Discontinuance Did Not End the Case: Procedural Fairness, Apprehended Bias and Final Parenting Orders Upheld on Appeal
In Kozlowska & Maiella [2026] FedCFamC1A 170, the mother appealed final parenting orders made by the Magistrates Court of Western Australia. Those orders placed the 13-year-old child, X, in the father’s sole care and conferred sole parental responsibility on him. The appeal was dismissed, the application to adduce further evidence was dismissed, and the mother was ordered to pay the father’s costs fixed at $13,000. 170
All paragraph references below are to the judgment paragraphs in Kozlowska & Maiella [2026] FedCFamC1A 170.
The central point is this:
The mother’s procedural fairness appeal failed because the Court found she had been given a real opportunity to participate. She left Court, filed a Notice of Discontinuance, maintained that position the next day, and no party sought an adjournment. The Court was still required to determine the father’s and ICL’s applications in X’s best interests.
🧩 Facts and Issues
Facts:
The parties were the parents of one child, X, aged 13: [3]. They had final parenting orders made by consent in June 2019, providing for equal shared parental responsibility and week-about care: [5].
In 2022, disputes arose about X’s care, welfare and development. Both parties sought to vary the 2019 orders: [6]. By the time of the final hearing, the mother sought orders that X live with her and that she have sole parental responsibility. The father, supported by the ICL, sought orders that X live with him and that he have sole parental responsibility. X had been living exclusively with the father since about mid-2025: [8].
The final hearing commenced on 7 April 2026. The mother was self-represented. The father was legally represented and X was represented by the ICL: [9].
On 8 April 2026, while the mother was still under cross-examination, members of the father’s family attended Court during the lunch adjournment. The mother became distressed, left Court and did not return that day: [10]. The matter was adjourned until the following morning and the mother was ordered to attend: [11].
Later that day, the mother wrote to the Court stating she had voluntarily left and intended to file a Notice of Discontinuance. She then filed the Notice of Discontinuance in respect of her application: [12].
The matter resumed on 9 April 2026. The mother appeared. Later that day, final parenting orders were made. Those orders discharged the previous parenting orders, provided that X live with the father, and vested sole parental responsibility in the father: [13]–[14].
Issues:
- Should the appeal court receive further evidence, namely a transcript of an earlier procedural hearing?
- Was the mother denied procedural fairness because she was self-represented, had accommodation needs, left Court, and filed a Notice of Discontinuance?
- Was the trial court required to adjourn, invite her to reconsider, or continue the evidence before making final orders?
- Did judicial interventions during cross-examination create apprehended bias?
- Was there an adequate evidentiary foundation for final parenting orders?
- Were the ex tempore reasons adequate?
- Should the mother pay the father’s costs of the appeal?
⚖️ Applicable Law – Legislation, Regulations, Rules
The appeal concerned final parenting orders and alleged procedural unfairness, apprehended bias, inadequate evidentiary foundation and inadequate reasons.
For further evidence on appeal, the Court applied s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and CDJ v VAJ. Further evidence may be admitted where it is necessary to show appealable error that cannot otherwise be remedied through ordinary appellate procedures: [15]–[17].
For procedural fairness, the Court stated that the hallmark of a fair hearing is that parties know the case against them, know the evidence relied upon, and have an opportunity to meet that evidence and make submissions. The Court’s obligation is to provide the opportunity; whether the party takes it up is a different matter: [26].
For apprehended bias, the Court applied the Ebner test: whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the question to be decided. The appellant had to identify both the conduct said to give rise to the apprehension and the logical connection between that conduct and the feared departure from impartiality: [48].
For adequate reasons, the Court emphasised that reasons need not address every fact, every argument or every evidentiary dispute. What is adequate depends on the circumstances, and ex tempore reasons are assessed in that context: [64]–[65].
For costs, the Court applied s 114UB of the Family Law Act 1975 (Cth). The starting point is that each party bears their own costs, but the Court may order costs where the circumstances justify it: [73]–[80].
📌 Precedents Relied On
CDJ v VAJ — further evidence on appeal must be capable of demonstrating appealable error and is not admitted merely because a party wants to supplement the record: [15]–[17].
Johnson v Johnson and Re F: Litigants in Person Guidelines — relevant to the Court’s obligations when dealing with self-represented litigants and ensuring they have a fair opportunity to participate: [27]–[33].
Arrighetti & Qodirova — a Court is not ordinarily required to conduct a roving inquiry into options not advanced by the parties, especially where an ICL is involved: [39]–[41].
Ebner v Official Trustee in Bankruptcy — the governing test for apprehended bias: [48].
Johnson v Johnson (HCA) and Concrete Pty Ltd — a fair-minded observer understands that judges may actively manage proceedings, test propositions, ask questions and identify real issues: [49].
Soulemezis, Whisprun, Perdicari, Mifsud and related authorities — reasons are adequate if they expose the essential path of reasoning; a judge need not address every fact, argument or evidentiary dispute: [64]–[65].
🧠 Analysis
Issue
Did the mother establish appealable error by showing that the trial process was procedurally unfair, affected by apprehended bias, unsupported by adequate evidence, or inadequately reasoned?
Rule
An appeal based on procedural fairness requires more than showing that the hearing was difficult, stressful or imperfect. The question is whether the party was given a meaningful opportunity to know the case, meet the evidence and make submissions: [26].
An appeal based on apprehended bias requires satisfaction of the double might test. The appellant must identify the conduct relied upon and show a logical connection between that conduct and the possibility that the judge might not decide the case impartially: [48].
Where a party files a Notice of Discontinuance, that may end that party’s application, but it does not necessarily end the whole proceeding if other parties still seek relief. The Court may still be required to determine the remaining applications in the child’s best interests: [42]–[44].
Application
1. The further evidence application failed
The mother sought to adduce a transcript of a procedural hearing before a different judicial officer on 28 January 2026: [16].
The appeal judge refused leave because the transcript was only a procedural hearing transcript. It had not been evidence before the trial magistrate, and the trial magistrate was already well aware of the mother’s accommodation needs: [16].
The proposed evidence did not satisfy the CDJ v VAJ test because it was not necessary to avoid an error that could not otherwise be remedied by ordinary appellate procedures: [16]–[17].
The practical point:
Further evidence on appeal must show appealable error. It is not enough that it provides context or colour.
2. The procedural fairness grounds were grouped together
Grounds 1, 2 and 3 all complained, in different ways, that the mother was denied procedural fairness because the trial proceeded after she became distressed, left Court, filed a Notice of Discontinuance and later had final orders made: [21]–[25].
The appeal judge treated these grounds together because they all rested on the same premise: that the mother did not have a real opportunity to participate and that the Court should not have made final orders in the circumstances: [25].
That premise failed.
3. The trial Court had accommodated the mother’s needs
The appeal judge found that the chronology showed no foundation for the complaint that the Court failed to accommodate the mother’s disability-related needs: [27].
Before the hearing, the mother had written to the Court about her accommodation needs. The Court responded by letter and gave effect to the identified measures during the hearing: [28].
On the first day, the magistrate discussed the order of witnesses, objections, the mother’s opening statement, affidavits and documents. The mother told the Court she wanted the matter heard and had waited a long time for someone to look at her evidence: [29]–[30].
When the mother later sought an adjournment, submissions were heard from all parties and the application was refused. The appeal judge found that her complaint was really dissatisfaction with the outcome, not denial of process: [31].
That is a key distinction:
Procedural fairness gives a party the right to be heard. It does not guarantee the outcome of an adjournment application.
4. The magistrate actively protected the mother’s participation during cross-examination
The appeal judge found that, during cross-examination, the magistrate intervened repeatedly to assist fairness. The magistrate gave the mother opportunities to answer, directed that questions be reframed, disallowed questions, told the father’s solicitor to alter the manner of questioning, and required questioning to slow down: [33].
The appeal judge described the transcript as showing “exceptional care” to ensure the mother received a procedurally fair hearing: [33].
This mattered because the mother’s appeal argued that the trial process was unfair. The appellate finding was the opposite: the trial magistrate had actively managed the process to preserve fairness.
5. Leaving Court did not require the magistrate to adjourn indefinitely
On the second day, the mother became distressed during lunch and left Court. When the matter resumed, the magistrate discussed the position with counsel. The ICL raised adjournment as one possible option, but the magistrate adjourned the matter only until the following day and arranged for the mother to be advised of the next listing: [35].
Later that day, the mother wrote to the Court stating that she had voluntarily left, understood the consequences, would file a discontinuance, and trusted the magistrate to make orders in X’s best interests: [36].
That letter became critical.
The appeal judge treated it as showing that the mother herself had chosen the course she took.
6. The mother maintained the discontinuance position the next day
The next day, the mother attended Court. The magistrate asked her position and expressly explained that if she wished to discontinue her application, the trial would end and the Court would proceed to make orders considered to be in X’s best interests: [37].
The mother had the ICL’s proposed orders and was given time for further discussions. When the matter resumed, the ICL handed up a document recording each party’s position about final orders. The magistrate then engaged with each party and heard submissions on the remaining issues: [38].
The appeal judge found that, contrary to the mother’s arguments, the transcript showed clearly and unambiguously that she had been afforded a sufficient opportunity to constitute a procedurally fair hearing: [38].
This is the centre of the appeal:
The mother was not ambushed. She was asked her position, told the consequence, given time, and heard on the final orders.
7. The Notice of Discontinuance did not end the whole parenting proceeding
The mother argued that the Court should not have acted on her Notice of Discontinuance without ensuring that she understood the consequences or had legal advice.
The appeal judge rejected that. At [42], the Court held that filing the Notice of Discontinuance meant the mother’s relief was no longer before the Court, but it did not bring the proceedings to an end. Nor did it prevent her from participating further if she chose to do so.
The Court was still required to determine the relief sought by the father and ICL: [44].
This is the practical legal point:
Discontinuing your own application does not neutralise the other party’s application.
8. The magistrate was not required to invite the mother to seek an adjournment or withdraw the discontinuance
The appeal judge found that the mother had overnight to reconsider her position and maintained it the next day. She did not seek to withdraw the Notice of Discontinuance. She did not seek an adjournment: [43].
At [45], the Court held the magistrate was not required to ask whether she wanted an adjournment or whether she wished to withdraw the Notice of Discontinuance. The mother already knew she could seek an adjournment because she had done so on the first day.
The Court also held that requiring the magistrate to prompt the mother in that way would not have accorded procedural fairness to the father: [45].
Grounds 1, 2 and 3 therefore failed: [46].
The litigation lesson:
A self-represented party may receive assistance with process, but the judge is not their legal adviser.
9. Apprehended bias was not established
The mother alleged apprehended bias based on three interventions by the magistrate during cross-examination: [47].
The appeal judge applied the Ebner test: a fair-minded lay observer must reasonably apprehend that the judge might not bring an impartial mind to the decision. A mere assertion is not enough; there must be a logical connection between the conduct and feared departure from impartiality: [48].
The first complaint was that the magistrate said she had concerns “at present” about the mother’s insight into X’s needs: [50]. The appeal judge held that the words were qualified, provisional and indicated an open mind. The mother would have an opportunity to reflect and respond: [51].
The second complaint concerned the magistrate’s reference to a parent taking a “robust approach” to health versus “catastrophising”. The appeal judge held that this was not prejudgment; judges are entitled to ask questions and test propositions to better understand the case: [52]–[53].
The third complaint was that the magistrate asked the mother to identify one positive thing about the father. The appeal judge held that this was an open question directly relevant to the issues the Court had to determine. There was no prejudgment in the question or response: [54]–[55].
The judge concluded that the interventions, individually or cumulatively, did not give rise to a reasonable apprehension of bias: [56]–[58].
10. The fact that a question distressed the mother did not make it biased
This is an important practical point from Ground 6.
The mother was distressed by some of the magistrate’s questions. But the appeal judge did not treat distress as the test. The question was whether a fair-minded lay observer would apprehend a lack of impartiality.
At [49], the Court emphasised that a fair-minded lay observer understands ordinary judicial practice, including active case management, testing propositions, asking questions and identifying real issues.
That is why the bias ground failed.
The lesson:
Judicial questioning may be uncomfortable without being biased.
11. Final orders could be made without hearing every remaining witness
Ground 4 argued that final orders should not have been made because the evidence was incomplete and not all evidence had been heard, tendered or tested: [59].
The appeal judge rejected that argument.
At [60], the Court held that by the time the mother filed her Notice of Discontinuance, the Court was apprised of the relevant issues through affidavits, expert evidence, tendered documents and the Papers for the Judicial Officer.
At [61], the Court held that the magistrate was not obliged to force the remaining parties to adjourn, call further evidence, cross-examine witnesses or tender documents where the issues were limited, the mother had chosen to discontinue, and she had indicated several times that she did not oppose the orders.
The appeal judge said the mother’s argument would mean a court could never bring litigation to an end when asked to do so by the parties without first hearing the case to completion. That proposition was rejected: [61].
Ground 4 failed: [62].
The practical lesson:
A final hearing does not always have to run to the last witness if the live issues have narrowed and the parties seek final orders.
12. The ex tempore reasons were adequate
Ground 5 alleged inadequate reasons: [63].
The appeal judge rejected that ground. The parties had been told that the transcript of 9 April 2026 recorded the ex tempore reasons: [64].
The magistrate explained that there had been a change in circumstances and that the 2019 orders were no longer operating in X’s best interests: [66].
The magistrate then addressed parental responsibility, X living with the father, X spending time with the mother by agreement and according to X’s views, the father’s capacity to give effect to those views, ongoing treatment and restrictions on media devices: [67].
At [68], the appeal judge described the mother’s complaint that reasons were required for the incomplete evidence, the 8 April adjournment position and the Notice of Discontinuance as “fatuous”. No adjournment application was made on 9 April. The mother did not seek to resile from the discontinuance. Reasons were not required for applications that were never made.
Ground 5 failed: [69].
The lesson:
Reasons must explain the decision actually made, not hypothetical applications that were not pursued.
Conclusion
The appeal was dismissed because none of the grounds had merit: [70].
The further evidence application failed because the procedural transcript did not demonstrate appealable error: [15]–[17].
The procedural fairness grounds failed because the mother had been accommodated, heard, given opportunities to participate, and clearly maintained her discontinuance position after having overnight to reconsider: [27]–[46].
The apprehended bias ground failed because the judicial interventions were ordinary, relevant, provisional and directed to understanding the issues, not evidence of prejudgment: [47]–[58].
The complaint about final orders being made without completing all evidence failed because the mother had discontinued, the live issues had narrowed, and no party sought an adjournment or insisted the evidence continue: [59]–[62].
The inadequate reasons ground failed because the ex tempore reasons sufficiently explained the change of circumstances, best interests basis and final orders made: [63]–[69].
The mother was ordered to pay the father’s costs fixed at $13,000, payable within three months: [79]–[80]. 170
🧠 Take-Home Lesson
This case is a strong warning for self-represented litigants in final parenting hearings.
The Court will make accommodations where appropriate. The Court may slow questioning, reframe questions, disallow improper questioning and assist a self-represented party to understand process. But the Court is not required to act as the party’s lawyer.
The sharp FLAST lesson is:
A Notice of Discontinuance is not a pause button. It may end your application, but it does not stop the other parent’s application or the ICL’s position being determined.
The second lesson is:
Procedural fairness is about opportunity, not outcome. If the opportunity is given and not taken, an appeal will usually fail.
The third lesson is:
Do not assume distress equals procedural unfairness, or judicial questioning equals bias. The appeal court will look at the whole transcript and ask whether the trial judge remained open, fair and impartial.
The practical litigation lesson is:
If you need an adjournment, ask for it clearly. If you want to withdraw a discontinuance, say so clearly. If you do not oppose final orders, understand that the Court may make them. Appeals do not rescue unclear forensic choices made at the hearing.
