FLAST

🧭 Introductory Paragraph

In Ritter & Hermann (No 3) [2026] FedCFamC1F 19, the Federal Circuit and Family Court of Australia (Division 1) exercised its powers under the Australian Passports Act 2005 (Cth) to authorise the issue of a child’s passport without maternal consent, following clear and unexplained non-compliance with earlier court orders. The case is a sharp reminder that parenting disputes about international travel are not determined by obstruction, delay, or opposition in principle—particularly where a party has already agreed to comply and then failed to do so. The Court also imposed fixed costs against the non-compliant parent, reinforcing the consequences of disregarding interim orders.

🧩 Facts and Issues

Key Facts

• Final parenting proceedings concluded early in December 2025, with judgment reserved until 27 February 2026 (¶1–2).
• At the end of trial, the father sought interim time with the child and an order that the mother sign a passport application and produce the child’s expired passport (¶3).
• The mother did not oppose signing the passport application and expressly confirmed she could do so and could produce the expired passport (¶4–5).
• On 16 December 2025, the Court made orders requiring her to sign the passport application and provide the expired passport (¶6).
• The father’s solicitor followed up requesting supporting documents to progress the passport application (¶7).
• Although the father’s time with the child occurred as ordered (¶8), the mother failed to sign the passport application and failed to produce the expired passport, despite multiple attempts to contact her (¶9).
• The father filed an Application in a Proceeding on 23 December 2025 seeking enforcement and alternative relief (¶10).
• At the hearing on 19 January 2026, the father pressed only the order under s 11(1)(b)(i) of the Australian Passports Act (¶11).
• The mother opposed the application, arguing it should be dismissed or adjourned until final judgment (¶13).

Issues

1. Was the mother in breach of the existing court order requiring her to sign the passport application and produce the expired passport?
2. Should the Court authorise the issue of a passport for the child notwithstanding the mother’s lack of consent under s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth)?
3. Should the mother bear the costs of the enforcement application?

⚖️ Law

Statutory Framework

• Australian Passports Act 2005 (Cth) s 11(1)(b)(i)
• Allows a court to authorise the issue of an Australian passport for a child without the consent of a person whose consent would otherwise be required.

Family Law Principles

• Court orders must be complied with unless varied or set aside.
• Objection to an outcome (e.g. overseas travel) does not justify non-compliance with procedural orders facilitating administrative steps.
• Where litigation is necessitated by a party’s non-compliance, costs may follow the event.

🔍 Application of Law to Facts

• Justice Carew found that an order was clearly made on 16 December 2025, and the mother did not comply (¶14).
• Crucially, the mother did not seek to excuse her breach; she simply objected to the child travelling overseas (¶14).
• The Court emphasised that issuing a passport does not authorise travel, particularly while a Family Law Watchlist order remained in place (¶14).
• There was urgency in securing the passport given the father’s potential relocation after final judgment and the likelihood of future overseas travel regardless of outcome (¶15).
• Given the mother’s demonstrated non-compliance, the Court concluded the most effective and proportionate response was to authorise the passport under s 11(1)(b)(i) (¶16).
• The Court declined to make further coercive document-production orders, expressly noting it had “no confidence that the mother will comply” (¶16).
• The father was required to incur costs solely because of the mother’s breach, justifying a costs order fixed at $1,611.50 (¶17).

🧠 Analysis of the Judgment & Judicial Reasoning

Justice Carew’s reasoning is firm, practical, and enforcement-focused:

• The Court drew a clear distinction between:
• Administrative facilitation (obtaining a passport), and
• Substantive parenting outcomes (whether the child may travel overseas).
• The mother’s attempt to delay the passport issue until final judgment was rejected because it conflated these two distinct issues (¶14–15).
• The judgment reflects judicial intolerance for passive resistance—where a party agrees to orders, then quietly fails to comply.
• The refusal to order further document production underscores an important point: courts are not obliged to issue futile orders where non-compliance is likely (¶16).
• The costs order serves both compensatory and deterrent functions, reinforcing that enforcement applications should not be necessary in the first place (¶17).

📚 Precedents Relied On

• None expressly cited.
• The decision rests squarely on the clear statutory power in the Australian Passports Act 2005 (Cth) and orthodox enforcement principles.

🎓 Take-Home Lesson Learned

• A parent cannot veto administrative steps like passport issuance by simply withholding consent in defiance of court orders.
• Courts will readily use s 11(1)(b)(i) where consent is unreasonably withheld or orders are breached.
• Maintaining a Family Law Watchlist order can neutralise travel risk while still allowing compliance with procedural requirements.
• Non-compliance with interim orders is likely to attract adverse credibility findings and costs consequences.
• Saying “I’ll try” in court creates an expectation of compliance—failure to follow through carries real consequences.

Abramsson & Abramsson (No 8) [2025] FedCFamC1F 919 is one of the most confronting parenting judgments of 2025. After an appeal and rehearing, the Court made the rare and extreme order that two very young children live with their father and spend no time with their mother, despite evidence of mutual conflict and acknowledged love between the children and the mother.

The decision is a stark illustration of how persistent emotional abuse of a child, lack of insight, and refusal to accept responsibility can ultimately outweigh biological attachment, history of primary care, and even a parent’s genuine love.

FACTS

The Family

• Two children: X (born 2018) and Y (born 2021) (¶1, ¶11)
• Parents married in 2013, separated April 2022 (¶10)
• Mother was primary carer until September 2024 (¶13)
• Proceedings commenced in May 2022; ICL appointed June 2022 (¶15)

Key Traumatic Events

• April 2022 cliff incident: children witnessed mother drive off a cliff; father filmed part of the incident while holding Y (¶2)
• Recorded verbal abuse: mother taunted X and involved her directly in parental conflict, forcing loyalty choices (¶3–4)
• Repeated exposure of children to intense adult conflict (¶5–7)

Procedural History

• Interim supervised time for father (¶18–19)
• Children later placed with father; mother ultimately restrained from contact (¶21–26)
• Final parenting orders appealed and successfully set aside (¶23)
• Matter reheard before Carew J over 11 hearing days (¶31–32)

ISSUES (IRAC – “I”)

1. Did either parent pose an unacceptable risk to the children?
2. Were allegations of coercive control and family violence proven?
3. Is it in the children’s best interests to have a relationship with both parents?
4. Can the Court order no time with a parent despite mutual love and attachment?

RELEVANT LAW (IRAC – “R”)

Key statutory provisions:

• Best interests paramount – s 60CA Family Law Act 1975 (¶70)
• Primary considerations – safety, family violence, meaningful relationships (s 60CC; ¶71–72)
• Family violence definition – s 4AB (¶73–76)
• Unacceptable risk test – M v M (1988) 166 CLR 69 (¶78–80)
• Risk assessment without definitive findings – Eastley & Eastley (2022) FLC 94-094 (¶80)
• Court not required to determine every factual dispute – Baghti & Baghti [2015] FamCAFC 71 (¶81)

Key authority on coercive control:

• Pickford & Pickford (2024) FLC 94-230 (¶74)

APPLICATION OF LAW TO FACTS (IRAC – “A”)

1. Mother’s Allegations Against the Father

The Court rejected the mother’s allegations of:

• Physical assault
• Coercive control
• Financial abuse

Reasons included:

• Lack of corroboration (¶119–123)
• Inconsistencies in accounts
• Failure to call available corroborative evidence (¶110; Jones v Dunkel)

2. Findings Against the Mother

The Court made strong adverse findings that the mother:

• Engaged in family violence against both the father and the children (¶6–7)
• Emotionally abused X by:
• Taunting
• Mocking
• Forcing loyalty conflicts
• Continuing abusive language while the child was distressed (¶3–4, ¶7)

The Court described this behaviour as “particularly egregious” (¶7).

3. Insight and Capacity for Change

A decisive factor was lack of insight:

“If that same parent… accepts no responsibility and shows no insight into the damage that such behaviour causes, that parent is unlikely to be one with whom it will be in the child’s best interests to live or even have contact.” (¶7)

The Court accepted:

• The father’s autism did not create unacceptable risk (¶88–94, ¶116)
• The father demonstrated greater emotional containment and capacity to shield the children from conflict

THE JUDGMENT & REASONING (IRAC – “C”)

Orders Made

• Children to live with the father
• Father granted sole responsibility for all major long-term issues
• No time or communication with the mother, save:
• Cards/gifts on birthdays, Christmas, Easter (¶8; Orders 3–4)
• Limited informational rights preserved for mother (Orders 7–11)

Why the Judge Decided This Way

Carew J accepted that:

• Both parents loved the children
• The outcome was “sad” and “devastating” (¶8–9)

However:

• The risk of further emotional harm from the mother’s behaviour was unacceptable
• The Court’s role is protective, not reparative
• The children’s psychological safety outweighed the benefit of maintaining the maternal relationship at this time

TAKE-HOME LESSONS

🔹 For Parents

• Love alone is not enough.
• Insight, accountability, and child-focused behaviour are decisive.
• Involving children in adult conflict can permanently alter outcomes.

🔹 For Practitioners

• Emotional abuse findings can justify no-time orders, even absent physical violence.
• Courts will prioritise future risk, not past caregiving roles.
• A parent who refuses to accept responsibility is a high forensic risk.

🔹 For the System

This case reinforces that:

• Courts can and will make extreme orders when emotional harm is entrenched
• Reunification is not automatic—even where children express love for both parents

The Full Court of the Federal Circuit and Family Court of Australia (McClelland DCJ, Riethmuller & Kari JJ) in Arrighetti & Qodirova [2026] FedCFamC1A 1 delivered a landmark appellate judgment clarifying the scope of judicial discretion in cases involving emotional and psychological harm to children. The Court dismissed a mother’s appeal challenging draconian parenting orders that imposed a six-month moratorium on contact with her daughter, indefinite supervision thereafter, and a total prohibition on contact between the child and the maternal grandmother. The case underscores the balance courts must strike between protecting children from emotional harm and preserving their right to maintain relationships with both parents under the Family Law Act 1975 (Cth) and the UN Convention on the Rights of the Child.

Facts and Issues

Facts:

• The child (aged 10) had lived primarily with the mother since 2018.
• The mother alleged the father sexually abused the child; these claims were not substantiated.
• The primary judge found that the mother and maternal grandmother’s entrenched and unjustified beliefs caused emotional harm to the child, justifying a change of residence to the father and a moratorium on maternal contact for six months, followed by indefinite supervised time.
• The mother appealed, arguing the measures were disproportionate, unsupported by evidence, and failed to consider alternatives that preserved the child’s relationship with her primary carer and extended family.

Issues:

1. Did the trial judge err in finding the mother posed an “unacceptable risk” of harm?
2. Were the orders for six-month moratorium and indefinite supervision disproportionate?
3. Did the primary judge fail to consider less restrictive alternatives that protected both safety and relationship continuity?
4. Did the trial judge’s reasoning satisfy the obligation to explain key factual and legal conclusions?

Rule (Law)

• Best Interests Principle: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65AA, 65D.
• The child’s best interests are the paramount consideration, particularly the safety of the child and the benefit of maintaining parental relationships where safe to do so.
• Judicial Discretion: The appeal court will intervene only where the discretion was exercised on a wrong principle or led to a plainly unjust result (House v The King (1936) 55 CLR 499).
• Risk Assessment: Determinations of “unacceptable risk” must be evidence-based rather than discretionary (Isles & Nelissen (2022) FLC 94-092).
• Proportionality: Courts must ensure orders are proportionate to the degree of risk, balancing protection and parental contact (Betros & Betros [2017] FamCAFC 90).
• International Influence: UN Convention on the Rights of the Child arts 7, 9, 18 underscore children’s rights to know and be cared for by both parents, subject to safety considerations.

Application (Analysis)

1. Apprehended Risk and Maternal Beliefs

The Court upheld the finding that the mother’s persistent belief that the father was a sexual abuser, though unsubstantiated, created an unacceptable risk of emotional and psychological harm. Evidence included recordings of the mother and grandmother encouraging the child to frustrate contact with the father and engage police unnecessarily. The expert psychologist, Mr D, described “diffuse boundaries” and an “emotional alliance” between mother and child that impaired the child’s development and relationship with the father.

2. Moratorium and Indefinite Supervision

While the appellate bench acknowledged that the trial judge mistakenly thought the family report writer endorsed a six-month moratorium, it found the error immaterial since the evidence still justified a substantial period of no contact to stabilise the child’s new environment.

The Court reaffirmed that long-term supervised contact is undesirable but may be justified where a parent’s entrenched psychological stance cannot be contained and poses ongoing emotional risk.

3. Proportionality and Alternatives

McClelland DCJ accepted that courts must ordinarily explore alternatives to indefinite supervision (Betros & Betros, Slater & Light, Moose & Moose), but held that the mother’s refusal to moderate her beliefs and the grandmother’s reinforcing conduct left no safe alternative. The supervision order was therefore protective, not punitive, aligning with s 60CC(2)(a)’s emphasis on safety.

4. Rights of the Child and International Context

The Court invoked CROC to emphasize that while children have a right to parental connection (Arts 7, 9, 18), such rights exist only “where it is safe to do so.” The judgment reaffirmed that the Family Law Amendment Act 2023 shifted focus from “maximum involvement” to safety-first decision-making.

It was acknowledged that emotional abuse stemming from unfounded fixed beliefs constitutes a form of “harm” under s 60CC(2)(a), justifying the restrictions.

Judgment and Reasoning

• Outcome: Appeal dismissed; orders upheld.
• The Court found no appealable error in the trial judge’s factual findings or discretionary exercise. The mother was ordered to pay $13,979.86 in costs.
• Reasoning:
• The trial judge correctly prioritised psychological safety over relationship continuity.
• Findings were grounded in credible expert evidence and consistent with authority (Bielen & Kozma (2022), Pierce & Pierce (No 2) (2025)).
• The restrictive orders were open on the evidence, given the child’s exposure to harmful narratives.
• Supervision could be lifted if the mother demonstrated insight and compliance through therapeutic progress.

Precedents Relied Upon

• House v The King (1936) 55 CLR 499
• Bielen & Kozma (2022) FLC 94-123
• Isles & Nelissen (2022) FLC 94-092
• Betros & Betros [2017] FamCAFC 90
• B & B (1993) FLC 92-357
• Bondelmonte v Bondelmonte (2017) 259 CLR 662
• Pierce & Pierce (No 2) [2025] FedCFamC1A 162
• Re: Thomas (2009) 41 Fam LR 220

Take-Home Lesson

This case is a cautionary tale in how emotional risk and fixed beliefs can be as harmful as physical abuse in the eyes of the Court.

Judicial discretion under the Family Law Act now operates within a safety-first paradigm, reinforced by the 2023 reforms.

Parents involved in high-conflict parenting disputes must demonstrate insight, therapeutic engagement, and the ability to separate belief from behaviour—or risk long-term supervision or loss of contact.

The judgment also clarifies that CROC’s influence persists as a moral compass for balancing children’s rights and safety, even though not directly incorporated into domestic law.

The appellate judgment in Leena & Leena [2025] FedCFamC1A 241 (Hogan, Altobelli & McNab JJ) serves as a critical reminder that judicial neutrality must not only exist but must be seen to exist. The Court partially allowed an appeal from parenting and property orders after finding that the trial judge’s premature comments and conduct during the hearing gave rise to a reasonable apprehension of bias. The case further addressed errors in the trial judge’s approach to contributions in the property settlement, setting aside those orders and remitting the matter for rehearing before a different judge.

Facts and Issues

• The appellant (mother) and respondent (father) disputed both parenting arrangements for two children and property settlement orders.
• During trial, the mother applied for the primary judge’s recusal, arguing his comments suggested prejudgment. Her application was refused, and the final orders were made largely in the father’s favour.
• The judge commented mid-trial that he was “not persuaded” the father posed a risk to the children—before the father was cross-examined—and made remarks suggesting the mother would “never find [the father] good enough”.
• On appeal, the mother alleged apprehended bias, failure to consider material evidence, and error in applying a presumption of equal contributions in property division.

The issues were:

1. Whether the judge’s conduct and comments created a reasonable apprehension of bias.
2. Whether the judge misapplied the law on property contributions, suggesting a presumption of equality.
3. Whether the judge failed to provide adequate reasons and consider all relevant material.

Rule (Law)

1. Apprehended Bias Principle:
2. A judge is disqualified if “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Charisteas v Charisteas (2021) 273 CLR 289).
3. Judicial Conduct and Commentary:
4. Judges may offer provisional views to assist counsel (Johnson v Johnson (2000) 201 CLR 488), but such remarks must not appear to predetermine issues or reflect prejudgment.
5. Contributions in Property Settlement:
6. Under s 79(4) of the Family Law Act 1975 (Cth), contributions are assessed holistically; there is no presumption of equality (Mallet v Mallet (1984) 156 CLR 605).
7. Adequate Reasons:
8. Failure to address key evidence or provide logical reasoning constitutes error (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430).

Application (Analysis)

1. Apprehended Bias

Justice Hogan (with Altobelli and McNab JJ agreeing) found that the timing and tone of the primary judge’s remarks would lead a fair-minded observer to doubt his impartiality.

• On the first trial day, before all evidence was heard, the judge stated:

“I’m not persuaded that the father presents a risk to these children… I’m not persuaded that the interests of the children warrant reduction in time.”

• These comments, though qualified as “preliminary,” occurred mid-cross-examination of the mother and before hearing the father, implying a premature conclusion.
• On the second day, he urged settlement in line with the Independent Children’s Lawyer’s proposal—again suggesting he had formed an early preference.
• The Court cited Johnson v Johnson and Charisteas v Charisteas, reaffirming that the appearance of bias suffices to vitiate a judgment.

Justice Hogan observed that repeated expressions of scepticism toward one party’s case and the invitation to the opposing party to apply for interim orders during the other’s illness compounded the appearance of partiality.

“A fair-minded observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the issues he was required to decide.”

Thus, the apprehended bias ground was made out.

2. Property Contributions

The appellate bench held that the trial judge had erred in treating contributions as presumptively equal, contrary to Mallet v Mallet. While equality can be a result, it cannot be a starting point. Repeated references to making an “adjustment” implied the judge assumed parity before considering evidence of the wife’s post-separation inheritance and homemaker contributions. This amounted to legal error warranting rehearing on property division.

3. Adequacy of Reasons

Certain factual and evidentiary matters—such as the mother’s medical evidence and child welfare concerns—were not adequately addressed. The Court cited Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 for the principle that reasons must expose the reasoning path; failure to do so renders appellate review impossible.

Judgment and Reasoning

• Appeal Outcome:
• The appeal was allowed in part. Parenting orders were upheld, but property orders (Orders 27–44) were set aside. The case was remitted for rehearing before a different judge.
• Both parties received costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the new trial.
• Judicial Reasoning:
• The Court emphasized that even “tentative” judicial views can breach neutrality when they appear outcome-determinative.
• The principle of impartiality “overrides any case management considerations” and protects public confidence in the judiciary.
• Hogan J summarized:

“It was very unfortunate that the primary judge made the comments that he did… at a time when he had not seen the respondent be cross-examined.”

Precedents Relied Upon

• Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
• Johnson v Johnson (2000) 201 CLR 488
• Charisteas v Charisteas (2021) 273 CLR 289
• Mallet v Mallet (1984) 156 CLR 605
• Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
• House v The King (1936) 55 CLR 499

Take-Home Lesson

Judges must avoid comments or conduct that could suggest prejudgment, especially during live evidence. Even expressions of “preliminary” opinions may create a perception of bias if made prematurely or repeatedly. For practitioners, this decision reinforces vigilance in protecting procedural fairness — and the need to object when judicial commentary risks crossing that line.

In Willis & Mulder [2025] FedCFamC1A 217, Justice Austin of the Federal Circuit and Family Court (Division 1, Appellate Jurisdiction) overturned a property settlement after the wife uncovered explosive new evidence — her husband, who claimed to be a pensioner with no income, had secretly declared a $176,000 annual salary to a lender just months later. The appellate court found that while the trial judge made no legal errors based on the original evidence, the husband’s post-trial loan documents “collided violently” with his sworn testimony. This new evidence fatally undermined the trial findings under s 75(2) of the Family Law Act 1975 (Cth), leading the Court to set aside the orders and send the matter back for rehearing.

📜 Facts and Issues

Facts

• The parties married in 2006 and separated in 2021.
• The wife commenced property proceedings in 2023; the husband, self-represented at trial, claimed he was on a Commonwealth old-age pension with no other income.
• The primary judge divided property 65/35 in the husband’s favour, rejecting claims of non-disclosure and finding both parties equally deficient in financial transparency.
• Shortly after judgment, the wife obtained loan application documents showing the husband declared an annual taxable income of $176,000, and affirmed he was self-employed.
• The wife appealed, arguing this new material proved both non-disclosure and a miscarriage in the primary judge’s s 75(2) assessment.

Issues

1. Whether the husband’s undisclosed income and post-trial loan documents justified admitting fresh evidence on appeal.
2. Whether the trial judge erred in failing to adjust property division under s 75(2) for financial disparity.
3. Whether non-disclosure or false evidence warranted setting aside the final orders.

⚖️ Law

Statutory Framework

• Family Law Act 1975 (Cth) ss 75(2), 79 — financial and contribution-based adjustment principles.
• Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35(b) — power to receive further evidence on appeal.
• Evidence Act 1995 (Cth) s 164 — corroboration not required for acceptance of probative evidence.

Key Precedents

• CDJ v VAJ (1998) 197 CLR 172 – new evidence on appeal admissible if credible, material, and likely to produce a different result.
• Allesch v Maunz (2000) 203 CLR 172 – power to remit matter for rehearing if justice requires.
• Weir & Weir (1993) FLC 92–338 – consequences of deliberate non-disclosure.
• Gould & Gould (2007) FLC 93-333 – degrees of non-disclosure and their forensic consequences.
• Franklin & Ennis [2019] FamCAFC 91 – non-disclosure is not self-punishing; its impact depends on circumstances.

🔍 Application

1️⃣ Admissibility of New Evidence

Justice Austin applied CDJ v VAJ and held the wife’s evidence — comprising a broker’s declaration, a tax agent’s letter, and a loan application — met all criteria for admission:

• It was credible and created after the trial, hence unavailable earlier.
• It directly contradicted the husband’s sworn evidence of being on a pension.
• It was highly probative of the husband’s true financial circumstances and likely to affect the outcome on s 75(2) adjustment.

The Court described the husband’s admissions as “colliding violently” with his trial evidence (at [86]) and found that had the evidence been known earlier, the financial outcome would have differed materially.

2️⃣ Non-Disclosure and Section 75(2)

At trial, the husband’s alleged poverty limited the scope for any post-contribution adjustment. With the new material showing hidden income, the Court held the s 75(2) determination was now “vitiated” — particularly factors relating to income disparity, earning capacity, and future needs (at [88]–[89]).

Justice Austin emphasised that non-disclosure findings are means to an end, not punishment: what matters is whether the true financial position alters justice and equity under s 75(2).

3️⃣ No Primary Error, But New Injustice

Importantly, Justice Austin stressed that the primary judge committed no appealable error on the evidence before her (at [2]). The injustice only emerged due to new evidence unavailable at trial. Accordingly, the appeal succeeded not for legal error, but because the subsequent revelations fundamentally changed the factual matrix.

The husband’s “violent collision” of declarations warranted rehearing before a different judge (at [93]–[94]), preserving procedural fairness for both parties.

💬 Analysis of the Judgment

The appellate reasoning in Willis & Mulder highlights two vital principles:

1. Fresh Evidence Jurisprudence — Following CDJ v VAJ, the Court reaffirmed that appellate intervention may be justified even absent trial error, where newly discovered facts make the original decision unsafe.
2. Non-Disclosure and Forensic Balance — Echoing Weir & Weir and Gould & Gould, Austin J reiterated that not all non-disclosure is equal; its gravity depends on whether it conceals material wealth or merely delays proceedings.

The husband’s deliberate misrepresentation struck at the integrity of the property pool and the credibility of the evidence underpinning the judgment. Hence, justice required a rehearing, not just a recalculation.

🧠 Take-Home Lesson

“Truth told too late is still a lie — and in family property cases, lies cost judgments.”

Willis & Mulder reaffirms that:

• Full and frank disclosure is a continuing obligation under the Family Law Act.
• Post-trial evidence exposing dishonesty can reopen even a final judgment.
• Appellate courts will only disturb discretionary outcomes where new evidence is decisive, credible, and would likely change the result.

The wife’s diligence in obtaining the husband’s loan documents illustrates how forensic persistence can unearth concealed wealth — and overturn injustice.

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.