ZENG & LAM (No.2)
[2015] FCCA 3333
•14 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZENG & LAM (No.2) | [2015] FCCA 3333 |
| Catchwords: FAMILY LAW – Maintenance – spousal maintenance – application for spousal maintenance – insufficient evidence. PRACTICE AND PROCEDURE – Transfer to Family Court – estimated length of final hearing likely to exceed four days – complexity of issues – protocol between Federal Circuit Court and Family Court considered – where parties have not complied with directions to prepare matter for final hearing. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 68B, 74 Federal Circuit Court of Australia Act 1999 (Cth), s.39 |
| Cases cited: Gee & Luxford [2015] FCCA 3217 Lam & Zeng [2015] FCCA 2558 |
| Applicant: | MR ZENG |
| Respondent: | MS LAM |
| File Number: | SYC 2086 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 9 December 2015 |
| Date of Last Submission: | 9 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2015 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
| Independent Children's Lawyer: | Ms Shea |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
UNTIL FURTHER ORDER
The father is to spend time with the child X born (omitted) 1999 for a period of one hour each Monday, Wednesday and Friday between the hours of 4:00 pm and 5:00 pm for the purpose of assisting the child with his education.
For the personal protection of the said child X born (omitted) 1999 the father is restrained from assaulting or striking or using any form of physical discipline on the said child.
All other interim Applications are dismissed.
The substantive proceedings are transferred to the Family Court of Australia at Sydney under the provisions of section 39 of the Federal Circuit Court of Australia Act 1999.
IT IS NOTED that publication of this judgment under the pseudonym Zeng & Lam (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2086 of 2014
| MR ZENG |
Applicant
And
| MS LAM |
Respondent
REASONS FOR JUDGMENT
Application in a Case
This is an Application by the father for Interim Orders. It is opposed by the wife and not supported by the Independent Children’s Lawyer. It is an Application of very little merit.
Orders sought
The Applicant seeks two orders in his Application, which was filed on 10 August 2015:
1. I require to parenting X during our case in process.
2. I require Ms Lam to pay some our living expenses.
Ms Shea, the Independent Children’s Lawyer, submitted that the first order sought appears to be an application for sole parental responsibility for the parties’ son X, who was born on (omitted) 1999. As the Family Consultant noted in the Family Report that was released to the parties on 11 May 2015, X has been assessed as having a mild intellectual disability.
The second order sought, upon which the Independent Children’s Lawyer did not comment, appears to be an application for interim spousal maintenance.
In her Response to an application in a Case filed on 23 November 2015, the Respondent states:
1. I disagree Mr Zeng parenting X.
2. I disagree to pay Mr Zeng any living expenses.
Background
The parties were married in 1985 and separated under the one roof in 2010. They were divorced in June 2014 but they remain living in the same house.
The parties own two houses, one at Property B and one at Property P. They choose to remain living in the house at Property B and they have a tenant in the Property P property.
The parties have three children, two of whom are now adults:
a)Y, who was born on (omitted) 1992 and is now 23 years old;
b)Z, who was born on (omitted) 1996 and is now 19 years old; and
c)the subject child, X, who was born on (omitted) 1999 and is now 16 years old.
X has just completed Year 9 at (omitted) College – (omitted) Campus.
The Applicant commenced property and parenting proceedings by filing an application and supporting documents on 1 May 2014. The proceedings were listed for final hearing from 25 to 27 May 2015. A Family Report was prepared and released to the parties on 11 May 2015.
The final hearing did not take place. The parties, who are not legally represented, had not taken any steps to prepare the matter for hearing. With the aid of the Independent Children’s Lawyer and solicitor, Me Paddy Moylan who acted on an amicus curiae basis, the parties entered into Consent Orders to enable the matter to be prepared for hearing.
In respect of the property proceedings, orders were made by consent that:
a)The husband was to nominate three registered valuers to carry out valuations of the two properties;
b)The wife was then to select one of the three valuers to conduct the valuations and provide a report as a Court expert;
c)The parties were each to pay the one half costs of the valuer necessary to carry out the valuation and provide a report.
The parties do not appear to have done any of that.
In respect of the parenting proceedings concerning X, orders were made by consent that:
a)Within seven days the mother was to make an appointment for X to see a general medical practitioner to obtain a referral to a paediatrician for the purpose of having the child assessed for autism;
b)Within seven days of having obtained the referral, the mother was then to arrange an appointment for X to see the paediatrician;
c)The mother was to be responsible for taking X to the paediatrician;
d)The father was to pay the cost of having the child assessed for autism;
e)Upon receipt of the paediatrician’s report concerning X, the mother was to provide a copy of that report to:
i)The father;
ii)The Independent Children’s Lawyer; and
iii)X’s school.
Regrettably, the parties do not appear to have done any of that, either.
What the parties have done is conduct interim proceedings. On 16 September 2015 the Court heard an Application in a Case by the mother seeking orders that would permit her to take the child X out of Australia to China to see her mother, who she said was terminally ill. The father opposed the application.
On 17 September I made orders permitting the mother to apply for a passport for X and to take him out of the country from 1 October to 28 October 2015 (Lam & Zeng[1]).
[1] [2015] FCCA 2558
Submissions and Evidence
The father relied on his affidavit of 10 August 2015, in which he denied that he had committed any acts of family violence on his former wife, describing her complaints as “utter nonsense”.[2] He did, however, concede in his affidavit that he had tied up X’s hands but denied that it constituted domestic violence or torture. He deposed that it was a Qi-gong exercise and he tied the child’s hands to help him to do the exercise.[3]
[2] Affidavit of Mr Zeng 10.8.2015 paragraph [1]
[3] Ibid at [3]-[4]
As to his application that the Respondent should make some payments towards the running of the household, the Applicant deposed:
I did my best to manage our family finance and had good results, but she thinks another way…After Ms Lam saying “new” reasons I will lodge my new evidences.[4]
[4] Ibid at [9]
The mother relied on her affidavit of 23 November 2015. In that affidavit, she deposed that she has been responsible for 100% of X’s care but accused her former husband of making an application for child support, falsely claiming that he had 100% of the child’s care.
She claims that the father cannot parent X because he is violent. She tendered a copy of a Final Apprehended Domestic Violence Order made on 17 November 2015 at Burwood Local Court. The Order is in force for six months and names the mother and the child X as the protected persons.
The Orders made by the Court are the standard orders:
a)Not to assault, molest, harass, threaten or otherwise interfere with the protected persons;
b)Not to engage in other conduct that intimidates the protected persons; and
c)Not to stalk the protected persons.
In his submissions, the father conceded that he had consented to the Apprehended Domestic Violence Order but sought to downplay its significance.
Each party told the Court that they wanted to live in the house in Property B with X. Neither party was prepared to move out and move into the other house, which is tenanted, saying “who will pay the mortgage?”
Ms Shea, the Independent Children’s Lawyer, submitted that the father’s application for sole parental responsibility for X was premature, as the parenting of X is inextricably tied up with each party’s wish to remain in the Property B property, to the exclusion of the other. It was clear, however, that the father really wants to be responsible for X’s schooling.
Ms Shea did, however, suggest that the Court could consider an order granting the father leave to spend some time with X each week to assist him in his education, noting that the father had pretty well taken a back seat in respect of X’s care and education, in order to avoid conflict with the mother. Ms Shea suggested that a period of one hour on three days a week may be beneficial.
It is the mother’s case that she is capable of attending to X’s education and has constantly maintained contact with the child’s teachers.
Conclusions
The father’s application for sole parental responsibility for X is premature and unrealistic. The parenting arrangements for X are one of the principal issues between the parties and the Court will require significant evidence from a paediatrician and, in my view, from X’s school. None of this evidence is before the Court.
There is some merit in making an order permitting the father to spend a period of one hour with X on three days a week to assist him with his homework and his education generally. However, there must be no physical chastisement or tying the child up, for whatever reason.
The father can attempt to explain away the Apprehended Domestic Violence Order as much as he likes, but the fact remains that he consented to an Order at the Burwood Local court and that Order is in force, and will remain in force for another five months. I propose to make an injunctive order under the provisions of s.68B of the Family Law Act 1975 (Cth), restraining the father from assaulting or striking or using any form of physical discipline on the child. That injunction will still be in force after the Apprehended Domestic Violence Order expires.
As for the Application for spousal maintenance, the Applicant has not provided any details of an amount sought, the need for the maintenance or the Respondent’s capacity to pay. There is insufficient evidence to make such an order and the application will be dismissed.
The future progress of the matter
This is a matter of some complexity, due to the situation of the parties’ son X, who appears to have some form of intellectual disability and may have some form of autism. The parties have not provided any evidence that would assist the Court in making a determination about what orders are in the child’s best interests, despite the assistance offered by the Independent Children’s Lawyer.
The parties own two houses. They stubbornly continue to live in the Property B property and seek that the other party should move out. They have lived in this situation for five years now and they choose to continue to do so. They have not acted on the advice provided to them free of charge by a solicitor who acted as amicus curiae to prepare sensible and workable orders to obtain valuations of the real estate.
The parties have made no effort to obtain legal representation, notwithstanding the fact that they own two houses and the mother has been able to travel to China with their son X as recently as October this year.
The parties have not complied with directions to enable the matter to be ready for final hearing. The final hearing in May this year was vacated because the parties could not or would not take any steps to prepare the matter for hearing.
The likely length of the hearing will be protracted because the parties will need the assistance of an interpreter in the Mandarin language. Their inability or unwillingness to prepare the matter for final hearing will mean that the necessary evidence will need to be teased out, slowly and painfully, by the Independent Children’s Lawyer.
The parties are unlikely to settle the matter because they stubbornly maintain their own mutually antipathetic positions, from which they are resolutely opposed to shifting in the slightest degree. They have chosen to live as a separated couple under the one roof for the last five years. Neither one will do anything to break the deadlock by moving out, even if only temporarily. From this I infer that the continuation of this stalemate cannot be so difficult for either of them to bear that there is any urgency in resolving the matter.
In my estimation, noting as I have the verbosity of the Applicant in particular, who appears to believe that the best way for him to conduct the proceedings is to continue to make submissions until he has the last word, this matter cannot be kept down to the three days which were originally scheduled. I doubt that it can be concluded in four hearing days.
In my view it will take at least a week to hear. I do not have that time left in my docket. The time that I previously allocated has been lost because the parties were not ready.
Transfer to the Family Court
This matter should be transferred to the Family Court for final hearing.
As it appears likely that the proceedings will take a week to hear, this matter falls within the protocol between the Federal Circuit Court and the Family Court, which requires that more complex matters, particularly those that are likely to take more than four days to hear, should more properly be dealt with by the Family Court.
I have considered the matters set out in s.39(4) of the Federal Circuit Court of Australia Act 1999 (Cth), including whether the resources of this Court are sufficient to hear and determine the proceeding and also the interests of the administration of justice. I have also considered the matters in Rule 8.02 at sub-rule (4).
It is likely that the proceeding will be heard and determined at less cost and more convenience to the parties than if the proceeding were not transferred.
I commented recently in Gee & Luxford[5] that it is a significant matter that the resources of the Federal Circuit Court, especially in Sydney, are over-stretched at present, with one judicial vacancy in the Sydney Registry that has remained unfilled for over ten months. Two more judges from this Registry are scheduled to retire in 2016. Final hearing dates are extending well into 2017 and the Court does not have the resources to deal with cases that will take more than four days to hear.
[5] [2015] FCCA 3217
I propose to transfer this matter to the Sydney Registry of the Family Court of Australia under the provisions of s.39 of the Federal Circuit Court of Australia Act 1999.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 14 December 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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