ZENG & LAM (No.2) - [2015] FCCA 3333

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZENG & LAM (No.2)

[2015] FCCA 3333

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – inappropriate to make order for parental responsibility – high degree of conflict between parents – intractable conflict – parenting proceedings inextricably linked to property proceedings – allegations of family violence – family violence order in force – application premature.

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
Federal Circuit Rules 2001, r.8.02

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ZENG & LAM (No.2)

Details

AGLC: ZENG & LAM (No.2) [2015] FCCA 3333
Case: [2015] FCCA 3333
Decision Date: 14 December 2015

CaseChat Overview and Summary

In the matter of ZENG & LAM (No.2), Judge Scarlett of the Federal Circuit Court of Australia considered applications concerning parenting orders, spousal maintenance, and the transfer of proceedings. The dispute involved significant conflict between the parents, allegations of family violence, and an existing family violence order. The parenting proceedings were also found to be inextricably linked to property proceedings.

The court was required to determine whether it was appropriate to make interim orders for parental responsibility given the high degree of intractable conflict between the parents. Additionally, the court had to consider an application for spousal maintenance and whether the proceedings should be transferred to the Family Court of Australia. The complexity of the issues and the estimated length of the final hearing, likely to exceed four days, were also relevant considerations for the transfer.

Judge Scarlett reasoned that making an order for parental responsibility would be inappropriate due to the intractable conflict and the existing family violence order. The application for spousal maintenance was dismissed due to insufficient evidence. Considering the complexity, the estimated hearing length, and the parties' non-compliance with directions, the court ordered the substantive proceedings to be transferred to the Family Court of Australia at Sydney. Interim orders were made for the father to spend time with the child X for educational purposes and to refrain from assaulting or using physical discipline on the child. All other interim applications were dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.