Partington & Partington (No 2) [2025] FedCFamC1A 229 (12 December 2025)

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 Partington & Partington has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The appellant filed a Notice of Appeal on 29 August 2025 which sought leave to appeal (and if leave were granted an appeal) from interim parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2). Leave is not required. The proceedings concern four children: "W" born 2018, "X" born 2019, "Y" born 2021 and "Z" born 2022. The father, Mr Partington, is the appellant and the mother, Ms Partington, is the respondent.
2. In essence, the interim proceeding concerned the appellant's application to discharge an interim injunction, the effect of which was to restrain the appellant from attending at the premises where his son, W, was to receive First Holy Communion.
3. On 17 September 2025 Appeal Judicial Registrar Cameron made orders and delivered reasons for judgment in an Application in an Appeal filed by the appellant.
4. In those reasons the Appeal Judicial Registrar said:
   1. The father purports to appeal all orders made by the primary Judge on 27 August 2025. Nevertheless, only order 1 made that day is amenable to appeal.
   2. In Darley (No 2) [2023] FedCFamC1A 112 a Full Court (Austin, Harper & Riethmuller JJ) explained:
      1. Appeals only lie from "judgments" (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCA Act")), which are "operative judicial acts" resolving the entire justiciable dispute or at least determining the parties' rights in some more limited way (Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 at 64).
      2. Judgments do not include rulings on points of law, evidence or procedure which incidentally arise during the proceedings when such rulings are not decisive of legal rights (Commonwealth v Mullane [1961] HCA 28; (1961) 106 CLR 166 at 169; Yule v Junek [1978] HCA 4; (1978) 139 CLR 1 at 14, 18, 21 and 26).
   3. Orders 2, 3 and 4 of the primary orders are entirely procedural in nature and do not "determine the parties' rights" in any way. They are not amenable to appeal.

1. I agree.
2. The dismissal of the appellant's Application in a Proceeding by the primary judge had the consequence that the appellant was prevented from attending his son W's First Holy Communion in September 2025.
3. The Appeal Judicial Registrar's reasons also contained the following paragraphs:
   1. I am very comfortably satisfied that the father's Notice of Appeal will be limited to the determination of whether the primary Judge fell into appealable error in dismissing that part of the Application in a Proceeding filed 12 August 2025 seeking permission for the father to attend [W's] First Holy Communion (order 3 sought therein).
   2. Given that [W's] First Holy Communion has now taken place, the utility of the father's Notice of Appeal must be seriously called into question.
   3. In Provenza & Provenza (No 3) [2025] FedCFamC1A 124 Riethmuller J explained:
      1. Appeals will not usually be allowed, even if the grounds of appeal have some merit, if there would be no utility in allowing the appeal: see Reece & Reece [2011] FamCAFC 24 at [108]-[109]; Naparus & Frankham [2018] FamCAFC 190 at [4] and [17]; Naparus & Frankham (No 2) [2020] FamCAFC 238 at [46].

1. Again, I agree.
2. The appellant filed a further Application in an Appeal on 3 September 2025 which was the subject of orders and reasons in Partington & Partington [2025] FedCFamC1A 208 published on 13 November 2025. In my reasons for judgment I said:
   1. This Court would not ordinarily allow an appeal, even if the grounds of appeal contain some merit, if there would be no utility in allowing the appeal (Reece & Reece [2011] FamCAFC 24 at [108]-[109]; Naparus & Frankham [2018] FamCAFC 190 at [4] and [17]; Naparus & Frankham (No. 2) [2020] FamCAFC 238 at [46]), Pitman & Hynes (No. 3) [2021] FamCAFC 82). Given the event has come and gone, that would appear to be the position here.
   2. The appellant said that the appeal was not futile because he has other children who will in due course receive sacraments, and he is not confident about when the proceedings will be resolved. However, the ability of the appellant to attend at religious events of significance to the children is a final issue in a case which is presently reserved.
3. I continue to hold that view. I turn then to consider the appellant's extensive and repetitive grounds. I will consider those which raise procedural fairness and apprehended bias first, consistent with authority: (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at 581, 611-612, 634; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]-[10]).
4. In the Notice of Appeal, the appellant listed ten grounds of appeal. In the Summary of Argument, the appellant referred to 24 grounds of appeal. I have addressed the grounds in both documents but there is some significant overlap between the two documents, so consideration of matters raised in both documents, or by multiple grounds, have been amalgamated.
5. Before I approach the grounds it is useful to note that the appellant - when self-represented before the primary judge - was at pains to revisit the narrative of how an apprehended domestic violence order ("ADVO") which governed his conduct was made, and how he came to consent to an injunction which prevented him from attending upon the children's school (where the First Holy Communion was to take place). The primary judge, who had heard evidence in the final parenting trial, was not bound by the existence of the interim injunction or bound by the terms of the ADVO but was at large to determine issues by reference to the evidence at trial and the specific evidence at the interlocutory hearing. The primary judge's efforts to focus the appellant on the specific issue before the Court were and continue to be interpreted by the appellant as the primary judge interrupting and preventing him from making submissions. The appellant also spent significant time during oral submissions on appeal revisiting the making of the ADVO and consent orders. The appellant is also clearly aggrieved by what he considered to be more favourable treatment of the respondent's legal representatives. The transcript does not demonstrate partisanship or familiarity such as would attract appellate intervention.

1. The law in respect of allegation of apprehended bias is well-settled. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 ("Ebner") the plurality of the High Court stated:

[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver ... or necessity ..., 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 the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

1. The Ebner test is an objective one - would a hypothetical reasonable observer of the judge's conduct apprehend that the judge may not bring an impartial mind to the task?
2. The test has been the subject of consideration by the High Court in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488:

[13] Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case."

1. In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352, Mason J said:

...It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.

1. It is appropriate to commence by acknowledging that the appellant's perception of what occurred in the courtroom is not the measure. I accept that the appellant felt challenged by the primary judge. I accept that the primary judge did in fact interrupt the appellant. I accept that the primary judge had cause to remind the appellant that this was "my court". Those matters go to explaining the way in which the appellant feels about the primary judge and his experience in the courtroom. However, it is central to the assessment of apprehended bias that the test is from the lens of a reasonable objective bystander.
2. In purporting to give examples to demonstrate the alleged apprehended bias, it is apparent that some of the issues arise because of the appellant's lack of understanding of the procedure. For example, the appellant says that the primary's judge's comment "[t]he case is finished" in response to his attempt to tender an expert report gave the appellant the impression that the judge's mind was made up. However, in reality the judge was explaining to the appellant that the final trial had finished, the judgment was reserved, and his former lawyers had not sought to tender the report in question.
3. The appellant says that the judge told him to hold his tongue. I accept that the towards the end of the hearing on 27 August 2025, during delivery of judgment the following exchange took place:

JUDGMENT DELIVERED

MR [PARTINGTON]: Correct.

HIS HONOUR: Mr [Partington], I note you continue to speak during my judgment making comments like "Correct". I've asked you to be quiet. You seem incapable of complying with that request. Will it be necessary for me to have you removed while I deliver my judgment?

MR [PARTINGTON]: No, your Honour.

HIS HONOUR: You can answer that question. Then hold your tongue.

JUDGMENT DELIVERED

1. Placing the example provided by the appellant in context makes it clear that that the judge's request was direct but not inappropriate.
2. The appellant says that during the final hearing, at a time when he was legally represented, he perceived that the lawyers who acted on behalf of his former spouse and the judge were in effect a "tag-team". I accept that examples of the primary judge "tag-teaming" with counsel for the respondent would, if established, be relevant to the establishment of apprehended bias: see Huda & Huda and Laham (2018) FLC 93-837 at [65] - [66]. While the appellant submits that "[p]rofessional familiarity and unequal treatment undermined impartiality", he provides no specific examples and I reject the submission. The evidence upon which the appellant relies to make good this submission is no more than assertion. It is not enough to assert, it is necessary for the appellant to demonstrate that which he asserts, if he is to establish the apprehended bias he contends.
3. The appellant submits that the denial of procedural fairness may be inferred from outcome - the mother gets to attend the First Holy Communion and he does not. Firstly, procedural fairness is concerned with procedure not outcome. Secondly, the exercise was not concerned with the interests of the adult parties but the orders which would be in the best interests of the subject child.
4. The appellant says that the primary judge ought to have recused himself upon reading in the appellant's affidavit that he was contemplating an application that the primary judge recuse himself. It is for the appellant to make the application. It could not be appropriate for the appellant to raise the issue in his affidavit and remain silent about it until, during the delivery of reasons, he realises that the outcome is adverse, at which time the appellant interrupts the primary judge's delivery to, for the first time orally, raise the issue. None of those matters speak to the manner in which an objective reasonable bystander would approach the conduct of the hearing before the primary judge.
5. The appellant submits that his lawyers and the Independent Children's Lawyer ("ICL") were not as skilled as those retained by his former spouse. Even if accurate, the appellant has not demonstrated (particularly in the context of this appeal which deals with the interlocutory orders made when he appeared on his own behalf) that incompetence of counsel has resulted in legal error.
6. The appellant confuses adverse outcomes (in respect of both procedural and substantive applications) with adverse treatment. The appellant's status as a litigant in person was acknowledged by the primary judge's repeated efforts to assist the appellant to focus on the application at hand and disabuse him of incorrect understandings of the law and procedure which was to apply.
7. The appellant contends that at the hearing on 27 August 2025 he was not afforded procedural fairness. A fair reading of the transcript does not permit that conclusion. The appellant had filed written submissions and addressed the primary judge by way of oral submissions. Certainly, the primary judge asked questions of the appellant and from time to time asked him to pause. The transcript records the primary judge bringing to the attention of the appellant on multiple occasions the fact that he appeared to be smirking at the primary judge. It also records the appellant interrupting the primary judge to dispute his Honour's explanations of the applicable law. After an interchange where the primary judge said to the appellant that he was yelling (and the appellant made the same contention about the primary judge - which the latter denied) the primary judge said to the appellant:

...I've given you hours of time. And for you to say I keep cutting you off is simply me trying to bring you back onto track rather than wandering around in circles after circle after circle..."

1. The primary judge is both entitled and obliged to control the courtroom in a manner consistent with modern case management principles and an entreaty to "move on" could not, without more, give rise to an apprehension of bias.
2. I have had regard to the appellant's submission that, when viewed collectively, the actions of the primary judge may amount to conduct which would satisfy the apprehended bias test. I reject that submission. I accept that the primary judge betrayed an increasing frustration with the manner in which the appellant engaged with the bench - characterised by the primary judge as "bickering". But to read the whole August 27 transcript from the perspective of the reasonable objective bystander is to understand the primary judge's frustration.
3. The appellant contends that the transcript of the hearing is inaccurate. Predominantly, the inaccuracies he asserts are omission of words spoken by him, insertion of additional words not actually spoken and substitution of words. He submitted that this would be demonstrated by access to the audio recordings. The audio recordings were not before me on this appeal. The appellant prepared a schedule of what he contended were errors. I accept that transcripts will, from time to time, contain minor errors. It is possible that the errors bear on the merits of appellate argument. In this case I am not persuaded that the alleged inaccuracies (even if they were able to be established) are material.
4. The appellant asserted that he had raised the authority of Ebner prior to the delivery of judgment. The passage of the transcript the appellant contends ought contain the reference does not appear to point to a specific reference having been made to the decision or to recusal more generally.
5. In written submissions the appellant, in addition to other complaints, sets out many small words and phrases which he says do not appear on the transcript. There is no evidence before me which would explain how it is that the appellant can recall, with precision, words spoken more than 3 months ago. I am sceptical that any person would be able to recall with precision the exclusion of individual words and phrases (particularly where those words and phrases are not, even in the context of the appellant's submissions, significant).
6. The appellant submitted that, in order to determine whether his contention that the decision was affected by apprehended bias was established, it would be necessary to listen to the audio of the court hearing - as opposed to relying on the transcript. The appellant previously brought an Application in an Appeal seeking transcript, at the court's expense, of the final hearing which was heard and determined ahead of the appeal. He did not, at that time, seek access to audio recordings.
7. The appellant sought leave to tender a schedule at the oral hearing of the appeal. I accepted the schedule. Through that document he sought audio recordings of the proceedings before the primary judge. He also sought an adjournment for the purpose of such recordings being made available. While I granted leave to him to rely on further submissions, I did not adjourn the proceedings to enable audio recordings to be obtained. The appeal proceedings concern an interim parenting determination and - as discussed elsewhere in these reasons - that determination had specific application to an event which has passed. A further adjournment is not an appropriate balancing of the need to deal with matters efficiently and the interests of justice.
8. The appellant's previous application for the Court to supply transcript of the earlier hearing before the primary judge was refused. Accordingly, the primary evidence of what was said at the earlier hearing is not before me on the hearing of this appeal. At least theoretically, the appellant, upon receipt of the final hearing reasons from the primary judge in due course (provided he does not recuse himself), may be able to demonstrate and persuade a differently constituted bench by reference to that transcript that the primary judge's decision has been vitiated by apprehended bias. However, the evidence does not permit me to reach that conclusion in this particular appeal.

Error in excluding and refusing to consider evidence

1. The appellant contends that the primary judge was in error in refusing leave to permit the appellant to rely on a further affidavit and submissions filed on 26 August 2025. The matter was listed on 27 August 2025. Rule 5.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") provides that an affidavit which is to be relied upon at the hearing of an interlocutory application must be filed and served at least 2 business days before the date fixed for hearing. The appellant's affidavit did not comply. In addition, Rule 5.08 permits a party to file only one affidavit without leave unless the circumstances of Rule 5.06 are satisfied. It was no error for the primary judge to decline to receive it.
2. The appellant's complaint that the respondent's evidence was admitted, despite being more lengthy, does not appreciate that his own further evidence was excluded entirely in accordance with the principles set out in the Rules.
3. In a similar vein, the primary judge both read submissions filed by the appellant (Transcript 27 August 2025, page 2, line 23) and heard his oral submissions. In those circumstances, the primary judge's refusal to permit the appellant to rely on a further set of written submissions was not in error.
4. The appellant sought leave at the interim hearing to tender a report of a psychiatrist. The receipt of expert evidence is governed by the Rules. There was no error in the primary judge declining to receive the report of an expert obtained otherwise than in accordance with the provisions which relate to appointment of a single expert.
5. The appellant had the opportunity to present his case. This ground lacks merit.

1. Contrary to the appellant's assertion that the primary judge relied on expert evidence to reach a conclusion which informed his order, I am satisfied that the primary judge was persuaded by a combination of two factors - one, his observations of the appellant during the trial [5] and two, the existence of significant, uncontested facts [7]. Given the basis of the primary judge's determination, the evidence of the expert engaged by the appellant (which was not before the Court) and the untested evidence of post-trial treatment could not have displaced the conclusion which the primary judge reached. The proposed ground has no merit.

1. The primary judge plainly understood the importance of the First Holy Communion to the child at [9]. The appellant may disagree with the conclusion of the primary judge, but he has not demonstrated that the discretion miscarried.

Error in rejecting less restrictive alternatives

1. The primary judge explicitly considered and rejected the option of the appellant attending the First Holy Communion with supervision at [10]. No other proposals were before the primary judge. No error is demonstrated.

1. Contrary to the appellant's submission, the primary judge did not rely on any diagnosis of the appellant as a basis upon which to refuse his application. The reference in the reasons for judgment to the Attention Deficit Hyperactivity Disorder ("ADHD") was made in the context of considering whether (as the appellant submitted) his conduct could be a "symptom of the ADHD from which he says he suffers" (emphasis added). In that sense, the submission that the primary judge used his own "psychological judgment" is misconceived.

1. It is not clear what the appellant contends by this ground.

Failure to consider context, character evidence and misuse of isolated communication

1. Characterised as a ground of appeal, I interpret the appellant as submitting that the primary judge placed too much weight on a piece of evidence. Weight challenges are notoriously difficult. In the reasons for judgment at [7] the primary judge said:

...I note for example undisputed evidence before me that during an ongoing dispute between the father and a parish priest who was supporting the mother, the father resorted to alleging that the parish priest and another church member who was supporting the mother were "bum chums" - which the father accepted was intended to mean that they were engaging in anal intercourse with each other. The father suggested that the allegation was merely something made in the heat of the moment.

1. The appellant submitted that the primary judge failed to appreciate the circumstances in which he had called a priest a "bum chum" including that the appellant was apologetic. The material before the primary judge supported the conclusions which the primary judge reached at [7] of the reasons for judgment. No error is demonstrated. To the extent that there was material before the Court which reflected the appellant's position, it is consistent with, as opposed to at odds with, the conclusions reached by the primary judge. There is no error.
2. The primary judge was being asked to make an order which would permit the appellant to attend the child's First Holy Communion. The evidence was relevant to the determination and the father has not demonstrated that the weight attached to it was inappropriate, nor has he established that any contextual matters would have necessitated a different outcome.

1. The primary judge is not obliged in an abridged interlocutory hearing to canvas each factor contained within s 60CC of the Family Law Act 1975 (Cth) ("the Act") but must consider all s 60CC factors relevant to the determination: Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637. There was no specific evidence which touched on the child's views about the father's attendance at the Holy Communion. The references to the First Holy Communion in the supervised contact reports recorded the appellant's desire to be in attendance and are silent about the child's views.

1. Apart from asserting a lack of reasons, the appellant did not develop this ground. I am satisfied that the test adopted by the Full Court in Bennett & Bennett [1990] FamCA 148; (1991) FLC 92-191 at 78,266, being the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 at 18 is satisfied:

The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:

(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or

The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.

1. The reasons, while short, reveal the reasoning and the ground is not established.

1. This is not a proper ground of appeal. The fact of the existence of the original order (which prevented the appellant from entering within 100 metres of the children's school, where the church in which the Holy Communion was to be held) did not prevent the primary judge from considering, as at 27 August 2025, whether the father being permitted to attend was in the interests of the child. The nature of the father's consent to the earlier order was not a matter upon which the primary judge relied.

1. I consider that if the appellant were able to demonstrate that the primary judge had engaged in discrimination on the basis of sex, religion or disability then that would inform the conclusion about apprehended bias. The appellant has not established that the primary judge discriminated in the manner asserted, or in any manner. The reasons for judgment are concerned with whether or not orders which permitted the father to attend would function in the best interests of the subject child (and broader group of children in this family) or whether it was in their interests that the father not attend. In basing the decision on past conduct of the father, the primary judge did not rely on the father's sex, religion or disability.

1. I do not accept that the matters which were the subject of discussion in the reasons for judgment were new to the appellant. The primary judge was not obliged to flag with the appellant his intention to make particular findings. The scope of the dispute before the primary judge had been framed by the parties' applications and evidence and there is nothing novel in the reasons for judgment.

1. As none of the matters discussed above have found favour, the appeal will be dismissed.

1. In circumstances where the appeal was dismissed, the respondent and ICL sought costs of the appeal. The Act provides that each party pay his or her own costs subject to the provisions of s 114UB(3) of the Act. Where there are matters which justify a departure from the usual rule, the Court may order costs.
2. The respondent seeks costs at scale in the sum of $5,945.64. The ICL seeks costs in the sum of $2,387.
3. In submissions, the solicitor advocate for the respondent candidly and appropriately drew the Court's attention to the fact that the scale cost for perusing the Notice of Appeal and two affidavits of the appellant resulted in a large sum and a smaller sum may be appropriate having regard to the scope of the appeal in this matter.
4. The respondent filed a submitting notice (save as to costs). The costs of the appeal have also included costs of an application in an appeal.
5. The factors which the respondent submitted would warrant a departure from the usual rule were:

(a) The challenges faced by an appellant in an appeal which has no utility had been outlined to the appellant in writing on two occasions by the Court, and on one occasion by the solicitors for the respondent by correspondence, and the ICL by way of their filed written submissions;

(b) The fact of the respondent having made two offers of settlement;

(c) The fact that the appellant has been wholly unsuccessful.

1. The above factors justify the making of an order for costs. I propose to fix the costs of the respondent in the sum of $4,000 and the costs of the ICL in the sum of $2,387.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.