Justice Behind Closed Doors: Appeal Court Overturns Parenting Orders After Judge Excludes Self-Represented Father From Courtroom

In Ramirus & Hendrika [2025] FedCFamC1A 204, Justice Strum of the Federal Circuit and Family Court (Division 1) delivered a strong rebuke to judicial conduct that compromised procedural fairness. The case involved a self-represented father who was excluded from the courtroom while the trial judge held private discussions with the mother’s counsel and the Independent Children’s Lawyer (ICL) — conversations that included adverse commentary about the father’s mental health and personality. The Full Court ruled this was a clear denial of procedural fairness, rendering the trial invalid. The parenting orders preventing the father from seeing his children were set aside and the matter remitted for retrial before a different judge.

🧾 Facts and Issues

• The father, Mr Ramirus, was self-represented at trial after his lawyers withdrew ([15]).
• The mother, Ms Hendrika, sought orders that the children have no time or communication with the father, supported by the ICL ([4]).
• During the trial, after the father’s cross-examination, the primary judge excluded him from the courtroom for a “discussion with practitioners” ([19]).
• In the father’s absence, the judge speculated about his “narcissistic” and “personality disorder” traits, questioned his mental health, and discussed ordering a psychiatric assessment ([19], transcript p.223–p.232).
• These comments and procedural plans were never disclosed to the father until he obtained the transcript later.
• The judge subsequently made final orders denying the father any time or communication with his children ([5]).

The father appealed, alleging a denial of procedural fairness, including:

1. Being excluded from the courtroom while substantive discussions occurred.
2. The judge forming adverse views about his mental health without evidence.
3. The judge discussing potential future orders in his absence.

⚖️ Issues

1. Did the trial judge’s private discussions with counsel in the father’s absence amount to a denial of procedural fairness?
2. Did these ex parte communications cause a miscarriage of justice requiring the orders to be set aside?
3. Should the matter be remitted for a new trial, and what remedies should follow?

⚖️ Law

Legislation

• Family Law Act 1975 (Cth) Pt VII (parenting orders)
• Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 (costs certificates)
• Legal Profession Uniform Conduct (Barristers) Rules 2015 r 54 (prohibition on ex parte communication)

Key Authorities

• House v The King (1936) 55 CLR 499 – standard of appellate intervention ([6])
• Kioa v West (1985) 159 CLR 550 – right to a fair hearing
• Kanda v Government of Malaya [1962] AC 322 – duty to hear both sides
• Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 – denial of procedural fairness = jurisdictional error
• Re JRL; Ex parte CJL (1986) 161 CLR 342 – judges must avoid private discussions with one party
• Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 – integrity of the judicial process
• Krupin & Krupin [2022] FedCFamC1A 136 – procedural fairness for self-represented litigants

🔍 Application of Law to Facts

Justice Strum found multiple procedural failures:

1️⃣ Exclusion of the Father

The transcript clearly showed the father was asked to leave the courtroom at 12.56 pm on 30 October 2024 while the judge held an extensive discussion with counsel about his mental state, the need for psychiatric assessment, and potential procedural steps ([19]).

This occurred without his knowledge or consent, breaching the core principle that “each party must be given an adequate opportunity to be heard” (Kioa v West, 159 CLR at 582).

2️⃣ Improper Judicial Discussion

During the ex parte meeting, the judge expressed views that the father showed “narcissistic issues and personality disorders” and suggested he was a danger to the mother ([19]).

Justice Strum held this was not “merely administrative” but involved substantive prejudgment of evidence. Such conduct was contrary to Re JRL; Ex parte CJL (1986) 161 CLR 342, which condemns any communication that may give an appearance of bias or partiality.

3️⃣ Consequential Unfairness

When the trial resumed, the judge only briefly told the father that procedural matters had been discussed but did not disclose the substance of those conversations ([20]).

The Court held this was a serious breach of natural justice, as the father was deprived of the opportunity to respond to adverse impressions and procedural proposals made in his absence.

4️⃣ Impact on the Outcome

Justice Strum ruled that because the integrity of the trial process had been compromised, it was unnecessary to examine whether the outcome would have been different:

“A failure to afford procedural fairness is a jurisdictional error… it strikes at the heart of judicial impartiality and the appearance of justice” (at [55]).

Accordingly, the appeal succeeded.

🧮 Judgment and Reasoning

Orders (summarised):

• Appeal allowed.
• Parenting orders set aside ([Orders 1–2]).
• Matter remitted for retrial before a different judge ([Order 2]).
• Costs certificates granted to both parties under ss 6, 8, and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) ([Orders 3–6]).

Judicial Reasoning

Justice Strum observed:

“The exclusion of a self-represented party from the courtroom while the judge engages in discussions with counsel for the other parties strikes at the very foundation of procedural fairness and the open administration of justice” ([58]).

He cited Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, confirming that a denial of procedural fairness itself constitutes jurisdictional error requiring the orders to be set aside ([60]).

Justice Strum also referenced Re F: Litigants in Person Guidelines [2001] FamCA 348, emphasising that courts owe a heightened duty of clarity and fairness when dealing with self-represented litigants ([15], [61]).

💡 Take-Home Lessons

1. Never exclude a self-represented party from any discussion that might affect the outcome — even procedural.
2. Judicial impartiality must not only exist but appear to exist.
3. Procedural fairness errors automatically vitiate judgments, regardless of outcome.
4. Counsel have a professional duty (r 54, Barristers Rules) not to engage in or permit ex parte communication.
5. Retrials are costly and traumatic — fairness at first instance avoids unnecessary appeals.