Sayed & Rehmann

Case [2025] FedCFamC1A 145

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Sayed & Rehmann [2025] FedCFamC1A 145

Appeal from: Sayed & Rehmann [2025] FedCFamC2F 102
Appeal number: NAA 102 of 2025
File number: PAC 5597 of 2022
Judgment of: MCCLELLAND DCJ
Date of judgment: 21 August 2025
Catchwords: FAMILY LAW – APPEAL – PARENTING –Where the primary judge did not provide adequate reasons for his rejection of certain family violence allegations – Where the primary judge made a generalised adverse credit finding – Where the primary judge failed to give proper consideration to the unchallenged evidence of the mother – Appeal allowed – Where costs certificates were issued to all parties.
Legislation:

Family Law Act 1975 (Cth) Pts VII, XIVB, ss 4AB, 60CC, 114Q(2)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 10.14(b)

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
Cases cited:

Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 23

Boulton & Boulton (2024) FLC 94-202; [2024] FedCFamC1A 132

Boyle (a pseudonym) v The Queen [2022] SASCA 50

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Douglass v The Queen (2012) 290 ALR 699; [2012] HCA 34

Friseal & Friseal [2025] FedCFamC1A 102

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

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

Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291

King v Collins [2007] NSWCA 122

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

O’Loughlin J in Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084

Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Sangha v Baxter [2009] NSWCA 78

Sheer v Jeffreys [2024] NSWSC 1161

Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 63
Date of hearing: 30 June 2025
Place: Sydney
Counsel for the Appellant: Mr Livingstone
Solicitor for the Appellant: Reuben George Lawyers Pty Ltd
Solicitor for the Respondent: Mr Hart, Hart Law Group
Counsel for the Independent Children’s Lawyer:  Ms Cotter-Moroz
Solicitor for the Independent Children’s Lawyer: Mason Mia & Associates

ORDERS

NAA 102 of 2025
PAC5 597 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS SAYED

Appellant
AND:

MR REHMANN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

21 AUGUST 2025

THE COURT ORDERS THAT:

THE APPEAL

1.The appeal is allowed.

2.The orders of the Federal Circuit and Family Court of Australia (Division 2) made on 14 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…

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AGLC
Sayed & Rehmann [2025] FedCFamC1A 145
Case
[2025] FedCFamC1A 145
Decision Date

CaseChat Overview and Summary

In the matter of Sayed & Rehmann, the Federal Circuit and Family Court of Australia Appellate Division addressed an appeal concerning parenting arrangements for the children of Ms Sayed, the appellant, and Mr Rehmann, the respondent. The primary dispute revolved around allegations of family violence by Mr Rehmann against Ms Sayed, and the impact of these allegations on the children's welfare and parenting orders. The case was remitted to the Federal Circuit and Family Court of Australia for a rehearing before a different judge.

The legal issues before the court included whether the primary judge provided adequate reasons for rejecting certain allegations of family violence, whether the primary judge's generalised adverse credit finding was appropriate, and whether the primary judge adequately considered unchallenged evidence presented by Ms Sayed. The court found that the primary judge did not sufficiently address the allegations of family violence and failed to provide clear and detailed reasons for rejecting these allegations. Furthermore, the court held that the primary judge's generalised adverse credit finding was not adequately supported by the evidence and did not give proper consideration to the unchallenged evidence provided by Ms Sayed.

The court's reasoning was that adequate reasons are fundamental to the judicial process, and the primary judge's reasons did not sufficiently address key issues. The court noted that the primary judge placed significant emphasis on Mr Rehmann's expression of remorse, while failing to adequately consider the credible and unchallenged allegations of family violence made by Ms Sayed. The appellate court concluded that the primary judge's generalised adverse credit finding was insufficient and that the evidence presented by Ms Sayed warranted a more detailed examination. Consequently, the appeal was allowed, and the matter was remitted for rehearing before a different judge.

The court's final orders included allowing the appeal, setting aside the previous orders made by the Federal Circuit and Family Court of Australia, and remitting the matter for rehearing. Additionally, costs certificates were issued to all parties, enabling them to seek costs associated with the appeal. The decision underscored the importance of providing detailed and adequate reasons in family law proceedings, particularly when considering allegations of family violence and their impact on children's welfare.

Orders

Orders of the court

NAA 102 of 2025

PAC5 597 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS SAYED

Appellant

AND:

MR REHMANN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

21 AUGUST 2025

THE COURT ORDERS THAT:

THE APPEAL

1. The appeal is allowed.

2. The orders of the Federal Circuit and Family Court of Australia (Division 2) made on 14 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).

3. The matter is remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing before a judge other than the primary judge.

COSTS OF THE APPEAL

4. The Court grants to the appellant 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 them in relation to the appeal.

5. The Court grants to the respondent a costs certificate 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 them in relation to the appeal.

6. The Independent Children's Lawyer is granted a costs certificate 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 Independent Children's Lawyer in respect of the costs incurred 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

I have found error on the part of the primary judge in making a generalised adverse credit finding against the mother. In doing so, the primary judge failed to give proper consideration to the unchallenged evidence of the mother alleging that she had been the victim, on several occasions, of violence perpetrated by the father. This error was made in circumstances where the primary judge placed considerable emphasis on what he found to be the father’s “genuine” expression of remorse in relation to the father’s conduct towards the mother, as noted at [63] of the primary judge’s reasons.BACKGROUNDThe parties and the children The appellant mother is Ms Sayed, born mid-1992. The Respondent Father is Mr Rehmann, born early 1991. The parties commenced a relationship in mid-2013 and were subsequently married in late 2015. The parties separated on a final basis in mid-2021. The parties have two children, X, born in late 2018, and Y, born in early 2021. The mother has not re-partnered since separation and continues to reside in Sydney with the children and maternal grandparents. The father has re-partnered and now resides interstate with his partner and her children. From mid-2020 until late 2020, the mother and the eldest child lived in Sydney separated from the father due to COVID-19 travel restrictions. The mother alleges that from late 2020, she and the child were the subject of family violence perpetrated by the father. She further contends that the child consequently became uncomfortable in the father’s presence. This allegation is denied by the father although, as will be noted, the father has expressed remorse for aspects of his conduct towards the mother. The mother contends that, in late 2020 or early 2021, the eldest child found a ziplock bag containing a white powder which the mother believed to be an illicit substance. The father denied knowledge of the substance and suggested it may have fallen over the balcony of another apartment. While an issue of controversy in the proceedings, the primary judge found that there was no reasonable basis for the mother’s continued assertion that the father had substance abuse issues. The parties’ second child was born in early 2021. Prior to the child’s birth, the maternal grandmother stayed with the parties interstate to assist the mother. In early 2021, the father booked flights for the mother and children to return to Sydney. The mother contended that this was done without her knowledge. No finding was made in respect to this allegation. Upon returning to Sydney, the mother and children resided with the maternal grandparents. The father remained interstate for approximately three weeks before also returning to Sydney. In mid-2021, the parties discussed moving into a property which they had purchased in Suburb E. However, this did not eventuate. In mid- 2021, an incident of family violence occurred which resulted in the father being charged with common assault of the mother. The parties separated on a final basis in mid-2021.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Reasons will not be adequate where the appellate court is required to guess or speculate as to what a judge, at first instance, may or may not have meant, particularly on an important issue: Boyle (a pseudonym) v The Queen [2022] SASCA 50 at [119]. In that context, reasons must clearly state the primary judge’s findings upon material questions of fact and provide an explanation for those findings: DL v The Queen (2018) 266 CLR 1 at [32]–[33].CONSIDERATION In circumstances where the obligation to provide adequate reasons is fundamental to the judicial process, I will firstly consider the ground of appeal relating to that issue.Ground 2(a) – Inadequate reasons In circumstances where the elements of the relevant statutory criteria to be applied by the primary judge specifically mandated consideration of “any history of family violence” impacting the children or the mother, as their carer, it was necessary for the primary judge to not only consider, but to also make findings in respect to, the mother’s allegations of significant family violence and to explain his reasons for doing so. As noted by Christie J (with whom Alstergren CJ and Kari J agreed) in Friseal & Friseal [2025] FedCFamC1A 102 at [26] when a party’s allegations of violence “relate to objectively serious incidents over an extended period and resolution of the dispute is central to the case advanced by a party … the determination of the dispute becomes an essential element of disposition of the competing applications”. The mother’s evidence of various incidents of family violence was set out in various paragraphs of the mother’s trial affidavit dated 28 August 2024. The evidence was plausible and she was not challenged on that evidence. The primary judge’s findings in respect to the mother’s allegations of family violence are set out at [54]–[57] as follows:Despite the deficiencies around a lack of understanding with respect to the issue of the fraud offences, it is clear on the face of the evidence to the Court that the Father’s actions were not justifiable and that his actions did (based on the wide definition of family violence found at section 4AB of the Family Law Act 1975 (Cth)) amount to family violence. In respect of the conviction for Common Assault based upon the Mother’s evidence contained at paragraph 102 of her trial Affidavit, the Court understands that the incident occurred at the Maternal Grandmother’s home in mid 2021 where following an argument over the Father spending overnight time with the Children, the Father grabbed the Mother’s face and yelled at the Mother words to the effect, “You won’t take the boys away from me”.The Court acknowledges that the Mother made other complaints regarding the Father’s conduct towards the Children and in general including the allegations that:•In mid 2021 at a meeting at the Suburb E property the Mother asserts the Father berated her for 3 hours, the Father berates himself, hits himself in the head, saying “This is all your fault. Look at what you've done to me. You’ve made me this bad, I even wanted to hurt myself. I've had thoughts of harming myself because of what you've done”. (Mother’s trial Affidavit paragraphs 74-79);•On 27 April 2021 the Father assaults the Mother by grabbing her by the shoulders and shaking her aggressively. (Mother’s trial Affidavit paragraphs 91-93);•On 30 April 2021 the Father starts banging his head on his steering wheel and the car door in front of the Children and speeds away with the Children in the car. (Mother’s trial Affidavit paragraphs 104-105);•Sometime around 4 May 2021 the Father is aggressive, confrontational, and would occasionally strike himself and yelled at one point “I will fucking stab myself… I went fucking crazy” (Mother’s trial Affidavit paragraphs 111-116);•Sometime in May/June 2021 the Mother asserts that she located a large knife in the laundry of the unit at the Suburb E property – the Mother reports this to police (Police Incident Report A). (Mother’s trial Affidavit paragraphs 117-120);•Sometime in December 2023 the Mother asserts that X starts touching and holding his genitals ‘for no reason’ after the Children had spent time with their Father. When confronted by the Mother he replies, ‘My dad lets me do it’. The Mother reports this to police (Police Incident Report B). (Mother’s trial Affidavit paragraphs 168-172). To be clear, despite the Mother’s allegations above, this is a matter where the Mother contends that there should be time between the Children and the Father that is unsupervised at some stage. The Court remains concerned about the Mother’s credibility given her serious allegations about illicit drug use by the Father that lacked any proper foundation and as such, the Court is not prepared to just accept the Mother’s narrative about the Father as set out above.