FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Friseal & Friseal [2025] FedCFamC1A 102
Appeal from: Friseal & Friseal [2025] FedCFamC2F 75 Appeal number: NAA 66 of 2025 File number: HBC 14 of 2023 Judgment of: ALSTERGREN CJ, KARI & CHRISTIE JJ Date of judgment: 4 June 2025 Catchwords: FAMILY LAW – APPEAL – Parenting – Ex Tempore judgment – Where parties agree appeal should be allowed – Where the primary judge failed to make necessary findings of fact as to the husband's history of family violence – Where the primary judge largely rejected the mother's allegations of family violence based on her demeanour at trial – Where this rejection of evidence was unsupported by findings of fact – Error demonstrated – Appeal allowed – Matter remitted for rehearing. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 60CG, 91B
Federal Proceedings (Costs) Act 1981 (Cth) s 9
Cases cited: Bhatnagar & Riju [2018] FamCAFC 144
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Cantrell v North (2020) FLC 93-976; [2020] FamCAFC 175
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26
Pickford & Pickford (2024) FLC 94-230; [2024] FedCFamC1A 249
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Société d’Advances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The ‘Palitana’) (1924) 20 Ll L Rep 140
Number of paragraphs: 43 Date of hearing: 4 June 2025 Place: Melbourne Counsel for the Appellant: Ms Ryan Solicitor for the Appellant: PWB Lawyers Counsel for the Respondent: Mr Strong Solicitor for the Respondent: Butler McIntyre & Butler Counsel for the Intervener: Mr Lee (direct brief) ORDERS
NAA 66 of 2025
HBC 14 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS FRISEAL
Appellant
AND: MR FRISEAL
Respondent
SECRETARY, DEPARTMENT FOR EDUCATION, CHILDREN AND YOUNG PEOPLE
Intervener
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALSTERGREN CJ, KARI & CHRISTIE JJ
DATE OF ORDER:
4 JUNE 2025
THE COURT ORDERS THAT:
1.Leave is granted to the appellant to rely on the Summary of Argument filed 16 May 2025.
2.The appeal is allowed.
3.Orders 7, 8, 9, 13, 14 and 16 of the orders of 28 January 2025 are set aside.
4.Order 18 of the orders of 28 January 2025 is set aside to the extent that it refers to Orders 13 and 14.
5.Order 11 of the orders of 28 January 2025 is set aside to the extent that it reads “on the opposite week to when [Z] spends time with the father”.
6.Order 20 of the orders of 28 January 2025 is set aside to the extent that it refers to “the father”.
7.The matter is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
8.The appellant be granted a costs certificate under s 9(1) of…
Continue reading Friseal & Friseal
Sign in free to access the full text
- AGLC
- Friseal & Friseal [2025] FedCFamC1A 102
- Case
- [2025] FedCFamC1A 102
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the primary judge erred in failing to make necessary findings regarding the husband's history of family violence and in rejecting the mother's allegations of family violence. The court needed to assess whether these omissions constituted an error that warranted the setting aside of certain orders and the rehearing of the matter. The court also had to consider whether the appellant should be granted costs for the appeal.
The court found that the primary judge did not make the necessary findings about the husband's history of family violence and dismissed the mother's allegations based on her demeanour, without supporting findings. This constituted an error, as the court should have made findings on the evidence presented. The court also determined that the rejection of the mother's evidence was unsupported by findings of fact, leading to a miscarriage of justice. Consequently, the appeal was allowed, the contested orders were set aside, and the matter was remitted for rehearing before a different judge. The appellant was granted a costs certificate for the appeal.
The court's orders included setting aside specific orders from the earlier judgment and remitting the matter for a new hearing. The appellant was also granted a costs certificate for the appeal, recognising the appropriateness of the Attorney-General authorising payment under the Family Law Act 1975 (Cth).
Orders
Orders of the court
NAA 66 of 2025
HBC 14 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS FRISEAL
Appellant
AND:
MR FRISEAL
Respondent
SECRETARY, DEPARTMENT FOR EDUCATION, CHILDREN AND YOUNG PEOPLE
Intervener
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALSTERGREN CJ, KARI & CHRISTIE JJ
DATE OF ORDER:
4 JUNE 2025
THE COURT ORDERS THAT:
1. Leave is granted to the appellant to rely on the Summary of Argument filed 16 May 2025.
2. The appeal is allowed.
3. Orders 7, 8, 9, 13, 14 and 16 of the orders of 28 January 2025 are set aside.
4. Order 18 of the orders of 28 January 2025 is set aside to the extent that it refers to Orders 13 and 14.
5. Order 11 of the orders of 28 January 2025 is set aside to the extent that it reads “on the opposite week to when [Z] spends time with the father”.
6. Order 20 of the orders of 28 January 2025 is set aside to the extent that it refers to “the father”.
7. The matter is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
8. The appellant be granted a costs certificate under s 9(1) of the Federal Proceedings (Costs) Act 1981 (Cth) because in the opinion of the Court it would be appropriate for the Attorney-General to authorise payment under the Family Law Act 1975 (Cth) to the appellant in respect of costs incurred by the appellant 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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.