Villalba & Basile
[2025] FedCFamC1A 113
•3 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Villalba & Basile [2025] FedCFamC1A 113
Appeal from: Basile & Villalba (No 3) [2025] FedCFamC2F 116 Appeal number: NAA 86 of 2025 File number: MLC 4894 of 2021 Judgment of: AUSTIN, WILLIAMS & CAMPTON JJ Date of judgment: 3 July 2025 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the appellant mother filed an application to disqualify the primary judge while final judgment was reserved – Where the primary judge pronounced final judgment and dismissed the disqualification application without hearing it – Where the mother complains of a denial of procedural fairness – Where the mother was unfairly denied the opportunity to prosecute her case for judicial disqualification – Where the failure to afford the mother procedural fairness spoiled the trial process – Appeal allowed – Proceedings remitted for re-hearing – Where the parties are self-represented – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII Cases cited: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Neil v Nott (1994) 121 ALR 148; [1994] HCA 23
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Number of paragraphs: 18 Date of hearing: 30 June 2025 Place: Melbourne The Appellant: Litigant in person The Respondent: Litigant in person The Independent Children's Lawyer: Did not participate ORDERS
NAA 86 of 2025
MLC 4894 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS VILLALBA
Appellant
AND: MR BASILE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, WILLIAMS & CAMPTON JJ
DATE OF ORDER:
3 JULY 2025
THE COURT ORDERS THAT:
1.The three Applications in an Appeal filed by the appellant on 27 March 2025, 9 May 2025 and 13 June 2025 are dismissed.
2.The appeal is allowed.
3.Orders 1–31 made by the primary judge on 6 February 2025 are set aside as and from the next date upon which the proceedings are before the Federal Circuit and Family Court of Australia (Division 2).
4.The proceedings under Pt VII of the Family Law Act 1975 (Cth) are remitted to the Federal Circuit and Family Court of Australia (Division 2) for re-hearing.
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 Villalba & Basile has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, WILLIAMS & CAMPTON JJ:
This appeal is an archetypal example of how multiple garrulous grounds are liable to conceal the essential point (Thorne v Kennedy (2017) 263 CLR 85 at [49]) and how a self-represented appellant’s advocacy can obfuscate her own case (Neil v Nott (1994) 121 ALR 148 at 150).
On 6 February 2025, a judge of the Federal Circuit and Family Court of Australia (Division 2) pronounced final judgment between the parties in parenting proceedings conducted under Pt VII of the Family Law Act 1975 (Cth).
Her Honour essentially ordered that the father have sole parental responsibility for the children, that they live with him, and that they spend only supervised time with the mother.
The mother appealed from all orders by an Amended Notice of Appeal filed on 19 March 2025. The 12 grounds of appeal are unhelpfully pleaded and particularised over 14 pages, pointlessly supplemented by another lengthy narrative of 20 pages explaining an alleged entitlement to leave to appeal, since leave to appeal from parenting orders is not required. However, only four grounds of appeal are addressed in the mother’s Summary of Argument and, regrettably, those four grounds do not readily correlate with any of the 12 grounds in the Amended Notice of Appeal. The documents are just a maze of jumbled legal jargon.
Nevertheless, amongst all the weeds, one complaint advanced by the mother is her denial of procedural fairness by reason of the final judgment being pronounced while a disqualification application she brought against the primary judge was still pending, about which she is correct.
The lengthy trial ended in September 2024 and judgment was reserved.
At an interim hearing in November 2024, while final judgment was still reserved, the primary judge varied the interim parenting orders (at [17], [25], [310] and [326]–[328]).
The mother then filed an interlocutory application on 9 December 2024, seeking the primary judge’s disqualification for bias.
Several days later, her Honour’s staff notified the parties by email that her Honour was unavailable until 31 January 2025 and so the disqualification application was listed to that date for hearing.
A few days before the hearing date, her Honour’s staff notified the parties by email that the application was administratively adjourned from 31 January 2025 until 13 February 2025, but was only listed for “mention” on the later date.
Her Honour’s staff later notified the parties by email the disqualification application was actually listed on 12 February 2025, not 13 February 2025 as earlier advised.
Then, on 6 February 2025, still without having heard the mother’s disqualification application, the primary judge pronounced final judgment in the proceedings.
In respect of the undetermined disqualification application, the primary judge said this in the reasons for judgment under the heading of “postscript”:
384.On 9 December 2024, the mother filed an Application in a Proceeding seeking, among other things, that I recuse myself from the matter and that the ICL be replaced or removed entirely due to “clear bias, discrimination, and significant errors in judicial conduct and processes”. It is listed for interim hearing on 12 February [2025].
385.The mother’s application is now redundant as I have pronounced the final orders and delivered my reasons. Accordingly, orders are made dismissing the mother’s application in a proceeding and vacating the hearing date.
In accordance with those reasons, the primary judge made these orders:
28.The mother’s Application in a Proceeding filed on 9 December 2024 is dismissed.
29.The hearing date on [12] February 2025 is vacated.
Her Honour’s failure to entertain the pending disqualification application for two months, until after the final judgment was delivered, unfairly denied the mother an opportunity to prosecute her case for judicial disqualification.
Had the disqualification application been heard, it might have been dismissed. But since it was not even entertained, it is impossible to now say whether it would have succeeded or failed, in which event it cannot be said the mother’s provision with procedural fairness could have made no difference at all (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145–146). The error of law cannot be disregarded.
The failure to afford the mother procedural fairness spoiled the trial process and there is no option but to remit the proceedings for re-hearing (Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577 at 611–612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]), rendering superfluous all other complaints within the Amended Notice of Appeal and the Summary of Argument (Boensch v Pascoe (2019) 268 CLR 593 at [7]–[8]).
The appeal is allowed. The proceedings are remitted for re-hearing. The three applications to adduce further evidence in the appeal, filed by the mother in March 2025, May 2025 and June 2025, may now be dismissed as being unnecessary. The parties were self-represented, so no question of costs arises.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Williams & Campton. Associate:
Dated: 3 July 2025
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