Lim & Zong (No 3)
[2024] FedCFamC1A 118
•17 July 2024
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 NOTED that publication of this judgment by this Court under the pseudonym Lim & Zong (No 3) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
By an Amended Notice of Appeal filed on 24 June 2024, the father appeals from an order made on 16 April 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissing his application to vary existing parenting orders.
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).
Following the re-hearing in September 2021, the proceedings were finally determined for a third time in February 2022 (Zong & Lim [2022] FedCFamC2F 196). The orders then made vested the mother with sole parental responsibility for the child, required the child to live with her, and declared the child should spend no time with the father. The father’s appeal from those orders was dismissed in September 2022 (Lim & Zong [2022] FedCFamC1A 146) and his application to the High Court of Australia for the grant of special leave to appeal was dismissed on 15 February 2023 (Lim v Zong & Anor [2023] HCASL 10).
The very next day (16 February 2023), in the teeth of his failure to successfully appeal, the father filed his fresh application to re-open the parenting orders made in February 2022.
In pursuing the new application, the father relevantly submitted the changed circumstances were twofold: first, him having abstained from committing any family violence over preceding years (at [23] and [33]), and secondly, the mother was no longer “scared” of him (at [34]). The mother refuted the changes in circumstances he asserted. She did not concede her fear of him had abated and she attributed the absence of his commission of any recent family violence to the successful operation of the orders made in February 2022 (at [33]).
The primary judge rejected the father’s submissions and observed this about the way in which he prosecuted his application:
18.When asked during submissions as to the significant change in circumstances, the father appeared, for the most part, fixated on previous decisions, the errors he purports were made in previous decisions, and also the evidence, he contends, the previous trial judge ignored or did not properly consider. Further he referred to the mother giving misinformation during previous trials and previous affidavit material.
…
22.I also note, in terms of the father's case outline that he filed in terms of this application, his chronology does not refer to anything post-February 2022, and all of the material he relies on, save for the consolidated trial affidavit, are all documents from prior proceedings, including previous family reports, previous affidavits relied on before [another named judge], and the transcripts from proceedings.
Similar observations may be made in respect of the father’s approach to the appeal. While the father is undoubtedly disappointed by the orders made in February 2022 and the decision made by the primary judge to leave those orders intact, his disappointment alone does not manifest appealable error.
The Appeal
The current iteration of the grounds of appeal is found within the Amended Notice of Appeal filed on 24 June 2024.
The amended grounds of appeal cover the denial of procedural fairness (Ground 1), errors of law (Grounds 2 and 4), errors of fact (Grounds 1, 2 and 5), the failure to find the mother’s evidence was “misleading” (Ground 6), and inadequate reasons (Ground 3).
Procedural fairness
Part of Ground 1 recites this:
…The Judgement failed to accord procedural fairness in not allowing the opportunity to put my case before the Court for determination.
(As per the original)
The assertion of such legal error is not particularised. Nor was it mentioned, let alone elaborated, in either the father’s Summary of Argument or oral submissions.
Inferentially, the complaint is no more than that the primary judge dismissed the father’s application to vary the existing parenting orders after holding only a preliminary enquiry rather than by engaging in another comprehensive trial. If that be the gravamen of the complaint, it is without substance because the principle enunciated in Rice v Asplund may be applied in either way (Marsden v Winch (2009) 42 Fam LR 1 at [40]–[56]; Miller v Harrington (2008) 39 Fam LR 654 at [72]–[83]). When the principle is applied in a preliminary enquiry, the fresh parenting application is not heard “on the merits” (Marsden v Winch at [46]; SPS v PLS (2008) FLC 93-363 at [48]). Here, the primary judge observed how the conduct of only a preliminary enquiry was permissible and explained the nature of such an enquiry (at [14]–[16] and [24]).
In determining the father’s application by way of a preliminary hearing, the primary judge took into account his affidavit evidence (at [20]–[21], [32] and [35]), the content of his Case Outline document (at [22]), and his submissions (at [12], [18] and [33]–[35]), in which event he was given every opportunity to prosecute his case. That being so, there was no denial of procedural fairness. He was fulsomely heard, but his case failed. The doctrine of procedural fairness is only concerned with ensuring the fairness of the process, not with ensuring the aggrieved party’s satisfaction with the fairness of the decision (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]).
This ground fails.
Errors of law
Grounds 2 and 4 complain of legal errors. It is asserted the primary judge failed to “compare and contrast” past judgments with the evidence (Ground 2) and that her Honour failed to consider the benefit of the child’s relationship with the father (Ground 4).
Contrary to the complaint within Ground 2, the primary judge did analyse the reasons given for past judgments and compared those reasons with current facts and circumstances, finding there was no material change in circumstances to warrant revision of the existing orders (at [37]–[38]), in which case the ground is rejected.
Her Honour recounted certain findings made within the reasons given for the orders last made in February 2022 (at [10], [25] and [34]–[35]) and also in the reasons given for the dismissal of the father’s appeal from those orders in September 2022 (at [25]–[31] and [35]), then observed that, in the main, his assertion of changed circumstances really amounted to no more than serial complaints about the outcome of the former proceedings and the mother’s unreliability as a witness (at [18] and [21]–[22]).
The father’s submissions in the appeal were to similar effect. He asserted “wrong” findings in previous judgments resulted from “misunderstood” evidence, which assertions culminated in these written submissions:
27.As the transcript shows, [the primary judge] notes that the evidence and facts conflicted with previous judgments. However, [the primary judge] did not consider these conflicts. She instead relied on [wrong] judgements in the Lim & Zong [2022] FedCFamC1A 146 and Zong & Lim[2022] FedCFamC2F 196.
…
40.The Judgment fails to recognize these conflicting and unclear previous judgments, but still refers to them as correct.
41.More, in the "Cases Cited" section of the Judgment, there is a list of previous proceedings from 2019 to 2022. With all due respect, the Judgment failed to consider these previous judgments and identify existing mistakes. Numerous conflicting errors exist in previous judgments upon review. After appeal, not only were the mistakes upheld, but I was also wrongly accused of delaying the process to oppose the mother
(As per the original)
The father exhausted the appeal process in relation to the judgment delivered in February 2022, so his persistent refrain about the errors perpetuated in the prior original and appeal judgments must be rejected.
The father also submitted this:
44. [The primary judge] failed to review these judgments that she cited.
The primary judge was neither obliged nor entitled to go behind the reasons delivered to explain the prior judgments, independently investigating them for errors not detected on appeal.
When pressed by the primary judge, the father’s ultimate point was that he had not recently committed any family violence (at [23] and [33]) but, by asserting that fact amounted to a material change of circumstances, he was thereby inferentially admitting he had previously committed family violence, which he had formerly denied. He did not seem to appreciate the paradox of his position. Nevertheless, the primary judge was not satisfied the evidence showed the father’s attitude had changed (at [32]) or that the mother was no longer scared of him, as he sought to contend (at [34]). The father’s disagreement with the conclusions does not demonstrate an error of law by the primary judge.
As to Ground 4, any consideration of the benefit the child could derive from a relationship with the father would entail the engagement of the available evidence with s 60CC of the Act, the provisions of which bear upon the best interests of the child. However, as the primary judge made clear (at [15]–[16] and [24]), while a child’s best interests are always paramount, they will ordinarily be promoted by the child being kept out of endless litigation contested between the parents. Before permitting the fresh parenting cause instituted by the father to progress to trial, the primary judge had to be satisfied there had been a material change in circumstances to justify that outcome. Unless and until that anterior factual finding was made, there could be no comprehensive trial to synthesise the evidence with the provisions of Pt VII of the Act, including the factors prescribed by s 60CC of the Act.
In support of this ground, the father submitted:
58.The judgment did not present evidence on the extent of the impact on the child. There is no indication of how the potential impact outweighs the benefits of reopening the process and giving the child a chance to benefit from a relationship with her father.
The reasons for judgment did not address the effect upon the child of any estrangement from the father because no expert opinion evidence on the issue was adduced. The orders last made in February 2022 severed the child’s personal relationship with the father and were only made after express consideration of the likely effect that would have upon the child (Zong & Lim at [13] and [107]–[113]). The child’s relationship with the father was found to be “tenuous” and she needed protection from him (Zong & Lim at [141]–[143] and [149]–[151]). The child’s estrangement from the father per force of those orders continued until the hearing before the primary judge in April 2024, so there could not have been any change in circumstances on that account.
These grounds fail.
Errors of fact
Grounds 1, 2 and 5 all appear to assert factual mistakes.
Principally, the father contended the primary judge erred by finding he had not committed any family violence for the preceding two years (at [23] and [33]) when it ought have instead been found no “domestic violence complaints” had been made against him since August 2019, which was more than three but less than four years immediately preceding the hearing in April 2024 (Ground 1). The father presumed that the longer the time elapsed without adverse incident, the less justification there was to keep him out of the child’s life.
However, the father’s complaint misunderstands the finding actually made. Her Honour was only interested in determining whether there had been any material change in circumstances since the last orders were made in February 2022, being just over two years before the hearing in April 2024. On the issue of the father’s perpetration of family violence, the primary judge correctly stated:
23.As to any articulation of a significant change in circumstance, the extent of the significant change identified was that no family violence has occurred in the past two years, since the final orders were made, and as such, there is a significant change in circumstance. …
…
33.The extent of the submissions is that there has not been family violence for two years. …
The findings behind the orders made in February 2022 were that the father had perpetrated harrowing acts of family violence over a prolonged period (Zong & Lim at [64]–[100] and [139]). Even if such behaviour was historic at the time of the judgment in 2022, as the father asserts, his predilection for such behaviour was found to pose an existent unacceptable risk of harm to both the child and the mother (Zong & Lim at [135] and [141]–[150]).
As the primary judge recognised, the mother contended it was only by reason of the successful implementation of the February 2022 orders that she was protected from the father (at [33]). The successful operation of the orders could hardly then be relied upon by the father as being the material change of circumstances to justify their revision. Rather, the successful operation of the orders would tend to militate in favour of their preservation.
The father submitted in the appeal that, had the primary judge found no complaints of family violence had been made against him since August 2019, her Honour would have been obliged to then find he no longer posed any risk of harm to the child and, hence, that would be a change of circumstances justifying revision of the existing orders. The submission is rejected. The absence of any complaint about the father’s commission of family violence over the past three or four years, against the background of the adverse findings made against him in February 2022, did not demand a finding that he no longer poses any risk of harm to the child or the mother. The latter finding did not inexorably follow from the former facts.
Although Grounds 2 and 5 complain of “erroneous findings” and the failure to find that “significantly changes exists” (sic), neither the grounds nor the submissions made in support of them identify any other factual mistakes allegedly made by the primary judge. Rather, the father’s Summary of Argument refers to allegedly mistaken findings in the former judgments delivered in February 2022 and September 2022. As earlier explained, the former original judgment successfully resisted appeal and the latter appellate judgment is undisturbed. Both judgments must be taken at face value.
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)
Quite properly, the primary judge was attempting to enlighten the father as to how he was unable to go behind the validity of former intact judgments.
As for the evidence given by the mother in the current proceeding heard by the primary judge, the father neither did nor could assert it was dishonest or inaccurate, as it comprised only uncontroversial chronological events and her personal statements of angst about being subjected to another round of litigation. He alleged such evidence was misleading in several different respects, because extra details he considered were important were omitted from the mother’s version of past events, but nothing said by the mother was incorrect.
This ground fails.
Inadequate reasons
Ground 3 pleads this:
The Judgment fails to provide reason for concluding that there is “no likelihood that the order will be varied in any significant way”.
(As per the original)
The ground refers to this finding in the reasons for judgment:
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.
The father submitted the finding was made “without reason”, which proposition is rejected.
The finding followed quite coherently from anterior findings that: the father was found to pose an unacceptable risk of harm to the mother and the child in 2022 (at [25]–[31]); his appeal from the judgment premised upon those findings was dismissed (at [4]); the fresh evidence adduced before the primary judge did not reveal the father had gained any insight into the reasons why he was excluded from the child’s life in 2022 (at [18], [21], [22] and [32]); and the successful operation of the 2022 orders, as shown by the absence of any further overt acts of family violence committed by the father, was not a change in circumstances which warranted revision of the orders (at [23], [33] and [34]).
The father additionally submitted this:
53.The Judgement did not give reason for maintain the order that totally prohibit the daughter-father relationship to the extent that I cannot even send a gift to the child.
(As per the original)
The primary judge did not need to give reasons why the 2022 orders should remain intact. The father’s expectation that her Honour should have done so represents an inversion of the onus of proof. He bore the onus of demonstrating a material change in circumstances to justify any variation of the 2022 orders. Unless and until he did so, the 2022 orders would stand.
This ground fails.
Disposition
The appeal is dismissed.
Like the father, the mother was self-represented in the appeal and so she made no application for costs in the event of its dismissal.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 17 July 2024
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