Nootkamp & Brulja (No 3)
[2025] FedCFamC1A 116
•3 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Nootkamp & Brulja (No 3) [2025] FedCFamC1A 116
Appeal from: Nootkamp & Brulja (Injunction) [2025] FCWA 42 Appeal number: NAA 80 of 2025 File number: 376 of 2019 Judgment of: AUSTIN, WILLIAMS & ALTOBELLI JJ Date of judgment: 3 July 2025 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – Where final property orders were previously made between the husband and wife – Where the final orders vested in the husband the first property, subject to the parties’ transfer to the wife of exclusive title in the second property – Where the wife filed an interlocutory application seeking to enforce the final orders by orders under s 106A of the Family Law Act 1975 (Cth) – Where the wife decided her interlocutory application was futile by reason of the husband lodging a caveat over the second property the day before the interlocutory hearing – Where the primary judge granted the wife’s oral application to restrain the husband from dealing with the first property – Where the husband complains of the denial of procedural fairness – Where the wife’s anterior filed application and her oral application engaged the same underlying issue – Where the husband should not misconstrue his right to seek legal advice as being an absolute right to an adjournment of every application brought against him – Where the primary judge’s conduct of the interlocutory hearing was not in breach of the Family Court Rules 2021 (WA) – Where the husband’s disregard of operable final orders is enough to justify the dismissal of his application for leave to appeal – Leave to appeal refused – Application dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 106A, 114
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Family Court Rules 2021 (WA) rr 12, 77, 79, 80
Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Lunde & Lunde [2025] FedCFamC1A 44
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Moorcroft & Moorcroft (2018) FLC 93-881; [2018] FamCAFC 253
Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Nootkamp & Brulja (No 2) [2025] FedCFamC1A 78
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 41 Date of hearing: 1 July 2025 Place: Melbourne The Applicant: Litigant in person Counsel for the Respondent: Mr Spashett Solicitor for the Respondent: Paynes Lawyers ORDERS
NAA 80 of 2025
376 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR NOOTKAMP
Applicant
AND: MS BRULJA
Respondent
ORDER MADE BY:
AUSTIN, WILLIAMS & ALTOBELLI JJ
DATE OF ORDER:
3 JULY 2025
THE COURT ORDERS THAT:
1.Leave to appeal is refused and the Amended Notice of Appeal filed on 10 March 2025 is dismissed.
2.The appellant shall pay the respondent’s party/party costs of and incidental to the application for leave to appeal, fixed in the sum of $7,684.61.
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
AUSTIN, WILLIAMS & ALTOBELLI JJ
These reasons explain the dismissal of an application brought by the husband seeking leave to appeal from orders made by a judge of the Family Court of Western Australia on 21 February 2025.
BACKGROUND
The financial cause of action between the parties under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) was determined by final orders made on 8 October 2024.
In summary, the orders provided for:
(a)the parties’ transfer of exclusive title in a parcel of real property (“the Suburb E property”) to the wife within 90 days (Order 24) and contemporaneously:
(i)the wife’s re-finance of the mortgage and her indemnity of the husband against any liability in respect of the property (Order 25(a)); and
(ii)the husband’s payment to the wife of $128,469 (Order 25(b));
(b)the husband’s retention of exclusive title in another parcel of real property (“the Suburb J property”), provided it need not be sold to rectify his default in compliance with other orders (Order 28);
(c)superannuation splitting orders (Orders 30–37); and
(d)the parties’ retention of money and personal property (Orders 38–43).
The orders included default provisions. If the wife was unable to re-finance the mortgage over the Suburb E property, it had to be sold (Order 26). If the husband was unable to pay the cash sum of $128,469 to the wife, the Suburb J property had to be sold (Order 29).
The husband appealed from the judgment and applied to stay the orders pending disposition of the appeal. The primary judge partially granted the stay application on 24 October 2024 by staying only the superannuation splitting orders. However, the parties were also restrained from dealing with the Suburb E property other than by transferring it to the wife, free of the husband’s liability, and the cash sum paid by him to the wife under Order 25(b) had to be used to defray the debit balance of the mortgaged loan.
The final orders did not quell the controversy. Multiple enforcement applications then ensued before the primary judge, but it is only necessary to mention two.
First, on 20 January 2025, the wife filed an interlocutory application seeking a warrant for her exclusive possession of the Suburb J property to enable its sale. The husband filed a Response on 29 January 2025, seeking dismissal of her application together with other sundry orders. That dispute was listed for hearing before the Court on 29 April 2025, but that hearing was later administratively vacated and we are unaware whether it has yet been re-listed.
Secondly, on 12 February 2025, the wife filed an interlocutory application seeking to enforce Orders 24 and 25 of the final orders by the grant of an order authorising the registrar to sign a registerable transfer enabling title in the Suburb E property to be transferred to her. The application was listed urgently for hearing before the primary judge on 13 February 2025, but then adjourned to 21 February 2025, because the wife’s new finance was set to expire only a few days afterwards (at [21]–[22]). The husband appeared at the hearing to resist the application. He did not file a Response or supporting affidavit in advance of the hearing, as directed, as he told the primary judge he was still waiting to meet with a lawyer for advice.
It will be recalled the final orders required the contemporaneous transfer of the Suburb E property to the wife, her indemnity of the husband against any liability in respect of that property, and his payment to her of $128,469 within 90 days. The parties agreed the 90 days expired on 6 January 2025. The wife conceded she was not ready to settle by that date, even though she successfully arranged to re-finance, due to an error in the new mortgage documents needing to be corrected. She was not ready to settle until about a week afterwards.
At the hearing on 21 February 2025, the husband revealed he had registered a caveat over the Suburb E property the day beforehand, though it is unclear why he did so when he is presently a joint legal owner. In any event, the wife then decided her application for the procedural orders pursuant to s 106A of the Act in respect of the property was rendered moot, presumably because no transfer signed by the registrar could be registered on title with the caveat in place. As an aside, it may be wondered why the wife did not amend her application to seek an additional order authorising the registrar to sign, on the husband’s behalf, a registerable withdrawal of caveat form, but she did not do that.
Having decided her existing interlocutory application was futile by reason of the caveat, the wife instead made an alternate oral application to restrain the husband from dealing with the Suburb J property, other than for the purpose of ensuring his compliance with the final orders. The primary judge entertained and granted the oral application over the husband’s objection.
The primary judge made this order:
2.Upon the oral application of counsel for the [wife], on a without admission as to need basis and until further Order of the Court, the [husband] be restrained by injunction and an injunction is hereby granted restraining him from dealing with, disposing of, further encumbering or drawing down on any mortgage secured against [the Suburb J property], save and except to give effect to paragraphs 24 to 29 (inclusive) of the final orders made on 8 October 2024.
(Orders of 21 February 2025)
The husband applied for leave to appeal from that order.
In the meantime, on 7 May 2025, his appeal from the final substantive financial orders was dismissed (Nootkamp & Brulja (No 2) [2025] FedCFamC1A 78 at [94]–[97] and [114]) and the partial stay orders therefore dissolved.
The husband subsequently filed, on 6 June 2025, in the High Court of Australia an application for special leave to appeal from the Full Court decision but, as that application was filed out of time, he needs leave to prosecute it.
THE PROPOSED APPEAL
Order 2 made on 21 February 2025 was interlocutory in nature, notwithstanding it was made after the final orders determining the financial cause. Consequently, the husband correctly recognises he needs leave to appeal from the order.
While discretion is unfettered, the grant of leave to appeal ordinarily requires the applicant to show the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave to appeal were refused, supposing the decision at first instance to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).
The first limb of the test requires advertence to the proposed grounds of appeal to test the apparent strength of the appeal. The grounds of appeal are pleaded in the Amended Notice of Appeal filed on 10 March 2025. The first three grounds complain of the denial of procedural fairness. The fourth ground complains of legal error.
Before turning to explain the lack of merit exhibited by the proposed grounds of appeal, it is desirable to first address two other points.
Alleged judicial bias
No proposed ground of appeal alleged the appealed order was vitiated by judicial bias, yet the husband’s Summary of Argument was replete with allegations of bias, but without defining whether the complaint was of actual or apprehended bias. Both complaints cannot be made indiscriminately, as the husband did, because they are governed by different legal tests and are not interchangeable concepts (Newett & Newett (No 2) (2021) FLC 94-051 at [54]).
The wife understandably objected to having to meet the new issue of judicial bias raised in the husband’s Summary of Argument because the exclusive repository of the grounds of appeal is the Notice of Appeal. The Summary of Argument should contain only the outline of the arguments advanced in support of the grounds. But as the husband was self-represented, for the sake of avoiding him feeling as though his complaint of judicial bias was skirted on an unworthy technical premise, it can be addressed and briefly rejected for two reasons.
First, although the husband now complains of pejorative comments made by the primary judge during the hearing, he made no application to disqualify the primary judge at the time, when he would be expected to do so. He waived the complaint by his silence and cannot raise the complaint for the first time now (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76] and [79]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357 and 360; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588).
Secondly, judicial bias is not established merely by the husband’s dissatisfaction with the result (Newett & Newett (No 2) at [59]–[80]). All litigation involves a contest which is resolved by weighing the conflictual evidence, contrasting irreconcilable submissions, and deciding between mutually exclusive outcomes, which process inevitably results in at least one party being disappointed by the result (Lunde & Lunde [2025] FedCFamC1A 44 at [23]). The reasons for judgment are an explanation of the deliberated judicial decision – not evidence of the essential litigious issues being pre-judged by the judicial officer.
What is the “substantial injustice”?
The husband can hardly contend he will endure substantial injustice if he is denied leave to appeal from the interim injunction because he was simultaneously given leave to apply on short notice to set aside the interim injunction.
The primary judge additionally made this order, which is not the subject of the application for leave to appeal:
3.The [husband] have liberty to apply to set aside or vary the terms of paragraph 2 of these orders on giving short notice to the [wife].
The husband has since chosen not to exercise the right vested in him by Order 3 to apply to vary or discharge the interim injunction, implying his willing submission, which must mean any complaint of prejudice by reason of his continued restraint by it entirely evaporates.
There is another material consideration. The husband’s appeal from the final orders was dismissed with costs several weeks ago, so the stay orders dissolved and the final orders are operable, regardless of the special leave application he has made to the High Court of Australia. Yet the husband remains in breach of multiple orders. He was ordered to pay the wife’s costs of the unsuccessful appeal, fixed in the sum of $10,534.48, but he conceded he had paid only $600 towards that liability. He also conceded he is in default of costs orders made in the original and appellate jurisdictions in a total sum of about $36,000. Nor has he paid the wife the cash sum of $128,469 due under the terms of the valid final orders, even though the terms of the challenged injunction permit him to use the equity in the Suburb J property to satisfy his liability to the wife under the final orders.
It is well recognised that, subject to various exceptions, the Court reserves discretionary power to refuse to entertain an appeal (or an application for leave to appeal) brought by an appellant (or applicant) in contempt of orders made in the same proceedings (Moorcroft & Moorcroft (2018) FLC 93-881 at [15]–[22]). The husband’s disregard of the operable final orders is enough to justify the dismissal of his application for leave to appeal from the interlocutory injunction, the purpose of which was to help implement the unfulfilled final orders.
Grounds 1, 2 and 3
These three grounds of appeal collectively allege the husband was denied procedural fairness by the primary judge entertaining the wife’s oral application for his restraint from dealing with the Suburb J property without him first having had the opportunity to either obtain legal advice about it or file a Response and supporting evidence in rebuttal of the application.
Neither complaint is meritorious. The primary judge’s jurisdiction to make consequential or enforcement orders was regularly invoked by the wife’s oral application, so the only question is whether the application should have been heard immediately (as occurred) or instead adjourned for hearing at some later time to give the husband some reprieve to respond.
The immediate disposition of the wife’s oral application was not procedurally unfair. The husband should not misconstrue his right to seek legal advice about his litigious affairs as being an absolute right to an adjournment of every application made against him until after he leisurely arranges to consult a lawyer of his choice.
The interlocutory application which was listed before the Court for hearing on 21 February 2025 was filed and served by the wife well over a week beforehand. It was initially listed for hearing on 13 February 2025 but was adjourned for a week because of the acknowledged shortness of the husband’s notice. The husband was ordered to file his Response and affidavit in readiness for the adjourned hearing, but he failed to comply. He attended Court again on 21 February 2025 without legal representation, intending to defend the application. His registration of the caveat over the title of the Suburb E property the day before convinced the wife her filed application was moot, so she applied orally for alternate orders to preserve the matrimonial property. Both the oral application and the anterior filed application were directed to the implementation of the final orders, so the same underlying issue was engaged.
The husband’s opposition to both the wife’s filed application and alternate oral application was well understood by the primary judge, despite his failure to file a Response and affidavit in rebuttal of the filed application. Her Honour expected the husband would accede to the wife’s oral application but was disabused of that notion by the husband. They had this exchange:
HER HONOUR: What I need to do is ensure that all of the property is preserved, pending disposition of an appeal. Now, that includes [Suburb J property]. And so I’m assuming you wouldn’t object to my making a restraining order, on a without admission as to need basis, restraining you from dealing with the [Suburb J] property pending the disposition of the appeal and the enforcement applications. So that just doesn’t mean you can’t get your finance. All it means is that she can’t deal with [Suburb E property], you can’t deal with [Suburb J property]. We’re putting a bubble around the assets until we deal with the appeal.
[The husband]: I do object to the placing of that restraint?
HER HONOUR: Why? On what possible reason would you have to do that?
[The husband]: I would like to get some legal advice from [named solicitor].
HER HONOUR: Okay. Well, you can - - -
[The husband]: I note my objection. And we’re talking about very complicated legal stuff. I’ve had to get my head around the Transfer of Land Act…
(Transcript 21 February 2025, p.26 lines 1–26)
Necessarily then, the primary judge was aware the husband opposed the wife’s oral application for the interim injunction, but the injunction was still made (on terms). The husband was heard. He was not denied procedural fairness.
These grounds do not challenge the legal or factual premises for the interim injunction. Nor could they. The interim injunction was made against the husband under s 114 of the Act because: he confirmed he was still not able to pay the wife the cash sum in compliance with Order 25(b) of the final orders (at [16]); she had a prima facie case to enforce the final orders (at [30(a)] and [34]); there was a risk the final orders could not be fully satisfied if the husband was free to deal with the Suburb J property as he pleased (at [30(b)] and [33]); her Honour found the circumstances of his registration of the caveat over the Suburb E property to be “troubling” (at [34]); and he was not unduly prejudiced by the injunction being made on only a temporary basis (at [30] and [35]).
Ground 4
This ground is a variation on the first three grounds, as it complains of the primary judge entertaining the wife’s oral application in breach of the Family Court Rules 2021 (WA) (“the Rules”), requiring an interlocutory application to be first filed, the respondent’s timely service with such application, and the hearing being listed in an orderly way.
Ordinarily, if a party applies for an interim or procedural order once litigation has commenced, the application must be made in written form (r 77(7) of the Rules) and, before the application is filed, the applicant must make a reasonable and genuine attempt to settle the controversial issue (rr 79(1), 79(3) and 79(4)). But there are exceptions, including if the application is urgent or compliance will cause undue delay (r 79(2)). Even if the exceptions do not strictly apply, the Court is empowered to waive compliance with the Rules (r 12 and r 79(5)). Interlocutory applications are normally listed for hearing as near as practicable to 28 days after the filing date (r 80(1)), but the time may be shortened to accommodate urgency (r 80(4)).
In this instance, the interlocutory application filed by the wife on 12 February 2025 was listed for hearing the very next day due to its asserted urgency. On 13 February 2025, the application was adjourned for hearing until 21 February 2025 and the husband was granted more time within which to file and serve his Response and rebuttal evidence in readiness for the hearing. At the hearing on 21 February 2025, the wife acknowledged her application was gazumped by the husband’s registration of the caveat over the Suburb E property the day before, prompting her urgent oral application, which the primary judge entertained and granted on only a temporary basis. Her Honour’s conduct of the interlocutory hearing was not in breach of the Rules, but rather consistent with them, because circumstances of perceived urgency prevailed.
DISPOSITION
The application for leave to appeal is refused and the Amended Notice of Appeal filed on 10 March 2025 is dismissed.
The wife sought an order compelling the husband to pay her party/party costs of the application for leave to appeal, which she should have, because the application was wholly unsuccessful.
Costs are fixed in the sum of $7,684.61 pursuant to r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Williams & Altobelli . Associate:
Dated: 3 July 2025
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