Nootkamp & Brulja (No 3) - [2025] FedCFamC1A 116

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 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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…

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 Nootkamp & Brulja (No 3)

Details

AGLC: Nootkamp & Brulja (No 3) [2025] FedCFamC1A 116
Case: [2025] FedCFamC1A 116
Decision Date: 3 July 2025

CaseChat Overview and Summary

In this appeal, the husband sought leave to appeal against orders made by a judge of the Family Court of Western Australia on 21 February 2025, in relation to enforcement of final property orders made between the parties on 8 October 2024. The final orders provided for the wife to obtain exclusive title to the Suburb E property, while the husband retained title to the Suburb J property, subject to the husband paying the wife $128,469 and indemnifying her against any liability in respect of the Suburb E property. The husband complained that the primary judge had denied him procedural fairness and breached the Family Court Rules 2021 (WA) by not allowing him to adjourn the interlocutory application to obtain legal advice. The wife's interlocutory application was withdrawn when the husband lodged a caveat over the Suburb J property. The primary judge then made orders restraining the husband from dealing with the Suburb E property.

The court considered whether the husband's right to seek legal advice justified an adjournment of the interlocutory application. The court found that the husband's disregard of the final orders was enough to justify dismissing his application for leave to appeal. The court held that 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. The court also held that the primary judge's conduct of the interlocutory hearing was not in breach of the Family Court Rules 2021 (WA). The court dismissed the husband's application for leave to appeal and ordered him to pay the wife's costs of the application.

The Federal Circuit and Family Court of Australia dismissed the husband's application for leave to appeal and ordered him to pay the wife's costs of the application, fixed in the sum of $7,684.61. The court held that the husband's disregard of the final orders was enough to justify dismissing his application for leave to appeal. The court also held that 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. The court found that the primary judge's conduct of the interlocutory hearing was not in breach of the Family Court Rules 2021 (WA).

Orders

Orders of the court

NAA 80 of 2025

376 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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.

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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NAA 80 of 2025 376 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR NOOTKAMP Applicant
AND:	MS BRULJA Respondent

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

ORDER MADE BY:	AUSTIN, WILLIAMS & ALTOBELLI JJ
DATE OF ORDER:	3 JULY 2025