Lim & Zong

Case [2022] FedCFamC1A 146

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Lim & Zong [2022] FedCFamC1A 146

Appeal from: Zong & Lim (No 6) [2022] FedCFamC2F 196
Appeal number(s): NAA 35 of 2022
File number(s): BRC 8160 of 2014
Judgment of: MCCLELLAND DCJ
Date of judgment: 20 September 2022
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from orders allowing no time and no communication with the appellant – Where the appellant has engaged in a pattern of coercive and controlling conduct – Family violence and animal cruelty perpetrated by the appellant – Protracted litigation history – 22 grounds of appeal asserting factual finding errors – No merit in any grounds advanced – No error established – Appeal dismissed – Appellant to pay costs of respondent and Independent Children’s Lawyer.
Legislation:

Family Law Act 1975 (Cth) ss 4AB, 60CC, 102NA, 117

Family LawRules 2004 (Cth) r 19.18

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited:

Blinko & Blinko [2015] FamCAFC 146

Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432

Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68

de Winter v de Winter (1979) FLC 90-605

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123; [2005] FamCA 158

HJ Heinze Company Australia Ltd v Turner [1998] 4 VR 872

Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23

Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1

Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322

Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234

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

Lim & Zong (2021) FLC 94-048; [2021] FamCAFC 165

Lim & Zong (No 2) [2019] FCCA 3249

M v M (1988) 166 CLR 69; [1988] HCA 68

Neil v Nott (1994) 121 ALR 148; [1994] HCA 23

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Peterson & Cochrane [2008] FamCA 597

Prantage & Prantage (Costs) [2014] FamCA 850

Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1

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

Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

State of Victoria v Bacon [1998] 4 VR 269

Stoian v Fiening (Costs) [2014] FamCA 944

Whisprun Pty Limited (formerly Northeast Exports Pty Limited v Dixon (2003) 200 ALR 447; [2003] HCA 48

Zong & Lim [2019] FCCA 2662

Zong & Lim (No 6) [2020] FCCA 3671

Zong & Lim (No 3) [2021] FCCA 238

Zong & Lim (No 4) [2021] FCCA 319

Zong & Lim (No 5) [2021] FCCA 1965

Zong & Lim [2022] FedCFamC2F 196
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AGLC
Lim & Zong [2022] FedCFamC1A 146
Case
[2022] FedCFamC1A 146
Decision Date

CaseChat Overview and Summary

In the case of Lim v Zong, the Federal Circuit and Family Court of Australia considered an appeal against parenting orders that limited the father's contact with his child. The primary judge had determined that the father's conduct constituted a pattern of coercive and controlling behaviour, including family violence and animal cruelty, and therefore ordered that the child should have no time or communication with the father. The father appealed against these orders, arguing that the primary judge had erred in his findings of fact. The court examined the evidence presented and found that the primary judge's findings were supported by the evidence and were not in error.

The court noted that the father had engaged in a pattern of coercive and controlling conduct, including sending offensive emails to the mother over a period of five years. The emails included threats of suicide, threats to the mother, and cruelty to family pets. The primary judge's findings of fact were not only reasonably open to him but were compelled by the evidence. The court found that there was no merit in any of the grounds of appeal advanced by the father. The appeal was dismissed, and the father was ordered to pay the costs of the mother and the Independent Children's Lawyer.

In summary, the court upheld the primary judge's findings of fact and dismissed the father's appeal. The court found that the primary judge's orders were justified based on the evidence presented, and the father was ordered to pay the costs of the mother and the Independent Children's Lawyer. The court's decision highlights the importance of considering the evidence presented in family law proceedings and the need for appropriate orders to protect children from family violence.

Orders

Orders of the court

NAA 35 of 2022

BRC 8160 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR LIM

Appellant

AND:

MS ZONG

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

20 september 2022

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. Within 14 days, the appellant father is to pay the costs of the respondent mother in the sum of $4,671.90.

3. Within 14 days, the appellant father is to pay the costs of the Independent Children’s Lawyer in the sum of $4,671.90.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons which follow, the appeal is wholly without merit and is dismissed with costs.Background The parties married in 2006 in Country Q and, in 2007, relocated to City K where the child was born in 2012. The child is now 10 years old. The parties separated in 2012 while on a trip to Country Q. Upon returning to Australia in January 2013, the mother relocated to City P with the child while the father remained in City K. A divorce order was made in November 2014 and subsequently came into effect in December 2014 (at [25]–[33]). The matter has progressed very slowly through the Court due to a number of factors, including the impacts of the COVID-19 pandemic and the father’s case management decisions (at [35]). The matter was initially finalised by consent orders on 27 October 2014 for equal shared parental responsibility and for the child to live with the mother, with arrangements for the child to spend time with the father in both cities (at [36]–[37]). However, the parties’ relationship remained strained and, on 11 July 2017, the child was held over in City K by the father, which necessitated the mother seeking a recovery order for the child to be returned (at [38]). A further recovery order was granted in September 2017, after which time orders were made for the child to spend time with the father in City P. The matter remained before the Court because, in his response to the mother’s application for recovery order, the father sought new parenting orders (at [41]). On 20 September 2019, following an interim hearing, interim orders were made ceasing the child’s time with the father based on an unacceptable risk. The father successfully appealed those orders in the Full Court, constituted by a single judge, where it was determined that in the context of an interim hearing and absent the testing of the parties’ evidence through the process of cross-examination, it was inappropriate for the primary judge to make findings of fact that the father had engaged in a pattern of family violence primarily by various acts of coercive and controlling behaviour.[1] The mother, in this appeal, contends that the emails attached to the evidence she has submitted for the purpose of those interim proceedings provided ample basis for the primary judge arriving at the findings he made which, it is contended, were justified on the evidence. In the current appeal, however, it is unnecessary for me to further consider that submission. [1] Lim & Zong (2020) FLC 93-939. For reasons, which I set out below, I am satisfied that the primary judge’s reliance on the evidence before him at first instance is not only justified but, in my view, such evidence compelled the findings that his Honour made. In terms of the manner in which this case was presented, it is significant that during the case management process an order was made under s 102NA of the Family Law Act 1975 (Cth) (“the Act”) for both parties to obtain representation due to allegations of family violence. The father has been represented by two separate firms of solicitors pursuant to those orders. He has since, however, discharged the services of both firms and was self-represented at the final hearing. In those circumstances, the primary judge correctly, in my view, determined that the provisions of s 102NA precluded the father cross-examining the mother.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In order to consider the father’s contentions in respect to the purported errors made by the primary judge and the potential significance of those errors, it is necessary to summarise the basis upon which the primary judge concluded that the child should spend no time with the father.The reasons for judgment At [80] of the reasons, the primary judge sets out why he accepts the evidence of the mother over that of the father. This was in circumstances where the mother was not cross-examined by the father as a result of the fact that the father had dismissed his two previous legal representatives and was precluded from cross-examining the mother pursuant to the provisions of s 102NA of the Act. Therefore, the mother’s evidence was unchallenged. As earlier noted, the primary judge generally found the mother’s evidence to be plausible and aspects of the father’s evidence to be implausible. This included in respect to significant acts of violence which the primary judge found the father had committed. That finding, which was reasonably open to the primary judge, led to the finding that the father had engaged in a long-term pattern of pervasive, coercive and controlling conduct directed towards the mother. In that respect, at [141] of the reasons the primary judge stated:I do conclude that he has engaged in a campaign of family violence using coercion and threats over a long period of time and that the only time this has ceased has been when time for the child with him has ceased – because he has not had access to the mother. The threats have included threats of suicide and threats to the mother and cruelty to family pets. Not only was that finding reasonably open to the primary judge, the evidence, in my view, compelled that finding. This campaign of coercive and controlling conduct carried out by the father included sending offensive emails to the mother, extending back to 2014. Those emails are set out in Annexure “YYZ-06” to the mother’s affidavit filed 28 September 2022 and extend over 30 pages, including a series of emails spanning five years in which the father seeks to coerce the mother into taking a particular course of action. Those emails, which the father eventually admitted to sending to the mother, include threats made by the father to self-harm and include highly offensive language. Significantly, the father conceded that those emails attached to the mother’s affidavit were a mere sample of the nature of emails which he had been sending to the mother over a five-year period.[5][5] Transcript 29 September 2021, p.128 lines 21–40. No error has been demonstrated on the part of the primary judge in so finding. Examples of the communication included:·On 21 November 2014, the father sent an email to the mother in which he stated:If you want to leave me, I can only use my death to answer you. It is impossible for us to take divorce as an end once we married. You should be absolutely clearly aware of that. It is no use to say anything from now on; our relationship has been destined; only death can separate us.·On the same day, the father sent a further email in which he stated:My life only belongs to our family after marriage. The only way to end our marriage is to end my life. You are clearer than me that this means ending my life. This is why we got married. Many things change in the world, but this will never change. ·An email sent by the father on 14 January 2017 calling the mother a “scumbag”;·On the same day, seven minutes after the first email, the father sent a further email in which he rhetorically asks the mother whether she could live without harming him;·On 8 August 2017, the father sent an email to the mother stating that she was disgusting and that she should “disappear from our world”;·On 3 June 2017, an email sent by the father to the mother calling the mother a “son of a bitch” and stating that her “heart is completely rotten”;·On 26 May 2017, the father sent an email to the mother calling her despicable and shameless and that he wished her “out of my pure world forever”;·On 13 May 2017, an email sent by the father to the mother in which he accuses the mother of being “corrupt and shameless”, questioning “why have souls like [the mother] in the world”.

Ratio Decidendi

Legal Principle Established

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