Rashid & Olaran [2025] FedCFamC1A 119 (4 July 2025)

Genesalio & Genesalio (No 4) [2023] FedCFamC1A 216

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

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Navickas & Fried (No 2) [2025] FedCFamC1A 80

Ophoven & Berzina [2025] FedCFamC1A 97

Palmer v Clarke (1989) 19 NSWLR 158

Panneton & Delauder [2021] FamCAFC 102

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Quen & Chen [2025] FedCFamC1A 39

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rashid & Olaran has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an appeal from final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 25 February 2025 ("Orders").
2. The Orders relate to the two children of the parties' relationship, born on 2015 and 2021. In summary, the Orders relevantly provide, inter alia, for the respondent mother to have sole decision-making responsibility for major long-term decisions for the children; for the children to live with the mother; for them to spend no time and have no communication with the appellant father, unless agreed between the parents in writing; and for the appellant to be restrained from attending at or being within 200 metres of where the children live or attend school, as well as certain other locations at which they may be.
3. By his Notice of Appeal filed 24 March 2025, the appellant father appeals from certain of the Orders. Whilst, in his Notice of Appeal, the appellant purports to seek leave to appeal, leave is not necessary: see s 28 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
4. This is an appeal from a discretionary judgment. Accordingly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504-505 must be established. There, the majority of the High Court said:

... It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. ...

1. The grounds of appeal stated in the Notice of Appeal are drawn as follows:
   1. Procedural fairness - it has been a long standing principle of justice that the parties to a dispute must be given equal opportunity to be heard. This was not the case in the Orders.
   2. Facts of the matter - Only one-sided facts were heard by the Court, i.e. facts from the Respondent. The Orders were made on incomplete facts.
   3. Best interest of the children - an undefended Orders is not good for the children.

1. As drawn, Grounds 2 and 3 are incompetent. The Notice of Appeal was drawn by the appellant, who is self-represented.
2. By an Application in an Appeal filed 5 June 2025, the appellant seeks leave to file an amended Notice of Appeal out of time. The proposed amended grounds, similarly as drawn by him, are as follows:
   1. Procedural fairness - The Presiding Judge (a) did not make or allow for a proper finding of facts about my absence from this Honourable Court in the morning of the 25 February 2025, and why I did not file my court documents in accordance with the orders of this Honourable Court; and (b) 2 denied me the right to be heard.
   2. Bias - The Presiding Judge (a) made derogatory comments and belittled me as a father; (b) listened much to the Respondent's lawyer and the ICL; (c) did not give me the same privilege afforded to the Respondent's lawyers and the ICL and continuously interrupted my legal team; and (d) refusal to grant my request for an adjournment for few hours for a hearing that I paid for whole day and was supposed to run for 4 days, without affording me the right to be heard, is a denial of my right to procedural fairness, and evidences bias against me in favour of the Respondent's lawyers and the ICL who were able to be heard.
   3. Best interest of the children - The Presiding Judge's failure to grant me (a) the right to procedural fairness; (b) the right to be heard; ad (c) bias against me are not in the best interest of our children.

1. The proposed amended grounds of appeal are, at best, a modest improvement.
2. However, for the reasons which follow, it is not necessary to have regard to the grounds of appeal or, indeed, the proposed amended grounds of appeal. Accordingly, it is unnecessary to consider the Application in an Appeal and it will be dismissed, for the reasons hereunder.
3. The transcript of the proceedings at first instance, excluding the cover sheet thereof, comprises 12 pages. It discloses that the hearing before the primary judge proceeded in two tranches, between 10.43 am - 11.10 am and 12.05 pm - 12.42 pm on 25 February 2025, towards the end of which the primary judge made the Orders.
4. The appellant (who was the applicant at first instance), the respondent (who was also the respondent at first instance) and the Independent Children's Lawyer were each represented by counsel that day. The appellant failed to appear in person, according to his counsel "on the basis of his misunderstanding of directions to attend court" that day (Transcript 25 February 2025, p.2 lines 34-35).
5. The first tranche of the hearing, which occupied less than half an hour, was comprised initially, and primarily, of an application by counsel for the appellant at trial for an adjournment until the following day ("first adjournment application"), which was opposed by counsel for the respondent and the Independent Children's Lawyer, and refused by the primary judge.
6. Less than an hour thereafter, the second tranche of the hearing commenced, and it concluded within less than 40 minutes, including the delivery of ex tempore so-called "reasons for judgment".
7. Early in the course of the second tranche of the hearing, counsel for the appellant advised the Court that his client was "on the way back and was in [Suburb B] about half an hour ago and gave instructions that he would be able to attend by about 12.40" (Transcript, p.9 lines 1-3). Accordingly, counsel renewed his application for an adjournment until after the lunch break that day ("second adjournment application"), which was in less than 55 minutes, in order to allow his client to arrive at Court and to obtain further instructions from him. Surprisingly, that was opposed by counsel for each of the respondent and the Independent Children's Lawyer and, even more surprisingly, it was refused by the primary judge.
8. I have carefully read the transcript. I consider a number of passages which record what the primary judge said in the course of the hearing to be highly inappropriate and to give considerable substance to the appellant's proposed amended ground of appeal contending apprehended bias. The test for apprehended bias is well established: see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. However, as referred to above, and explained below, it is not necessary to determine this issue, which is only squarely raised by the proposed amended Notice of Appeal, the subject of the Application in an Appeal, for the determination of this appeal.
9. The appellant and the respondent were both born in Country C. There were allegations by the respondent of family violence perpetrated by the appellant.
10. Having ascertained that an interpreter for the respondent was available, there was the following exchange between the primary judge, the interpreter and counsel for the respondent, in the course of the first tranche of the hearing:

HIS HONOUR: Okay. Look, and I can understand this. I - I will give you a little personal anecdote, for all three of you. And, Ms Interpreter, we've got you on the line?

THE INTERPRETER: Yes, I'm here.

HIS HONOUR: Thank you. What I'm going to say now, I would like you to interpret so that the mother understands what I am saying.

THE INTERPRETER: Yes.

HIS HONOUR: This is something that personally happened to me.

THE INTERPRETER: Sure.

HIS HONOUR: Okay. Before I was a judge I was a prosecutor for many years. I became the Vice President of the International Association of Prosecutors. I met prosecutors from 190 other nations. In 2006, I had to deliver a paper which touched on issues of domestic violence at a conference in Paris. In my audience for that presentation, there were 12 female prosecutors from Central and North African nations. When I finished, I was asked a question by a female prosecutor, and I cannot recall what country she came from, but it was a Central African country.

She said to me that she had trouble following what I was saying about domestic violence. When she heard the words "domestic violence", she thought I was talking about violence that happens in our streets and our neighbourhoods, rather than violence that is a national type of violence. She said that she did not understand that violence that happened within a home could be criminal. She then said these words to me that absolutely stunned me, and I've never forgotten them. She told me that she considered herself to be her husband's chattel. A big majority of the other 12 female prosecutors in the audience agreed. The other 200 people in the audience were as stunned as I was.

What it taught me was that I could not take for granted that everyone had the same cultural values that I had, and that I couldn't just transplant what it is that I knew of Australian culture and how I believed people should act into another culture that did not have the same cultural roots that I had, and I note in this case that some of what the father says that he has done, he culturally may see that there is absolutely nothing wrong with what he is doing, and that might be all right if he was still residing in [Country C] or [Country D], but this is not [Country C] or [Country D]. It is Australia, and the sort of attitude and belief as to what a woman's place in society is, is quite different here, and what is acceptable in this country must take precedence over what the father had 5 been raised to believe.

This becomes important when we are looking at two male children who must be brought up to understand that there are different expectations as to male behaviour in this country than there may be in [Country C] or [Country D], and that's going to be very much 10 at the forefront of my thinking in this case. All right. Thank you very much, Ms Interpreter. Okay. So I - - -

THE INTERPRETER: You're welcome.

HIS HONOUR: Thank you. So I understand where it is that you're coming from in that respect, [counsel for the mother], and I understand why it is that you're making those submissions. I think it's best though I hear from everyone.

[COUNSEL FOR THE MOTHER]: Sure.

HIS HONOUR: I'm not too sure that I absolutely agree with everything at the moment, but I want to hear submissions as to the scope of the final orders, but I thought I would put that there on record now.

(Transcript 25 February 2025, p.6 line 11 - p.7 line 24)

1. In relation to the second adjournment application, the primary judge later said, in the course of the second tranche of the hearing:

HIS HONOUR: Well, I understand that, but, you see, this is the point here that, you know, whilst I've given you leave to rely upon material that has been filed and filed late, you know, this then becomes really a pattern for the mother. The mother does everything that she wants to and the father does it when he feels like, and, you know, she's, sort of, having to wait upon him, and she has all the authority bending over backwards to excuse his behaviour, his tardiness, his lateness without any excuse, and I agree with [counsel for the Independent Children's Lawyer]. It is a form of domestic violence which your client on the material doesn't seem to understand, and I'm not blaming him because that's how he was brought up.

That's how he culturally feels that he is allowed to behave. But unless this court says, "Sorry. When we get down to it, in Australia these are the accepted norms and you are not complying with the accepted norms". But, you know, this is why it is that there is an element of risk to a point where when you add all of those things up, it gets to an unacceptable risk, and your client just doesn't seem to realise that. And I can't see how, even on his orders, that he's going to be able to in any way, you know, displace that risk. And, you know, the legislation is clear. The safety of the children is number 1. The convenience of your client doesn't rank.

And, yes, he can, you know, do whatever he is doing to try and get here, but miscommunication - I just cannot accept that there's a miscommunication when it is that it has been set down for today since August 2024, that he admits to behaviour that is domestic violence, but he doesn't show that there really is that true understanding. He may have done courses and all that sort of stuff, but the courses really are there to appeal to the person's, you know, greater understanding and yet is still behaviour which whilst it of itself looked in isolation may not seem particularly worrying, but when it's piled up with a number of other matters is sufficient to give the court pause.

The fact that, no, can't make it to court today but now can make it to court today when he realised that there wasn't going to be an adjournment, [counsel for the Independent Children's Lawyer's] submission really takes more - you know, it becomes more and more forceful the longer that goes. So in those circumstances, I'm not inclined to allow the adjournment and we will just proceed as we were. All right. Thank you though, [counsel for the father], for your submissions.

(Transcript 25 February 2025, p.10 line 21 - p.11 line 9)

1. It will be readily apparent that what his Honour said in these passages was highly inappropriate for a judicial officer and should not have been said. However, I note that counsel appearing at trial for the appellant raised no objection and made no application for his Honour to disqualify himself. That would not necessarily be fatal to the success of the proposed ground of appeal alleging bias, apprehended or, in the circumstances, possibly even actual.
2. The second "speech" by the primary judge concludes at p.11 line 9 of the transcript. Thereafter, the transcript records, at p.12 line 21, that judgment was delivered. Accordingly, the final hearing of the parents' competing parenting applications, after the dismissal of the two adjournment applications, comprised, at best, a total of only 54 lines (including spacing), namely, about one page of transcript, at some time between 12.05 pm and 12.42 pm. Of course, within that short period of time, his Honour also delt with the second adjournment application and delivered judgment.
3. In the course of that even shorter period of time, after which the primary judge delivered his so-called "reasons for judgment" and made the Orders, which comprised 17 paragraphs, including that the children spend no time with the appellant, it is manifest that, not only was there no testing of the evidence, but there were not even any submissions made by any of the counsel for the parties. Between the conclusion of the primary judge's second "speech" and his delivery of judgment, the transcript records the following exchanges between his Honour and counsel for the parties:

[COUNSEL FOR THE FATHER]: Thank you, your Honour.

HIS HONOUR: All right. Have you got something to - - -

[COUNSEL FOR THE MOTHER]: So, your Honour, there's some orders that have been agreed between the independent children's lawyer and the mother. I think your Honour or your associate might be handing you a copy.

HIS HONOUR: Yes. Okay.

[COUNSEL FOR THE MOTHER]: Now, I haven't - I've spoken to my client in - about the terms of them, but I would appreciate the interpreter - for them to be read on the record and the interpreter to be able to - - -

HIS HONOUR: Yes.

[COUNSEL FOR THE MOTHER]: - - - interpret them - - -

HIS HONOUR: Sure.

[COUNSEL FOR THE MOTHER]: - - - if - - -

HIS HONOUR: Okay.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Your Honour, just before your Honour does that, is it appropriate now for your Honour to consider the procedure of whether the applicant's application is dismissed and that it's the two remaining parties? Would that - - -

HIS HONOUR: Well, the - it's not so much that. What my feeling is is that he has not turned up here when he was supposed to, and therefore he has allowed the matter to be conducted on what material he has already filed. And I have taken the material that he has already filed into account. His application and what the mother has in her response to his application is taken all in as grist for the mill, together with - - -

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Yes.

HIS HONOUR: - - - submissions of yours. So I'm not going to - - -

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Thank you, your Honour.

HIS HONOUR: - - - technically dismiss his application. I'm acting on the evidence that I have before me, and that's why I'm looking through these orders - - -

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Thank you.

HIS HONOUR: - - - to ensure that they are appropriate as far as I'm concerned on the evidence that I have - - -

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Thank you, your Honour. I'm obliged.

HIS HONOUR: - - - and - you know, and which I've looked at. Okay.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Thank you.

HIS HONOUR: All right.

(Transcript 25 February 2025, p.11 line 11 - p.12 line 18)

1. In the appellant's grounds of appeal (and his proposed amended grounds of appeal), he contends that the primary judge denied him procedural fairness. In Kioa v West (1985) 159 CLR 550, Mason J said at 582:

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it ...

1. In Genesalio & Genesalio (No 4) [2023] FedCFamC1A 216, at [38], the Full Court summarised the principles of procedural fairness as follows:

The concept of procedural fairness is concerned only with the fairness of the hearing; not the fairness of the outcome ( SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152 at [25]). The rules of natural justice, which do not have immutably fixed content, are applied practically to ensure fairness ( Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 14; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 99-100; National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 312). ...

1. As with the assertion of bias, counsel for the appellant at trial did not take issue with the way in which the primary judge arbitrarily proceeded. For example, he did not seek to cross-examine the respondent or the Family Report writer, nor did he seek to make any submissions. However, as with that ground, that is not to say that the ground of appeal contending denial of procedural fairness is without merit, especially insofar as his Honour's dismissal of the second adjournment application is concerned.
2. The primary judge's so-called "reasons for judgment" are comprised of only two paragraphs, as follows:
   1. I have already given reasons as to why I have refused the adjournment requested by the legal representatives for the father. The Counsel for the ICL and the Counsel for the mother have agreed upon the terms of the orders that they submit should be made. I have read through those orders.
   2. I am of the view that these orders are appropriate. It aligns with what I consider to be an answer to the risks that are present. The notations that are in these orders do give the father some hope that these will not be the terms that govern his relationship with the children until they are 18 - but it puts the ball definitely in the father's court. So I will read the orders into the record so that they can be interpreted for the mother.
3. Neither the grounds of appeal, nor the proposed amended grounds of appeal, raise his Honour's failure to give reasons. However, it is well settled that, on appeal, a court will not ignore an error "simply because it is not entreated by the appellant in a Notice of Appeal or Summary of Argument" (Navickas & Fried (No 2) [2025] FedCFamC1A 80 at [17], citing Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 552). Similarly citing Warren v Coombes, in Quen & Chen [2025] FedCFamC1A 39 at [52], the Full Court recently said that "[i]t is not the task of this court to perpetuate error where it is apparent even if not made so by the grounds of appeal".
4. The Orders made by the primary judge were in terms sought by the respondent and the Independent Children's Lawyer; the appellant, although absent, did not consent thereto, including by his counsel at first instance. Insofar as may be relevant, having dismissed the first adjournment application, the primary judge said: "it's realistically an undefended hearing, from what I understand" (Transcript 25 February 2025, p.5 lines 4-5). However, that was not to the point.
5. Section 65D(1) of the Family Law Act 1975 (Cth) ("Act") confers a discretion upon a court. It provides:

In proceedings for a parenting order, the court may, subject to section 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

1. Section 60CA of the Act provides:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

1. Section 60CC(1)-(2A) of the Act relevantly provides:

(1) Subject to subsection (4), in determining what is in the child's best interests, the court must:

(a) consider the matters set out in subsection (2); and

(b) if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).

(2) For the purposes of paragraph (1)(a), the court must consider the following matters:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances of the child.

(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:

(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

(b) any family violence order that applies or has applied to the child or a member of the child's family.

1. Section 60CC(3) of the Act was inapplicable, as it relates to Aboriginal and Torres Strait Islander children.
2. Section 60CC(4) of the Act provides:

If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

1. The Orders made by the primary judge were not orders made "with the consent of all the parties to the proceedings" and, accordingly, his Honour was not relieved of the mandatory obligation to consider the matters set out in s 60CC(2)-(2A) and to provide reasons for judgment. It was not to the point that, as his Honour said at [1], counsel for the respondent and the Independent Children's Lawyer had agreed upon the terms of the orders that they submitted should be made; the appellant did not consent.
2. His Honour's so-called "reasons for judgment", which are effectively constituted by [2], are nothing of the kind.
3. In Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191 at 78,266-78,267, the Full Court said:

Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.

In Public Service Board of NSW v Osmond (1985-1986) 159 CLR 656, Gibbs CJ gave qualified support to the principles established by Pettitt v Dunkley. In Palmer & Ors v Clarke & Ors (1989) 19 NSWLR 158, the New South Wales Court of Appeal, consisting of Kirby P, Samuels and Priestley JJA, again held that a failure to give adequate reasons was an appellable error of law which, of itself, was sufficient to require a judgment to be set aside.

In Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:

"The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: -

(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or

(b) justice is not seen to have been done.

The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected."

We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday [1985] FamCA 37; (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.

Finally, in relation to discretionary judgments, reference may be made to the judgment of Griffiths LJ in Eagil Trust Co Ltd v Pigott-Brown & Anor (1985) 3 All ER 119, which affirmed the principle that a Judge delivering a discretionary judgment should set out his or her reasons.

In our opinion, if adequate reasons are not given in a custody proceeding, it becomes impossible for an appellate court to properly examine the decision appealed from.

1. Over the following nearly three and a half decades, Bennett and Bennett has been consistently applied by the Full Court, including in Panneton & Delauder [2021] FamCAFC 102 at [26] and in Ophoven & Berzina [2025] FedCFamC1A 97 at [73]-[74].
2. In Panneton & Delauder, the Full Court further said at [27]:

The reasons must enable the parties to understand the basis of the primary judge's decision and the extent to which the parties' arguments have been accepted (Pollard v RRR Corp Pty Ltd [2009] NSWCA 110 at [58] -[59]).

1. In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, the NSW Court of Appeal said at [56]-[67]:
   1. The court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them (Maviglia v Maviglia [1999] NSWCA 188 (at [1]) per Mason P). However a trial judge's reasons must, "as a minimum ... be adequate for the exercise of a facility of appeal": Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (at 260) per Kirby P; (at 268-269) per Mahoney JA; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (at 444) per Meagher JA. A superior court, "considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding": Soulemezis (at 280) per McHugh JA applying Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 (at 701, 713).
   2. The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728); Beale (at 442) per Meagher JA.
   3. The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson [2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ.
   4. The reasons must do justice to the issues posed by the parties' cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge "'enter into' the issues canvassed and explain why one case is preferred over another"; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [1999] EWCA Civ 811; [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J.
   5. Various observations have been made about the extent to which reasons should deal with the evidence. None is exhaustive; the test of adequacy, as I have earlier said, is relative. It is sufficient for the purposes of this case, to note the following.

61 The general proposition was stated by Samuels JA in Mifsud (at 728):

... [F]ailure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge ... may promote a sense of grievance in the adversary and create a litigant who is not only "disappointed" but "disturbed" - to use the words which appear in the New Zealand case of Connell v Auckland City Council (1977) 1 NZLR 630 at 634.

In similar vein, Gray J (with whom Fullagar and Tadgell JJ agreed) has said "[t]o have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant": Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 (at 18).

1. In Beale (at 443) Meagher JA referred to the requirement that a judge should refer to evidence which is important or critical to the proper determination of the matter as the first of the three fundamental elements of a statement of reasons. While his Honour explained that it was unnecessary to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered, he added that where such evidence was not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it, referring to North Sydney Council v Ligon 302; see also TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82 ; (2002) 54 NSWLR 333 at [150] per Spigelman CJ (Mason P and Grove J agreeing). Meagher JA added that "[w]here conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to."
2. Where, as in the present case, there is documentary material arguably supporting a party's case, that material must be considered in the judge's reasons in a satisfactory way: State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3 ; (1999) 73 ALJR 306 (at [94]) per Kirby J.
3. Bald conclusionary statements should be eschewed. As Ipp JA said in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 ; (2006) 66 NSWLR 186 (at [28]):
   1. It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: "I believe Mr X but not Mr Y and judgment follows accordingly". That is not the way in which our legal system operates.
4. Finally, where credit issues are involved it is necessary to explain why one witness's evidence is preferred to another's. "[B]ald findings on credit, where there remain substantial factual issues to be dealt with, may not constitute an adequate compliance with the judge's common law duty to provide the parties, and the appellate court, with the basis of his decision": Palmer v Clarke (1989) 19 NSWLR 158 (at 170) per Kirby P (Samuels JA agreeing).
5. Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that of other witnesses: Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57 ; (2005) 79 ALJR 1816 (at [130]-[131]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [27]) agreed)); see also Najdovski v Crnojlovic [2008] NSWCA 175 (at [21]) per Basten JA (Allsop P and Windeyer J agreeing).
6. Where an appellate court concludes that the primary judge has failed to give adequate reasons, it has a discretion as to whether a new trial should be ordered. If the only conclusion open on the evidence available at trial was the conclusion reached by the primary judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: Beale (at 444) per Meagher JA applying NSW Insurance Ministerial Corporation (formerly Government Insurance Office (NSW)) v Mesiti (Court of Appeal, 1 December 1994, unreported). In the latter case where the trial judge accepted the respondent's version of what occurred, Sheller JA (with whom Handley JA agreed) said, "[i]f there had been persuasive and critical contrary evidence the principles enunciated by Samuels JA in Mifsud v Campbell would suggest that a new trial must follow": Mesiti (BC9403342 at 9); see also Bourke v Beneficial Finance Corp Ltd (1993) 47 FCR 264 (at 284). In some cases of inadequate reasons, where there is no credit issue, the appeal court may be in as good a position to decide the matter as the trial judge: see Hunter v Transport Accident Commission (2005) 43 MVR 130 ; [2005] VSCA 1 (at [37]) per Nettle JA.

1. In the present case, the failure of the primary judge to give any reasons renders it impossible to ascertain the reasoning upon which his Honour's decision was based and, accordingly, this Court, on appeal therefrom, is denied the opportunity to detect error and, further, the appellant is denied the knowledge of why his case was rejected.
2. In the respondent's Summary of Argument, possibly anticipating the difficulty posed by the primary judge's failure to give reasons, it is submitted at paragraph 20:

It is not, however, necessary that a trial judge mention every fact or argument relied on by the losing party as relevant to an issue" (Whisprun Pty Ltd formerly Northeast Exports Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62]). Similarly, it is not necessary for a judge who is exercising a discretion to detail each factor which the judge has found to be relevant or irrelevant, "[n]or is a judge required to make an explicit finding on each disputed piece of evidence" (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 per Mahoney JA).

1. However, contrary to the authorities cited in that paragraph, the primary judge failed to mention any fact or argument relied upon by the appellant, nor did his Honour detail any factors found to be relevant or irrelevant or make any explicit findings on any disputed pieces of evidence.
2. Further, insofar as it is submitted, on behalf of the respondent, at paragraph 44 of her Summary of Argument, that "[r]egrettably His Honour did not provide fulsome ex tempore reasons for Judgement", that is an understatement in extremis; effectively, his Honour did not provide any reasons for judgment.
3. Similarly, the Independent Children's Lawyer's Summary of Argument is alive to the primary judge's failure to give reasons (see paragraphs 14, 28-35). Insofar as it is submitted at paragraph 28 that "[i]t may appear the Judge conducted a trial 'on the papers'", that is not to the point. Even in the case of the determination of a dispute "on the papers", a judge is not relieved of the obligation to provide reasons for his or her decision.
4. As the Full Court recently said in Quen & Chen at [55]:

... properly understood, a determination "on the papers" is a process where the court for sound and expedient reasons saves the parties and the court the time and imposition of an oral hearing. It is a practice to be encouraged where the circumstances warrant. It is not, nor ever should be, appropriate in circumstances where the determination requires the making of findings against disputed facts particularly where the findings reflect upon the conduct of a party.

1. Given the primary judge's manifest failure to give reasons, albeit not a ground of appeal, one is left to wonder why the respondent and the Independent Children's Lawyer, being legally represented and alive thereto, did not file Submitting Notices, the appeal being irresistible, irrespective of the pleaded grounds of appeal or the proposed amended grounds of appeal which, in relation to apprehended bias and denial of procedural fairness, are not without considerable merit. Although the primary judge's failure to give reasons was addressed only parenthetically in their summaries of argument, it not being a ground, or proposed ground, of appeal, it was only when this issue was squarely put to counsel, at the hearing of the appeal, that they conceded that the appeal must be allowed.
2. His Honour's failure to give any, let alone any adequate, reasons is an appellable error of law which, of itself, is sufficient to require the Orders to be set aside. See Bennett and Bennett at 78,266, citing Palmer v Clarke (1989) 19 NSWLR 158.
3. Accordingly, it is unnecessary and, indeed, nigh impossible in the absence of any reasons of the primary judge, to consider some of the appellant's other grounds of appeal, or his Application in an Appeal for leave to file an amended Notice of Appeal. Indeed, the primary judge's fundamental failure to give reasons is so manifestly, and necessarily, dispositive of the appeal, that regard to the desirability of judicial economy renders it unnecessary to consider those other grounds of appeal. See Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593 at [7]-[8]. That is so, even though the appellant's grounds (or proposed amended grounds) of appeal asserting a denial of procedural fairness and apprehended bias would ordinarily be dealt with first.
4. The appeal will be allowed and the matter remitted to a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge. Given the absence of any reasons whatsoever, I consider it to be unsafe to permit any of the Orders to stand, notwithstanding that the appellant, who is self-represented, only appeals against several thereof. If there are matters that can be agreed between the parties hereafter, orders can be made in that court. However, after discussions with counsel, I will order that the Orders only be set aside on and as from the date upon which any further parenting orders, including on an interim basis, are made by the Federal Circuit and Family Court of Australia (Division 2).

1. The appellant, although successful, is and has been self-represented in the appellate proceedings and, accordingly, makes no application in respect of costs.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum.