FAMILY LAW – APPEAL – Appeal against parenting orders made in the absence of the appellant – Where appellant misunderstood the date the trial was set to commence – Where counsel for the appellant at trial made two applications to adjourn – Where primary judge declined to adjourn the proceedings – Where primary judge proceeded to make final orders – Where primary judge failed to give any reasons – Failure to give reasons not argued by the appellant – It is not the task of the court to perpetuate error where it is apparent even if not made so by the grounds of appeal – Where unnecessary to consider poorly drawn grounds of appeal – Where poorly drawn grounds of appeal and proposed amended grounds of appeal nevertheless not without merit – Appeal allowed.
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR RASHID
Appellant
AND:
MS OLARAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRUM J
DATE OF ORDER:
4 JULY 2025
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The Application in an Appeal filed by the appellant on 5 June 2025 be dismissed.
3.The proceedings be remitted for hearing by a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge.
4.The orders made by the primary judge on 25 February 2025 be set aside on and…
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.
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Details
AGLC
Rashid & Olaran [2025] FedCFamC1A 119
Case
[2025] FedCFamC1A 119
Decision Date
CaseChat Overview and Summary
In the Federal Circuit and Family Court of Australia, the appellant, Mr. Rashid, appealed against parenting orders made in his absence during a trial. The respondent, Ms. Olaran, contested the appeal. The appellant argued that he did not appear at the trial due to a misunderstanding regarding the trial date. Additionally, his counsel had made two unsuccessful applications for an adjournment before the primary judge declined to adjourn the proceedings and proceeded to make final orders. The appellant further contended that the primary judge failed to provide any reasons for the orders made. The appellant did not challenge the omission of reasons in his grounds of appeal.
The court had to determine whether the appeal was valid given the appellant's absence from the trial and the procedural issues raised. The court noted that the appellant's grounds of appeal were poorly drawn but acknowledged that they were not entirely without merit. The court observed that it was not its role to perpetuate errors, even if they were not explicitly argued by the appellant. The court decided to remit the matter to a different judge for a fresh hearing, dismissing the application in an appeal filed by the appellant.
The court allowed the appeal, dismissed the application in an appeal, and remitted the proceedings for a hearing by a different judge. The orders made by the primary judge were set aside from the date of new parenting orders made by the Federal Circuit and Family Court of Australia. This decision underscores the importance of procedural fairness and the need for clear communication in family law proceedings.
Orders
Orders of the court
NAA 127 of 2025
BRC 13221 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR RASHID
Appellant
AND:
MS OLARAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRUM J
DATE OF ORDER:
4 JULY 2025
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The Application in an Appeal filed by the appellant on 5 June 2025 be dismissed.
3. The proceedings be remitted for hearing by a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge.
4. The orders made by the primary judge on 25 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).
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.