Lim & Zong

Case [2021] FamCAFC 165

FAMILY COURT OF AUSTRALIA

Lim & Zong [2021] FamCAFC 165

Appeal from: Zong & Lim (No 3) [2021] FCCA 238
Appeal number(s): NOA 5 of 2021
File number(s): BRC 8160 of 2014
Judgment of: TREE J
Date of judgment: 27 August 2021
Catchwords:

FAMILY LAW – APPEAL – Application to discharge the Independent Children’s Lawyer – Whether the primary judge erred in not discharging the Independent Children’s Lawyer – Consideration of the role and duties of the Independent Children’s Lawyer – Consideration of the relevant principles for discharging an Independent Children’s Lawyer – Where no material error is established – Findings open on the evidence – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Applications to adduce further evidence – Relevance – Where the further evidence does not establish material error – Applications dismissed.

Legislation:  Family Law Act 1975 (Cth) ss 68L, 68LA, 93A(2), 96
Cases cited:

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

De Winter v De Winter (1979) 23 ALR 211; (1979) FLC 90-605

Dean & Susskind [2012] FamCA 897

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

Knibbs & Knibbs [2009] FamCA 840

Leroux & Leroux [2015] FamCA 1128

Lim & Zong (2020) FLC 93-939; [2020] FamCAFC 20

Lloyd and Lloyd and Child Representative (2000) FLC 93-045

Paco & Racina [2014] FamCAFC 195

Sawyer & Sawyer [2015] FamCA 982
Division: Appeal Division
Number of paragraphs: 70
Date of hearing: 17 August 2021
Place: Cairns
The Appellant: Litigant in person
Counsel for the Respondent: Ms Murphy
Solicitor for the Respondent: Lander Solicitors Queensland
Counsel for the Independent Children's Lawyer: Ms Pendergast
Solicitor for the Independent Children's Lawyer: Julie Harrington Solicitor

ORDERS

NOA 5 of 2021
BRC 8160 of 2014

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR LIM

Appellant
AND:

MS ZONG

Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE J

DATE OF ORDER:

27 AUGUST 2021

THE COURT ORDERS THAT:

1.The appellant’s Application in an Appeal filed 25 June 2021 is dismissed.

2.The appellant’s Application in an Appeal filed 3 August 2021 is dismissed.

3.The Amended Notice of Appeal filed 29 April 2021 is dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lim & Zong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

INTRODUCTION

  1. Apart from a brief hiatus in 2016, Mr Lim (“the father”) and Ms Zong (“the mother”) have been engaged in contested parenting proceedings in relation to their now nine year old child for nearly seven years. It…

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AGLC
Lim & Zong [2021] FamCAFC 165
Case
[2021] FamCAFC 165
Decision Date

CaseChat Overview and Summary

In the appeal filed by Mr Lim against Ms Zong, the father sought to discharge the Independent Children's Lawyer appointed in the case, as well as to adduce further evidence in the appeal. The matter was before the Family Court of Australia in its appellate jurisdiction. The central legal issues revolved around whether the primary judge had erred in not discharging the Independent Children's Lawyer and whether the proposed additional evidence would establish a material error in the primary judge's decision.

The court considered the role and duties of the Independent Children's Lawyer, emphasising that such a lawyer is appointed to act in the best interests of the child, and their discharge is not automatic. The principles for discharging an Independent Children's Lawyer were reviewed, and it was found that no material error had been established in the primary judge's decision to maintain the lawyer's appointment. Furthermore, the proposed additional evidence did not reveal any material error that would warrant a different outcome. The court noted that the discretion to admit further evidence is limited and should not be used merely to correct unsatisfactory orders unless there is a demonstrated error in the primary judge's decision. Given that no material error was established, the appeal was dismissed.

The final orders of the court were that the appellant's applications to discharge the Independent Children's Lawyer and to adduce further evidence were dismissed, and the amended notice of appeal was also dismissed. Consequently, the appeal was dismissed with each party bearing their own costs.

Orders

Orders of the court

NOA 5 of 2021

BRC 8160 of 2014

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR LIM

Appellant

AND:

MS ZONG

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE J

DATE OF ORDER:

27 AUGUST 2021

THE COURT ORDERS THAT:

1. The appellant’s Application in an Appeal filed 25 June 2021 is dismissed.

2. The appellant’s Application in an Appeal filed 3 August 2021 is dismissed.

3. The Amended Notice of Appeal filed 29 April 2021 is dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

For the reasons which follow, the appeal must be dismissed.BACKGROUND Both the mother and father are of Chinese origin, and their first language is Mandarin. They migrated to Australia in 2007, where the child was born in 2012. The father presently lives in Perth, while the mother lives in Brisbane with the child. Although for some time the child was spending time with the father in Perth during school holiday periods pursuant to interim orders, that time was temporarily suspended by order in late 2019, and it has thereafter not resumed, albeit at present seemingly only because of COVID-19 travel restrictions between Western Australia and Queensland. On 29 October 2020 the matter was set down for trial on 25–29 January 2021, however did not then proceed. It is now listed for trial in September 2021.THE FATHER’S APPLICATIONS IN AN APPEAL The father filed two Applications in an Appeal, the first on 25 June 2021 and the second on 3 August 2021. Both seek to lead additional evidence in the appeal. Section 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) gives this Court a discretion to admit further evidence on appeal. That power is subject to s 96 but is otherwise unfettered by legislation. The principles relevant to the discretion were discussed in the High Court in CDJ v VAJ (1998) 197 CLR 172, where McHugh, Gummow and Callinan JJ observed: 114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.…116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.…148. … The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This ground of appeal fails.CONCLUSION No ground of appeal is established, and therefore the appeal must be dismissed.COSTS In the event that the appeal was dismissed, no party sought any order for costs. Each party will therefore bear their own costs.

Ratio Decidendi

Legal Principle Established

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