In Nootkamp & Brulja (No 4) [2025] FedCFamC1A 210, the Full Court of the Federal Circuit and Family Court of Australia (Division 1) dismissed a husband’s fourth attempt to overturn enforcement orders made to implement final property settlement orders from 2024. The self-represented appellant alleged judicial bias, procedural unfairness, and discretionary error, but the Full Court (Austin, Sutherland & Riethmuller JJ) found that he was simply re-litigating issues already determined and had been given ample opportunity to comply with the original orders. The Court reinforced the narrow grounds for alleging bias and the high threshold for obtaining leave to appeal interlocutory property orders.

📜 Facts and Issues

Facts

• Final property orders were made in October 2024 dividing the parties’ assets, including two properties (“Suburb E” to the wife and “Suburb J” to the husband).
• The husband was to pay the wife $128,469, and if he failed, his property (Suburb J) would be sold to satisfy the debt.
• He failed to comply and instead filed multiple enforcement and appeal applications, including to the High Court, all of which were dismissed.
• In August 2025, the Family Court made enforcement orders giving the wife possession of Suburb J to sell it if the husband did not pay the required sum.
• The husband appealed again, alleging bias, denial of procedural fairness, and factual error in the judge’s assessment of evidence.

Issues

1. Was there judicial bias, actual or apprehended, by the primary judge?
2. Was procedural fairness denied during the enforcement proceedings (e.g. refusal of adjournment, amendment or cross-examination)?
3. Did the trial judge err in exercising discretion in enforcing the final property orders?
4. Was there any legal error in applying repealed cost provisions?

⚖️ Law

The Court applied well-established appellate and procedural principles:

• Leave to Appeal (Interlocutory) – Medlow & Medlow (2016) FLC 93-692 at [44]–[57]: leave requires doubt about the correctness of the order and risk of substantial injustice.
• Judicial Bias – Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Vakauta v Kelly (1989) 167 CLR 568: actual bias requires proof the judge was not impartial.
• Procedural Fairness – Parties must have a reasonable opportunity to be heard, but procedural rules must be obeyed (Family Court Rules 2021 (WA) rr 85, 180).
• Costs Transition – Repeal of s 117 of the Family Law Act 1975 (Cth) and introduction of s 114UB under the Family Law Amendment Act 2024 (Cth).

⚖️ Immaterial Legal Error – Use of Repealed Costs Provision

At paragraph [53], the Full Court acknowledged that the primary judge technically erred by referring to section 117 of the Family Law Act 1975 (Cth) — a provision repealed under the Family Law Amendment Act 2024 (Cth) — when determining costs, rather than the current section 114UB.

The error arose because the judgment below was delivered after the commencement of the 2024 amendments, which relocated the costs framework to Part XVIA of the Act. However, the Full Court held that this mistake was immaterial, since the substantive test under both provisions is identical: each requires the Court to consider whether a party should bear costs “having regard to the conduct of the parties and the circumstances of the case.”

There was no difference in the discretion conferred, the considerations applied, or the reasoning used. In short, the citation of the repealed section did not alter the outcome — the judge applied the correct legal principle, albeit under the old section number. Consequently, the appeal could not succeed on this ground, because appellate correction is only warranted where an error is material, meaning it affected the result (House v The King (1936) 55 CLR 499 at 504–505).

🔍 Application

1️⃣ Judicial Bias

The husband’s claims of bias were based on previous adverse comments, alleged preferential treatment of the wife, and repetition of arguments rejected in earlier appeals.

The Court found these entirely without merit, noting that:

• The same allegations had been dismissed in Nootkamp & Brulja (No 3) [2025] FedCFamC1A 116.
• Dissatisfaction with the result does not establish bias (Feldman v Nationwide News (2020) 103 NSWLR 307 at [43]).
• The judge’s comments were contextual and did not show prejudgment.

Result: No actual or apprehended bias was found.

2️⃣ Procedural Fairness

The husband raised five procedural complaints — late amendment, refused adjournment, combined hearing of costs and enforcement, refusal to entertain late amendment, and no cross-examination.

The Court held all five were unsustainable:

• The wife’s amendment was permissible under r 180(1)(b) and caused no prejudice.
• The adjournment refusal was proper — the husband had ample time and resources to obtain advice.
• The combined hearing of costs and enforcement was efficient and fair.
• Late amendment after judgment was reserved was impermissible.
• Cross-examination was barred by s 102NA (self-represented party cannot cross-examine the other party where family violence risk exists).

Result: No procedural unfairness occurred.

3️⃣ Discretion and Evidence

The Court upheld the enforcement orders as a sound exercise of discretion:

• The husband’s application contradicted the final orders and was “ill-conceived”.
• The judge’s factual findings matched the wife’s evidence; the husband failed to specify errors per r 13.23(3).
• Any minor factual dispute was immaterial — he was given time to pay and did so within 28 days.

4️⃣ Immaterial Legal Error

Although the trial judge referenced repealed s 117 instead of new s 114UB, the Full Court ruled this was immaterial because both provisions were substantively identical.

💬 Analysis of Judgment

The Full Court reaffirmed key appellate principles:

• Re-litigation of prior complaints (bias, delay, enforcement) will not succeed.
• The Ebner test requires a reasonable apprehension of bias, not mere dissatisfaction.
• Procedural fairness is about opportunity to be heard, not unlimited procedural indulgence.
• Minor legal missteps are not appealable without material impact (House v The King (1936) 55 CLR 499).

The judges emphasized that self-representation does not exempt a party from procedural compliance or from the consequences of delay and obstruction. The appeal lacked merit, and costs of $15,000 were ordered against the husband.

🧭 Take-Home Lesson

“Persistence is not a substitute for merit — appellate courts will not rescue a party from the consequences of their own non-compliance.”

• Repeated appeals on bias or fairness grounds will fail without clear, demonstrable error.
• The 2024 Family Law reforms modernised costs provisions but didn’t change the substance of fairness tests.
• Courts expect finality — once property orders are made, enforcement is a matter of compliance, not negotiation.