Neil & Zang

Case [2021] FamCAFC 30

FAMILY COURT OF AUSTRALIA

Neil & Zang [2021] FamCAFC 30

Appeal from: Zang & Neil [2019] FamCA 760
Appeal number(s): EAA 124 of 2019
File number(s): SYC 8450 of 2015
Judgment of: RYAN, ALDRIDGE & AUSTIN JJ
Date of judgment: 3 March 2021
Catchwords: FAMILY LAW – APPEAL – PARENTING – Apprehended bias – Waiver – No application to primary judge seeking disqualification – Asserted failure to consider discrete application – Challenge misstates the facts – Section 102NA Family Law Act 1975 (Cth) prohibition on cross examination – Discretionary factors – Where the appellant was self-represented at trial and the respondent was represented – Unchallenged findings of family violence perpetrated by the appellant – Trial transcript demonstrates appellant’s active participation in trial – No error demonstrated – Appeal dismissed – No order as to costs.
Legislation: Family Law Act 1975 (Cth) Pts VII, VIII, ss 65DAC, 102NA
Cases cited:

Bass and Bass (2008) FLC 93-366; [2008] FamCAFC 67

Carpenter & Lunn (2008) FLC 93-377; [2008] FamCAFC 128

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47

Concrete Pty Ltd v Parramatta Designand Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

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

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Nagel & Clay (2020) 60 Fam LR 550; [2020] FamCA 326

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Division: Appeal Division
Number of paragraphs: 53
Date of hearing: 19 February 2021
Place: Sydney
Counsel for the Appellant: Litigant in Person
Counsel for the Respondent: Litigant in Person
Counsel for the Independent Children's Lawyer: Ms Druitt
Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates

ORDERS

EAA 124 of 2019
SYC 8450 of 2015

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR NEIL

Appellant
AND:

MS ZANG

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

RYAN, ALDRDIGE & AUSTIN JJ

DATE OF ORDER:

3 MARCH 2021

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.No order as to costs.

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 Neil & Zang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

RYAN, ALDRIDGE & AUSTIN JJ:

INTRODUCTION

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AGLC
Neil & Zang [2021] FamCAFC 30
Case
[2021] FamCAFC 30
Decision Date

CaseChat Overview and Summary

The appeal, brought by the father, was dismissed by Ryan, Aldridge and Austin JJ of the Family Court of Australia. The case concerns the parenting of a child born during the marriage of the father and mother, who separated by mid-2015. The mother commenced proceedings in December 2015 after a violent confrontation with the father in October 2015, in which he pleaded guilty to assaulting the maternal grandmother. A family violence order was made against the father, and the mother declined to allow the child to spend any unsupervised time with him until her interim parenting application was heard and determined. The father refused to spend time with the child under professional supervision, and so the child did not see him until interim orders were made in October 2016. The child spent time with the father under professional supervision at a contact centre, but the visits were terminated in April 2017 due to the father’s behaviour. The visits were again terminated in January 2019 due to the father’s inability to control his anger and intimidation of the contact centre staff.

The legal issues to be determined by the court were whether there was apprehended bias on the part of the primary judge, and whether the primary judge failed to consider a discrete application made by the father. The court found that the father had not demonstrated any error on the part of the primary judge in relation to these issues. The father was self-represented at trial and the mother was represented. The trial transcript demonstrated the father’s active participation in the trial. The father’s challenge to the primary judge’s decision to prohibit cross-examination of a witness misstated the facts and was without merit. The unchallenged findings of family violence perpetrated by the father weighed heavily in favour of the orders made by the primary judge.

The court dismissed the appeal and made no order as to costs. The reasons for the judgment may be subject to review to remedy minor typographical or grammatical errors or to record a variation to the order. The case has been published under the pseudonym Neil & Zang with the approval of the Chief Justice.

Orders

Orders of the court

ORDER MADE BY:

RYAN, ALDRDIGE & AUSTIN JJ

DATE OF ORDER:

3 MARCH 2021

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. No order as to costs.

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 Neil & Zang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

The appeal should be dismissed for the reasons which follow.BACKGROUND Some brief background will help explain why the appealed orders were made. The parties separated by mid-2015 at the latest, though they lived separately from December 2014 (at [4]). Since then, the child has always lived with the mother. The mother commenced proceedings in relation to the child in December 2015 (at [5] and [149]), shortly after a violent confrontation occurred in October 2015 between, on the one hand, the mother and maternal grandparents, and on the other, the father. He was charged with and subsequently pleaded guilty to assaulting the maternal grandmother on that occasion (at [140]). Aside from the father’s prosecution, a family violence order was made against him by a State court for the protection of both the mother and the child (at [136] and [144]), after which the mother declined to allow the child to spend any unsupervised time with him until her interim parenting application was heard and determined. In the meantime, the father refused her offer to spend time with the child under professional supervision (at [150] and [152]). As a consequence, the child did not spend any time at all with the father until interim orders were made in October 2016 (at [152]). The interim orders enabled the child to spend time with the father under professional supervision at a contact centre (at [155]), but the father delayed his enrolment and induction at the contact centre and so the supervised visits did not begin until February 2017 (at [159], [162]–[164] and [171]–[172]). The visits did not prove to be particularly successful. The staff of the contact centre decided to terminate their involvement with immediate effect in April 2017 due to the father’s behaviour, which breached the terms of the contact centre’s service agreement (at [185]–[194]). The staff even felt obliged to make a mandatory report to the State child welfare authority about the risk of serious harm posed to the child by the father (at [192]). The child therefore ceased spending time with the father in April 2017 (at [194] and [200]), though the mother informed him she was willing to consider alternative supervision arrangements on condition he was willing to seek counselling from a psychologist or psychiatrist, which the father refused (at [202]). More interim orders were later made, but not until September 2017. Such orders still required the child to spend time with the father under professional supervision, albeit at another contact centre (at [203]). The visits did not begin until February 2018 and experience again tended to demonstrate it would be unwise for the child to spend any unsupervised time with the father (at [205]–[206]). The staff of the contact centre suspended the visits in January 2019, due to the father’s asserted inability to control his anger in the presence of the child and other families and his intimidation of the contact centre staff (at [232]–[233]). As a consequence, the child spent no time with the father after January 2019 (at [235] and [303]).

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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