Lim & Zong

Case [2020] FamCAFC 20

FAMILY COURT OF AUSTRALIA

LIM & ZONG [2020] FamCAFC 20
FAMILY LAW – APPEAL – PARENTING – Where the primary judge made orders on an interim basis providing for no time or communication between the father and the child – Where such orders were not proposed by any party – Where the primary judge did not raise, with the parties, those orders as being in contemplation – Where the mother made serious allegations of family violence perpetrated by the father upon the mother and the child – Where the father disputed those allegations – Consideration of principles of factual findings in interim proceedings – Consideration of Salah & Salah (2019) FLC 93-713 – Where the primary judge made concluded findings of fact on disputed issues and on untested evidence – Where the making of such findings is an error – Appeal allowed – Proceedings remitted for further interim hearing.
Family Law Act 1975 (Cth) ss 4AB, 60CC, 60CG, 68L, 94AAA(3), 102NA(2)
Boensch v Pascoe (2019) 94 ALJR 112; [2019] HCA 49
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Salah & Salah (2016) FLC 93-713; [2016] FamCA 100
SS & AH [2010] FamCAFC 13
U v U (2002) 211 CLR 238; [2002] HCA 36
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
APPELLANT: Mr Lim
RESPONDENT: Ms Zong
INDEPENDENT CHILDREN’S LAWYER: Julie Harrington Solicitor
FILE NUMBER: BRC 8160 of 2014
APPEAL NUMBER: NOA 85 of 2019
DATE DELIVERED: 31 January 2020
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Kent J
HEARING DATE: 22 January 2020
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 20 September 2019
LOWER COURT MNC: [2019] FCCA 2662

REPRESENTATION

THE APPELLANT: In person
THE RESPONDENT: In person via telephone
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Fraser
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Julie Harrington Solicitor

Orders

  1. Leave be given to the respondent mother to appear by telephone at the appeal hearing on 22 January 2020.

  2. Leave be given to the respondent mother to rely upon her Summary of Argument filed on 31 December 2019.

  3. The appellant father’s Application in an Appeal to adduce further evidence filed on 4 December 2019 be dismissed.

  4. The appellant father’s Application in an Appeal to adduce further evidence filed on 15 January 2020 be dismissed.

  5. The appeal be allowed and the orders made on 20 September 2019 be set aside.

  6. The proceedings for interim orders be remitted for a rehearing in the Federal Circuit Court of Australia by a judge other than the primary judge.

  7. There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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).

Note: This copy of the Court’s Reasons for Judgment may be subject to…

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Lim & Zong [2020] FamCAFC 20
Case
[2020] FamCAFC 20
Decision Date

CaseChat Overview and Summary

The case Lim & Zong involved the parents of a child, who were in a dispute over parenting arrangements. The matter was brought before the Family Court of Australia, which had initially made orders regarding the child's care. The father appealed these orders, and the case was heard in the Full Court. The mother sought to appear via telephone at the appeal hearing and to rely on her Summary of Argument. The father sought to present further evidence.

The legal issues before the court were whether the mother should be granted leave to appear via telephone and to rely on her Summary of Argument, and whether the father should be allowed to present additional evidence. The court also needed to consider the appeal itself, assessing whether the orders made by the primary judge should be upheld or set aside.

The court granted the mother's requests, allowing her to appear via telephone and to rely on her Summary of Argument. It dismissed the father's applications to adduce further evidence, finding that they were not necessary or appropriate. The court allowed the appeal, set aside the orders made by the primary judge, and remitted the matter for a rehearing before a different judge. The court made no order as to costs.

The orders reflect the court's decisions on the procedural matters and the substantive appeal, ensuring the mother's participation and setting aside the initial orders while remitting the matter for a fresh hearing.

Orders

Orders of the court

1.

Leave be given to the respondent mother to appear by telephone at the appeal hearing on 22 January 2020.

2.

Leave be given to the respondent mother to rely upon her Summary of Argument filed on 31 December 2019.

3.

The appellant father’s Application in an Appeal to adduce further evidence filed on 4 December 2019 be dismissed.

4.

The appellant father’s Application in an Appeal to adduce further evidence filed on 15 January 2020 be dismissed.

5.

The appeal be allowed and the orders made on 20 September 2019 be set aside.

6.

The proceedings for interim orders be remitted for a rehearing in the Federal Circuit Court of Australia by a judge other than the primary judge.

7.

There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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