ZONG & LIM - [2019] FCCA 2662

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZONG & LIM

[2019] FCCA 2662

Catchwords:
FAMILY LAW – Children – Application for interim parenting orders – child 7 years old – mother seeking order for sole parental responsibility – mother seeking order for the child to spend supervised time with the father – concerns raised by the family consultant regarding the father engaging in significant and sustained coercive and controlling behaviour towards the mother in the presence of the child – finding that the father has engaged in coercive and controlling behaviour and harassing and intimidating conduct towards the mother over a sustained period of time – Cautious approach warranted – finding that the presumption for equal shared parental responsibility does not apply – order for the mother to have sole parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.60B (1), 60B (2), 60CA, 60CC, 60CC(2) (b), 60CC(2A), 61DA, 61DA (2), 61DA(3), 65D

Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018

Cases cited:

Salah & Salah [2016] FamCAFC 100

Treloar & Nepean [2009] FamCAFC 206

Goode & Goode [2006] FamCAFC 1346

Eaby & Speelman(2015) FLC 93-654

Marvel v Marvel[2010] FamCAFC 101

SS v AH[2010] FamCAFC 13

Mazorski & Albright [2007] FamCA 520

Sahrawi & Hadrami [2018] FamCAFC 170

Applicant:

MS ZONG

Respondent:

MR LIM

File Number:

BRC 8160 of 2014

Judgment of:

Judge Tonkin

Hearing date:

2 September 2019

Date of Last Submission:

2 September 2019

Delivered at:

Brisbane

Delivered on:

20 September 2019

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

Solicitors for the Independent Children’s Lawyer:

Ms Harrington of Julie Harrington Solicitor

ORDERS

All previous orders be and are hereby discharged.

Until further order:

The child X born … 2012 live with the mother.
The mother have sole parental responsibility for the child save that the mother shall advise the father of the following:
(a)Any proposed change to the child’s schooling; and
(b)Any health issue that arises for the child.
The father shall spend no time and not communicate with the child.
The father and members of the father’s family be permitted to send the child cards, gifts and letters to an address provided by the mother and she shall facilitate the child receiving same.
Within 35 days of these orders, the Independent Children’s Lawyer is requested to recommend a clinical psychologist (who practices proximate to the father’s residence) for the father to consult with and prepare a report regarding whether there is a risk to the mother and to the child being exposed to further family violence by the father.
The Independent Children’s Lawyer is requested to provide the recommended clinical psychologist with the copy of my judgment and the family report dated 27 May 2018 and the family report dated 26 August 2019.
The father shall attend upon a clinical psychologist recommended by the Independent Children’s Lawyer at his expense and he shall consult with that psychologist and request that psychologist to prepare a report addressing whether there is a…

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 ZONG & LIM

Details

AGLC: ZONG & LIM [2019] FCCA 2662
Case: [2019] FCCA 2662
Decision Date: 20 September 2019

CaseChat Overview and Summary

In the matter of ZONG & LIM, Judge Tonkin of the Family Court of Australia considered an application for interim parenting orders concerning a seven-year-old child. The mother sought orders for sole parental responsibility and for the child to spend supervised time with the father. These applications were made in the context of concerns raised by a family consultant regarding the father's alleged significant and sustained coercive and controlling behaviour towards the mother in the child's presence.

The court was required to determine whether the presumption of equal shared parental responsibility applied, given the allegations of family violence. It also needed to assess the risk posed by the father's conduct to the child and the mother, and to make interim orders that would safeguard the child's welfare.

Judge Tonkin found that the father had engaged in coercive, controlling, harassing, and intimidating conduct towards the mother over a sustained period. Consequently, the court determined that a cautious approach was warranted and that the presumption of equal shared parental responsibility did not apply. The father was ordered to have no time or communication with the child, and the mother was granted sole parental responsibility, with specific exceptions for advising the father of proposed changes to schooling and any health issues. The father was also ordered to consult with a clinical psychologist at his own expense to assess the risk of further family violence.

Orders

Orders of the court

All previous orders be and are hereby discharged.

Until further order:

The child X born … 2012 live with the mother.

The mother have sole parental responsibility for the child save that the mother shall advise the father of the following:

(a) Any proposed change to the child’s schooling; and

(b) Any health issue that arises for the child.

The father shall spend no time and not communicate with the child.

The father and members of the father’s family be permitted to send the child cards, gifts and letters to an address provided by the mother and she shall facilitate the child receiving same.

Within 35 days of these orders, the Independent Children’s Lawyer is requested to recommend a clinical psychologist (who practices proximate to the father’s residence) for the father to consult with and prepare a report regarding whether there is a risk to the mother and to the child being exposed to further family violence by the father.

The Independent Children’s Lawyer is requested to provide the recommended clinical psychologist with the copy of my judgment and the family report dated 27 May 2018 and the family report dated 26 August 2019.

The father shall attend upon a clinical psychologist recommended by the Independent Children’s Lawyer at his expense and he shall consult with that psychologist and request that psychologist to prepare a report addressing whether there is a risk to the mother and to the child being exposed to further family violence by the father.

The father shall file and serve a copy of the report prepared by the recommended clinical psychologist on each of the parties within 10 days of receipt of that report.

10.

The Independent Children’s Lawyer is requested to further investigate the issue surrounding the child exploitation material.

11.

The Independent Children’s Lawyer has liberty to re-list the matter at short notice otherwise the matter is adjourned for mention to 10 January 2020.

12.

Pursuant to s.102NA(1)(c)(iv) of the Family Law Act 1975:

(a) the applicant mother not be permitted to personally cross-examine the respondent father; and

(b) the respondent father not be permitted to personally cross-examine the applicant mother.

13.

Order 12 applies whenever a person remains unrepresented in defended proceedings where cross examination is required.

14.

In the case of medical emergency the mother shall provide any medical practitioner treating the child the father’s details for the purpose of the medical practitioner contacting the father.

NOTATION:

(A) The unrepresented parties intend to apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (the Scheme) for representation.

Background

Background to the litigation

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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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