Orlova & Florea

[2025] FedCFamC1A 64

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Orlova & Florea [2025] FedCFamC1A 64

Appeal from:

Orlova & Florea [2025] FedCFamC1F 156

Appeal number:

NAA 142 of 2025

File number:

ADC 5570 of 2021

Judgment of:

AUSTIN J

Date of judgment:

11 April 2025

Catchwords:

FAMILY LAW – APPEAL – Practice and procedure – Show Cause – Where the appeal was listed for the appellant to show cause why it should not be summarily dismissed – Where the appellant alleges corruption by the Independent Children’s Lawyer – Where the appellant complains of perjury by the respondent – Where the appellant alleges threats made by the respondent’s father – Where the grounds of appeal do not allege any legal, factual or discretionary error by the primary judge – Where the appeal has no reasonable prospects of success – Appeal summarily dismissed.  

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 46

Cases cited:

De Winter and De Winter (1979) FLC 90-605

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

Number of paragraphs:

17

Date of hearing:

11 April 2025

Place:

Newcastle

The Appellant:

Litigant in person

The Respondent:

Litigant in person (did not participate)

Solicitor Advocate for the Independent Children's Lawyer:

Ms Lewis-Dermody

Solicitor for the Independent Children's Lawyer:

The Family Law Project Pty Ltd

ORDERS

NAA 142 of 2025
ADC 5570 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR ORLOVA

Appellant

AND:

MS FLOREA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	11 APRIL 2025

THE COURT ORDERS THAT:

1.The Notice of Appeal filed on 31 March 2025 is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Orlova & Florea has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. This is an appeal from final parenting orders made on 14 March 2025 by a judge of the Federal Circuit and Family Court of Australia (Division 1) which is summarily dismissed because it exhibits no reasonable prospect of success.

2. The parties were in a relationship for less than two years when it finally ended in mid-2020, at which time their child was less than two months old (at [25]). Thereafter, the mother was the child’s primary carer (at [27] and [110]). After separation, the child did not spend any time with the father apart from once in September 2020 and three supervised visits in February and March 2023 (at [20], [30], [31], [33], [44]–[52]). The visits ceased when the father took a large serrated knife to the contact centre, which he said was to cut up fruit (at [51] and [61(l)]).

3. After a trial in February 2025, the primary judge relevantly found:

   (a)contrary to the father’s mistaken belief (at [57(d)] and [78]), the mother had not maliciously prevented the child’s relationship with him and was only concerned for the child’s safety (at [71] and [78]);

   (b)the father is diagnosed with PTSD and the single expert psychiatrist (“the single expert”) also considered he had “some unhelpful personality traits”, which conditions could only be improved by proper treatment (at [2], [7] and [80]–[94]);

   (c)the father asserted he suffers from OCD, but there was no medical evidence to confirm this diagnosis (at [62]);

   (d)the father resisted the idea that he needs the therapeutic treatment recommended by the single expert (at [70] and [95]);

   (e)the father’s capacity to provide “satisfactory parenting” for the child was impaired without such treatment (at [85], [98]–[102], [112]–[116], [125] and [130]–[131]);

   (f)there were concerns for the child’s emotional and psychological safety if she spends time with the father (at [111], [115] and [138]);

   (g)supervised visits between the child and the father had been tried but were problematic (at [117]–[120] and [127]) and were inferentially not a feasible long-term solution; and

   (h)the risk of harm to the child would outweigh the benefit she would accrue by having a relationship with the father (at [133]).

4. For those reasons, the primary judge ordered the mother would have sole parental responsibility for the child (Order 1) and the child would live with her (Order 2). No orders were made for the child to either spend time or communicate with the father, though the mother was ordered to periodically communicate with him to keep him appraised of the child’s progress and furnish him with photographs (Order 3).

5. The father appealed from the orders on 31 March 2025.

6. He was promptly notified, by email sent to him on 1 April 2025, that the appeal was listed on 11 April 2025 to afford him the chance to explain why the appeal should not be summarily dismissed. The father appeared and made submissions, but they did not persuade of the appeal’s ostensible merit.

7. The three grounds of appeal are pleaded as follows in the Notice of Appeal:

   1.I have everdence that [the Independent Children’s Lawyer] is corrupt + lied to [the primary judge] to impact my ability to be with my daughter.

   2.I have everdence that [the mother] has falsified her everdence to stop me being with my daughter.

   3.[The mother] threaten to murder me via her father, He is wanted by [Country B] Gov Re his involvent in the [Country B] War.

   (As per the original)

8. As can be seen, the grounds allege corruption by the Independent Children’s Lawyer (“the ICL”), perjury by the mother, and the mother’s threat of the father’s murder by the maternal grandfather. These are not recognisable grounds of appeal which lie from a discretionary judgment because they do not allege any legal, factual or discretionary error by the primary judge (House v The King (1936) 55 CLR 499 at 504–505) but will be addressed anyway due to the apparent vehemence of the father’s beliefs.

9. The allegation of the ICL’s corruption and deceit is not new. The father made such allegations during the trial as an integral part of broader allegations of conspiracy and misconduct against the ICL, the mother’s lawyer, the single expert, the family consultant, the contact supervisors, and some of his own former lawyers (at [47], [53], [59], [61(j)], [61(o)], [92], [102], [126] and [128]), which complaints he had already taken up in correspondence with the Court, the Prime Minister, the Attorney-General, government departments and various other international organisations (at [54]–[55], [59] and [126]).

10. Suffice to say, the father’s bare belief in the ICL’s corruption is not objective evidence of the fact. Nor is his belief that the ICL “lied” proof of the fact. The ICL did not give any evidence, so the only representations she made to the Court were in the form of submissions, which the primary judge was free to either accept or reject. The primary judge’s acceptance of the ICL’s submissions and parenting proposal was both permissible and unsurprising when they aligned with the mother’s proposal, the expert evidence of the single expert, and the opinion evidence of the family consultant. No error is evident.

11. The allegation of the mother’s perjury is also a bare belief. As was open, the primary judge found the mother to be a reliable witness and preferred her evidence to that of the father in instances of conflict (at [19], [23], [24] and [65]). No basis for asserting error in reaching those findings is evident.

12. The allegation of the mother threatening the father’s murder by the maternal grandfather was also raised as an issue during the trial (at [36] and [38]), which threat the father apparently treated as being real and not idle due to his beliefs about the maternal grandfather’s violent tendency and unpredictability (at [61(a)]). The issue was put by the father to the mother in cross-examination. She admitted she told the father the maternal grandfather would “fuck [him] over” if he was drawn unwillingly into the dispute between the parties, but she denied any threat to kill or other violent reprisals, which evidence the primary judge accepted (at [65] and [77]). There was no evident error by acceptance of the mother’s evidence.

13. It may well be the father honestly interpreted the mother’s comments as being a threat to have him murdered, but the primary judge did not accept any such threat was actually made or reasonable inferred. Even if the primary judge was factually mistaken on that issue, it made no difference at all to the reasons why the child should live with the mother and spend no time with the father. Immaterial factual mistakes do not sustain an appeal (De Winter and De Winter (1979) FLC 90-605).

14. Many submissions made by the father asserted his ability to lead evidence in the appeal to prove the perfidy of the mother and the ICL, but no plausible explanation was advanced for why he did not adduce the evidence at the trial. The father alleged the primary judge rejected his tender of some documents, but none of the grounds of appeal contend for evidentiary error.

15. The father’s allegations about the unreliability of the professional witnesses are bare assertions of his belief that their evidence was false. He made similar allegations to the primary judge, which were not accepted (at [93] and [102]). No error is evident.

16. The father’s sundry complaints about the primary judge’s lack of impartiality are also disregarded because no ground of appeal asserts apprehended judicial bias. No disqualification application was made to the judge at trial so any complaint of bias was waived.

17. The appeal has no reasonable prospects of success, in which event it may be summarily dismissed by a single judge (ss 32(3)(b), 46(2) and 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       14 April 2025