Aslett & Coren

Case [2025] FedCFamC1A 92

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Aslett & Coren [2025] FedCFamC1A 92

Appeal from: Coren & Aslett (No 3) [2024] FedCFamC1F 735
Appeal number: NAA 385 of 2024
File number: BRC 1530 of 2022
Judgment of: MCCLELLAND DCJ, JARRETT & STRUM JJ
Date of judgment: 10 June 2025
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals orders for the child to live with the mother and permitting the mother to relocate with the child if the mother’s visa is not approved – Where the mother was granted sole decision-making responsibility for major long-term issues for the child – Where there was an order pursuant to s 102NA of the Family Law Act 1975 (Cth) – Where the father did not obtain representation during the trial – Where father alleges numerous grounds of appeal – Where the grounds of appeal are either incomprehensible and/or incompetent or do not establish appellable error – Appellant wholly unsuccessful – Appeal dismissed at the hearing – Costs order made against appellant.
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 60CG, 60I, 102NA, 117

Family Law Amendment Act 2023 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36(2)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 8.14, 13.02, 13.10, 13.23

Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.04
Cases cited:

Aitken v Aitken (2023) 66 Fam LR 314; [2023] FedCFamC1A 69

Australia Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Bachman & Self [2023] FedCFamC1A 50

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

Bartram & Marsden [2023] FedCFamC1A 207

Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62

HJ Heinz Co Australia Ltd v Turner [1998] 4 VR 872

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kaba & Zemin (No 2) [2024] FedCFamC1A 169

Kabir & Kabir [2023] FedCFamC1A 45

Keighley & Keighley [2023] FedCFamC1A 146

Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322

Pickford & Pickford (2024) FLC 94-230; [2024] FedCFamC1A 249

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

Scrymegeour & Scrymegeour (2014) FLC 93-600; [2014] FamCAFC 130

Sieger & Department of Communities and Justice [2020] FamCAFC 172

Sofia & Treacy (No 2) [2025] FedCFamC1A 10

Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35

Victoria v Bacon [1998] 4 VR 269

Watapaldeniya v Transport Accident Commission [2022] VSCA 50

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; [1996] HCA 18

Aldisert, Ruggero, Opinion Writing (West Publishing, 1990)
Number of paragraphs: 79
Date of hearing: 30 April 2025
Place: Heard in Brisbane, delivered in Sydney
The Appellant: Litigant in person
Counsel for the Respondent: Ms Varshney
Solicitor for the Respondent: Women’s Legal Service Queensland
Counsel for the Independent…

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Aslett & Coren [2025] FedCFamC1A 92
Case
[2025] FedCFamC1A 92
Decision Date

CaseChat Overview and Summary

The appeal, brought by Mr Aslett, challenges orders made by the Federal Circuit and Family Court of Australia that the child should live with the mother, Ms Coren, and that the mother be permitted to relocate the child if her visa application is not approved. The appeal also contests the decision granting the mother sole decision-making responsibility for major long-term issues concerning the child. The case involves complex family law issues, including the best interests of the child, family violence considerations, and the relocation of a child to another country. The appeal was heard by a panel of the Family Court's appellate jurisdiction.

The court had to determine whether the primary judge's orders were justified and whether there was any procedural error that could affect the outcome. The appeal hinged on the father's arguments that the primary judge erred in several respects, including the interpretation of the best interests of the child, the handling of family violence issues, and the relocation of the child. The court found that the father's grounds for appeal were either incomprehensible, incompetent, or did not demonstrate any appellable error. The court concluded that the primary judge had correctly applied the relevant statutory provisions and had appropriately considered all relevant factors in determining the child's best interests.

The appellate court found that the primary judge's decision was well-reasoned and supported by the evidence. The court dismissed the appeal and held that the primary judge's orders were in the best interests of the child. The father was ordered to pay the mother's costs of the appeal. The judgment clearly articulated the reasons why the appeal failed, highlighting the procedural shortcomings of the father's arguments and reaffirming the correctness of the primary judge's decision.

Orders

Orders of the court

NAA 385 of 2024

BRC 1530 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR ASLETT

Appellant

AND:

MS COREN

Respondent

ORDER MADE BY:

MCCLELLAND DCJ, JARRETT & STRUM JJ

DATE OF ORDER:

30 APRIL 2025

ON 30 APRIL 2025, THE COURT 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.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In late 2023, the respondent applied for a protection visa. In September 2024, the Delegate of the Minister for Home Affairs rejected her application, against which she has appealed.THE FIRST INSTANCE JUDGMENT The trial before the primary judge took place over four days in late October 2024. The respondent and the Independent Children’s Lawyer were represented by counsel. The appellant was self-represented, notwithstanding that an order pursuant to s 102NA of the Family Law Act 1975 (Cth) (“Act”) was made on 5 February 2024 which provided, inter alia, that neither party would be permitted to personally cross-examine the other. However, that order enabled him to apply for legal representation at trial pursuant to the Commonwealth Family Violence and Cross-examination of Parties Scheme and a notation to the orders made that day records that he intended to do so. He nevertheless appeared at trial without legal representation. Accordingly, he was statutorily proscribed from cross-examining the respondent and her evidence was unchallenged. That posed an insurmountable difficulty for him at trial and, consequently, on appeal. The primary judge recorded at [7] of his Reasons that, during the course of the trial, both the appellant and the respondent amended their position in relation to the parenting orders they sought. The respondent sought orders for “sole parental responsibility”; that the child live with her; that, if required to return to Country C, she have leave to relocate the child with her; and that the child spend time with the appellant, whether in Australia or in Country C, initially supervised and progressing to unsupervised time (respondent’s proposed final orders, Exhibit 12 at first instance). The appellant sought an increase in his time with the child, initially to be supervised at a contact centre twice per week, graduating to an equal time arrangement, week-about, from September 2026 (appellant’s proposed final orders, Exhibit 3 at first instance). As the trial took place after 6 May 2024, the case was required to be, and was, determined in accordance with the provisions of Pt VII of the Act, as amended by the Family Law Amendment Act 2023 (Cth), which amendments commenced operation on that date. At [14]–[21] of the Reasons, the primary judge referred to s 60B of the Act, which specifies the objects of Pt VII of the Act; to s 60CA of the Act, which provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration; to s 60CC of the Act, which specifies the matters the Court must consider in determining what is in a child’s best interests; and to s 60CG of the Act, which provides that:(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:(a) is consistent with any family violence order; and(b) does not expose a person to an unacceptable risk of family violence.(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

Ratio Decidendi

Legal Principle Established

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