Kuang & Kuang

Case [2025] FedCFamC1F 410

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kuang & Kuang [2025] FedCFamC1F 410

File number(s): PAC 2628 of 2023
Judgment of: ANDERSON J
Date of judgment: 20 June 2025
Catchwords:

FAMILY LAW – PARENTING – Interim parenting orders – Where previous interim orders made – Where the father spends no time with the children – Where the father faces criminal proceedings in the District Court of New South Wales – Where the paternal grandparents spend time with the children for four hours in each alternate week – Where the orders will allow for the children to spend increased time with the paternal grandparents – Orders made – Where the children will spend time each week with the paternal grandparents

FAMILY LAW - PRACTICE AND PROCEDURE – Where the father is facing criminal charges in the District Court of New South Wales – Where the father sought to use a single expert report prepared in the course of the parenting proceedings to defend the criminal charges – Where the father sought to use affidavit material filed in the course of the parenting proceedings to defend the criminal charges – Where the mother and the Independent Children’s Lawyer consent to a release of the material identified by the father

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61D, 64B, 65AA, 65D
Cases cited:

Andrew & Delaine [2009] FamCAFC 182

Banks v Banks (2015) FLC 93-637

Ophoven & Berzina [2025] FedCFamC1A 97

Goode & Goode (2006) FLC 93-286

Gonzales & Gonzales (No 2) [2023] FedCFamC1F 438

Jakubik & Jakubik [2023] FedCFamC1F 415

Division: Division 1 First Instance
Number of paragraphs: 48
Date of hearing: 13 June 2025
Place: Parramatta
Solicitor for the Applicants: Ms Swan from Swan Lawyers
Counsel for the Respondent: Mr Jackson
Solicitor for the Respondent: Legal Aid NSW Parramatta Family Law

ORDERS

PAC 2628 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR KUANG

First Applicant

MS B KUANG

Second Applicant

MR C KUANG

Third Applicant
AND:

MS KUANG

Respondent

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

20 JUNE 2025

THE COURT ORDERS THAT:

1.Order 1 of the Orders made on 30 April 2025 be varied such that the children spend time with the second applicant and the third applicant for a period of four hours each week.

2.Order 1 herein is subject to the conditions identified at Orders 1(c) – 1(h) of the Orders made on 30 April 2025.

3.The Application in a Proceeding filed on 12 May 2025 and the responses thereto filed on 6 June 2025 be dismissed.

AND BY CONSENT OF THE PARTIES AND THE INDEPENDENT CHILDREN’S LAWYER THE COURT ORDERS THAT:

4.The father and his legal advisers in proceeding number PAC 2628 of 2023 be released from his implied undertaking to the Court, and have leave to:

(a)Use the affidavits of the mother filed 4 August 2023 and 6 June 2025 and the supplementary report of the single expert dated 26 March 2025 in,…

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AGLC
Kuang & Kuang [2025] FedCFamC1F 410
Case
[2025] FedCFamC1F 410
Decision Date

CaseChat Overview and Summary

In the case of Kuang & Kuang, the Federal Circuit and Family Court of Australia was asked to make interim parenting orders concerning two children born in 2015 and 2020. The father, aged 30, and the mother, aged 27, married in 2014 and separated in February 2023. The father is currently facing criminal charges in the District Court of New South Wales, stemming from events that occurred around the time of the separation. The children have not spent any time with the father since the separation except for a supervised session with an expert. The paternal grandparents have been spending four hours with the children every other week.

The court was required to decide on the appropriate parenting orders, considering the children's best interests, the father's criminal proceedings, and the role of the paternal grandparents. The court had to balance the statutory criteria for making parenting orders under the Family Law Act 1975 with the need to make interim decisions that do not prejudice the substantive issues to be determined at trial. Additionally, the court needed to address the father's request to use certain materials from the parenting proceedings in his defence against the criminal charges.

The court determined that the children should spend four hours each week with the paternal grandparents, subject to certain conditions. It was noted that the children had not spent any time with the father since the separation, except for the supervised session with an expert. The court also granted the father permission to use the material from the parenting proceedings in his criminal defence, with the consent of the mother and the Independent Children’s Lawyer. The court emphasised the importance of making interim parenting orders that do not predetermine the outcome of the substantive issues, which are to be resolved at the final hearing.

In summary, the court made interim parenting orders that allow the children to spend time with the paternal grandparents while ensuring their best interests are considered. The court also addressed the procedural issue of the father's use of material from the parenting proceedings in his criminal defence, granting permission with the necessary consents.

Orders

Orders of the court

PAC 2628 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR KUANG

First Applicant

MS B KUANG

Second Applicant

MR C KUANG

Third Applicant

AND:

MS KUANG

Respondent

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

20 JUNE 2025

THE COURT ORDERS THAT:

1. Order 1 of the Orders made on 30 April 2025 be varied such that the children spend time with the second applicant and the third applicant for a period of four hours each week.

2. Order 1 herein is subject to the conditions identified at Orders 1(c) – 1(h) of the Orders made on 30 April 2025.

3. The Application in a Proceeding filed on 12 May 2025 and the responses thereto filed on 6 June 2025 be dismissed.

AND BY CONSENT OF THE PARTIES AND THE INDEPENDENT CHILDREN’S LAWYER THE COURT ORDERS THAT:

4. The father and his legal advisers in proceeding number PAC 2628 of 2023 be released from his implied undertaking to the Court, and have leave to:

(a) Use the affidavits of the mother filed 4 August 2023 and 6 June 2025 and the supplementary report of the single expert dated 26 March 2025 in, and for the purposes of defending the charges for which he is standing trial in the District Court of New South Wales and any superior court to which the criminal proceedings may be referred or appealed (“the criminal proceedings”);

(b) Provide a copy of the report to his counsel in the criminal proceedings, to be used as such counsel considers appropriate in and for the purposes of the criminal proceedings;

(c) Provide a copy of the report to the Director of Public Prosecutions in New South Wales and New South Wales Police for the purposes of the criminal proceedings; and

(d) Provide a copy of the report to any legal practitioner appearing on behalf of, or advising, the father and the mother, or either of them, in relation to the criminal proceedings.

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

These reasons are delivered in circumstances where the competing parenting applications are listed for a final defended hearing commencing on 27 October 2025.BACKGROUND The father is aged 30 years.[1] The mother is aged 27 years.[2] They married in 2014[3] and separated on 17 February 2023.[4][1] Father’s affidavit filed 14 May 2025, paragraph 1.[2] Father’s affidavit filed 14 May 2025, paragraph 4.[3] Father’s affidavit filed 14 May 2025, paragraph 8.[4] Father’s affidavit filed 14 May 2025, paragraph 9. The two children of the relationship were born in 2015 and 2020[5] and are aged ten years and four years respectively. The mother and the father migrated to Australia in 2022 following the commencement of conflict in their country.[6] At that juncture, the father and the children were reunited with the paternal grandparents who arrived in Australia in 2019.[7][5] Father’s affidavit filed 14 May 2025, paragraph 5.[6] Father’s affidavit filed 14 May 2025, paragraph 38.[7] Father’s affidavit filed 14 May 2025, paragraph 27; Paternal Grandmother’s affidavit filed 14 May 2025, paragraph 12. The children have not spent any time with the father since February 2023 save in the presence of a single expert engaged by the parties on 14 March 2025.[8] Until recently, the children were also deprived of a relationship with their parental grandparents.[8] Father’s affidavit filed 14 May 2025, paragraph 30. On the day of separation, the father reported the mother as a “missing person”.[9] Ten hours later, the father was charged with common assault offences.[10] The events of February 2023 appear to have equally surprised the paternal grandmother with whom the parties were then living. She said that she had “a close and loving relationship [with the mother] which changed suddenly from about January 2023”.[11][9] Father’s affidavit filed 14 May 2025, paragraph 9.[10] Father’s affidavit filed 14 May 2025, paragraph 9; Paternal Grandmother’s affidavit filed 14 May 2025, paragraph 43.[11] Paternal Grandmother’s affidavit filed 14 May 2025, paragraph 5. Although a trial in respect of the charges against the father was listed for hearing in September 2024, the trial could not proceed due to the absence of suitable interpreters. The trial is now listed to commence in July 2025.[12][12] Father’s affidavit filed 14 May 2025, paragraph 11. On 24 October 2023, a Senior Judicial Registrar made an order that the parties contact F Contact Centre to arrange an appointment with the manager of the contact centre “for assessment and suitability of supervised time”.[13] For reasons, which were not explained to me, the father was not advised until April 2025 that his “matter has been deemed suitable for contact pending further Family Court Order”.[14][13] Orders made on 24 October 2023, paragraph 13.[14] Father’s affidavit filed 14 May 2025, paragraph 17. On 25 January 2024, and with the consent of the parties and the Independent Children’s Lawyer, a Judicial Registrar joined the paternal grandparents to the proceedings. The paternal grandmother is aged 51 years, and the paternal grandfather is aged 53 years.[15][15] Paternal Grandmother’s affidavit filed 14 May 2025, paragraphs 1 and 3.

Evidence

Evidence Before The Court

It is against this background that I must assess the merit of the orders sought by the father and his parents.EVIDENCE The father and the paternal grandparents relied on:(a)An Application in a Proceeding filed on 12 May 2025;(b)An affidavit in the father’s name filed on 14 May 2025;(c)An affidavit in the name of the paternal grandmother filed on 14 May 2025;(d)An affidavit in the name of the paternal grandfather filed on 14 May 2025;(e)Reports prepared by a single expert forensic psychiatrist dated 29 July 2024 and 26 March 2025;(f)Tendered documents;[17] and(g)An Outline of Case Document filed on 12 June 2025.[17] Exhibits F1 to F5. The mother relied on:(a)A Response to an Application in a Proceeding filed on 6 June 2025;(b)An affidavit in the mother’s name filed on 6 June 2025;(c)Tendered documents;[18] and(d)An Outline of Case Document filed on 12 June 2025.[18] Exhibit M1 to M3. The Independent Children’s Lawyer relied on an Outline of Case Document filed on 12 June 2025.LEGAL PRINCIPLES Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child’s best interests (s 60CC). Parental responsibility for children is vested in their parents (s 61C(1)), whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). Since legislative amendments took effect on 6 May 2024, parental responsibility orders no longer have any bearing upon determinations about with whom a child should live or spend time. Such principles apply equally to interim parenting orders. Being an interim hearing in respect of parenting orders, the procedure is that established by the Full Court in Goode & Goode (2006) FLC 93-286, where it was said (at [68]):…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. In Banks v Banks (2015) FLC 93-637 at [47] – [50], the Full Court observed how a paucity of uncontested evidence means only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim disputes should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. The trial is the time and place to settle factual controversies. Interim hearings ought not be used for that purpose unless circumstances are urgent and there is no alternative.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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