FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Nootkamp & Brulja (No 2) [2025] FedCFamC1A 78
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- AGLC
- Nootkamp & Brulja (No 2) [2025] FedCFamC1A 78
- Case
- [2025] FedCFamC1A 78
- Decision Date
CaseChat Overview and Summary
The Federal Circuit and Family Court of Australia Appellate Division was tasked with reviewing an appeal and an application to adduce further evidence in a family law matter between Mr Nootkamp, the appellant, and Ms Brulja, the respondent. The primary dispute centred around parenting orders for the four children of the parties, as well as financial orders. The appellant sought to challenge the primary judge's decisions on several grounds, including bias and procedural fairness. The legal issues at hand involved whether the appellant's application to adduce further evidence should be granted, and if the appeal itself was to be upheld or dismissed. The court examined the appellant's claims of bias and procedural unfairness, as well as the merits of the appeal concerning the parenting and financial orders.
The court found that the appellant's application to adduce further evidence was not warranted, as the evidence sought was not new and could have been presented at the original hearing. Regarding the appeal, the court determined that the primary judge's decisions were not tainted by bias or procedural unfairness, and that the orders made were in the best interests of the children. The court held that the primary judge had appropriately exercised their discretion in making the orders, and that the appeal lacked merit. Consequently, the court dismissed both the application to adduce further evidence and the appeal.
In light of the dismissal of the appeal, the court ordered that Mr Nootkamp pay the costs of the proceeding to Ms Brulja in the sum of $10,534.48. This order reflects the court's view that the appeal was not well-founded and served no valid purpose. The decision underscores the importance of procedural fairness and the limited circumstances under which appeals in family law matters will be successful.
The court found that the appellant's application to adduce further evidence was not warranted, as the evidence sought was not new and could have been presented at the original hearing. Regarding the appeal, the court determined that the primary judge's decisions were not tainted by bias or procedural unfairness, and that the orders made were in the best interests of the children. The court held that the primary judge had appropriately exercised their discretion in making the orders, and that the appeal lacked merit. Consequently, the court dismissed both the application to adduce further evidence and the appeal.
In light of the dismissal of the appeal, the court ordered that Mr Nootkamp pay the costs of the proceeding to Ms Brulja in the sum of $10,534.48. This order reflects the court's view that the appeal was not well-founded and served no valid purpose. The decision underscores the importance of procedural fairness and the limited circumstances under which appeals in family law matters will be successful.
Orders
Orders of the court
NAA 268 of 2024
PTW 376 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
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.
Background
Background to the litigation
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
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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