Anthony Strik

Family Violence: Sayed & Rehmann [2025] FedCFamC1A 145

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Sayed & Rehmann [2025] FedCFamC1A 145

Appeal from:Sayed & Rehmann [2025] FedCFamC2F 102
  
Appeal number:NAA 102 of 2025
  
File number:PAC 5597 of 2022
  
Judgment of:MCCLELLAND DCJ
  
Date of judgment:21 August 2025
  
Catchwords:FAMILY LAW – APPEAL – PARENTING –Where the primary judge did not provide adequate reasons for his rejection of certain family violence allegations – Where the primary judge made a generalised adverse credit finding – Where the primary judge failed to give proper consideration to the unchallenged evidence of the mother – Appeal allowed – Where costs certificates were issued to all parties.
  
Legislation:Family Law Act 1975 (Cth) Pts VII, XIVB, ss 4AB, 60CC, 114Q(2)Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 10.14(b)Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
  
Cases cited:Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621; [1953] HCA 25Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 23Boulton & Boulton (2024) FLC 94-202; [2024] FedCFamC1A 132Boyle (a pseudonym) v The Queen [2022] SASCA 50DL v The Queen (2018) 266 CLR 1; [2018] HCA 26Douglass v The Queen (2012) 290 ALR 699; [2012] HCA 34Friseal & Friseal [2025] FedCFamC1A 102Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63House v The King (1936) 55 CLR 499; [1936] HCA 40Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291King v Collins [2007] NSWCA 122Lee v Lee (2019) 266 CLR 129; [2019] HCA 28Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40O’Loughlin J in Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22Sangha v Baxter [2009] NSWCA 78Sheer v Jeffreys [2024] NSWSC 1161Sun Alliance Insurance Ltd v Massoud [1989] VR 8
  
Number of paragraphs:63
  
Date of hearing:30 June 2025
  
Place:Sydney
  
  
Counsel for the Appellant:Mr Livingstone
  
Solicitor for the Appellant:Reuben George Lawyers Pty Ltd
  
Solicitor for the Respondent:Mr Hart, Hart Law Group
  
Counsel for the Independent Children’s Lawyer: Ms Cotter-Moroz
  
Solicitor for the Independent Children’s Lawyer:Mason Mia & Associates

ORDERS

 NAA 102 of 2025
PAC5 597 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:MS SAYEDAppellant
AND:MR REHMANNRespondent
 INDEPENDENT CHILDREN’S LAWYER 
   
ORDER MADE BY:MCCLELLAND DCJ
DATE OF ORDER:21 AUGUST 2025

THE COURT ORDERS THAT:

THE APPEAL

1.           The appeal is allowed.

2.           The orders of the Federal Circuit and Family Court of Australia (Division 2) made on 14 February 2025 be set aside on and as from the date upon which further parenting orders are made by the Federal Circuit and Family Court of Australia (Division 2).

3.           The matter is remitted to the Federal Circuit and Family Court of Australia  (Division 2) for rehearing before a judge other than the primary judge.

COSTS OF THE APPEAL

4.           The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by them in relation to the appeal.

5.           The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by them in relation to the appeal.

6.           The Independent Children’s Lawyer is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred in relation to the appeal.

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

REASONS FOR JUDGMENT

MCLLELLAND DCJ:

INTRODUCTION

  1. This is an appeal against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 14 February 2025. The appellant mother, Ms Sayed, alleges the primary judge made a number of errors including, and in particular, failing to properly consider the mother’s allegations of family violence and, as a related matter, failing to provide adequate reasons explaining his rejection of certain allegations articulated by the mother in her trial affidavit filed 28 August 2025 but in respect of which she was not cross-examined.
  2. The respondent father, Mr Rehmann, opposed the appeal contending that, in the exercise of discretion, the primary judge properly considered the relevant statutory criteria when determining what orders were in the best interests of the children and that the weighting attributed by the primary judge to the totality of evidence before him was well within the proper exercise of his discretion. The position of the respondent is supported by the Independent Children’s Lawyer.
  3. I have found error on the part of the primary judge in making a generalised adverse credit finding against the mother. In doing so, the primary judge failed to give proper consideration to the unchallenged evidence of the mother alleging that she had been the victim, on several occasions, of violence perpetrated by the father. This error was made in circumstances where the primary judge placed considerable emphasis on what he found to be the father’s “genuine” expression of remorse in relation to the father’s conduct towards the mother, as noted at [63] of the primary judge’s reasons.BACKGROUNDThe parties and the children
  4. The appellant mother is Ms Sayed, born mid-1992. The Respondent Father is Mr Rehmann, born early 1991.
  5. The parties commenced a relationship in mid-2013 and were subsequently married in late 2015. The parties separated on a final basis in mid-2021.
  6. The parties have two children, X, born in late 2018, and Y, born in early 2021.
  7. The mother has not re-partnered since separation and continues to reside in Sydney with the children and maternal grandparents. The father has re-partnered and now resides interstate with his partner and her children.
  8. From mid-2020 until late 2020, the mother and the eldest child lived in Sydney separated from the father due to COVID-19 travel restrictions.
  9. The mother alleges that from late 2020, she and the child were the subject of family violence perpetrated by the father. She further contends that the child consequently became uncomfortable in the father’s presence. This allegation is denied by the father although, as will be noted, the father has expressed remorse for aspects of his conduct towards the mother.
  10. The mother contends that, in late 2020 or early 2021, the eldest child found a ziplock bag containing a white powder which the mother believed to be an illicit substance. The father denied knowledge of the substance and suggested it may have fallen over the balcony of another apartment. While an issue of controversy in the proceedings, the primary judge found that there was no reasonable basis for the mother’s continued assertion that the father had substance abuse issues.
  11. The parties’ second child was born in early 2021. Prior to the child’s birth, the maternal grandmother stayed with the parties interstate to assist the mother.
  12. In early 2021, the father booked flights for the mother and children to return to Sydney. The mother contended that this was done without her knowledge. No finding was made in respect to this allegation.
  13. Upon returning to Sydney, the mother and children resided with the maternal grandparents. The father remained interstate for approximately three weeks before also returning to Sydney.
  14. In mid-2021, the parties discussed moving into a property which they had purchased in Suburb E. However, this did not eventuate.
  15. In mid- 2021, an incident of family violence occurred which resulted in the father being charged with common assault of the mother.
  16. The parties separated on a final basis in mid-2021.
  17. After separation, the children lived with the mother and maternal grandparents in Sydney. The father remained in Sydney for a period of time but later relocated to where, as earlier noted, he continues to reside with his new partner and her children.
  18. There is no dispute that the mother has been the children’s primary carer since separation.
  19. In the period immediately following the parties’ separation, the children spent time with the father on an ad-hoc basis and stayed overnight with him on one occasion prior to the commencement of court proceedings by the mother on 12 October 2022.
  20. Interim orders made on 31 March 2023 provided for the children to live with the mother and spend supervised time with the father – initially under the supervision of the paternal grandmother.
  21. The primary judge noted that, subsequent to the making of interim court orders providing for the children to spend fortnightly day time with the father, the father made efforts to travel from his interstate residence to New South Wales to facilitate contact with the children. Appropriately, the primary judge commended the father for his commitment to spending time with the children.REJECTION OF MOTHER’S ALLEGATIONS OF SUBSTANCE ABUSE BY THE FATHER
  22. The primary judge found that the mother’s allegations of drug use by the father were not substantiated by any direct evidence or credible testimony. This finding was confirmed by the results of hair follicle testing, which only indicated the presence of prescribed medication for Attention-Deficit/Hyperactivity Disorder (“ADHD”) in the father’s system.
  23. The Court found that the mother’s allegations of drug use by the father lacked credibility and were based on speculation rather than observed behaviour. However, it is evident that the making of such allegations resulted in a general adverse credit finding against the mother with the primary judge rejecting certain of her allegations of physical violence as a consequence. That finding is of significance in this appeal.FINDINGS IN RESPECT TO FAMILY VIOLENCE
  24. The primary judge noted that the father was issued with an Apprehended Violence Order (“AVO”) in mid-2022 which applied for a period of two years. The primary judge also noted that the father was charged with common assault of the mother in relation to the family violence incident of April 2021. In mid-2023, the father was found guilty of the charge of common assault and placed on an 18-month Good Behaviour Bond with an AVO being issued for the protection of the mother and children.
  25. In early 2024, the father pleaded guilty to two counts of fraud against the mother arising from the forgery of her signature to obtain money from a bank. In mid-2024, the father was sentenced to a six-month Community Corrections Order with a second AVO being issued for the protection of the mother. The primary judge found that the fraud committed by the father against the mother to be an example of financially controlling behaviour and fell within the definition of family violence set out in s 4AB of the Family Law Act 1975 (Cth).
  26. During the course of the proceedings, the mother contended that she had been the subject of a general pattern of coercive and controlling behaviour perpetrated by the father; including acts of specific physical violence. Despite these allegations, the mother acknowledged that the children have positive feelings toward the father and conceded that she saw some benefits in the children spending time with the father. In light of this, the mother did not pursue orders prohibiting all contact with the children (Transcript 9 September 2024, p.63 line 41).
  27. Critically, other than those incidents which were the subject of the above-mentioned criminal prosecutions, the primary judge rejected the mother’s allegations of family violence. This finding is the focus of the appeal. I will subsequently set out the reasoning of the primary judge in doing so.CO-OPERATIVE COMMUNICATION
  28. The primary judge noted that, while there had been incidents of family violence evidenced by the successful criminal prosecutions of the father, the mother and father had effectively communicated in a child focused manner in the period since mid-2021. In that respect, the primary judge noted there had been no reported issues or breaches of communication protocols between the parties and, during that period, both parties had demonstrated the ability to co-parent respectfully. The primary judge further noted the mother’s concession that future communication would likely remain effective.
  29. In that context, the primary judge found that the father’s willingness to undertake a Men’s Behavioural Change program further mitigated against the risk of the mother and/or children being adversely impacted by family violence.
  30. Most significantly, in assessing future potential risk, the primary judge placed considerable weight on the father’s statement of remorse in relation to aspects of his behaviour towards the mother.THE ORDERS OF THE PRIMARY JUDGE
  31. At the first instance hearing, the parties spent a considerable amount of the first day in discussion and were able to reach agreement on a number of issues culminating in the making of orders for the children to live with the mother and, subject to an obligation of consultation, for the mother to exercise sole decision-making  in relation to both children. Accordingly, the main issues remaining for adjudication were the configuration of time spent between the children and the father and, in circumstances where the father lived interstate, the necessary travel arrangements to facilitate such time and other ancillary orders.
  32. While the mother’s grounds of appeal challenge all orders made by the primary judge, the primary focus of the appeal were those orders specifying the spend time arrangements between the father and children and the order restraining the mother from moving outside of the Sydney area. Those orders are set out below:7.           Unless otherwise agreed between the parties in writing, the Children X born late 2018 and Y born early 2021 (‘the Children’) shall spend time with the Father every third weekend from 3:00pm Friday to 3:00pm Sunday, save for where Monday is a public holiday in which case it will be a 3:00pm Monday drop off, with such time to commence on the first weekend following the Children having attended school.8.           Despite the provision of any other Order, and for the purposes of Order 1 above, the Father shall spend time with the Children in Sydney until such time as Y turns seven (7) years of age. For the purposes of clarifying this order, the Father shall be entitled to cause the Children to travel interstate to spend time with him during the school term following Y turning seven (7) years old.   9.           For the purpose of facilitating Order 1 above, the Father will be responsible for picking up the Children directly from school and dropping off the Children to the Mother’s residence.10.          The Father shall advise the mother of the proposed location of all overnight time pursuant to Order 1 above.11.          Despite the provision of any other Order, and unless otherwise agreed between the parties in writing, the Children shall spend time/communicate with the parties as follows:(a)          The Children spend time with the parent they are living with/spending time with on the Children’s birthdays or a parent’s birthday.(b)          The parent who is not living with/spending time with the Children on the Children’s birthdays or that parent’s birthday is at liberty to video call the Children between the hours of 6:00pm to 6:30pm on that day.(c)          The Mother spend time with the Children from 9:00am Christmas Eve to 9:00am Boxing Day in even numbered years.(d)          The Father spend time with the Children from 9:00am Christmas Eve to 9:00am Boxing Day in odd numbered years.(e)          The Mother spend time with the Children on each Mother’s Day from 4:00pm on the day prior to Mother’s Day.(f)          That the Father spend time with the Children from 4:00pm on the day prior to Father’s Day to 4:00pm on Father’s Day.12.          Despite the provision of any other Order, during the school holidays at the end of Terms 1, 2 and 3, the Children shall spend time with the Father from 3:00pm Sunday to 3:00pm Friday in week 1.13.          Despite the provision of any other Order, during the December/January school holiday period the Children shall spend time with the parties on a week on week off basis. For the purposes of facilitating this time, the Children shall spend time with the Father in the first week and the Mother in the second week commencing on the first Monday at 9:00am in even numbered years and the Children shall spend time with the Mother in the first week and the Father in the second week commencing on the first Monday at 9:00am in odd numbered years and each alternate week thereafter.14.          To facilitate time in accordance with Orders 5, 6 and 7 above, the changeover location shall be as agreed in writing between the parents and failing agreement the Father shall attend upon the Mother’s home at the commencement and conclusion of time……26.          The Mother is restrained from relocating the Children’s place of residence outside of the Sydney area without the consent of the Father or Order of the Court.GROUNDS OF APPEAL
  33. The grounds of appeal in relation to the spend time orders are as follows.(1)          The trial judge in rejecting the mother’s application for the children to spend day time only with the father and ordering immediate overnight time between the father and the children:(a)          Made a series of findings that were not supported by the evidence, or otherwise based on a misconstruing of the mother’s and the father’s evidence.(b)          Failed to have regard to material considerations,(c)          Had regard to irrelevant considerations, and(d)          Arrived at a decision that was so unreasonable and plainly unjust that the Court would infer that an error in the exercise of discretion has in fact occurred.(2)          That the trial judge gave no, or inadequate, reasons in relation to the following:(a)          His determination of the family violence perpetrated by the father against the mother and the assessment of risk.(b)          His determination that there is no unacceptable risk to the mother or the children from being subjected to, or exposed to family violence, abuse, neglect or other harm if the children immediately commence spending overnight time with the father.(c)          His determination that the children immediately commence overnight time would promote and not diminish or put at risk the safety of the children and the mother by any actions of the father.(d)          His determination that overnight time between the children and the father should commence immediately.(e)          His determination that the Father undertaking the Men’s Behavioural Change program promotes the safety of the children and the mother.(f)          His determination as to the father’s capacity to care for the children, and the impact of the orders for overnight time on the children.(3)          The trial judge failed to properly consider or give adequate consideration to the evidence of the Court Child Expert.(4)          The trial judge in making the restraining order (Order 26) was absent of proper regard to relevant facts and without adequate reasons.PRINCIPLES RELATING TO APPELLATE INTERVENTION
  1. There is a strong presumption as to the correctness of the primary judgment with the appellant carrying the onus of establishing material error: Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627 and Boulton & Boulton (2024) FLC 94-202 at [19]–[20] and [22]).
  2. The weight given to evidence in the exercise of a judicial discretion under the Family Law Act 1975 (Cth) (“the Act”) is a matter that is quintessentially for the primary judge. The fact that an Appellate Court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge: Gronow v Gronow (1979) 144 CLR 513 at 519.
  3. Similarly, a finding of fact will not be disturbed unless those findings are demonstrated to be “wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences”: Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43] and Lee v Lee (2019) 266 CLR 129.
  4. In making orders pursuant to Pt VII of the Act, the primary judge was exercising a broad discretion reposed, by that Part, in the Court. Accordingly, the primary judge’s conclusions attract the standard of appellate review articulated in House v The King (1936) 55 CLR 499 (“House v The King”). This requires “in substance, 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’”.
  5. Additionally, appellate intervention may be required in circumstances where a trial judge fails to provide adequate reasons “sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied:” Douglass v The Queen (2012) 290 ALR 699 (French CJ, Hayne, Crennan, Kiefel and Bell JJ) at [8]. The adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the relevant statutory criteria and their significance to the course of the trial.
  6. Reasons will not be adequate where the appellate court is required to guess or speculate as to what a judge, at first instance, may or may not have meant, particularly on an important issue: Boyle (a pseudonym) v The Queen [2022] SASCA 50 at [119]. In that context, reasons must clearly state the primary judge’s findings upon material questions of fact and provide an explanation for those findings: DL v The Queen (2018) 266 CLR 1 at [32]–[33].CONSIDERATION
  7. In circumstances where the obligation to provide adequate reasons is fundamental to the judicial process, I will firstly consider the ground of appeal relating to that issue.Ground 2(a) – Inadequate reasons
  8. In circumstances where the elements of the relevant statutory criteria to be applied by the primary judge specifically mandated consideration of “any history of family violence” impacting the children or the mother, as their carer, it was necessary for the primary judge to not only consider, but to also make findings in respect to, the mother’s allegations of significant family violence and to explain his reasons for doing so.
  9. As noted by Christie J (with whom Alstergren CJ and Kari J agreed) in Friseal & Friseal [2025] FedCFamC1A 102 at [26] when a party’s allegations of violence “relate to objectively serious incidents over an extended period and resolution of the dispute is central to the case advanced by a party … the determination of the dispute becomes an essential element of disposition of the competing applications”.
  10. The mother’s evidence of various incidents of family violence was set out in various paragraphs of the mother’s trial affidavit dated 28 August 2024. The evidence was plausible and she was not challenged on that evidence.
  11. The primary judge’s findings in respect to the mother’s allegations of family violence are set out at [54]–[57] as follows:Despite the deficiencies around a lack of understanding with respect to the issue of the fraud offences, it is clear on the face of the evidence to the Court that the Father’s actions were not justifiable and that his actions did (based on the wide definition of family violence found at section 4AB of the Family Law Act 1975 (Cth)) amount to family violence.In respect of the conviction for Common Assault based upon the Mother’s evidence contained at paragraph 102 of her trial Affidavit, the Court understands that the incident occurred at the Maternal Grandmother’s home in mid 2021 where following an argument over the Father spending overnight time with the Children, the Father grabbed the Mother’s face and yelled at the Mother words to the effect, “You won’t take the boys away from me”.The Court acknowledges that the Mother made other complaints regarding the Father’s conduct towards the Children and in general including the allegations that:•            In mid 2021 at a meeting at the Suburb E property the Mother asserts the Father berated her for 3 hours, the Father berates himself, hits himself in the head, saying “This is all your fault. Look at what you’ve done to me. You’ve made me this bad, I even wanted to hurt myself. I’ve had thoughts of harming myself because of what you’ve done”. (Mother’s trial Affidavit paragraphs 74-79);•            On 27 April 2021 the Father assaults the Mother by grabbing her by the shoulders and shaking her aggressively. (Mother’s trial Affidavit paragraphs 91-93);•            On 30 April 2021 the Father starts banging his head on his steering wheel and the car door in front of the Children and speeds away with the Children in the car. (Mother’s trial Affidavit paragraphs 104-105);•            Sometime around 4 May 2021 the Father is aggressive, confrontational, and would occasionally strike himself and yelled at one point “I will fucking stab myself… I went fucking crazy” (Mother’s trial Affidavit paragraphs 111-116);•            Sometime in May/June 2021 the Mother asserts that she located a large knife in the laundry of the unit at the Suburb E property – the Mother reports this to police (Police Incident Report A). (Mother’s trial Affidavit paragraphs 117-120);•            Sometime in December 2023 the Mother asserts that X starts touching and holding his genitals ‘for no reason’ after the Children had spent time with their Father. When confronted by the Mother he replies, ‘My dad lets me do it’. The Mother reports this to police (Police Incident Report B). (Mother’s trial Affidavit paragraphs 168-172).To be clear, despite the Mother’s allegations above, this is a matter where the Mother contends that there should be time between the Children and the Father that is unsupervised at some stage. The Court remains concerned about the Mother’s credibility given her serious allegations about illicit drug use by the Father that lacked any proper foundation and as such, the Court is not prepared to just accept the Mother’s narrative about the Father as set out above.    
  12. It is clear that, at [54] and [55], the primary judge made specific findings that the father engaged in family violence to the extent that he was convicted of an act of common assault arising from an incident in early-2021 and that he perpetrated financial fraud against the mother. It is, however, not clear whether the primary judge made findings in respect of the other significant allegations made by the mother as summarised in the various dot points listed at [56].
  13. As noted earlier, the adequacy of reasons must be considered in the context of several factors, including, in this case, the relevant statutory criteria informing the exercise of discretion by a trial judge. The statutory criteria for determining the children’s best interests is set out in s 60CC of the Family Law Act 1975 (Cth). Relevantly s 60CC(2)(a) of the Act provides that, in determining the best interests of the children:… the court must consider the following matters:(a)  what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:(i)  the child; and(ii)  each person who has care of the child (whether or not a person has parental responsibility for the child)(Emphasis added)
  14. Also of significance, in emphasising the mandatory statutory duty of a trial judge to consider the issue of family violence, s 60CC(2A) provides:(2A)  In considering the matters set out in paragraph (2)(a), the court must include consideration of:(a)          any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and(b)          any family violence order that applies or has applied to the child or a member of the child’s family.(Emphasis added).
  15. The term “consider” imports an obligation to give proper, genuine and realistic consideration to the relevant statutory criteria: Lovett & McGregor (2019) FLC 93-935 at [67]–[72] referring to Khan v Minister for Immigration and Ethnic Affairs (“Khan”) (1987) 14 ALD 291 at [11] per Gummow J. That is not to say that the decision-making process needs to be weighed down by the necessity for the trial judge to engage in a ritualistic incantation of the relevant statutory criteria. In that respect, a factor might be so insignificant that the failure to take it into account could not materially affect the outcome of the case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 15] per Mason CJ. But that was not the situation here. In the circumstances of this case – where the mother alleged the father engaged in a pattern of coercive and controlling behaviour, underpinned by specific acts of physical violence – it was incumbent upon the trial judge to give “proper, genuine and realistic consideration” to the mother’s allegations and his reasons should demonstrate that he has done so.
  16. In an otherwise careful consideration of relevant s 60CC best interests considerations, the primary judge’s reasons do not make it clear as to whether he accepted any of the allegations of family violence made by the mother, as summarised at [56]. This is because the statement by the primary judge that “the Court is not prepared to just accept the Mother’s narrative about the Father as set out above” at [57] of his reasons is ambiguous. Specifically, it is unclear whether the primary judge’s adverse findings of the mother’s credibility resulted in his rejection of the totality of her allegations or only some of the allegations. It remains, at best, a matter of speculation which in turn demonstrates a deficiency in reasons.
  17. Accordingly, there is merit in Ground 2(a).Ground 1(a) – Erroneous factual finding
  18. If, contrary to my conclusion as to the deficiency of the primary judge’s reasons,  the statement at [57] of the reasons should be construed as an unambiguous rejection of all of the mother’s allegations of family violence summarised in [56], then notwithstanding this, there was nonetheless error in terms of Ground (1)(a) as it was a factual finding that was not reasonably available on the evidence.
  19. That is, the primary judge was not entitled to dismiss the mother’s allegations of physical violence based on a generalised adverse credit finding resulting merely from a failure to establish her allegations of substance abuse by the father.
  20. The relevant point is well articulated by Kunc J in Sheer v Jeffreys [2024] NSWSC 1161 where his Honour set out 10 principles of fact finding. Principles 6 and 7 are particularly relevant and are set out as follows:469         Sixth, where a witness has been found to be lying about one thing that does not automatically mean that they are to be disbelieved about everything else. The Court is not bound to accept or reject a witness’ evidence in its entirety. This approach was expressed by O’Loughlin J in Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1:118          Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. I mention some authorities that support those propositions.…121          A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness’ evidence must be rejected.470         Seventh, and closely related to the preceding point, in Sangha v Baxter [2009] NSWCA 78 Basten JA (with whom Handley AJA agreed) cautioned against global credibility findings:155         There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases.156          Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44].
  21. To similar effect in Friseal & Friseal [2025] FedCFamC1A 102, Christie J, with whom Alstergren CJ and Kari J agreed, stated at [31]:It is also problematic to dismiss serious allegations of family violence globally. It is one thing to indicate that you prefer the evidence of one witness over another in respect of a specific allegation, it is quite another to reject the mother’s allegations in respect of serious assaults spanning more than a decade in apparent reliance on her demeanour.
  22. In finding that the primary judge erred in respect of a material finding of fact, I am aware of the caution articulated by the High Court in Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43] that “a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”.
  23. In this case, the primary judge’s finding, that the mother was untruthful in respect of her allegations that the father committed a number of violent acts as set out at [56] of the reasons, was not supported by the evidence. This was in circumstances where the mother’s evidence of those matters was uncontested and had probative force. The allegations should also have been evaluated in the context of the totality of the evidence, including the father’s expressed remorse for not only the incident in early-2021, but for his conduct “on that day and in the past” (Transcript 9 September 2024, p.81 line 21).
  24. In this case, the fact that the mother failed to sustain her allegations of substance abuse by the father, did not justify a conclusion that she was lying in respect to her allegations of physical abuse. While the mother’s allegations in respect to the father having a substance abuse issue were found to be misguided, it is nonetheless a belief which she may have genuinely held. In any event, for reasons that I have set out, the adverse finding in respect of the mother’s account of substance abuse by the father did not justify a generalised adverse credit finding and the primary judge was therefore in error.
  25. For completeness, the erroneous factual finding in respect of the mother lacking credibility also has relevance to Ground 2; being the adequacy of reasons ground of appeal. The unchallenged evidence relied upon by the mother to support her allegations of family violence by the father, referred to at [56] of the judgment, was sufficiently detailed to warrant proper consideration. It is well established that where a party relies on cogent and relevant evidence which is rejected by the court, then the court should provide a reasoned explanation for the rejection of that evidence: Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 23 at [15] referring to Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at [18].
  26. In rejecting the mother’s evidence as to the father’s family violence on the basis of a generalised adverse credit finding, the primary judge failed to provide an adequately reasoned explanation. Such an explanation required the primary judge to properly engage with the mother’s evidence and the context in which it was given. That did not occur.DISPOSITION
  27. The parties agreed that, in the event of the court finding error in respect to the adequacy of reasons ground, it would be appropriate for the matter to be remitted for re-hearing by a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge. In those circumstances, it is unnecessary to consider the remaining grounds of appeal.
  28. To avoid a lacuna in parenting arrangements, the orders of the primary judge will remain in place until the matter comes before a judicial officer of the court, either by way of interim or final hearing.
  29. As I have found error in relation to a question of law, I accept the submissions of each of the parties that the circumstances of this case justify the court granting a costs certificate to each of the parties in respect to the appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
  30. Accordingly, the orders of the court are that the appeal is upheld and the matter is remitted for re-hearing before a judge of the Federal Circuit and Family Court of Australia (Division 2). The orders of the primary judge will remain in place until the matter next comes before the Court and costs certificates are granted to each of the parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.

Associate:

Dated:       21 August 2025

In