Nootkamp & Brulja (No 2)
[2025] FedCFamC1A 78
•7 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Nootkamp & Brulja (No 2) [2025] FedCFamC1A 78
Appeal from: Nootkamp & Brulja & Anor [2024] FCWA 230 Appeal number: NAA 268 of 2024 File number: PTW 376 of 2019 Judgment of: CHRISTIE, SCHONELL & BERRY JJ Date of judgment: 7 May 2025 Catchwords: FAMILY LAW – APPEAL – Application in an appeal to adduce further evidence – Where the appellant alleges apprehended bias and a denial of procedural fairness on the part of the primary judge – Application in an appeal dismissed – Appeal dismissed – Costs fixed in favour of the respondent. Legislation: Family Law Act 1975 (Cth) ss 69ZT, 69ZX(3), 79, 90XC(1), 100B, 102NA, 102NA(2), 102QAC(1), 102QAC(2), 102QAC(3), 117(2A)(e)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26(1)(d)(i), 26(1)(h), 28(3)(f)
Cases cited: Bennett and Bennett (1991) FLC 92-191
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Calvin & McTier (2017) FLC 93-785; [2017] FamCAFC 125
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
Coghlan & Coghlan (2005) FLC 93-220; [2005] FamCA 429
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Darley (No 5) [2024] FedCFamC1A 241
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
LC v TC (1998) FLC 92-803; [1998] FamCA 47
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Naparus & Frankham (2020) FLC 93-943
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Re F: Litigants in person guidelines (2001) FLC 93-072; [2001] FamCA 348
Rodgers v Rodgers (1964) 114 CLR 608; [1964] HCA 25
Royal Guardian Mortgage Management Pty v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Vakuata v Kelly (1989) 167 CLR 568; [1989] HCA 44
Nootkamp & Brulja & Anor (Disqualification) [2024] FCWA 188
Whisprun v Dixon (2003) 77 ALJR 1598; [2003] HCA 48
Zau & Uong [2016] FamCAFC 76
Number of paragraphs: 116 Date of hearing: 25 February 2025 Place: Heard in Perth, delivered in Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Spashett Solicitor for the Respondent: Legal Aid Western Australia Counsel for the Independent Children's Lawyer: Mr Phillips Solicitor for the Independent Children's Lawyer: S V Phillips & Co ORDERS
NAA 268 of 2024
PTW 376 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR NOOTKAMP
Appellant
AND: MS BRULJA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE, SCHONELL & BERRY JJ
DATE OF ORDER:
7 MAY 2025
Order numbers have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 2 July 2025.
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 7 January 2024 is dismissed.
2.The appeal NAA268/2024 is dismissed.
3.The Appellant, MR NOOTKAMP, pay the costs of the Respondent, MS BRULJA, fixed in the sum of $10,534.48.
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 Nootkamp & Brulja has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE, SCHONELL & BERRY JJ:
By a Notice of Appeal filed on 15 October 2024, the appellant father appeals parenting and property settlement orders, injunctions, and the dismissal of his application for a harmful proceedings order against the respondent mother. The trial was conducted by a judge of the Family Court of Western Australia (“the primary judge”) and final orders were made on 8 October 2024.
By Application in an Appeal filed on 7 January 2025, the appellant seeks to adduce further evidence. By orders made on 4 December 2024, the application was listed for hearing with the substantive appeal.
For the reasons which follow, the application and the appeal will be dismissed.
BACKGROUND
At trial, the three children were 11 years (“Child Z”), 13 years (“Child Y”) and 15 years of age (“Child X”). The first child (“Child W”) became an adult in mid–2024.
The parties commenced living together in 2003, were married in 2006 and separated under one roof in March 2018. The appellant moved out of the family home in 2018 after the respondent obtained an interim Family Violence Restraining Order (“FVRO”) against him. The parties were divorced in 2020.
In January 2019, the appellant started proceedings for parenting orders. Following the respondent filing a response in respect of both parenting and financial orders, the appellant filed a reply in February 2021.
Initially, orders were made for the children to live with the respondent and spend two hours supervised time with the appellant every fortnight. Consent orders were made on 28 April 2021 for the three younger children to spend three hours per fortnight with the appellant, unsupervised, with changeover to occur at a contact centre. Child W's time was to be in accordance with his wishes.
On 13 January 2023, orders were made granting the respondent sole parental responsibility for the children. Child Z and Child Y were to spend two hours a fortnight with the appellant at a contact centre. Child W and Child X were to spend time with the appellant according to their wishes. A number of injunctions were made against both parties. The appellant was also restrained from knowingly approaching or remaining within 100 metres of the respondent, or within 25 metres of any property, including vehicles, of the respondent or under her control. He was also restrained from monitoring her movements or communications.
The appellant appealed the interim injunctions and the order for sole parental responsibility. The appeal was dismissed on 7 June 2023.
On 29 April 2024, the primary judge delivered ex tempore reasons dismissing the appellant’s oral application to adjourn the hearing (listed to commence on 6 May 2024) and confirming that s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) applied to the proceedings such that the parties were not permitted to cross-examine one another.
The hearing proceeded before the primary judge over five days in May 2024. On 13 August 2024, the primary judge delivered ex tempore reasons recorded as Nootkamp & Brulja & Anor (Disqualification) [2024] FCWA 188 dismissing the appellant’s recusal application and dismissing the appellant’s application to re-open.
The orders made by the primary judge on 8 October 2024, against which the appeal lies, may be summarised as follows:
(a)the children live with the respondent (Order 6);
(b)the two youngest children spend supervised time with the appellant, until each child attains 15 years of age, on one occasion per month, for a period of up to four hours, with such time to be in accordance with their wishes and supervised by H Service (Order 8), with ancillary orders (Orders 9–12 and 14);
(c)upon each of the two youngest children attaining 15 years of age, they shall spend time with and communicate with the appellant in accordance with their wishes, with such time to be initiated by them, and shall take place on such terms and conditions as agreed between each child and the appellant (Order 13);
(d)the appellant be at liberty to send one card and/or one age-appropriate gift for each of the children, on no more than six occasions per calendar year, which includes the children’s birthdays, Christmas and Easter, on designated terms and conditions (Order 15);
(e)the respondent be permitted to remove the children from Australia for the purposes of holidays, with the requirement of any consent from the appellant being dispensed with (Order 16);
(f)the respondent be permitted to provide a copy of the orders to particular institutions (Order 18);
(g)until the youngest child attains 18 years of age, the appellant be restrained by injunction in various particulars, including distance requirements from the respondent, the children and the children’s school(s), communicating with the respondent or children, behaving in particular ways towards the respondent, putting specified forms of material on any form of social media, or removing the children from the care of the respondent, save in accordance with these orders (Order 19);
(h)the appellant pay the respondent the sum of $128,469, upon the transfer of the Suburb E property to her (Order 25(b)); and
(i)the respondent be allocated a base amount of $296,727 from a designated superannuation interest of the appellant (Order 32).
APPLICATION IN AN APPEAL
By his application in an appeal, the appellant seeks to adduce further evidence being Court documents which were not tendered or relied upon at trial, contained in the contested appeal book. The Court documents range in date between January 2020 and November 2022.
The appellant submitted that because these were documents read by the primary judge (during pre-trial case management) and by the Single Expert Witness (as part of her terms of reference), then this Court should also receive them into evidence because they informed the appellant’s grounds of appeal directed to apprehended bias and the weight to be attached to the single expert evidence.
The appellant also seeks to adduce further evidence of the same documents which were refused by the primary judge in the August 2024 recusal and re-opening decision. The appellant has not applied for leave to appeal those orders.
The High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172 (“CDJ v VAJ”) laid down clear guidelines that are to apply to the reception of further evidence on appeal. We are not satisfied that this further evidence has any bearing on the appeal and does not meet the requirements identified by the High Court, namely that it is necessary to receive it to avoid an error “which cannot be otherwise remedied by the application of the conventional appellate procedures” (CDJ v VAJ at [109]).
The application in an appeal will be dismissed.
THE APPEAL
The appeal comprises 21 grounds. Many of the grounds are not properly recognisable as a ground of appeal while others are erroneously prefaced with the words, “[t]he appellant was denied natural justice of the right to a fair trial”. There is a degree of overlap to some of the grounds and accordingly they have been dealt with together.
The Court is required to first determine those grounds which contend allegations of apprehended bias or a denial of procedural fairness because, if successful, such findings “strike at the validity and acceptability of the trial and its outcome” and the proceedings are required to be remitted for rehearing (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611–612 and 634; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at 130.
Ground 21
The appellant was denied natural justice as the trial judge was biased.
The ground as framed provides no particulars. The Summary of Argument refers to the following “particulars” said to be supportive of the ground:
(a)the primary judge’s use of a “drastic analogy” in illustrating a possible finding open to the Court that the G store incident arose from a “culmination of events” or a “coincidence” rather than the appellant’s case that the respondent was using one of children to “frame” the appellant (Transcript dated 9 May 2024, page 39, lines 35-50).
(b)the mistake of fact dealt with by the primary judge in reasons delivered on 13 August 2024;
(c)the primary judge’s pre-trial management and access to the Court file dealt with by the primary judge in reasons delivered on 13 August 2024; and
(d)the primary judge’s disposal of the appellant’s two contravention applications dealt with by the primary judge in reasons delivered on 13 August 2024.
On 13 August 2024, the primary judge delivered ex tempore reasons dismissing the appellant’s application for recusal. The recusal decision was a judgment from which an appeal independently lay (s 26(1)(h) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”)), though subject to the grant of leave to appeal from it (s 28(3)(f) of the FCFCOA Act), but the appellant chose not to make such an application. Consequently, he cannot now complain about the validity of that separate decision in this appeal, which is brought, as of right and without the need for the grant of leave, from a quite different judgment pronounced on 8 October 2024 (s 26(1)(d)(i) of the FCFCOA Act).
While the ground as drafted appears to contend actual bias, the appellant accepted that he was alleging apprehended bias. The apprehended bias test requires the identification of what it is said might lead the judge to decide the particular case other than on its merits and importantly the articulation of the logical connection between the first matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner v Official Trustee in Bankruptcy”).
As their Honours observed in Ebner v Official Trustee in Bankruptcy at [6], to succeed on a ground of apprehension of bias, the appellant must establish that:
…a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
We are not satisfied there is merit to this ground for the following reasons.
In the case of the “drastic analogy” the appellant has waived his right to object on this ground (Vakauta v Kelly (1989) 167 CLR 568 at 572–573, 577–579 and 587–588; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 449). The appellant was obliged to raise his objection as soon as possible after the remarks were made. The primary judge’s “drastic analogy” remarks were made on 9 May 2024. The appellant did not make any objection or reference to these remarks at the time or at any time thereafter including during his lengthy closing submissions on 10 May 2024. Nor did the appellant refer to these remarks as a ground of recusal in his application dismissed by the primary judge on 13 August 2024.
No aspect of the remaining particulars establishes the primary judge did other than decide the matter on its merits. The primary judge’s trial reasons (“the trial reasons”) clearly identify the material taken into account at [29]–[36]. The appellant does not particularise the other material said to have been taken into account by the primary judge or otherwise explain how the said material diverted the primary judge from bringing an impartial and unprejudiced mind to her decision. The appellant’s contention that he was somehow coerced into abandoning the Contravention Applications is specious. The transcript reveals the appellant consented to the dismissal of the applications.
The appellant cites examples of the primary judge finding against him as demonstrative of an apprehension of bias. Even where a finding is in error it will not without more satisfy the test of establishing apprehended bias. In each instance, the appellant fails to establish the logical connection between the asserted fact and the feared deviation from the course of deciding the case other than on its merits.
Ground 21 fails.
Grounds 1, 3, 4, 5
1. The appellant was denied natural justice of the right to a fair trial by not being able to cross examine the mother.
3. The appellant was denied natural justice of the right to a fair trial by being denied the ability to summons any (Non-financial) material.
4. The appellant was denied natural justice of the right to a fair trial by being denied the right to summons witnesses.
5. The appellant was denied natural justice of the right to a fair trial by having his post‑divorce acquired funds ‘frozen’ being unable to afford a private lawyer.
By Ground 1, the appellant asserts he was denied “natural justice of the right to a fair trial” by not being able to cross-examine the respondent and was unreasonably stopped by the primary judge in completing his closing submissions.
As to the first contention, the appellant had a right to a fair trial but not necessarily a right to cross-examine the respondent (Naparus & Frankham (2020) FLC 93-943 at [17]–[20]). The proceedings were conducted pursuant to the mandatory provisions of s 102NA of the Act. The appellant had no right to cross-examine the respondent. Therefore, there was no error in the primary judge refusing the appellant permission to cross-examine the respondent.
The circumstances in which the appellant found himself unrepresented were entirely of his making. Immediately prior to the hearing, four successive lawyers had represented the appellant on the basis that s 102NA(2) of the Act applied to the proceedings. The lawyer who most recently acted for the appellant (and ceased acting on 16 April 2024) had briefed counsel. At the request of the primary judge, Legal Aid Western Australia advised that the appellant’s most recent grant of legal aid had been terminated following the appellant’s unwillingness to comply with either legal advice or the terms of the appellant’s grant. On the first morning of the hearing, the appellant told the primary judge that he had asked his most recently appointed lawyers “to stop representing me” (Transcript dated 6 May 2024, page 15, lines 40–45).
As to the second contention, a review of the transcript reveals that the appellant at the conclusion of his addresses said, “I think I’ve covered everything” (Transcript dated 10 May 2024, page 151, lines 40–45). Thereafter there was an exchange between the primary judge and the parties about procedural matters and the Court was adjourned.
Ground 1 fails.
By Ground 3, the appellant contends that he was denied the ability to summons any non‑financial material and by Ground 4, contends that he was denied the right to a fair trial by “being denied the right to summons witnesses”.
Each contention is without merit.
On 12 December 2022, an order was made permitting only the Independent Children’s Lawyer permission to issue subpoena to produce documents in the parenting proceedings. As the Full Court observed in Darley (No 5) [2024] FedCFamC1A 241 at [48]:
Procedural fairness requires each party to be given an adequate opportunity to be heard and to present their case (Kioa v West (1985) 159 CLR 550 at 582). The applicant complains in general terms about rulings and findings made by the primary judge, and not about any failure to provide the applicant with an opportunity to be heard or present her case.
There is no evidence in this instance that the appellant lacked the opportunity to request the Independent Children’s Lawyer to issue a specific subpoena or subpoenas. The appellant did not identify any specific documents, or categories of documents, that he would have subpoenaed in child-related proceedings if given the opportunity, or any request or application he subsequently made to the Court for permission to issue a subpoena to produce documents in the child-related proceedings. The appellant’s submissions assert that, by an order made on 28 February 2024, he was prevented from viewing any of the subpoenaed documents. The order made on 28 February 2024 does not have this effect.
As to Ground 4, the appellant did not identify any order which imposed a restriction on seeking issue of a subpoena to give evidence, nor did the appellant assert that he had sought to issue a witness subpoena which had been rejected by the Court.
Grounds 3 and 4 fail.
By Ground 5, the appellant asserts that he was deprived of a fair trial “by having his post‑divorce acquired funds ‘frozen’ being unable to afford a private lawyer”.
In civil proceedings, a party does not have a right to legal representation (Zau & Uong [2016] FamCAFC 76 at [58]). Therefore, a necessary incident of a fair trial does not include a party having legal representation.
While the Court made an order on 17 March 2021, until further order, restraining the parties from disposing of any asset in which they have an interest exceeding $1,000 in value, save in the ordinary course of business or with the other party’s written consent or in compliance with Court orders, at no time did the appellant avail himself of the opportunity clearly available to him, as with any litigant, to seek to vary such an interlocutory order or to approach the Court to make another order.
Ground 5 fails.
Grounds 2, 6, 7, 8, 9, 10, 11
2. The appellant was denied natural justice of the right to a fair trial by being extremely limited by the questions the trial judge could ask the respondent in lieu of the appellants cross examination ban.
6. The appellant was denied natural justice of the right to a fair trial by not allowing any objections to evidence at all.
7. The appellant was denied natural justice of the right to a fair trial by not allowing any objections to evidence to the appellants claim of privilege in aid of settlement.
8. The appellant was denied natural justice of the right to a fair trial by not having the ability to respond to allegations by having those allegations put to him and by being unable to put allegations to the respondent (the Brown and Dunne [sic] principle).
9. The appellant was denied procedural fairness by not being able to call and give evidence, then test the evidence on the findings in the reasons of a ‘Collateral Abuse of Process’ at paragraph 191 and the ability to respond to that finding.
10. The appellant was denied natural justice of the right to a fair trial as the trial judge failed to address significant issues that were raised by the appellant it was a collateral abuse of process for the respondent to re-litigate the same evidentiary material to obtain injunctive orders previously litigated at the respondent’s previous multiple prior contested Court hearings for the same injunctive orders.
11. The appellant was denied natural justice of the right to a fair trial as the trial judge failed to address significant issues that were raised by the appellant of ‘issue estopple’ [sic] of re‑litigating the same evidence from the parties previous contested court hearings for the same injunctive orders.
The appellant’s complaint in Ground 2 is misconceived. Following the primary judge recognising that s 102NA(2) of the Act applied, the appellant was prevented from asking questions directly having previously discharged his legal representation in full knowledge of the order.
To the extent that the primary judge afforded the appellant an opportunity to put questions through her, it was an indulgence not required by law and not a necessary incident of a fair hearing.
Ground 2 fails.
Ground 6 is erroneous. The parties (including the appellant) filed a joint schedule of objections to evidence prior to the hearing including any appropriate concessions. The balance of the objections not conceded were by agreement (as the transcript reveals) to be dealt with as a matter of weight. Such an approach was consistent with s 69ZT of the Act.
The primary judge advised the parties on the first morning of the hearing that they could raise further objections to evidence as they considered appropriate. Both parties did so, and the Court addressed those objections.
The appellant’s complaint that he did not understand the primary judge’s ruling is not demonstrative of a denial of procedural fairness. If he was in doubt as to its meaning, it was incumbent upon him to have said so. The primary judge is not expected to know what is in the mind of a party having complied with the guidelines laid down in Re F: Litigants in person guidelines (2001) FLC 93-072.
To the extent that a small number of the objections related to financial proceedings or the appellant’s harmful proceedings application, the appellant has failed to demonstrate that a miscarriage of justice has arisen by the manner in which the primary judge dealt with those objections.
Ground 6 fails.
Ground 7 is without merit resting upon the assumption that the documents the subject of complaint were privileged as offers to settle the proceedings or part thereof. None of the documents constituted an offer of settlement (Rodgers v Rodgers (1964) 114 CLR 608 at 614).
Ground 7 fails.
Ground 8 is but a further complaint springing from the appellant’s overarching complaint as to an inability to cross-examine the respondent. It also contends a denial of procedural fairness by being denied an opportunity to respond to allegations. The ground is absent foundation. The primary judge elicited from the appellant a list of questions he wanted to ask the respondent and asked them subject to relevance.
The following passage appears in the transcript on the first morning of the hearing:
[NOOTKAMP], MR: There were things I wanted to put to Ms [Brulja], but I think it would be evident to you what they are. I don’t know what the exact procedure is, if I give Mr Phillips a list of the questions?
HER HONOUR: Well, I know the Independent Children’s Lawyer is in a difficult position, because they’re not here for either party, and they’re a neutral, independent agent, for lack of a better way of putting it. How many questions do you have? Do you have a list? Do you actually have a list?
[NOOTKAMP], MR: Yes, I – I don’t want to say what [F Firm] did, but they effectively helped me brush up what would have been the puttage [sic] to Ms [Brulja] as to my account.
HER HONOUR: Just tell me how long is your list?
[NOOTKAMP], MR: A couple of pages.
[…]
HER HONOUR: . . . I want to ensure, notwithstanding the ban is in place, that I do understand your case, and that Ms [Brulja] has an opportunity to respond to the important issues that you consider relevant.
(Transcript dated 6 May 2024, page 33, line 28 – page 34, line 5)
Thereafter, the primary judge conducted the hearing in a manner which addressed with the respondent the questions proposed to be put by the appellant, provided such matters were relevant to the issues (Trial Exhibit A3).
As to the remaining limb of this ground, it likewise is without substance where:
(a)The appellant was able to respond to allegations during his cross-examination.
(b)Each party was able to and did set out (or have the opportunity to set out) that party’s case in their affidavits and each party knew what the other party’s case was and the facts asserted in support. In those circumstances, the rule in Browne v Dunn does not apply where the witness is on notice that the witness’s version of events is in contest, at least where the issue is a fairly clear and obvious one (LC v TC (1998) FLC 92-803 at [38]).
(c)The primary judge permitted the appellant to identify questions or issues which he wanted to put to the respondent, and so far as these were relevant, the primary judge or the Independent Children’s Lawyer dealt with the issues.
The appellant makes particular reference to the “[...] Knife” incident in 2004, referred to by the primary judge in her reasons for decision (at [42] and [57]). This was an example of an incident where the respondent gave evidence in her first affidavit (at paragraphs 37–38) and the appellant elected not to respond in an affidavit that he was permitted to but did not file (Orders made on 30 April 2020, paragraph 9). The primary judge also asked the respondent questions about this incident, being one of the matters identified by the appellant in a list of questions/issues he wished to put to the respondent (Trial Exhibit A3).
Ground 8 is without merit.
Ground 9 is misconceived as the primary judge was not obliged to give the appellant an opportunity to be heard in respect of an adverse finding she may make, based upon her evaluation of all the evidence and submissions at trial where the issue had been canvassed and the parties given an opportunity to respond. During cross-examination, the appellant acknowledged that notwithstanding his desire to cross-examine the respondent, he was aware that he could not (Transcript dated 8 May 2024, page 50 line 35 – page 51 line 25).
The findings made by the primary judge were consistent with the following unchallenged facts:
(a)The appellant brought a civil action against the respondent in the Perth Magistrates Court for the tort of wrongful imprisonment, which was dismissed in mid-2024 ("the Civil Action"), at [4(d)].
(b)The primary judge reserved her decision at the conclusion of the trial and later received into evidence by consent, a copy of the learned Magistrate’s reasons for decision dated mid-2024 (“the Civil Reasons”) in the Civil Action, after affording the parties procedural fairness, at [18]–[21].
(c)The appellant was arrested by WA Police after breaching a Conduct Agreement Order/restraining order and accepted, after being shown CCTV footage, that he had breached the order, at [170]. The appellant was released without charge after approximately 30 minutes, after WA Police considered there was no reasonable prospect of successfully prosecuting the breach, at [170].
(d)In mid-2023, the appellant commenced the Civil Action seeking $74,999 for loss of reputation and humiliation associated with his arrest, at [171]. It was the appellant’s case before the Magistrates Court and in these proceedings that the respondent induced Child X to go to a shop with the sole purpose of the appellant breaching the Conduct Agreement Order, at [171]. The appellant maintains that she did this directly and intentionally, which resulted in him being arrested without lawful justification, at [171].
(e)The primary judge permitted the appellant to take her through the CCTV footage, at [172].
(f)Pursuant to s 69ZX(3) of the Act, the primary judge accepted the reasons of the learned Magistrate and identified the most salient findings which she adopted, at [173]–[174], including that the appellant provided no evidence of loss.
(g)While there was electronic contact between Child X and the respondent, such contact was “untoward” and did not support the appellant’s case, at [175]–[176].
(h)After commencing the Civil Action, the appellant sent the respondent’s solicitor a large volume of communication, which supported the primary judge’s conclusion that the appellant uses litigation as a means to harass, intimidate and threaten others, at [177(a)], and uses his position as a public servant to do so, at [177(b)].
(i)The appellant wrote to the respondent’s solicitor on 2 October 2023, foreshadowing his view that Child X must give evidence in the Civil Action, at [178], and issued a witness summons on 27 October 2023 for Child X to attend and give evidence in the Civil Action, at [179].
(j)The Civil Action commenced in early 2024 and instead of commencing school, Child X was required to attend at the Perth Magistrates Court, at [186]. After hearing argument, the learned Magistrate discharged the summons to Child X and she was permitted to leave the Court, at [186].
(k)The primary judge rejected the appellant’s claim that he was seeking “justice for [Child X]” and that the Civil Action had nothing to do with her or her best interests, at [188]. The primary judge was satisfied that the appellant’s conduct reinforced her “overall concern” about the appellant’s insight and capacity to put the children’s welfare ahead of his own, at [188], and that the appellant was prepared to disregard Child X's emotional wellbeing to advance “a hunch” which was not supported by the available evidence, at [189].
(l)The appellant wanted the respondent convicted of wrongful imprisonment and used the Civil Action as a means of adducing evidence to support his criminal complaint against her, which he had been lobbying to have re-opened, at [194]. The appellant also used the Civil Action as a means of negotiating with the respondent to have her drop her application for injunctions in these proceedings, which he asserted could impact his employment, for which assertion there was no evidence, at [194]. The appellant also used the Civil Action as a means of gathering evidence to make further complaints, in contemplation of other possible litigation, including against a particular Detective Sergeant, at [195].
(m)The appellant consented to a $20,000 costs order in the Civil Action, at [222].
(n)Neither the learned Magistrate nor the primary judge were “remotely persuaded” that the respondent behaved as the appellant alleged, at [224].
Ground 9 fails.
Grounds 10 and 11 are without merit. They each contend error arising out of the cross-examination of the appellant on matters that gave rise to the mid-2020 Conduct Agreement Order.
The grounds proceed erroneously on an assumption that the making of the Conduct Agreement Order and circumstances predating it foreclosed any cross-examination of the appellant on matters relevant as they were to his parenting capacity and the making of orders as between the parties.
The appellant did not elaborate how the making of the Conduct Agreement Order could give rise to an issue estoppel.
Grounds 10 and 11 fail.
Ground 14
The appellant was denied natural justice as the trial judge overlooked relevant matters which are vital to the decision including; the respondents non-compliance with Court Orders, the children crying at lack of contact with their father (appellant) for long periods, the children’s views given through the Independent Children’s lawyer and the Relationships Australia reports.
The ground contradicts the Summary of Argument in contending, on the one hand, that the primary judge overlooked relevant considerations while maintaining that the primary judge “did not give enough consideration” to the same matters.
The primary judge was not obliged to refer to every fact relied on by the appellant as relevant to an issue she was required to determine (Whisprun v Dixon (2003) 77 ALJR 1598 at [62]).
In discussing the views of the children, the primary judge expressly referred to and took into account the children’s views as expressed to the Independent Children’s Lawyer (at [306] and [334]–[335] of the primary judge’s trial reasons.
The H Service report referred to by the appellant spanned eight parent-child observation reports between the appellant and Child Z, and seven reports between the appellant and Child Y, for the period from 5 February 2023 until 28 May 2023. The primary judge does not expressly refer to the H Service report, but the report was referred to by the Single Expert Witness in her report (at paragraph 14) to which the primary judge referred. The primary judge identified the appellant’s most recent affidavit, to which the Service H report was annexed (at [30(d)]). The primary judge also made findings about the appellant’s communications with Service H (at [198]–[204]).
The appellant accurately records that there were no findings that the respondent failed to comply with court orders, or that the children were crying as a result of a lack of contact with the appellant. The appellant has not identified the order with which he says the respondent did not comply, nor was it demonstrated how an assertion that a child crying in 2018 shortly after separation could be remotely material to the primary judge’s determination in 2024.
In respect of the remaining complaints, the appellant has not demonstrated how the primary judge failed to take into account relevant and material considerations in making the parenting orders.
In any event, the weight to be attached by the primary judge to particular evidence was a matter for the primary judge and could only be legitimately challenged if the appellant could demonstrate that the primary judge was plainly wrong, and the discretion miscarried (Gronow v Gronow (1979) 144 CLR 513 at 519–520).
Ground 14 fails.
Ground 12
The appellant was denied natural justice of the right to a fair trial as the trial judge didn’t apply the ‘Briginshaw principle’ to take into account the seriousness of the consequences of the findings, the seriousness of the allegation, the quality of the evidence, and any other relevant circumstances.
In civil proceedings, the only standard of proof which applies is the balance of probabilities (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449–450). When the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found, that is, the fact must be established to the reasonable satisfaction of the tribunal (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 –362). The Court states at 362:
But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
The appellant asserts the primary judge did not apply these principles to a number of specific findings. We disagree. In essence, this ground is another example of the appellant enumerating findings with which he disagrees and asserting appellable error (with reference to the primary judge’s trial reasons). The asserted erroneous findings were:
(a)The appellant’s assault complaint against the respondent was trivial, meritless and a waste of police resources. Specifically, the timing of the complaint was a punitive response to the criminal charges brought against him (at [55]).
(b)The conclusion that the respondent’s conduct in applying for and subsequently seeking to withdraw an application for a FVRO could not be considered vexatious, (at [121])
(c)The primary judge’s finding that the appellant’s application for an interim FVRO was an abuse of process and the interim FVRO should not have been granted (at [125]).
(d)The primary judge’s finding that the appellant’s concern about the respondent's partner's conduct towards one of the parties’ children was “malicious and was a further attempt to control the respondent's partner's ability to have contact with the children and mother”; further, that the appellant’s conduct was likely motivated “to cause hurt where possible” (at [146]).
(e)The primary judge’s findings that the trespass notices issued by the appellant to the respondent's partner were a “stand-over tactic” intended to compel compliance (at [147]).
(f)The primary judge’s conclusion that the appellant used legal proceedings as a mechanism to obtain information for collateral purposes (at [163]).
(g)The primary’s judge’s conclusion that the father has used his position as a public servant and that he uses litigation to harass intimidate and threaten (at [177(b)]).
(h)The appellant complains about the primary judge’s findings at [191] of the trial reasons. The findings were plainly open to the primary judge, for the reasons given in respect of Ground 9.
(i)The conclusion that the appellant had perpetrated family violence against the respondent, to which the children were vicariously exposed (at [247]).
(j)The primary’s judge’s finding that the appellant’s actions have, on occasion, been intentional and designed to harass, cause distress to and disrupt the respondent's life without consideration of the potential consequences for her and the children (at [284]).
The appellant’s written submissions do not elucidate the purported error in the primary judge’s application of the civil standard to the examples provided. The primary judge comprehensively reviewed the affidavit evidence, documentary evidence, and the cross-examination, fully cognisant of the seriousness of the subject matter on which the findings were based. No error has been established.
Ground 12 fails.
Grounds 16 and 18
16. The trial judge erred in not declaring the respondent a Harmful litigant and gave inadequate reasons.
18. The appellant was denied natural justice as the trial judge did not give adequate reasons for conclusions as to competing factors to order the children only see the appellant father under supported supervision until they are 15 years old and to have no contact outside of that.
The Summary of Argument in relation to both of these grounds contends, in part, a failure to give adequate reasons.
Reasons will be adequate when they enable the reader to understand why the orders were made and need not be lengthy to be adequate (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [57]–[59]). In DL v The Queen (2018) 266 CLR 1 at 44, the High Court observed:
… although the extent of reasons may depend on the circumstances of the case, reasons must identify the relevant principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge.
(Footnote omitted)
A reading of the trial reasons as a whole reveals that the primary judge comprehensively addressed amongst other things:
(a)the terms of s 102QAC(1), (2) and (3) of the Act at [436];
(b)observed that the Court must assess the individual circumstances of the case to make an assessment as to whether or not there are reasonable grounds to believe the person protected by the order would be “harmed”, which is defined in a non-exhaustive manner at [437];
(c)the parties’ history, in this Court and in other jurisdictions, implies that the appellant’s application “arguably further highlights…earlier findings about his lack of insight”at [439];
(d)declined to make a harmful proceedings order against the respondent because such an application was wholly without merit, for three reasons (at [440]); and
(e)made findings about the respondent's application for and resolution of the various FVROs obtained against the appellant (at [440(a)]).
In respect of the first FVRO, in early 2018, the primary judge accepted the respondent’s evidence about why the application was necessary, particularly her fear of the appellant’s escalating behaviour, at [61]. The first FVRO was resolved by an undertaking in mid-2018, at [62] of the trial reasons.
Then in mid-2018, the respondent applied for and was granted a further interim FVRO against the appellant (“the second FVRO”), at [68] of the trial reasons. After being charged in late 2018 with six counts of breaching the second FVRO, and subsequently pleading guilty, the appellant was convicted of all six counts in late 2019, at [69]. In relation to these convictions, the primary judge made unchallenged findings that the appellant was obfuscating, pedantic and unable to accept his convictions as other than “technical breaches”, at [70]–[71]. The primary judge found that the appellant demonstrated a disregard for the rule of law, at [73]. The appellant was fined $6,000 by the presiding Magistrate, at [74].
The final order hearing for the second FVRO occurred in mid-2020. The respondent acknowledged her misunderstanding about the order applying only to herself and not to the children, at [79] of the trial reasons. The trial Magistrate raised concerns about the appellant’s tone when cross-examining the respondent and on several occasions had to remind him of the Court’s directions, at [80]. The primary judge summarised the appellant’s “highly aggrieved” response to the respondent’s conduct in respect of these applications, at [81], and made unchallenged observations as to why this response was misguided, at [82].
The circumstances surrounding the other litigation in which the parties have been involved, in particular the finding that it has been the appellant who has been the driver of the conflict underpinning those proceedings, at [440(b)] of the trial reasons was open and sound. The primary judge’s finding that the appellant has used litigation and threats of litigation to perpetrate family violence against the respondent, at [440(c)] was available and relevant.
These findings by the primary judge directly engaged consideration of s 102QAC(3) of the Act and were soundly relied upon by the primary judge in deciding to dismiss the appellant’s application.
The Court’s discretion was enlivened to make a harmful proceedings order if the Court was satisfied that there were reasonable grounds to believe that the other party would suffer harm if the first party instituted further proceedings against the other party, or in the case of child related proceedings (within the meaning of Part VII of the Act) the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party (ss 102QAC(1) and (2)).
Those pre-conditions were addressed by the primary judge’s findings in her comprehensive reasons for decision, which make clear that neither the appellant nor the children would suffer harm if the respondent instituted proceedings against the appellant.
In any event, the primary judge clearly decided, for the reasons given, that in the Court’s exercise of discretion there would be no reasonable basis for a harmful proceedings order to be made.
No error is established. The trial reasons are comprehensive. Ground 16 fails.
As to Ground 18, the primary judge’s comprehensive reasons explain why supervised time was required for the two youngest children. In particular, the primary judge made findings, based upon anterior factual findings elsewhere in the reasons, that:
(a)the appellant has subjected the respondent to family violence and the children have been vicariously exposed to this family violence, at [247]–[265];
(b)the appellant poses a risk of emotional and psychological harm to the children, at [273]–[305];
(c)the children do not currently have a meaningful relationship with the appellant, but the children would benefit by maintaining their existing relationship with him, at [318];
(d)unsupervised time with the appellant is not safe for the children, at [315]–[320];
(e)after considering the younger children’s views, and considering options about safe spend-time arrangements, supervision on the terms proposed was in the youngest children’s best interests, at [306]–[308] and [315]–[350], in particular [334]–[336]; and
(f)supervision should be until 15 years of age, as this will give time for the younger children to develop and mature, at [339]–[340].
These findings were made in the context of the primary judge also considering the other required statutory considerations, at [309]–[314] of the trial reasons.
Ground 18 fails.
Ground 20
The trial judge erred in the financial reasons and the orders by the consideration of the property accrued post divorce, the appellants redrawing of excess funds in his mortgage and the detriment suffered by the appellant since the divorce date, until the six years awaiting the trial.
The primary judge properly identified the parties’ proposals, the existing interests of the parties in property and superannuation, assessed contributions pursuant to ss 79(4)(a), (b) and (c) of the Act, evaluated the considerations required by ss 79(4)(d) to (g), and then considered the form of orders which were just and equitable after conducting this analysis, at [358]–[434] of the trial reasons.
This ground is without merit. In oral submissions, the appellant submitted that the primary judge erred in law by taking into account property and superannuation acquired after the parties divorced as inconsistent with a plain reading of s 79 of the Act. Contrary to the appellant’s submission, the primary judge applied well-established principle by taking into account property and superannuation acquired after the parties separated, including after they were divorced (Calvin & McTier (2017) FLC 93-785 at [25]). The primary judge was also entitled to treat the parties’ current superannuation interests as property (s 90XC(1) of the Act; Coghlan & Coghlan (2005) FLC 93-220 at [61]–[69], [75] and [120]).
Specifically, the primary judge was required to identify the parties’ existing interests in property at the date of trial (Stanford v Stanford (2012) 247 CLR 108). The primary judge was entitled to take into account pursuant to s 79(4) of the Act property which has been disposed of by either party since separation. The primary judge was required to evaluate the parties’ contributions to property and the welfare of the family from commencement of cohabitation until the date of trial, which covers the period post-separation and post-divorce. All of these matters were addressed by the primary judge.
Ground 20 fails.
Ground 19
The trial judge erred in making injunctive and parenting orders that impinge the appellants’ liberties for a total of over 12 years, that are unreasonable, unworkable, unenforceable.
The ground is specious. The orders operate for around a further two and a half years in relation to Child X, four and a half years for Child Y and six years and four months for the Child Z.
In his written submissions in support of this ground, the appellant asserts that:
(a)Supervised visits are unreasonable because the resources and waitlists effectively mean he will not see the children (Orders 8–14).
(b)The injunctive orders are unworkable and unenforceable because the respondent tried unsuccessfully to obtain a final FVRO and only obtained interim injunctions in early 2023 (Order 19).
(c)If the respondent alleges that the appellant breaches a restraining order, then an independent body like WA Police would investigate the allegations and, if appropriate, lay charges in respect of any alleged breach. Alleged breaches of an injunction [require] time-consuming and inefficient procedures to resolve the dispute, particularly if the appellant is unable to cross-examine the respondent at any contested contravention applications (Order 19).
No aspect of the ground or the Summary of Argument engages any path of appellate review identified by the High Court in House v The King (1936) 55 CLR 499.
Addressing each of the appellant’s complaints in turn:
(a)The appellant did not refer to any evidence to support this assertion.
(b)This assertion does not establish that the injunctions are unworkable or unenforceable.
(c)Even if accepted, the appellant’s contentions do not establish that the injunctions are “unreasonable or plainly unjust”.
Ground 19 fails.
Ground 13
The appellant was denied natural justice of the right to a fair trial as the trial judge didn’t apply the ‘Jones v Dunkle [sic] principle’ of the inference that may be applied when a party fails to provide evidence or explain a fact or situation within their or another witness's knowledge or control including the respondent (mother) failure and objection to call [Child X] to give an account of the ‘[G store]’ incident.
The Summary of Argument refined the ground to contend error on the part of the primary judge in not drawing an inference from a failure on the part of the respondent in not calling the parties’ daughter (aged 15 at the time of the hearing) and in not producing “direct evidence from electronic devices in her control for verification such as a phone download that she did not communicate with the child that afternoon” (Appellant’s Summary of Argument filed on 2 January 2025, paragraph 41).
The rule in Jones v Dunkel (1959) 101 CLR 298 may be formulated in the following terms (Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [63]–[64], footnotes omitted):
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn…
[…]
The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party.
The ground is without merit. Section 100B of the Act prohibits the calling of evidence from children unless the Court grants leave. Thus, the parties were constrained from calling the evidence other than with leave. It was as open to the appellant as it was the respondent to seek the Court’s leave. No party sought the leave. In those circumstances, the rule has no application.
In so far as the phone records are concerned, the appellant’s argument suffers from the inherent deficiency that he submitted to the primary judge namely that the phone records do not exist (Transcript dated 10 May 2024, page 133, lines 40–45). Consequently, no inference can arise.
Ground 13 fails.
Ground 15
The appellant was denied natural justice as the trial judge gave incorrect, undue and little weight in deciding matters including the application for the Respondent to be declared a Harmful litigant.
This ground is a challenge to the weight attributed by the primary judge to aspects of the evidence. In Gronow & Gronow (1979) 144 CLR 513, Stephen J opined, commencing at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. 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. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
No part of the appellant’s submissions, beyond a recitation of grievances, identifies error on the part of the primary judge in the fact-finding exercise undertaken by her.
Ground 15 fails.
Ground 17
The trial judge erred in her assessment of the party’s credit.
To succeed in demonstrating that the primary judge erred in her assessment of the credit of the parties the appellant must establish that the findings made by the primary judge were glaringly improbable or inconsistent with incontrovertible facts (Fox v Percy (2003) 214 CLR 118). Merely stating that they are wrong or that an alternate view was available is insufficient (Edwards v Noble (1971) 125 CLR 296).
After summarising the relevant principles in respect of credibility, fact finding and assessment of demeanour, at [205]–[213] of the trial reasons, the primary judge proceeded to make findings as to the appellant’s credibility, at [214]–[232], the respondent’s credibility, at [233]–[241], and the credibility of the Single Expert Witness, at [242]–[247]. The appellant has not established that the primary judge made any error in reaching her credit findings about each party and the Single Expert Witness.
Ground 17 fails.
DISPOSITION
As no ground has merit the appeal will be dismissed.
COSTS
At the conclusion of the appeal, the Court heard submissions from the parties as to costs in the event that the appeal was allowed and in the event that the appeal was dismissed.
In compliance with orders made on 4 December 2024, the respondent filed an itemised Schedule of Costs. The circumstances justify an order for costs where the appeal has been wholly unsuccessful. We are satisfied that it is appropriate to fix costs in the sum of $10,534.48, as sought by the respondent. This sum comprises 71 per cent of the respondent’s claimed costs at scale. Such an order is just in all the circumstances. The Independent Children’s Lawyer did not apply for costs in the event that the appeal was unsuccessful.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Christie, Schonell & Berry. Associate:
Dated: 7 May 2025
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