Cassell & Kolar - [2025] FedCFamC1A 118

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cassell & Kolar [2025] FedCFamC1A 118

Appeal from: Cassell & Kolar (No 9) [2025] FedCFamC1F 147

Appeal number: NAA 141 of 2025

File number: MLC 4879 of 2019

Judgment of: AUSTIN, ALTOBELLI & CAMPTON JJ

Date of judgment: 3 July 2025

Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Parenting – Where the applicant mother requires leave to appeal from interlocutory orders – Where most of the orders appealed are only procedural directions – Where none of the grounds of appeal overtly challenge the decision not to abort the trial and annul earlier orders – Where no ground of appeal challenges the decision of the primary judge to refuse to disqualify himself – Where no question of general principle arises – Where the proposed grounds of appeal lack any merit – Leave to appeal refused – Appeal dismissed – No orders as to costs.

Legislation:
Family Law Act 1975 (Cth) Pt VII, s 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 36

Cases cited:
AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615; [2023] HCA 26

Commonwealth v Bank of NSW (1949) 79 CLR 497; [1949] ALR 925

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91

Faldyn & Badenoch [2022] FedCFamC1A 170

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Number of paragraphs: 33

Date of hearing: 3 July 2025

Place: Melbourne

The Applicant: Litigant in person

Counsel for the Respondent: Ms Metherell

Solicitor for the Respondent: Arkadia Family Law

The Independent Children's Lawyer: Did not participate
ORDERS

NAA 141 of 2025
MLC 4879 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS CASSELL

Applicant

AND:
MR KOLAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN, ALTOBELLI & CAMPTON JJ

DATE OF ORDER:

3 JULY 2025

THE COURT ORDERS THAT:
1.The application for leave to appeal is refused and the Notice of Appeal filed on 27 March 2025 is dismissed.

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 Cassell & Kolar has been approved pursuant to subsection 114Q(2) of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cassell & Kolar

Details

AGLC: Cassell & Kolar [2025] FedCFamC1A 118
Case: [2025] FedCFamC1A 118
Decision Date: 3 July 2025

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Division 1 Appellate Jurisdiction, the mother sought leave to appeal from a series of interlocutory orders made by the primary judge during the part-heard trial of a parenting dispute between her and the father. The mother's application for leave to appeal was filed on 27 March 2025, and the central legal issues before the appellate court were whether the mother had a valid basis for appealing from the interlocutory orders and whether the appeal had any prospects of success. The court was required to determine whether the appeal raised any significant legal questions or issues of general principle and whether the proposed grounds of appeal had any merit.

The appellate court found that none of the grounds of appeal overtly challenged the primary judge's decision not to abort the trial and annul the earlier orders, nor did any ground of appeal challenge the decision of the primary judge to refuse to disqualify himself. The court considered that the mother's proposed grounds of appeal lacked merit and did not raise any question of general principle. The court held that the application for leave to appeal should be dismissed, and the appeal was dismissed accordingly. The appellate court made no orders as to costs.

The Federal Circuit and Family Court of Australia, Division 1 Appellate Jurisdiction, dismissed the mother's application for leave to appeal and dismissed the appeal. The court found that the mother's proposed grounds of appeal lacked any merit and did not raise any significant legal questions or issues of general principle. The court held that the application for leave to appeal should be dismissed, and the appeal was dismissed accordingly. The court made no orders as to costs.

Orders

Orders of the court

NAA 141 of 2025

MLC 4879 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS CASSELL

Applicant

AND:

MR KOLAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN, ALTOBELLI & CAMPTON JJ

DATE OF ORDER:

3 JULY 2025

THE COURT ORDERS THAT:

1. The application for leave to appeal is refused and the Notice of Appeal filed on 27 March 2025 is dismissed.

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

These reasons explain why an application for leave to appeal from a series of procedural orders, made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 27 February 2025 whilst the trial of the proceedings between the parties under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) was part-heard, must be dismissed. Background Proceedings between the parties were started by the mother in 2019. As the litigation progressed, interim orders were made for the parties’ child to only spend supervised time with the mother. The trial of the parenting cause began in August 2022. An interlocutory order had earlier been made under s 102NA of the Act, so both parties were legally represented. On the third day of trial, the mother was still under cross-examination. That day, her lawyers applied for and were granted leave to withdraw their representation, in consequence of which the trial was adjourned part-heard to enable her to acquire new lawyers. She failed to do so. In February 2023, the State Legal Aid agency advised the Court it would not appoint any further lawyer to represent the mother (at [11]). The trial was due to resume in April 2023. Just beforehand, in March 2023, the primary judge ordered that a litigation guardian be appointed for the mother to aid her conduct of the trial once it resumed, but no litigation guardian could be engaged in time and so the new trial dates were vacated (at [13]). In May 2023, the primary judge appointed the mother’s friend as her litigation guardian. The appointment was made in satisfaction of the friend’s application, to which the father and the Independent Children’s Lawyer (“the ICL”) both consented, and the trial was then re-listed to resume in September 2023. Upon resumption of the trial in September 2023, the primary judge dismissed the litigation guardian’s adjournment application (at [17]). However, the following day, orders were made granting the litigation guardian’s application to discharge her from the role, striking out the mother’s parenting application (subject to the grant of leave for her to seek its re-instatement within the next 12 months), and adjourning the trial again (at [18]). Of course, in the interregnum, the interim parenting orders continued to operate, so the child was only seeing the mother under professional supervision. It was not until nearly a year later, in August 2024, that the mother applied to re-instate her parenting application, which application was granted in December 2024. The proceedings were re-listed before the primary judge in February 2025 to make procedural directions in readiness for resumption of the part-heard trial. One week before the directions hearing on 27 February 2025, the mother filed an interlocutory application relevantly seeking this relief:(a)the vacation of the directions hearing (proposed Order 3);(b)a declaration that the “Final Hearing of this matter [is] invalid” (proposed Order 5);(c)an order that the “Final Hearing be restarted afresh” before a different judge (proposed Order 6); and(d)a declaration that all orders made in the proceedings between 9 March 2023 and 19 December 2024 be “set aside” (proposed Order 7).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 141 of 2025 MLC 4879 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS CASSELL Applicant
AND:	MR KOLAR Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:	Cassell & Kolar (No 9) [2025] FedCFamC1F 147
Appeal number:	NAA 141 of 2025
File number:	MLC 4879 of 2019
Judgment of:	AUSTIN, ALTOBELLI & CAMPTON JJ
Date of judgment:	3 July 2025
Catchwords:	FAMILY LAW – APPEAL – LEAVE TO APPEAL – Parenting – Where the applicant mother requires leave to appeal from interlocutory orders – Where most of the orders appealed are only procedural directions – Where none of the grounds of appeal overtly challenge the decision not to abort the trial and annul earlier orders – Where no ground of appeal challenges the decision of the primary judge to refuse to disqualify himself – Where no question of general principle arises – Where the proposed grounds of appeal lack any merit – Leave to appeal refused – Appeal dismissed – No orders as to costs.
Legislation:	Family Law Act 1975 (Cth) Pt VII, s 102NA Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 36
Cases cited:	AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615; [2023] HCA 26 Commonwealth v Bank of NSW (1949) 79 CLR 497; [1949] ALR 925 Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91 Faldyn & Badenoch [2022] FedCFamC1A 170 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Number of paragraphs:	33
Date of hearing:	3 July 2025
Place:	Melbourne
The Applicant:	Litigant in person
Counsel for the Respondent:	Ms Metherell
Solicitor for the Respondent:	Arkadia Family Law
The Independent Children's Lawyer:	Did not participate

ORDER MADE BY:	AUSTIN, ALTOBELLI & CAMPTON JJ
DATE OF ORDER:	3 JULY 2025