Mardeen & Laith
[2025] FedCFamC1A 141
•14 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Mardeen & Laith [2025] FedCFamC1A 141
Appeal from: Laith & Mardeen [2025] FedCFamC2F 271 Appeal number: NAA 154 of 2025 File number: PAC 1774 of 2022 Judgment of: ALDRIDGE J Date of judgment: 14 August 2025 Catchwords: FAMILY LAW – APPEAL – PARENTING – Orders for the respondent to have sole parental responsibility – Orders for the child to spend time with the appellant as agreed in writing “but at the sole discretion” of the respondent – Findings the child would derive benefit from a relationship with the appellant – Implicit finding the respondent would facilitate time with the appellant – Lack of reasons – Where the further evidence confirms the implicit finding was wrong – Failure to take into account relevant considerations – Error must be addressed regardless of the form of the grounds of appeal – Appeal allowed – Matter remitted for rehearing. Legislation: Federal Proceedings (Costs) Act 1981 (Cth) Cases cited: House v The King (1936) 55 CLR 499; [1936] HCA 40
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 25 Date of hearing: 24 July 2025 Place: Sydney Counsel for the Appellant: Mr Todd Solicitor for the Appellant: Khalil Lawyers Counsel for the Respondent: Mr Fermanis Solicitor for the Respondent: David Legal Solicitor for the Independent Children’s Lawyer: No appearance (submitting notice filed) ORDERS
NAA 154 of 2025
PAC 1774 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MARDEEN
Appellant
AND: MR LAITH
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
14 AUGUST 2025
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Order 3 of the orders made 11 March 2025 is set aside.
3.The matter is remitted for rehearing to a judge other than the primary judge on the question of what time the child should spend with the appellant.
4.The appellant is granted 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 her in the appeal.
5.The respondent is granted costs certificates 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 him in the appeal.
6.The appellant and respondent are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to each of them in respect of the costs incurred by them in relation to the rehearing.
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 Mardeen & Laith has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
This is an appeal from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 11 March 2025. The orders are in relation to the parties’ child who was born in 2024.
The orders, all of which are challenged in the Amended Notice of Appeal, provided for the child to live with the respondent who was to have sole parental responsibility for her. Order 3, which is central to the appeal, is:
3.[X] spend time with the [appellant], [Ms Mardeen], as agreed between the parties in writing but at the sole discretion of the [respondent] and upon such terms and conditions as the [respondent] dictates as being appropriate from time to time.
The order is an odd one because the combination of the respondent having sole parenting responsibility and the absence of an order providing for time would have meant the respondent would have sole control over time occurring, when and in what way. The extra words are entirely otiose but are unfortunate as they create an unnecessary diversion.
The primary judge found that it was not in the child’s best interests to live with the appellant because if she were to live with her, she would “grow up believing she is a victim of sexual abuse when she is not” which would be “abusive, neglectful and harmful” (at [88]).
As to what orders should be made as to the time the child should spend with the appellant, his Honour said:
93The ICL has adopted a position whereby [X] will spend no time with the [appellant]. The ICL’s proposal demonstrates to the Court the ICL’s high level of concern as to the risk that the [appellant] poses to [X’s] safety. While the Court accepts that the [appellant] poses an unacceptable risk to [X’s] psychological safety, the Court is also of the view that perhaps (and the Court emphasises the word ‘perhaps’) [X] can have a relationship with the [appellant] and also remain safe.
94The [respondent’s] proposal sees [X] spend increasing periods of time with the [appellant] regardless of the [appellant’s] presentation or her behaviour. The Court cannot be sure that the [appellant] will act in a way that will promote [X’s] safety. The Court is satisfied that the [respondent] knows the [appellant] extremely well and is able to assess her behaviour to determine whether the [appellant] does or does not pose a risk to [X’s] safety. The Court does not accept that the [respondent’s] proposal around the time [X] spends with the [appellant] is an arrangement that would in all the possible circumstances promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of [X].
95The Court finds that the arrangement that would promote [X’s] safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) is one where the time [X] spends with the [appellant] is by agreement between the parties but at the [respondent’s] sole discretion and upon the terms and conditions the [respondent] dictates as being appropriate from time to time. In this regard , if the only way to allow [X] to safely spend time with the [appellant] is supervised then the [respondent] can make that decision.
…
99The Court finds that there is a benefit to [X] of being able to have a relationship with both of her parents, and other people who are significant to her and it is for that reason the Court does not adopt the Orders sought by the ICL that would see no time ever take place between [X] and the [appellant] until [X] turns 18 years. However, as set out earlier in this decision, the Court is concerned that the [appellant] may act in an irrational, unreasonable or in an unacceptable way towards the [respondent] and [X] following the making of these Orders, exposing [X] to an unacceptable risk of harm.
100As set out earlier in this decision the Court finds that the [respondent’s] proposal for time between [X] and the [appellant] that would progress to overnight time and even overseas travel regardless of whether the [appellant] was or was not presenting a risk to [X] and regardless of whether it is not safe for [X] to have contact with the [appellant] is not in the best interests of [X]. It is for this reason that the Court has determined not to simply make the Orders the [respondent] seeks. It is also for this reason the Court places the question of time between [X] and the [appellant] in the hands of the [respondent] as set out above. In this regard the [respondent] can determine what block out period of time between [X] and the [appellant] is required (if any), how much supervised time is needed between [X] and the [appellant] (if any), and whether time should transition to unsupervised time between [X] and the [appellant]. The Orders the Court will make mean that the [respondent] will be the sole arbitrator of [X’s] time with the [appellant] and he can determine if, when, and how [X] spends time with the [appellant] if he feels it is safe for [X] to do so.
Application to adduce further evidence
It is implicit, but not stated, in his Honour’s findings that the respondent would act reasonably in making decisions as to whether the child should spend time the appellant because the respondent was prepared to foster the relationship between the two. There would be little point in framing the order as it was, if that was not the case.
The appellant filed an Application in an Appeal seeking to adduce further evidence on the appeal.
At the outset of the hearing, counsel informed the Court that the parties had agreed that paragraphs 8 and 9 of the appellant’s affidavit filed 11 July 2025 could be taken as agreed facts in the appeal and the application could otherwise be dismissed. Orders were made to that effect on 24 July 2025.
The agreed facts contained in those paragraphs are as follows:
8.Since 11 March 2025, I have had no contact with [X] because I was not receiving a response from the messages on the Family Wizard App.
9.The last contact I had with [X] was on 11 March 2025 when I dropped [X] off at school in the morning before attending the Judgement Delivery before [the primary judge].
The appeal
It is convenient to commence with Ground 2, which is in the following terms:
2.Alternatively, the Primary Judge erred in principle in failing to exercise the discretion conferred upon him pursuant to section 65D of the Act, as to the time and communication the child is to spend with the [appellant].
2A.That, in the Court entering paragraph 3 of the Orders, the Appellant was denied procedural fairness.
(Amended Notice of Appeal filed 13 June 2025)
In the Summary of Argument this ground was dealt with along with Ground 1 which asserted that the Court delegated its judicial power to the respondent. This ground is subtly different.
One of the issues before the Court was the time the child should spend with the appellant. The Independent Children’s Lawyer proposed no time. The respondent proposed that there be regular time, first at a contact centre then graduating to unsupervised overnight time. The appellant sought an order that the child live with her and spend no time with the respondent.
It can be discerned from the above passages from his Honour’s reasons that the following findings were made:
·The child can continue to have a relationship with the appellant and remain safe;
·There is a benefit to the child maintaining a relationship with both parents;
·The child would not be safe spending overnight time with the appellant.
These findings leave open many options for time, including supervised time at a contact centre, professionally supervised contact, time supervised by a responsible adult and time falling short of overnight time.
There was no consideration of these options.
In short, it can be said that the primary judge fell short of considering all the relevant options. Failure to take into account relevant considerations is a discretionary error (see House v The King (1936) 55 CLR 499).
As I said earlier, it is implicit in his Honour’s reasons that the respondent would act reasonably and responsibly towards the child spending time with the appellant. There are many options available to ensure the child’s safety as just discussed. It is important to remember that the risk was of the appellant raising the asserted sexual abuse with the child. That risk can be completely ameliorated by supervision.
There is no explicit finding or any explanation as to why the primary judge thought the respondent would facilitate time.
The further evidence shows the implicit finding was wrong.
In any event, there was an apparent failure by his Honour to consider the respondent’s attitude towards facilitating time between the child and the appellant or a lack of reasons. The latter was not raised as a ground of appeal.
The effect is that the primary judge did not consider the entirety of the case before him. This is sufficient to bring it within Ground 2, which is best understood as raising a failure to take into account relevant matters.
However, if I am wrong in that categorisation, the error remains and needs to be addressed ultimately, regardless of the form of the grounds of appeal. As the High Court said, “To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process” (Warren v Coombes (1979) 142 CLR 531 at 552).
It follows that this ground is made out. There is no utility in considering the remaining grounds.
The appeal is allowed. During the hearing, counsel for the appellant accepted that if the appeal was successful, it would only be necessary to set aside the spend time order. Therefore, Order 3 is set aside and the question of the time to be spent with the appellant is remitted for rehearing.
In the circumstances, it is appropriate that there be no order as to costs and that the appellant and respondent be granted certificates for the appeal and the rehearing under the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 14 August 2025
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