FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Lim & Zong (No 3) [2024] FedCFamC1A 118
Appeal from: Lim & Zong [2024] FedCFamC2F 639 Appeal number: NAA 110 of 2024 File number: BRC 1832 of 2023 Judgment of: AUSTIN J Date of judgment: 17 July 2024 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the father appeals against orders made by a judge dismissing his application to re-open proceedings – Where the father could not establish before the trial judge any material change in circumstances pursuant to the principles in Rice & Asplund (1979) FLC 90-725 – Where the father’s asserts he was denied procedural fairness – Where procedural fairness is concerned with the fairness of the process, not the fairness of the outcome – Where this ground fails – Where the husband’s complaints of errors of law and fact by the primary judge fail – Where the father contends the primary judge failed to find that the mother’s evidence was misleading – Where the mother’s evidence comprised only uncontroversial events and personal feelings – Where the husband’s complaint of inadequate reasons fails – Appeal dismissed – Where the mother was self-represented in the appeal and made no application for costs. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 65D, 65DAAA Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194; [2000] HCA 47
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Lim & Zong (2020) FLC 93-939; [2020] FamCAFC 20
Lim & Zong [2022] FedCFamC1A 146
Lim v Zong & Anor [2023] HCASL 10
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Miller v Harrington (2008) 39 Fam LR 654; [2008] FamCAFC 150
Rice v Asplund (1979) FLC 90-725; [1979] FamCA 80
SPS v PLS (2008) FLC 93-363; [2008] FamCAFC 16
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Zong & Lim [2022] FedCFamC2F 196
Number of paragraphs: 58 Date of hearing: 15 July 2024 Place: Newcastle (via MS Teams) The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 110 of 2024
BRC 1832 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR LIM
Appellant
AND: MS ZONG
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
17 JULY 2024
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed on 24 June 2024 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 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).
IT IS…
Continue reading Lim & Zong (No 3)
Sign in free to access the full text
Details
- AGLC
- Lim & Zong (No 3) [2024] FedCFamC1A 118
- Case
- [2024] FedCFamC1A 118
- Decision Date
CaseChat Overview and Summary
The appellant, Mr Lim, appeals against orders made by Austin J dismissing his application to re-open proceedings concerning parenting arrangements for the parties' child. The Federal Circuit and Family Court of Australia heard the appeal and found in favour of the respondent, Ms Zong. The appeal centred on whether there were material changes in circumstances since the last parenting orders were made, as per the principles set out in Rice & Asplund, and whether procedural fairness was upheld during the proceedings. Mr Lim argued that the primary judge failed to find that the mother's evidence was misleading and that he was denied procedural fairness. The court found that the primary judge did not err in finding no material changes in circumstances and that procedural fairness was maintained.
Austin J held that the appeal was dismissed as Mr Lim failed to establish any material change in circumstances warranting a re-opening of the proceedings. The judge noted that the mother's evidence comprised only uncontroversial events and personal feelings, and therefore did not contain misleading statements. Additionally, the court held that procedural fairness was concerned with the fairness of the process, not the fairness of the outcome. The court found that the primary judge allowed Mr Lim ample opportunity to present his evidence and arguments, thus ensuring procedural fairness. Furthermore, the court found no merit in Mr Lim's complaints about alleged errors of law and fact by the primary judge, as well as his contention that the primary judge failed to provide adequate reasons for the dismissal of his application.
The appeal was ultimately dismissed, and no orders were made in relation to costs as Ms Zong, the respondent, was self-represented and did not apply for costs. The Federal Circuit and Family Court of Australia confirmed the dismissal of the amended notice of appeal filed by Mr Lim on 24 June 2024.
Austin J held that the appeal was dismissed as Mr Lim failed to establish any material change in circumstances warranting a re-opening of the proceedings. The judge noted that the mother's evidence comprised only uncontroversial events and personal feelings, and therefore did not contain misleading statements. Additionally, the court held that procedural fairness was concerned with the fairness of the process, not the fairness of the outcome. The court found that the primary judge allowed Mr Lim ample opportunity to present his evidence and arguments, thus ensuring procedural fairness. Furthermore, the court found no merit in Mr Lim's complaints about alleged errors of law and fact by the primary judge, as well as his contention that the primary judge failed to provide adequate reasons for the dismissal of his application.
The appeal was ultimately dismissed, and no orders were made in relation to costs as Ms Zong, the respondent, was self-represented and did not apply for costs. The Federal Circuit and Family Court of Australia confirmed the dismissal of the amended notice of appeal filed by Mr Lim on 24 June 2024.
Orders
Orders of the court
NAA 110 of 2024
BRC 1832 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR LIM
Appellant
AND:
MS ZONG
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
17 JULY 2024
THE COURT ORDERS THAT:
1. The Amended Notice of Appeal filed on 24 June 2024 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 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).
Background
Background to the litigation
The appeal is dismissed for the following reasons.Background Before the primary judge for hearing on 16 April 2024 was the father’s Initiating Application, filed on 16 February 2023, seeking to revise the parenting orders last made in respect of the parties’ child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) a year before in February 2022. The mother resisted his application. Both parties, though self-represented, understood the primary judge was tasked with making a preliminary decision, in accordance with well-established authority (Rice v Asplund (1979) FLC 90-725), as to whether circumstances had materially changed since the orders were last made in February 2022 to warrant another trial to consider any revision of the orders governing the child’s care (s 65D(2) of the Act). The principle established by Rice v Asplund has since been codified in the Act by legislative amendment effective from 6 May 2024 (s 65DAAA of the Act), but the new statutory provision only becomes relevant in this appeal if appealable error is demonstrated and it is necessary to then re-exercise discretion. The establishment of error is an indispensable condition to any appellate intervention in an appeal by re-hearing (as this is) and, once shown, the re-exercise of discretion must be in accordance with the law as it stands at that point in time (Fox v Percy (2003) 214 CLR 118 at 124–125; Allesch v Maunz (2000) 203 CLR 172 at 179–181 and 187; Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 203–204 and 223–225). Reverting then to the appealed judgment, the primary judge found there were no materially changed circumstances and therefore dismissed the father’s application, making these ultimate findings:37.I do not consider, on the evidence before me, there is a likelihood that the orders will be varied in any significant way as a result of a new hearing.38.In all of the circumstances, on the evidence as a whole, I am not satisfied that there is a significant change in circumstances which justifies a reconsideration of the parenting orders and, as such, the application is dismissed. That conclusion represented the culmination of 10 years of litigation. Proceedings in respect of the child were first finalised in October 2014, when orders were made with the parties’ consent providing for them to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend time with the father as per the parties’ agreement. The parties then lived in different States and, when the child visited the father in July 2017, he withheld the child from the mother, who then instituted fresh proceedings for the child’s recovery from him. The recovery order was granted, but the father used the fresh proceedings as an opportunity to re-open the parenting dispute. In September 2019, final orders were made for a second time, this time severing the child’s interaction with the father. His appeal from that judgment succeeded and the proceedings were remitted for re-hearing in January 2020 (Lim & Zong (2020) FLC 93-939).
Evidence
Evidence Before The Court
These grounds fail.The mother’s evidence Ground 6 is pleaded as follows:The Judgment failed to find there are misleading statements in the mother’s affidavit. Orders was made with misleading.(As per the original) The ancillary complaint that “Orders was made with misleading” is meaningless and is disregarded. If it is intended to mean the appealed dismissal order is premised upon misleading evidence given by the mother, it adds nothing to the first limb of the ground. The submission made by the father in support of this ground is:80.In the affidavit and during the hearing, I provided evidence that the [mother] mislead the court. The judgment failed to consider that.(Footnotes omitted) The affidavit evidence to which the father referred by footnote are certain paragraphs of his own affidavit filed on 26 January 2024, in which he gratuitously comments upon past events extending back to 2015 and states his belief of incorrect findings made in earlier judgments based on evidence given by the mother, but refuted by him. The transcript of the hearing to which the father also referred by footnote captures an exchange between him and the primary judge which includes this:HER HONOUR: [The previous judge] accepted the mother’s evidence over yours, which he’s entitled to do.[The father]: Yes, and I feel the evidence said the mother’s misleading. Do you really think about it?HER HONOUR: I’ve read your affidavit.[The father]: Yes.HER HONOUR: Is there a particular part of it that you want to take me to?…HER HONOUR: Well, those are all things that were before [the previous judge].[The father]: Actually, how you know that they are considered? It doesn’t give any reference to this one. They are said – if the mother – if I give the evidence, and the judge don’t give the judge any evidence, I rest – and different from mother. They just refuse. You already know this. I already repeat it. So my - - -HER HONOUR: I don’t need you to repeat things you’ve already told me, please. I’ve given you plenty of time to make submissions. If there is anything else that you want to tell me, that you haven’t already told me, I will hear it.[The father]: Thank you. And another example of this one, this one is not from the judge of the case, is the – actually this a – there are a few things the judge could make wrong. Do you want to see it?HER HONOUR: Sorry?[Interpreter for the father]: The time when [the previous judge] made an obvious mistake.[The father]: Do you want to – I - - -HER HONOUR: [A judge] in 2020, before the trial before [the previous judge]?[The father]: Yes. No, no sorry. I mean the [the previous judge] he made ..... before the - - -HER HONOUR: Made a mistake? Right. And then you raised that before [a judge], did you?[The father]: No. Sorry. I make appeal. I said - - -HER HONOUR: You raised it in the appeal?[The father]: Not appeal, actually.HER HONOUR: Yes. All right. It’s been dealt with on an appeal, then.(Transcript 16 April 2024, p.23 line 42 to p.24 line 5; p.25 lines 5–39)
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.