: Self-represented litigant

The Respondent: Self-represented litigant
ORDERS

NAA 379 of 2024
MLC 15879 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR NEWSTEAD

Appellant

AND:
MS BURNS

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

6 MAY 2025

THE COURT ORDERS THAT:
1.The appeal 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 Newstead & Burns has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
ALDRIDGE J:

On 24 December 2024 a judge of the Federal Circuit and Family Court of Australia (Division…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Newstead & Burns

Details

AGLC: Newstead & Burns [2025] FedCFamC1A 79
Case: [2025] FedCFamC1A 79
Decision Date: 6 May 2025

CaseChat Overview and Summary

Mr Newstead appealed against a decision of the Family Court of Australia that allowed Ms Burns to take their children overseas. The father's concerns were that the order did not retain the requirement for 28 days' notice and an itinerary to be provided to him before the children travelled. He further argued that the primary judge failed to consider relevant material, was biased, and made an order beyond those proposed by the parties. The appeal was heard in the Federal Circuit and Family Court of Australia, Appellate Jurisdiction.

The court examined whether the primary judge denied procedural fairness by not retaining the notice requirements, making an order beyond those proposed by the parties, or failing to consider material considerations. The court also considered whether the primary judge was biased due to comments made during the hearing, the failure to accept the father's submissions, and the making of an erroneous decision. The court found that the primary judge had adequately dealt with the father's concerns and that the father's assertions of bias were unfounded. The court noted that the test for actual bias requires the appellant to show that the judge's mind is "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented." The father's submissions did not meet this threshold.

The court held that the primary judge did not fail to consider material considerations, nor was the judge biased. The court found that the father's allegations of bias were not substantiated by any evidence. The court dismissed the appeal on the basis that there was no merit in any of the grounds of appeal or the initial matter raised.

The court ordered that the appeal be dismissed. The form of the order is subject to the entry in the Court’s records, and may be reviewed to remedy minor typographical or grammatical errors, or to record a variation to the order.

Orders

Orders of the court

NAA 379 of 2024

MLC 15879 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR NEWSTEAD

Appellant

AND:

MS BURNS

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

6 MAY 2025

THE COURT ORDERS THAT:

1. The appeal 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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Again, the father’s submissions to his Honour were simply to the effect that Ms H was not impartial and is an agent of the mother. There is no evidence as to either. Mere assertion is not sufficient, and it is not surprising that this argument was not accepted. Did the primary judge fail to consider material considerations? The submissions under Ground 4 were wide ranging indeed, referring to reports and evidence going back as far as 2015. Much of this material was not before the primary judge and indeed his Honour declined to accept much of it, correctly saying the content of it appeared to have little or no relevance to the issue before him. I am not satisfied it is of any relevance to the disposition of this appeal.Was the primary judge biased? Ground 5 is an allegation that the primary judge was biased because of comments made during the hearing (which were not specified in the Summary of Argument), his failure to accept the father’s submissions, his failure to consider material (much of which was not before his Honour) and the making of an erroneous decision. These matters simply indicate a judge doing his or her job, which is to decide between competing positions. Merely because one side’s contentions are not accepted does not demonstrate bias. The test for actual bias requires the appellant to show that the judge’s mind is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]). Such a finding should not be made lightly (Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]–[74]). The material goes nowhere in seeking to establish actual bias.Disposition There is no merit in any of the grounds of appeal or the initial matter raised today, and the appeal is dismissed.

NAA 379 of 2024 MLC 15879 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR NEWSTEAD Appellant
AND:	MS BURNS Respondent

Appeal from:	Newstead & Burns [2024] FedCFamC2F 1872
Appeal number:	NAA 379 of 2024
File number:	MLC 15879 of 2024
Judgment of:	ALDRIDGE J
Date of judgment:	6 May 2025
Catchwords:	FAMILY LAW – APPEAL – PARENTING – Appeal against order permitting the mother to take or send the children overseas – Where previous final orders provided for the children to travel overseas on the provision of 28 days notice and intended itinerary to the other parent – Where the father complains the new order does not retain the notice requirements – Where the primary judge dealt with the point raised by the father – No denial of procedural fairness in the urgent listing – No denial of procedural fairness in making an order beyond those proposed by the parties where the parties had the opportunity for submissions – Formulaic recital of each s 60CC factor not required – Allegations of actual bias – No merit in any of the grounds of appeal – Appeal dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 10C, 10D, 10E, 60CC
Cases cited:	House v The King (1936) 55 CLR 499; [1936] HCA 40 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Quintana & Konigsmann [2025] FedCFamC1A 30 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42 U v U (2002) 211 CLR 238; [2002] HCA 36 Willmore & Menendez [2022] FedCFamC1A 73
Number of paragraphs:	42
Date of hearing:	6 May 2025
Place:	Sydney (via video link)
The Appellant:	Self-represented litigant
The Respondent:	Self-represented litigant

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	6 MAY 2025