By Craig Nicol and Keleigh Robinson
Procedure – Preliminary views of trial judge not apprehended bias (Hogan J dissenting)
In Leena [2025] FedCFamC1A 241 (23 December 2025) the Full Court (Hogan, Altobelli & McNab JJ) allowed in part a mother’s appeal against property and parenting orders of Anderson J.
After a 10 year relationship and two children (aged 10 and 7), interim orders were made by consent for equal shared parental responsibility, for the children to live with the mother and that they spend 3 nights per fortnight with the father. At trial, the mother sought sole parental responsibility and alleged an unacceptable welfare risk. The father sought orders for 5 nights per fortnight.
At the conclusion of the first day of trial the judge indicated that subject to further evidence and the evidence of the single expert, the Court was “not persuaded… that the father presents a risk to these children [and] … that a reduction of time is in their best interests”.
At the conclusion of the second day of trial, the wife’s cross-examination remained ongoing and the Court said “… I am going to struggle to find, on the evidence I have heard…, that the father presents a risk to the children… I would urge everybody to consider the minute that has been circulated by the independent children’s lawyer” ([43]).
The mother argued the preliminary views amounted to judicial bias.
Hogan J said (from [68]):
“Had the comments made at the end of days one and two of the trial been made during the course of submissions, or even following the close of the evidence and as a precursor to the taking of submissions… I would not have been persuaded that it would be reasonable that a hypothetical fair-minded lay observer might apprehend that the… judge might not bring an impartial mind to the resolution of the issues… ( … )
[71] … [T]he combination of the comments made … , the directions he gave to counsel for the respondent to cross-examine the appellant about certain matters … is such that a fair-minded lay observer might reasonably apprehend that the… judge might not have brought an impartial mind to the resolution of the issues…”
Procedure – No error in order pursuant to r 15.13 that permitted wife to inspect court documents filed in husband’s parents’ property settlement proceedings
In Verber [2025] FedCFamC1A 240 (22 December 2025) the Full Court (McClelland DCJ, Riethmuller & Kari JJ) dismissed an appeal from orders made by Jarrett J.
Orders were made pursuant to r 15.13 of the Federal Circuit & Family Court of Australia Rules 2021 (Cth) that permitted the wife to inspect responses and affidavits of the husband (together with all orders made) in the husband’s parents’ family law property litigation.
In the husband and wife’s proceedings, the husband said that there was no matrimonial property. The wife sought inspection of the husband’s parents’ court files where: i) the husband was a party to his parents’ litigation; ii) the husband told the wife that his mother sought declarations in respect of her then residence; and iii) the husband opposed that order on the basis that all of the families’ assets belonged to him ([6]). Permission was granted as the Court found that the wife had a proper interest in the information ([15]-[16]).
The husband, his brother and a trustee company all appealed. The wife said that an order for inspection of documents was not a judgment capable of appeal.
McClelland DCJ & Riethmuller J said (from [33]):
“The orders of the primary judge… were a command that something be done and determined the issue concerning inspection of the court files in another matter, which was an anterior step in the present proceedings… If the primary judge erred on the basis alleged in the grounds of appeal the result would be to permit the wife to inspect documents and obtain knowledge of their content, rendering any appeal after the final hearing largely nugatory… The orders… are appealable orders. (…)
[85] … [I]t is apparent that the wife was not ‘fishing’… The material the wife seeks has a real forensic purpose, if it is a previous inconsistent statement of the husband as to his property entitlements…, it would likely have real significance in her claim for a property settlement… ”
Kari J agreed with the appeal being dismissed but disagreed that an order for inspection was appealable.
Children – Personal protection injunctions pursuant to s 68B without power due to State family violence order
In Provenza (No 4) [2025] FedCFamC1A 232 (15 December 2025) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, allowed in part an appeal from parenting orders made in respect of three children, the eldest being “very nearly an adult and the two youngest aged … 15 and 11” ([6]).
The mother filed an application for parenting orders but also applied privately and obtained a family violence order from the Magistrates Court of Queensland. The father had been charged for breaches of the family violence order, which were yet to be heard as at the date of the parenting trial ([18]).
Pre-trial, the eldest and youngest child lived with the mother, while the middle child lived with the father. The Court ordered that all three children live with the mother and the younger two children have no time with the father, based on findings as to “the father’s state of mental health”, “his commission of family violence against the mother” and the court expert’s view that it was “perilous” for the children to spend time with the father until they were adults ([12]).
Personal protection orders were also made pursuant to s 68B of the Act that restrained the father from directly or indirectly communicating with the younger two children, attending the mother’s place of employment, attending the children’s school or removing the children from the mother’s care or school.
Austin J said (from [17]):
“… [The father was already bound by a final family violence order protecting the mother and the two youngest children…, which… remains operable until July 2027… ( … )
[20] Her Honour made … injunctions against the father, supposedly under s 68B of the Act, for the protection of the mother and the two youngest children… ( … )
[23] … [T]he provisions of s 114AB(2)… deprived the… judge of power to make the injunctions… as they either conflict or overlap with the terms of the … State family violence order.”
Costs – Party and party costs, solicitor and client costs and indemnity costs require evidence as to reasonableness of work done and rate charged
In Tekla [2025] FedCFamC1A 245 (23 December 2025) Riethmuller J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, allowed a wife’s appeal from costs orders made against her after a 4 day property trial.
The parties agreed at a Conciliation Conference that the wife pay the husband $700,000 as a final settlement. The agreement did not culminate in final orders. The wife subsequently offered the husband $350,000, $200,000 and $550,000. At trial, the wife was ordered to pay the husband $717,000.
At first instance, the husband obtained costs orders of $73,895 for costs incurred after the Conciliation Conference and $5,060 for the costs application. The wife appealed the costs orders.
Riethmuller J said (from [6]):
“The affidavit in support of the respondent’s costs application was clearly inadequate. The claim for indemnity costs was not supported by a copy of the costs agreement between the respondent and the solicitor, despite the … requirements of r 12.13(4)… ( … )
[43] … [T]here was no evidence upon which the primary judge could find that the costs claimed (around three times the scale amount) ‘were reasonably incurred and fall comfortably within the range of costs charged in property settlement proceedings’…”
Re-exercising the discretion, the Court said (at [49]):
“For modest costs orders or orders in circumstances where costs are commonly ordered, a judge’s experience is often sufficient to fix a lump sum. For larger costs orders, particularly in litigation where it is uncommon to order costs (such as first instance family law work), the exercise of the discretion requires an evidentiary basis or at least a more structured reasoning process if reliance is to be placed upon court scales or judicial experience. As the determination of the quantum requires assessment of the reasonableness of the items of work done and the rate charged for that work, an itemised list, preferably prepared by a costs consultant as a short form or fully itemised bill of costs on the appropriate scale, is important evidence. This provides evidence of the actual work done, the rates charged and allows for a determination as to whether the work done and rates charged are reasonable. This approach is common in other jurisdictions, but, inexplicably, has not been widely adopted by family lawyers. ( … )”
