Umar & Umar [2025] FedCFamC1A 114 (3 July 2025)

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Hsiao v Fazzari [2020] HCA 35; (2020) 270 CLR 588

Langford & Coleman [1992] FamCA 68; (1993) FLC 92-346

Melville v Melville (No.3) (2020) FLC 93 - 985; [2020] FamCAFC 231

Newett & Newett (No 2) [2021] FedCFamC1A 11; (2021) FLC 94-051

Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50

Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072

1. The Applications in an Appeal filed 9 April 2025 and 28 April 2025 are dismissed.
2. The appeal is dismissed.
3. The appellant pay the respondent's costs of the appeal in the sum of $6,556.24 within 30 days of the date of these orders.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

1. By a Notice of Appeal filed 1 January 2025, the appellant appeals from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 18 December 2024 which were amended by the primary judge on 22 January 2025 pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("The Rules") ("the appealed orders"). The amendment reflected that the property orders were made by consent of the appellant and the respondent.
2. The appealed orders include parenting orders pertaining to the parties nine-year-old daughter made under Part VII of the Family Law Act (Cth) 1975 ("the Act") and property orders made under Part VIII of the Act. All of the appealed orders, except Order 4, were made by consent.
3. The parenting orders provide for the respondent to have sole decision making for the child in relation to all major long-term issues, the child live with the respondent, spend time with the appellant as agreed between the parents, which may include supervised time, passport and overseas travel orders and for communication between the parents.
4. The property orders provide for sale of the parties' former family home, disposition of the sale proceeds as to 65% to the respondent and 35% to the appellant, a split of the appellant's superannuation entitlements to the respondent and various mechanical provisions.
5. The respondent and the Independent Children's Lawyer (limited to the parenting orders) oppose the appeal and seek its dismissal.
6. For the reasons that follow, the appeal will be dismissed.

1. The parties commenced cohabitation in January 2011, married in November 2014 and separated in July 2020. Their only child was born in 2015 and is currently aged 9.5 years ("the child").
2. Subsequent to separation the parties remained living under the same roof until November 2021 when the respondent and their child left the family home. They divorced in April 2023.
3. The child has spent supervised time with the appellant on two occasions since November 2021. The first occasion was on 7 December 2024 shortly prior to the trial before the primary judge, and the second on 25 January 2025, after the making of the appealed orders. Both were supervised and took place at a contact centre.
4. The property pool for division between the parties was modest and comprised two properties, one of which was located in the United Kingdom, and superannuation entitlements.
5. In July 2022 the respondent commenced property proceedings in Division 2 of this court. The appellant file a Response in September 2022 which also sought parenting orders.
6. On 20 March 2023 orders were made, in the event the parents could not reach an agreement as to spend time, providing for the child to spend supervised time with the appellant every alternate weekend for initially one hour and thereafter progressing to two hours.
7. After numerous procedural and interlocutory listings, the matter was listed before the primary judge for a two-day trial in June 2024. On that day, because there had not been any time between the child and the appellant, the primary judge adjourned the trial to December 2024 to enable the appellant to spend supervised time with the child.
8. On 18 December 2024 the trial was listed before the primary judge. By that time the appellant had spent time with the child on one occasion on 7 December 2024.
9. Contrary to the ambitious orders sought by the appellant in his documents filed with the court, on the morning of the hearing the appellant, respondent and Independent Children's Lawyer presented a minute of proposed consent orders for both parenting and property, with one issue to be determined by the primary judge. The outstanding disagreement was whether the orders should include a limited period of prescribed supervised time between the child and the appellant, as proposed by him, prior to progression of time as agreed between the parties, which may include supervised time. The respondent and the Independent Children's Lawyer both proposed there should be no limited period of prescribed supervised time.
10. The primary judge made orders by consent, as requested by all the parties and after hearing submissions, made Order 4 of the appealed orders, which reflected the position of the respondent and the Independent Children's Lawyer.
11. On 25 January 2025 a second occasion of supervised time took place between the child and the appellant.

1. The appellant filed two Applications in an Appeal. The first on 9 April 2025 ("the first Application in an Appeal") and the second on 28 April 2025 ("the second Application in an Appeal"). Both Applications in an Appeal sought leave to adduce further evidence in the appeal.
2. By the first Application in an Appeal, the appellant sought leave to adduce as evidence a report of his supervised time with the child on 7 December 2024 and by the second Application in an Appeal, sought leave to adduce as evidence a document prepared by a contact supervisor, of his second supervised visit on 25 January 2025.
3. Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCOA Act") confers on an appeal court a discretionary power to grant leave to receive further evidence. In CDJ v VAJ (No 1) (1998) 197 CLR 172 ("CDJ v VAJ") at [111]-[115], the High Court of Australia considered the principles relevant to the exercise of the discretion.
4. Dealing with the first Application in an Appeal, the report of the supervised visit on 7 December 2024 from the contact centre was raised by the appellant's counsel at the hearing below. Counsel for the appellant said (Transcript page 6 lines 15 - 20):

Your Honour, there is one matter of significance I should raise now. I've been instructed that that a report is in the process of being prepared by a lady named [Ms B] of [C Centre], the contact centre. I don't yet know when that will be completed and made available, but I can find out while we're stood down.

1. Thereafter all counsel were afforded an opportunity to make submissions supportive of their respective positions and the matter was stood down on two occasions, prior to parenting orders being made in terms of the appealed orders and the delivery of brief reasons.
2. Counsel for the appellant did not further mention to report of the contact centre, nor seek to tender the report into evidence. The report itself is dated 7 December 2024 and the father in his affidavit in support of the first Application in an Appeal, states the go ahead for the report was given at 5.45 pm on the 17th of December 2024.
3. The appellant did not make any submissions why the contents of the report would have any probative value or have affected the outcome, when only supervised time between the child and the appellant was proposed by the appellant and contemplated by the primary judge.
4. The evidence sought to be adduced was clearly available to the appellant and his legal advisers at the time of the trial. Generally speaking, material that was available to be used at the hearing, but was not, should not be readily admitted into an appeal.
5. The appellant is bound by the case he ran at trial and the forensic decisions made by his counsel during the hearing before the primary judge including the tendering of exhibits. The appeal is not an opportunity for the appellant to run a case differently from the one he ran at first instance before the primary judge: see Hsiao v Fazzari [2020] HCA 35; (2020) 270 CLR 588 ("Hsiao") at [53].
6. As to the second Application in an Appeal, the appellant seeks to adduce into evidence a report of the second supervised time with the child, which occurred on 25 January 2025 after the making of the appealed orders. The report is annexed to the appellant's affidavit filed 30 April 2025, is titled Observational Summary and Case Reflections and was prepared by Ms B of C Centre. An examination of the report demonstrates not only observations of time between the child and the appellant, but an interrogation of the child which purportedly resulted in disclosures related to the court proceedings and parental conflict and purported gratuitous opinion about the respondent's conduct and the family dynamic. The report concludes with a Summary of Observations - Parental Influence and Alignment Pressure of eleven or so dot points. Nowhere in the report are the professional or otherwise qualifications of the author, nor is there any reference to the circumstances warranting the expression of an opinion or the source material relied upon to do so. The shortcomings of the failure to comply with the pre-condition requirements to adduce expert opinion evidence by a single or adversarial witness are obvious and the report has no probative value.
7. As the High Court explained in CDJ v VAJ, the point of further evidence on appeal is to demonstrate error, bolster the reasons under attack, or provide material for any re-exercise of discretion. Recently in Diamond & Diamond (2024) FLC 94 - 223, the Full Court per Austin J said at [20]:

.......The primary purpose of further evidence being admitted in an appeal is to demonstrate error by the primary judge and to show how its availability at the hearing would have produced a different result. If the proposed evidence does not acquit that purpose there is no utility in its admission (CDJ v VAJ at [109], [111], [140]-[151], [169] and [186.9]).

1. I am unable to see how the proposed material does so. For these reasons, both the appellant's applications for leave to adduce further evidence are refused.

1. Before turning to the grounds of appeal, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled error of the type identified in House v The King (1936) 55 CLR 499 at 504-505 ("House v The King") must be established. There, the majority of the High Court said:

...The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred...

1. The appellant was self-represented in these appellate proceedings and drew his Notice of Appeal and Summary of Argument.
2. In Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072 at [242], the Full Court said:

It should be recognised that persons who represent themselves are almost always at a disadvantage in legal proceedings. Advocacy is a professional skill that has almost always been performed by highly trained lawyers in our legal system. They not only bring those skills to bear but also professional objectivity that a litigant in person lacks, particularly in family law proceedings. It is simply not possible to create a level playing field where one party is represented by a professional and the other is not.

1. In Aslett & Coren [2025] FedCFam1A 92 ('Aslett and Coren') the Full Court per McClelland DCJ, Jarrett and Strum JJ said at [42]:

In Keighley & Keighley [2023] FedCFamC1A 146 at [67], the Full Court referred to this passage from Re F: Litigants in Person Guidelines and, nevertheless, said that the fact that the appellant, in that appeal, was self-represented, it was "no defence to the criticisms of his further amended Notice of Appeal, his written Summary of Argument or his limited oral submissions" (at [68]). Those observations similarly apply to this appeal.

1. The observations of the Full Court in Aslett & Coren are apposite to this appeal.
2. Two issues arise from the appeal. First, all of the appealed orders were made by consent except Order 4 and secondly, for the reasons explained below, the grounds of appeal are incompetent, do not establish appealable error, and the appeal does not raise any question of general principle. I therefore provide short form reasons pursuant to s 36(2) of the FCFCOA Act.
3. Dealing with the issue of appellant's consent to the appealed orders, (except Order 4) an order made by consent cannot be challenged on the basis of correctness or merits, nor will a court enquire whether the orders reflect the intention of the parties (Langford & Coleman [1992] FamCA 68; (1993) FLC 92-346). Other grounds of appeal remain open, including fraud, mistake, fresh evidence and absence of jurisdiction, none of which were raised by the appellant, other than fresh evidence, which is rejected above. The relevant principles are discussed in Melville v Melville (No.3) [2020] FamCAFC 231; (2020) FLC 93-985 at [12] - [17] per Kent J.
4. Secondly, the grounds of appeal are set out at Annex A (sic) of Part E of the Notice of Appeal. They comprise short statements of generalised complaint about the appellant's perspective of the conduct of the hearing below, general criticism of the primary judge and all lawyers involved, accusations of unspecified bias levelled at the Independent Children's Lawyer, which were apparently ignored by the primary judge, as well as unsubstantiated allegations about the respondent's parental capacity.
5. The grounds fail to set out "a specific and concise statement of the point sought to be argued": Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50 at [2]. No House v the King error is identified, nor do the grounds identify where a miscarriage of justice has occurred, resulting from the manner in which the hearing was conducted. The economical oral submissions of the appellant were of little assistance.
6. The appellant's Summary of Argument does little to support the grounds of appeal.
7. The appellant's Summary of Argument comprises three short paragraphs which do not identify or particularise any appealable error. Under the first heading the appellant contends procedural fairness was not meet (sic) with this case due to the conduct of the legal practitioners for the respondent and the Independent Children's Lawyer. It is not possible to discern the meaning of the complaint, let alone identify appealable error.
8. The second paragraph asserts there is new evidence available to the court should the judge deem it appropriate for this appeal. No attempt is made to identify that new evidence or indeed whether it is asserted further evidence exists, other than the evidence the subject of the Applications in an Appeal. If the purported new evidence is the supervised time report of 7 December 2024 and the further report of C Centre dated 25 January 2025, I have rejected both reports above.
9. The third paragraph asserts a Manifest Injustice, wherein the appellant contends the primary judge did not permit cross examination of witnesses. Apart from the appellant's failure to identify which witnesses may have been relevant at the hearing below, the transcript does not reveal that the appellant's counsel sought to cross examine any witnesses and to the contrary, he was obviously content to proceed on submissions. I observe it is difficult to discern how cross examination of anyone would have assisted the primary judge to reach an alternative conclusion about the sole issue for determination before him.
10. There is nothing contained in the appellant's Summary of Argument as to how the complaints and assertions set out therein, are relevant to the appealed orders, or why the orders subject to challenge are erroneous.
11. Furthermore, the Summary of Argument does not comply with r 13.23(2)(a) of the Rules, which requires the appellant to set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant pages of the appeal book and transcript).
12. It is for the appellant to identify error on the part of the primary judge and then to persuade the appeal court that error has been made. An appellate court cannot be expected to rummage through the broadly expressed contentions and assertions set out in an appellant's Summary of Argument, with a view to identifying a specific and concise ground or grounds of appeal: Newett & Newett (No 2) (2021) FLC 94-051 at [34], quoting Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 ("Bahonko") at [3]. In Bahonko, the Full Court of the Federal Court of Australia said:
    1. Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131; (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
13. In Bartram & Marsden [2023] FedCFamC1A 207 the Full Court identified the importance for an appellant to particularise the asserted error which they contend was made by the primary judge. At [19] the Full Court said:

It is important for an appellant to properly particularise the asserted error which they contend was made by the primary judge. In circumstances where the primary judge was exercising a broad discretion reposed by Part VII of the Family Law Act 1975 (Cth), this requires the identification of an error of principle, or a material error of fact, or, if no specific error can be identified, demonstration that the decision is "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505 ("House v The King").

(Footnote omitted)

1. In this case, neither the grounds in the Notice of Appeal or the appellant's Summary of Argument identify appealable error on the part of the primary judge.
2. I now turn to each of the grounds to explain the lack of merit in the appeal.
3. Ground 1asserts Due process was never met by this court. It is not possible to discern from that statement the nature of the complaint. Ground 2 asserts No evidence was ever examined. If that is taken to be a complaint about the matter proceeding by way of submissions only, an examination of the transcript demonstrates there was no application by counsel for the appellant seeking to cross examine any witness, and indeed given the limited scope of the dispute, it is difficult to understand how cross examination of the respondent would have been of any assistance to the primary judge. Ground 3 asserts Guilt by association was used to condemn me. Again, it is not possible to discern the underlying complaint. Ground 4 asserts the primary judge decreed there was to be no cross examination, which he did not, and that thereafter the appellant's counsel should have been stood down as the appellant contends, he was self-represented, and his counsel was only there merely to do cross. That complaint fails to identify error on the part of the primary judge and demonstrates a fundamental misunderstanding of legal assistance provided pursuant to the scheme established under s102NA of the Act. Ground 5 asserts the primary judge defamed my witness without any cross examination of him or even meeting him in open court. It is difficult to discern what is meant by that statement. Ground 6 is seemingly an objection to admissibility of and alleged reliance upon the respondent's affidavit, in circumstances where there was no objection to the affidavit by the appellant's counsel. Grounds 7 and 8 seem to be a broad complaint about apprehended bias on the part of the Independent Children's Lawyer and the respondent's legal representatives. The complaint fails to particularise or identify the conduct complained of and the logical connection between the conduct and the apprehended bias, as required by the two-step test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. Ground 9 complains of a lack of opportunity to respond to the allegations made against the appellant, which might be construed as a denial of procedural fairness. The complaint is baseless because the appellant filed a reasonably lengthy affidavit of evidence in chief on 30 November 2024 which specifically refers to and answers the allegations raised in the respondent's affidavit of her evidence in chief. Similarly, by Ground 11, the appellant complains his proposed witness was never given a chance to enter testimony. If that is a complaint about denial of procedural fairness, it is answered above, because the appellant's counsel was provided with an opportunity to obtain the report of the supervised visit on 7 December 2024 and did not do so. It cannot possibly refer to the report of the supervised visit in February 2025 and the gratuitous comments of the supervisor, because that document did not exist at the time of the hearing before the primary judge. Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West (1985) 159 CLR 550 at 582). It is the opportunity to present evidence and argument and not disagreement with the actuality of the decision. Ground 10 is a bald assertion by the appellant.

1. In the event the appeal was dismissed the respondent sought an order for costs in the modest sum of $6,556.24. The appellant resisted any order for costs and the Independent Children's Lawyer did not seek costs.
2. In circumstances where the appellant was wholly unsuccessful and I consider the circumstances warrant an order for costs, I will make the costs order sought by the respondent, with payment to be made within 30 days.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.