Zaal & Rhee
[2025] FedCFamC1F 53
•4 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zaal & Rhee [2025] FedCFamC1F 53
File number(s): BRC 15267 of 2024 Judgment of: BRASCH J Date of judgment: 4 February 2025 Catchwords: FAMILY LAW – CHILDREN – CRITCIAL INCIDENT LIST – Where the child’s mother has passed away – Where maternal aunt and uncle seek decision making and live with orders – Where the child does not wish to see the father – Where the father was aware of the proceedings and the potential for making final orders, but ultimately did not participate – Where it is in the child’s best interest for final orders to be made Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 65DAAA, 65DAB, 67ZBD
Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) r 10.13(1)(a)
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Line & Line (1996) 136 FLR 149; [1996] FamCA 145
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 4 February 2025 Place: Brisbane (via Microsoft Teams) First Applicant: Litigant in person Second Applicant: Litigant in person Respondent: No appearance ORDERS
BRC 15267 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ZAAL
First Applicant
MS ZAAL
Second Applicant
AND: MR RHEE
Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
4 FEBRUARY 2025
THE COURT ORDERS:
Parenting arrangements
1.That the child X born in 2010 ("the child") live with the applicants Mr Zaal and Ms Zaal ('the applicants").
2.That pursuant to s 61D of the Family Law Act 1975 (Cth), parental responsibility be allocated to the applicants (to the exclusion of the father), for all major long term decisions related to the child, including:
(a)The child's education (both current and future);
(b)The child's religious and cultural upbringing;
(c)The child's health;
(d)Requesting that Medicare issue a card/s for the child and claiming Medicare benefits for the child;
(e)Requesting a copy of the child's birth certificate; and
(f)Dealing with NDIS and making any applications required.
3.That the applicants have responsibility for all day-to-day decisions with respect to the child.
4.That the child spend time and communicate with the father in accordance with the child's wishes as initiated by the child.
Accessing services
5.That pursuant to s l14Q of the Family Law Act 1975 (Cth), the applicants be granted leave to publish a copy of these orders to all service providers for the child, including but not limited to the child's school, treating medical practitioners, any other doctors, therapists, counsellors, government departments, health insurer, passport and visa providers, or, for securing any financial support for the child.
6.That these orders are authority for the applicants to schedule and consent to treatment, therapy, schooling, programs, services and the like for the child and to give and receive any such information from service providers as a parent would ordinarily receive.
7.That pursuant to section 11(1)(a) of the Australian Passports Act 2005 (Cth), the applicants having parental responsibility and decision making for the child X born in 2010, consent to the child being issued with an Australian travel document.
8.That pursuant to section 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth) and these orders the child be permitted to travel outside of the Commonwealth of Australia using Australian travel documents.
9.That pursuant to section 11(5) of the Australian Passports Act 2005 (Cth), the issue of an Australian travel document to X born in 2010, does not require the consent of the father who has ceased to hold parental responsibility for the child.
10.That the applicants will hold the child's passport and will pay any fees for the issuing or renewal of the passport.
AND THE COURT NOTES:
A.That pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in "Parenting Orders - obligations, consequences and who can help" and these particulars are included in these orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J
These are my Ex Tempore reasons, which I will revise to make the spoken word more amenable to reading.
This is an application for parenting orders brought by the maternal uncle and aunt of the child X born in 2010 ("X", "the child"), who has just turned 14 years old.
The applicant maternal aunt is Ms Zaal and the maternal uncle is Mr Zaal ("the applicants").
The child's father, Mr Rhee, is the respondent (“the father”).
BACKGROUND
X lived full time with his mother, Ms B, born in 1978 (“the mother”), who passed away in 2024. The applicants depose that X has been estranged from his father since early 2023, with perhaps a few hours of time thereafter in early 2024 and then around the time of the mother's death and maybe funeral.
The applicants depose that the estrangement came about due to the child witnessing an incident of family violence between his mother and father, which led to police arriving at the mother's house and taking out a Protection Order against the father.
Looking at communication between the applicants and father, it seems he blames the applicants for his estrangement with X and/or says it is the fault of the mother saying she "was mentally ill".
X has two older siblings who are not the subject of these proceedings - Ms D who will be 19 in 2025 and Mr C who is 16 or 17. Ms D lives independently although receives financial assistance from the applicants and visits as she wishes. Mr C lived with the mother for the last couple of months of her illness, and then has gravitated to living with the father. He visits for holidays and enjoys time at the applicants' family property. The applicants support Mr C staying with the respondent father given his age and the different relationship he has with the father, as opposed to X and the father.
In August 2024, the applicant maternal aunt assisted the mother to apply for an abridgement of time for a divorce [from the father] to allow her to marry her partner, Mr E, before she died. The mother's affidavit deposed to her proposed care arrangements for the children upon her death; that application and affidavit were served on the father. The father engaged lawyers and filed material. The divorce was granted in August 2024 and made final the same day. Accordingly, the father at least from August 2024 had some sense of what the mother’s proposals were for the children, and in particular X, upon her death.
In the last few months of the mother's life, the family discussed arrangements for X. The first option was for X to remain with his step-father Mr E, and if not, then to live with the applicants. The step-father's hours of work made care of X impractical and the relationship between the father and step-father is described as "entrenched conflict".
In late 2024, the day after the mother's passing, the father collected all three children and took them to his home. X however left and was "very upset and loudly saying that his father was an arsehole and he was never going to see or speak to him again".
In late 2024, the applicants travelled to the Region G for the mother's funeral, which was being held the next morning. X said he wanted to live with the applicants, who, in turn, consulted with Mr E, other family and X's siblings Ms D and Mr C.
A day or two after the funeral, the applicants tried to engage with the father about parenting of X. The father texted he was heartbroken that X was not comfortable with him. The applicants waited for proposed calls from the father but to no avail. They also tried to call him, but the calls went unanswered. Eventually the father engaged with the applicants who confirmed it was their intention to raise X and to seek orders through this court for decision making and live with orders. The applicant maternal aunt deposed the father was sad he could not care for X but said he understood the applicants' position and preferred X stay with them than other family members.
In late 2024, a paternal aunt took X to see the father. X returned home and immediately went to his room and refused to speak to anyone. He was upset and told the applicants' daughter that, "[Mr Rhee] started yelling at him" and "called his mother a cunt and said he was glad she was dead".
The matter first came before me on the Critical Incident List on 7 November 2024, where I made orders for the father to file material and for the applicants to have decision making responsibility for major long term decisions so they could, amongst other things, secure counselling for X and engage with his school.
RESPONDENT AWARE OF PROCEEDINGS
For the following reasons, I am well satisfied the father is aware of these proceedings.
He had a solicitor when dealing with the mother's application in August 2024 to marry her partner Mr E, wherein parenting arrangements for X were set out.
The matter was first before me on 7 November 2024. The day before, the father caused his solicitors to contact the applicant maternal aunt, who had already sent the material to the father, but sent it again to the father's solicitor.
The father's solicitor appeared at that first hearing on 7 November 2024 but had not filed a Notice of Address for Service. I gave her the indulgence of addressing me anyway. The father's solicitor said the father was away. After the hearing, the father's solicitor requested a copy of my 7 November 2024 order, which the applicant maternal aunt sent it to her.
The 7 November 2024 order (made in the presence and participation of his solicitors) required him to file material by 5 December 2024.
He did not.
On 11 December 2024 the applicants sent the father their Amended Initiating Application.
The applicant maternal aunt's affidavit of 9 January 2025 shows the efforts they have made to keep the father informed of these proceedings, including sending Microsoft Teams links for hearings on 7 November 2024 and 14 January 2025. I again observe the father's solicitor attended the 7 November 2024 hearing where the next listing date of 14 January 2025 was given.
The matter was then next before me on 14 January 2025. The father’s solicitor did not appear, nor did the father, but he emailed the court just before the matter was due to commence and said he and Mr C were ill and unable to attend, and, given Christmas closures he was unable to secure legal representation to respond.
I do not accept that for the following reasons. First, the father was able to contact the court but not dial in. Second, he had solicitors for the 7 November 2024 appearance. Third, he had almost two months between the 7 November 2024 and 14 January 2025 hearing to engage solicitors or file material on his own behalf. Fourth, his material was originally due on 5 December 2024, well before any Christmas closure period.
Given the father's protests about the child living with the applicants, or more so, that the child live with him (as demonstrated in the applicant maternal aunt's affidavit of 9 January 2025), I gave him a second opportunity to file material by 28 January 2025.
He did not.
The father also had notice of today, as the court sent him a link via the email he had used to communicate with the court. The applicant maternal aunt also tells me that she has heard, effectively on the grapevine (so a bit of hearsay), that he does not intend to participate. I do not put any weight on that, but am well satisfied that the father has knowledge of these proceedings and, for whatever reason, is choosing not to attend.
In each order, I made it clear that I would consider making final orders if he did not participate.
In Allesch v Maunz (2000) 203 CLR 172 , Kirby J observed at [38]-[40]:
Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted, the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
The father has been given the opportunity to participate in these proceedings but, for whatever reason, has not. That is his choice, and should he have a change of heart that will be a matter for him; see s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) and see r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth).
In the meantime, X and his aunt and uncle need finality. In circumstances where the child has abruptly lost his mother, and in reality, lost his father, I consider it in his best interests (that is the child's) that the matter be brought to conclusion.
MATERIAL
The material in this matter is as follows:
(1)Amended Initiating Application filed on 11 December 2024;
(2)Affidavit of Ms Zaal filed on 5 November 2024;
(3)Affidavit of Ms Zaal filed on 9 January 2025;
(4)Notice of Child Abuse, Family Violence or Risk filed on 5 November 2024;
(5)Exhibit 1, being a s 67ZBD report received from the Department of Child Safety, Seniors and Disability Services (“Child Safety”) in late 2024, which set out no Child Safety records for the child, mother, father or applicants;
(6)Exhibit 2, being a s 67ZBD report received from Queensland Police Service in early 2025 which sets out a history of family violence as between the mother and father; and
(7)Exhibit 3, being an updated s 67ZBD report received from Child Safety in early 2025, indicating no updates since the provision of the last report.
I also note my orders of 14 January 2025, where extensive Notations set out the opportunities afforded to the father to participate.
LEGAL PRINCIPLES
I start with s 65K of the Act, which is to the effect that a parent cannot force a child to live with them, when the other parent dies. That makes sense because the paramount consideration is the child's best interest as opposed to the assertion of some non-existent parental "right" to automatic possession of a child.
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper (subject to s 65DAB, which is irrelevant in this matter). Section 60B of the Act sets out the objects of Part VII of the Act, and that is:
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CA provides that the child's best interests are a paramount consideration in making a parenting order. Section 60CC addresses those best interests and provides:
(1) Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child-also consider the matters set out in subsection (3).
The child is not an Aboriginal or Torres Strait Islander child.
I now turn to the s 60CC(2) considerations.
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child)
Section s 60CC(2)(a) is informed by s 60CC(2A):
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child's family.
The relevant Exhibits reveals a history of domestic violence between the mother and father, but no concerns with the child being with the applicants.
This application itself also demonstrates the applicants' promotion of X's safety by securing parental decision making for long term decisions for the child, which means they can engage with his school and secure therapeutic supports.
On the material before me I am well satisfied that the arrangements proposed by the applicants will promote X’s safety.
(b) any views expressed by the child;
X expressed his wish to live with the applicants at the mother's funeral. He is at school and is of an age where if he was unhappy with that arrangement he could make that known and tell others, or vote with his feet.
He is however familiar with the applicants, their home, farm and the maternal family.
The applicant maternal aunt deposed that X has spoken "at length" about his relationship breakdown with his father over a number of years, with the child saying it was a result of the father's poor mental health, alcohol and drug misuse, family violence and poor parenting capacity. He also said his mother pushed him (that is X) to have a relationship with the father in 2023 and 2024, which were described as "disastrous experiences" for him.
The applicant maternal aunt also deposes that in that context, "he is adamant that he wants nothing to do with the father and will not speak to him or meet him or attend counselling with him. [X] receives phone calls from [Mr Rhee] that he does not answer and text messages that he ignores."
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;
These matters go hand in hand.
For whatever reason, the father has not participated in these proceedings and the child paints a picture of father with impaired parental capacity. Indeed, what I have described above as attributed to X is consistent with what the applicant maternal aunt deposed the mother told her about the father’s violence, drug use and aggression.
In her November affidavit, the applicant maternal aunt deposed that the child was settling in as well as could be expected. With the allocation of decision making to them in the November 2024 orders, they have secured counselling and therapeutic support for him and can now engage with his school.
In her January 2025 affidavit, the applicant maternal aunt deposed at paragraph 17:
[X] is settling in well. We have been focusing on ensuring he has a stable and predictable routine. [X] has commented that our home is peaceful with no yelling and no one gets drunk. We have engaged with his Paediatrician's rooms, obtained an updated referral and are expecting an appointment in late January. [X] is enrolled to start year 9 and will be in a small class of an expected 15 students for his core subjects. The school will monitor him for the first few weeks of the term and then meet with us to see what supports he will need. We have information about his ADHD which we understand impacts upon his concentration in class and is not associated with any behavioural issues. [X] continues to be engaged with his psychologist and has his next appointment with her [in early] 2025.
I am satisfied the applicants have the capacity to meet, and are meeting, this young man's needs. Bringing this application itself further highlights their prioritisation of X and the meeting of his needs.
(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
Sadly, the child can only now have a memory of his mother and no experiential relationship. I have no doubt the applicants and wider family will continue to nurture X's memory of his mother.
He is also at an age where he can start to navigate what relationship he chooses to have with his father, or not.
In the meantime, the applicant maternal uncle works from home managing the farm and is thus able to care for the child. The applicant maternal aunt works in a profession. They are both in good health. Also in the household with X is his maternal grandmother. His maternal grandfather lives about 30 minutes away and his sister and brother visit as they wish.
(f) anything else that is relevant to the particular circumstances of the child.
One of the purposes of the Critical Incident List is to get the parties in and out of the court system as quickly as the child's best interests permit. This is one of those matters. The applicants no doubt have their own grief to deal with and to also support X through his grieving. The last thing any of them need is attendances at court any more often than necessary for the child's best interest.
Separately, the applicants seek orders to secure a passport for X so he can travel on overseas holidays. With their roots firmly based in Australia, there is no suggestion before me at all that the applicants pose any kind of flight risk (Line & Line (1996) 136 FLR 149). Further, exposure to different cultures, countries, food, languages and experiences offer wonderful opportunities for children to learn and broaden their horizons. Accordingly, I will order that X can travel outside the Commonwealth of Australia and on Australian travel documents.
For all of the above reasons, I will make the orders sought by the applicants in their Amended Initiating Application, which was filed and provided to the father almost two months ago on 11 December 2024, with the suggestion he forward it to his lawyers.
I make those orders accordingly.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 6 February 2025
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