Parenting Dispute on Appeal: When Can a Mother with an Unstable Visa Status Be Permitted to Relocate Internationally with a Child?

Based on the authentic Australian judicial case Lechner v Pereira Balsini, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

****Chapter 1: Case Overview and Core Disputes****

Basic Information:

• Court of Hearing: Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction
• Presiding Judge: McClelland DCJ, Jarrett & Strum JJ
• Cause of Action: Appeal against final parenting orders
• Judgment Date: 10 June 2025

Core Keywords:

• Keyword 1: Authentic Judgment Case
• Keyword 2: Family Law Appeal
• Keyword 3: International Relocation
• Keyword 4: Self-Represented Litigant
• Keyword 5: Unmeritorious Appeal
• Keyword 6: Costs in Family Law

Background:

This case involves an appeal brought by a self-represented father against parenting orders made by a primary judge of the Federal Circuit and Family Court of Australia. The original orders permitted the mother, a citizen of another country with an uncertain Australian visa status, to relocate internationally with the parties’ young child if she were required to leave Australia. The orders also granted the mother sole decision-making responsibility for major long-term issues concerning the child.

Core Disputes and Claims:

The Appellant (the father) sought to overturn these orders, arguing through a multitude of grounds that the primary judge had erred. The Respondent (the mother), supported by the Independent Children’s Lawyer, contended that the appeal was without merit, that the grounds of appeal were incompetent, and that the primary judge’s decision was correct. Consequently, the Respondent sought the dismissal of the appeal and an order that the Appellant pay her legal costs.

****Chapter 2: Origin of the Case****

The matter concerns the parenting arrangements for a young child born in Australia in early 2021. The Appellant father is an Australian citizen. The Respondent mother is a citizen of another country, which the judgment refers to as “Country C”. She arrived in Australia in 2019 on a student visa.

The parties met in March 2020 and began living together approximately three months later. Their relationship was short-lived. By May 2021, only a few months after their child was born, they had separated while still living under the same roof. They physically separated in August 2021, when the child was still an infant. The initial court proceedings were commenced in early 2022.

A significant complicating factor was the mother’s immigration status. In late 2023, she applied for a protection visa. This application was refused by a Delegate of the Minister for Home Affairs in September 2024. The mother subsequently lodged an appeal against that refusal. This created a very real possibility that the mother might be required to leave Australia, a prospect that became a central issue in determining the child’s best interests and the appropriateness of an order permitting international relocation.

****Chapter 3: Key Evidence and Core Disputes****

The appeal did not concern the re-evaluation of evidence but whether the primary judge had made a legal error in their treatment of the evidence and application of the law. The core dispute revolved around the competence and merit of the father’s grounds of appeal.

Applicant’s (Appellant’s) Main Evidence and Arguments:

The Appellant, being self-represented, advanced an amended Notice of Appeal containing 25 grounds and sub-grounds. These were largely general, vague, and failed to identify any specific appellable error. Examples of his contentions included:
* That the Court made orders without his “informed consent.”
* That procedural pre-filing requirements, such as a section 60I certificate, were not met.
* That “critical evidence” had “disappeared” from the Court’s online portal, without specifying what that evidence was.
* That the final judgment was improperly issued by a Registrar.
* A series of generalised complaints about prejudice from various organisations, conflicts of interest with legal services, and unsubstantiated allegations made against him.

Respondent’s Main Evidence and Arguments:

The Respondent’s case on appeal was straightforward:
* The primary judge’s decision was discretionary and correct, based on the evidence available at trial.
* The Appellant had failed to identify any error of fact or law that would meet the high threshold for appellate intervention established in House v The King.
* The majority of the Appellant’s grounds of appeal were incompetent, incomprehensible, or simply sought to re-argue the facts of the case, which is not the function of an appeal.
* Given the appeal was wholly unsuccessful, an order for costs against the Appellant was justified.

Core Dispute Points:

The central issue for the Full Court was not to re-decide the parenting arrangements, but to determine if the Appellant’s grounds of appeal demonstrated any legal error in the primary judge’s decision-making process. The appeal was therefore a contest over legal procedure and appellate principles rather than a factual dispute.

****Chapter 4: Statements in Affidavits****

A critical element that shaped the original hearing was the state of the evidence, particularly the affidavits. The Appeal Book contained eight affidavits filed by the Appellant. However, the true impact of this evidence was severely limited by a key procedural order.

Due to allegations of family violence, an order was made under section 102NA of the Family Law Act 1975 (Cth), which prohibited either party from personally cross-examining the other. The Appellant was advised of his eligibility to apply for legal representation under the Commonwealth’s cross-examination scheme but appeared at the final hearing without a lawyer.

The consequence was profound: he was statutorily barred from challenging the mother’s evidence. Her affidavit material, and her oral testimony, therefore went entirely uncontested. This created an “insurmountable difficulty” for him at trial, as the primary judge was entitled to accept the mother’s evidence where it was not challenged or contradicted. While the Appellant filed numerous affidavits, his inability to test the Respondent’s evidence meant that his narrative struggled to gain traction against her unchallenged account.

****Chapter 5: Court Orders****

Prior to the final hearing, the most significant procedural order was the one made on 5 February 2024 pursuant to section 102NA of the Family Law Act 1975 (Cth). This order, which is made to protect parties where there are allegations of family violence, directly prohibited personal cross-examination between the father and the mother.

The order included a notation that the father intended to apply for legal representation through the Commonwealth-funded scheme designed for such situations. His subsequent failure to do so and decision to proceed self-represented was a pivotal factor that led to his inability to challenge the mother’s evidence at trial.

****Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic****

The appeal hearing was not a re-examination of witnesses but a legal debate focused on whether the primary judge had made an error. The “ultimate showdown” centred on the Appellant’s attempt to persuade the Full Court that his 25 grounds of appeal had merit.

The hearing revealed that the Appellant’s arguments were largely a restatement of his dissatisfaction with the trial’s outcome. He sought to re-agitate factual matters and grievances rather than pinpointing specific legal or factual errors in the primary judge’s reasoning.

The Court, in its analysis, leaned heavily on established principles governing appeals from discretionary judgments. It underscored the high threshold an appellant must meet, referencing the seminal authority of House v The King. The core of the Full Court’s reasoning was that it is not its role to substitute its own decision for that of the primary judge simply because it might have taken a different course. An appellant must demonstrate a clear error.

In addressing the Appellant’s numerous and poorly articulated grounds, the Court referred to the judicial burden created by such appeals, quoting a previous Full Court decision which highlighted the difficulty of such a task:

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.

This statement was determinative. The Appellant had failed to provide the Court with any “reasonable grounds” to suspect an error had occurred. His submissions did not direct the Court to specific mistakes of fact, misapplications of law, or any instance where the primary judge took into account irrelevant matters or failed to consider relevant ones. Consequently, the Full Court found no basis to interfere with the primary judge’s decision.

****Chapter 7: Final Judgment of the Court****

At the conclusion of the appeal hearing on 30 April 2025, the Full Court of the Federal Circuit and Family Court of Australia (Division 1) ordered that:
1. The appeal is dismissed.
2. Within 28 days of the date of these orders, the appellant is to pay the costs of the respondent in the sum of $7,808.90.

****Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory****

Special Analysis:

The jurisprudential value of this judgment lies in its firm reinforcement of appellate court principles, particularly in the context of self-represented litigants. It serves as a clear authority that while courts will make allowances for those without legal representation, there is no dispensation from the fundamental requirement to articulate a valid, appellable error. The judgment underscores that an appeal is not a second chance to run the original case. It also demonstrates the stark and final consequences of failing to secure legal representation when a section 102NA order prohibiting personal cross-examination is in place.

Judgment Points:

A noteworthy aspect of this case was the Full Court’s decision to dismiss the appeal at the conclusion of the oral hearing and immediately award costs against the Appellant. This swift and decisive action signals the judiciary’s low tolerance for appeals that are deemed unmeritorious and which consume significant public resources. The modest, fixed sum for costs also indicates a pragmatic approach, possibly balancing the need for accountability with the financial capacity of the self-represented litigant.

Legal Basis:

The Court’s power to award costs is governed by section 117 of the Family Law Act 1975 (Cth). Section 117(2A)(e) specifically lists “whether the proceedings were, in the opinion of the court, necessitated by the failure of a party to the proceedings to comply with previous orders of the court” as a factor, but more broadly, the court must be satisfied that there are circumstances that justify making a costs order. In this case, the fact that the appeal was “wholly unsuccessful” was a key justifying circumstance. The Court’s ability to deliver short-form reasons for dismissing an appeal that raises no question of general principle is found in section 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

Judicial Original Quotation:

The primary judge’s findings regarding the father’s “lack of insight” were central to the original decision and formed an almost insurmountable obstacle on appeal. His Honour’s reasoning was stark and direct:

The father’s lack of insight can also be seen in relation to another aspect of the evidence. After the making of interim Orders of 30 January 2024 by Senior Judicial Registrar Best — the child’s time with the father was to be supervised. The father decided not to take up the opportunity of seeing the child at the contact centre. By the Order itself (30 January 2024) the father could have seen the child once a week supervised at the contact centre… for a period of nine months the father chose not to see the child at the contact centre. This meant that the father had not seen the child for most of 2024… I came to the conclusion the father’s decision not to spend time with the child at the contact centre during 2024 was not a child focussed decision. The decision had more to do with the father’s own needs, wants and perceptions. Again, this shows a lack of insight on the part of the father.

This finding was critical. It directly supported the conclusion that the father prioritised his own grievances over the child’s developmental need for a relationship with him. It painted a picture of a parent who was not child-focused, making it extremely difficult to argue on appeal that orders restricting his parental responsibility or time were “plainly unjust.”

Analysis of the Losing Party’s Failure:

The Appellant’s failure was multi-faceted and fundamental:
1. Failure to Understand the Nature of an Appeal: His grounds and submissions were overwhelmingly focused on re-litigating factual disputes from the trial, demonstrating a misunderstanding that an appeal is restricted to correcting legal or significant factual errors made by the primary judge.
2. Incompetent Grounds of Appeal: The grounds were prolix, vague, and often incomprehensible. They failed to articulate any specific error consistent with the principles in House v The King. Assertions like “the judgment was made without my consent” are legally meaningless in the context of a decision made after a contested hearing.
3. The Consequence of Self-Representation under a s 102NA Order: The most critical strategic failure occurred at trial. Despite having the opportunity to secure publicly funded legal representation to conduct cross-examination on his behalf, he failed to do so. This resulted in the Respondent’s evidence, including her allegations of controlling behaviour, being accepted without challenge, forming a core part of the primary judge’s findings.

Implications

1. An Appeal is Not a Second Trial: An appeal is a review of the original decision for error, not a chance to re-run your case. If you were unsuccessful at trial, you must identify a specific mistake the judge made, not just argue that they should have preferred your version of events.
2. The Critical Importance of Properly Formulated Grounds: Vague, generalised, or numerous grounds of appeal are often viewed by appellate courts as a sign that there is no meritorious point to be argued. Each ground must clearly and concisely state the specific error alleged.
3. The Serious Consequences of a Section 102NA Order: If a Court orders that you cannot personally cross-examine the other party, it is absolutely critical to secure legal representation. Choosing to proceed without a lawyer in this situation means the other party’s evidence will likely go unchallenged, which can be devastating to your case.
4. Self-Representation Does Not Excuse Incompetence: While courts provide assistance to self-represented litigants, they are still expected to comply with the rules and present a coherent legal argument. The status of being self-represented is not a shield against an adverse costs order if an appeal is found to be unmeritorious.
5. The High Bar to Overturn a Discretionary Judgment: In parenting matters, primary judges exercise a broad discretion. An appeal court will not interfere simply because it might have made a different decision. It will only intervene if a significant error, such as mistaking a key fact or applying a wrong legal principle, is demonstrated.

Q&A Session

1. Why was the father not allowed to question the mother himself at the trial?
The Court made an order under section 102NA of the Family Law Act 1975 (Cth). This provision is used to protect parties from being cross-examined by another party in cases where there are allegations of family violence. It is a mandatory protection. However, the law provides a scheme for a lawyer to be appointed to conduct the cross-examination on behalf of the unrepresented party, an opportunity the father in this case did not take up.

2. Why was the father’s appeal dismissed at the hearing without the court going into all his points in detail?
The Full Court determined that the father’s grounds of appeal were either incomprehensible, did not identify a valid legal error, or simply sought to re-argue the facts of his case. An appellate court’s role is not to “rummage through” unclear arguments to find a point. Because the father failed to articulate any reasonable basis for suspecting an appellable error had occurred, the Court concluded the appeal had no merit and dismissed it.

3. Is it normal for the losing party to be ordered to pay legal costs in a family law appeal?
While the general rule in family law is that each party pays their own costs, this is not absolute. Section 117 of the Family Law Act gives the Court discretion to make a costs order. One of the key factors the Court must consider is the success of the parties. Where an appeal is deemed wholly unsuccessful or unmeritorious, as in this case, the Court is more likely to order the unsuccessful appellant to pay a portion of the other side’s legal costs.

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[Appendix: Reference for Comparable Case Judgments and Practical Guidelines]

1. Practical Positioning of This Case

• Case Subtype: Family Law – Appeal from Final Parenting Orders
• Judgment Nature Definition: Final Judgment (in respect of the Appeal)

2. Self-examination of Core Statutory Elements

① De Facto Relationships & Matrimonial Property & Parenting Matters (Family Law)

This case is primarily concerned with parenting matters. The following are the core legal tests and frameworks that apply in this area of law.

• Core Test (Existence of De Facto Relationship – Section 4AA):
  • Duration of the relationship: The general rule is a relationship of at least 2 years, unless exceptions apply (such as there being a child of the relationship, which was the case here).
  • Nature and extent of common residence: The parties cohabited for a period.
  • Whether a sexual relationship exists: A sexual relationship existed, resulting in a child.
  • Degree of financial dependence or interdependence: The extent of this was not a focus of the parenting appeal.
  • Ownership, use and acquisition of property: Not detailed in this parenting judgment.
  • Degree of mutual commitment to a shared life: The relationship was relatively short before separation.
  • The care and support of children: A child was born to the relationship.
  • Reputation and public aspects of the relationship: The parties presented as a couple.
• Property Settlement – The Four-Step Process:
  1. Identification and Valuation: The first step in any property matter is to identify and value all assets, liabilities, and superannuation of the parties to determine the net asset pool available for division.
  2. Assessment of Contributions: The Court assesses the financial contributions (e.g., initial assets, wages, inheritances), non-financial contributions (e.g., home renovations, unpaid work in a business), and contributions to the welfare of the family (e.g., homemaker and parenting duties) made by each party throughout the relationship.
  3. Adjustment for Future Needs (s 75(2) Factors): The Court considers a range of future-looking factors to see if an adjustment to the contribution-based assessment is required. These include disparities in age, health, income-earning capacity, care of children, and the standard of living enjoyed during the relationship.
  4. Just and Equitable: The final step requires the Court to stand back and assess whether the proposed division of property is, in all the circumstances, fair and equitable to both parties.
• Parenting Matters (Section 60CC of the Family Law Act 1975):
  When determining what is in a child’s best interests, the Court must consider two primary considerations and a list of additional considerations.
  • Primary Considerations:
    • The benefit to the child of having a meaningful relationship with both of the child’s parents.
    • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Note: The legislation mandates that greater weight must be given to the need to protect the child from harm).
  • Additional Considerations:
    • Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
    • The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child).
    • The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, spend time with the child, and communicate with the child.
    • The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
    • The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
    • The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
    • The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
    • The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
    • If the child is an Aboriginal or Torres Strait Islander child, the child’s right to enjoy their culture.
    • The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
    • Any family violence involving the child or a member of the child’s family.
    • If a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the circumstances in which the order was made, any evidence admitted in proceedings for the order, and any findings made by the court in, or in proceedings for, the order.
    • Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
    • Any other fact or circumstance that the court thinks is relevant.

3. Equitable Remedies and Alternative Claims

• Promissory / Proprietary Estoppel: In family law property matters, estoppel can be relevant. If one party made a clear promise to the other (e.g., “you will always have a home here”) and the other party acted on that promise to their detriment (e.g., by giving up a career or investing their own money into the property), a court may prevent the first party from going back on their word, even without a formal contract.
• Unjust Enrichment / Constructive Trust: This is particularly relevant where parties are not married or in a de facto relationship but one has contributed significantly to the property of another. If Party A has been “unjustly enriched” at Party B’s expense (e.g., B paid for all the renovations on A’s house), the Court can declare that A holds a portion of the property on a “constructive trust” for B, recognising B’s financial interest.

4. Access Thresholds and Exceptional Circumstances

• Regular Thresholds:
  • For a de facto relationship property claim, a relationship of at least 2 years is generally required.
  • There are strict time limits for filing property settlement applications: 12 months from a divorce order becoming final for married couples, or 2 years from the date of separation for de facto couples.
• Exceptional Channels (Crucial):
  • De Facto Relationship less than 2 years: An application for property settlement can still be made if there is a child of the relationship (as in this case), or if one party has made substantial contributions and would suffer a serious injustice if the order were not made.
  • Out of Time Applications: It is possible to apply for leave to proceed with a property settlement application out of time, but the applicant must demonstrate hardship and provide a reasonable explanation for the delay.
  • Suggestion: Do not assume you are barred from making a claim just because you do not meet the standard time limits. The exceptions are designed to prevent injustice and should be carefully considered with legal advice.

5. Guidelines for Judicial and Legal Citation

• Citation Angle: This judgment is a powerful authority on the procedural requirements of appeals in the family law jurisdiction, particularly concerning self-represented litigants. It should be cited in matters involving:
  • Arguments to dismiss an appeal for being unmeritorious or having incompetent grounds.
  • Submissions regarding the consequences of a party failing to secure representation following a section 102NA order.
  • Applications for costs against a wholly unsuccessful appellant.
• Citation Method:
  • As Positive Support: When seeking to have an appeal dismissed or seeking a costs order, this case can be cited to support the argument that prolix, confusing, and unparticularised grounds of appeal should not be entertained by the Court.
  • As a Distinguishing Reference: If an opposing party is self-represented and is granted significant leniency by the Court, this case could be used cautiously to argue that such leniency should not extend to a complete failure to comply with the fundamental requirements of articulating an appellable error.
• Anonymisation Rule: In submissions, refer to the parties as “the Appellant” and “the Respondent” or “the father” and “the mother,” consistent with the approach in family law judgments.

Conclusion

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia (Lechner v Pereira Balsini), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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