Zong & Lim (No 3)

[2021] FCCA 238

FEDERAL CIRCUIT COURT OF AUSTRALIA

Zong & Lim (No 3) [2021] FCCA 238

File number(s):	BRC 8160 of 2014
Judgment of:	JUDGE COATES
Date of judgment:	19 January 2021
Catchwords:	FAMILY LAW – Parenting – application for new Independent Children’s Lawyer – application dismissed.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	127
Date of last submission/s:	19 January 2021
Date of hearing:	19 January 2021
Place:	Brisbane
Counsel for the Applicant:	Ms K. Oakley
Solicitor for the Applicant:	Lander Solicitors QLD
Respondent:	Self-represented
Counsel for the Independent Children’s Lawyer:	Ms J. McArdle
Solicitor for the Independent Children’s Lawyer:	Julie Harrington Solicitor

ORDERS

BRC 8160 of 2014

BETWEEN:

MS ZONG

Applicant

AND:

MR LIM

Respondent

ORDER MADE BY:	JUDGE COATES
DATE OF ORDER:	19 JANUARY 2021

THE COURT ORDERS:

1.That in the Application in a Case filed 12 January 2021 be dismissed.

THE COURTS ORDERS UNTIL FURTHER ORDER:

2.That the mother’s costs and Independent Children’s Lawyers costs of today be reserved.

3.That this matter be adjourned for Mention at 2.00pm (QLD time) on 20 January 2021 in the Federal Circuit Court of Australia at Brisbane.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Zong & Lim (No 3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE COATES:

This judgment was delivered orally and has been corrected for written comprehension.

1. This is an application for parenting orders with regard to an 8-year-old child.

2. It is highly contested.

3. There has been one interim decision which was appealed. The appeal was filed by the father. His appeal was upheld because of findings made by the Judge on the interim decision.

4. The matter then came into my docket.

5. I made a further interim decision which was not appealed and set the matter for trial because the mother and child live in Brisbane and the father lives in Perth.

6. I had been trying to get the matter to trial. I have not been able to get it to trial.

7. Part of the reason being the COVID-19 crisis which has been inflicted on Australia, as well as the rest of the world, there is also, in my view, possibly a reluctance by the father to get it to trial, but I might be incorrect there.

8. In any case, the father now has two applications before the court.

9. I have not decided the second application, which was filed today, and, that is, that he wants an adjournment of the trial which is due to start next Monday.

10. I will deal with that issue after I deliver a decision on this issue.

11. The father has got an application to have the Independent Children’s Lawyer discharged.

12. It seems, in reading the material which he prepared – but, obviously he had some assistance in preparing it – but it seems to me, in reading the material, he takes issue with the Independent Children’s Lawyer with regard to her attitude towards him.

13. He says the Independent Children’s Lawyer is not representing the best interests of the child, but he does it in such a way as to claim that she gets things wrong with regard to his case.

14. There are a number of issues which he has raised, and I am going to go through them.

15. I should say that English is not the father’s first language. He does need an interpreter for assistance but does speak some English.

16. His first language is Mandarin as it is the mother’s first language.

17. Both the Independent Children’s Lawyer’s counsel and the mother’s counsel seek that this application be dismissed.

18. The first of the issues in the father’s affidavit has to do with statements made by the Independent Children’s Lawyer in a chronology presented to the court dated 14 September 2019.

19. I should say there have been a number of appearances, and obviously, in each of those appearances various issues have been ventilated.

20. One of the issues which came before the court at some stage was whether the father had purchased aeroplane tickets for the child to fly from Brisbane to Perth.

21. The chronology filed by the Independent Children’s Lawyer on 14 September 2020 states that the father had not purchased the air tickets. That was correct at that stage.

22. The father did not purchase air tickets until 17 September 2020. He told me that today in submissions.

23. It came before the court on 21 September 2020.

24. It became obvious that the court was aware that he had purchased air tickets by the time it came before the court on 21 September 2020.

25. The father takes issue with the chronology prepared some days before.

26. I cannot find fault in the chronology as it was prepared some days before, because as at 14 September 2020, on the father’s own submission to me today, no air tickets had been purchased.

27. It really seems to me that the father dislikes any intimation that he is being criticised by the Independent Children’s Lawyer.

28. That is how it appears to me.

29. The Independent Children’s Lawyer was certainly within her rights to state as at 14 September 2020, the father had not purchased the air tickets.

30. As I say, by the time it came before the court on 21 September 2020, the air tickets had been purchased.

31. There is no evidence of any misconduct, which seems to be the issue which the father is talking about.

32. On that particular issue, the father could not prove that there had been any misconduct on the part of the Independent Children’s Lawyer or that she was not discharging her duties pursuant to the Family LawAct1975 (“the Act”) with regard to the best interests of the child.

33. The next issue had to do with the appeal hearing and as I read the father’s affidavit and as I listened to his submissions, he seems to be saying the Independent Children’s Lawyer ought be discharged because she would not support a stay of the orders of Judge Tonkin.

34. He had an appeal against the orders of Judge Tonkin.

35. He sought a stay of the orders.

36. He sought a stay of the orders because, obviously, he was affected by the orders.

37. It seems to me he is saying that simply because the Independent Children’s Lawyer would not support his stay, that is some sort of misconduct.

38. If all lawyers who supported a losing case were restrained from acting for their clients, there would be nobody to defend anything.

39. In my view, what he is seeking is simply a misunderstanding of a lawyer’s role.

40. A lawyer’s role is to represent their client and is to put submissions before the court.

41. It may be that a lawyer wrongly interprets the law.

42. That is why you have courts to make decisions when there is an argument.

43. A wrong interpretation may only be a wrong interpretation once a court decides that, but there is no issue here of misconduct.

44. Not only that, it is clear from the father’s own evidence that the Independent Children’s Lawyer accepted that Judge Tonkin had made a mistake.

45. Again, it seems to me that the father has taken a disliking to the Independent Children’s Lawyer.

46. That is not unusual in these matters, but I cannot see any personal bias or any misconduct on the part of the Independent Children’s Lawyer against the father, so on that particular issue, the father would not be successful in having the Independent Children’s Lawyer discharged.

47. The next issue is about whether a Final Protection Order had been made against the father in a chronology handed to the court by the Independent Children’s Lawyer.

48. The Independent Children’s Lawyer stated words to the effect that she was informed that the mother had obtained a final extension of a Protection Order.

49. It is clear from the material that the Independent Children’s Lawyer knew that there had been a Temporary Protection Order and it is clear that whatever submissions were put to the court, the Independent Children’s Lawyer clearly stated that the information was coming from the mother.

50. In fact, the mother’s lawyer on 20 July 2020 sent an email to the Independent Children’s Lawyer stating that the Temporary Protection Order had been granted.

51. Two months later, in the submission which the Independent Children’s Lawyer had put before this court, the Independent Children’s Lawyer referred, as the father says, to a final extension of that order.

52. I do not know what a final extension means.

53. I do not take that to mean a Final Protection Order was made.

54. It appears to me that some type of extension order was placed upon the Temporary Protection Order which was made against the father.

55. As stated by counsel for the Independent Children’s Lawyer, there is no misleading conduct apparent on the part of the Independent Children’s Lawyer. The mother’s counsel also agrees with that.

56. Again, this comes back to what appears to me to be simply the father’s view that the Independent Children’s Lawyer may not be making decisions in his favour in discharging her functions.

57. Whatever position the Independent Children’s Lawyer is taking, the final order is one for the court and it is not necessarily clear at this stage what the Independent Children’s Lawyer’s position will be at the trial.

58. It may be, as she has to do, in forming an opinion under the Act, that she favours the mother’s case.

59. I do not know, but the Act also dictates that she makes some type of decision, as do trial directions.

60. That assists parties to clarify their case, because it assists the parties to realise what are the important issues which are before the court.

61. On that issue, the father would not be successful in having the Independent Children’s Lawyer discharged.

62. The next issue is that the orders of Judge Tonkin on 20 September 2019 requested the Independent Children’s Lawyer to recommend a clinical psychologist to assist the father.

63. Now, it was a request.

64. It was not an order that she do so. It was a request.

65. As it turns out, the Independent Children’s Lawyer sought assistance from experts or employees – in fact experts within the Family Court Child Dispute Services section of the Family Court of Western Australia, who recommended a psychologist.

66. The Independent Children’s Lawyer passed that onto the father.

67. The father now complains that that psychologist, a Ms G, charged him an amount of money, $1,540, that Ms G was not a clinical psychologist and that Ms G was not practising locally to the area the father lives in.

68. The father said this psychologist lived 75 kilometres away.

69. The father also said he received advice from the Australian Health Practitioners Regulation Agency that Ms G was not a clinical psychologist.

70. I will make this observation – I have seen the order of Judge Tonkin. I have viewed that order which recommends a clinical psychologist. There is no definition in the order of what a clinical psychologist is. There is no definition from the Australian Health Practitioners Regulation Agency of what a clinical psychologist is. It does appear that Ms G is a psychologist. It does appear she is a practising psychologist.

71. The complaint of the father seems to be that the Independent Children’s Lawyer did not follow the order.

72. The Independent Children’s Lawyer discharged a duty as best she could, in my view.

73. She was under no obligation to recommend a clinical psychologist. It was a request, and a request only.

74. She certainly made some quite appropriate inquiries with the Family Court of Western Australia.

75. She was given a name of a person who practises in the area. So she discharged that duty.

76. The father, obviously, did not have a very good relationship or a therapeutic relationship as it was put to me by the counsel for the mother, with Ms G, and makes a very odd statement in his affidavit, which I will quote:

    26.Because of Ms G abusing behaviour towards my family, I suspect who she is.

77. Now, I do not know what abusing or abusive behaviour is. There is no evidence of that, but then he says:

    26.… In the beginning of January 2020 my mother had to stay in a hospital for three days due to uncomfortable as so many worries about that issue.

78. I have got no idea of what any of this is about. None whatsoever.

79. It seems, as counsel put – and I think it was counsel for the mother – that the father is attempting to hold the Independent Children’s Lawyer accountable for any behaviours of Ms G and, in fact, the appointment of her.

80. Far from it, it is not the Independent Children’s Lawyer who will be held accountable for that.

81. The Independent Children’s Lawyer complied with a request from the court.

82. If the father did not get on with a psychologist, who seemed to be capable on all of the information received by the Independent Children’s Lawyer, then perhaps he needs to put more information before the court as to why.

83. It is not an issue upon which the Independent Children’s Lawyer would be discharged.

84. The next issue is that the father wants the Independent Children’s Lawyer discharged because she seemed to have filtered information in another chronology with regard to complaints which the mother had, or at least inquiries which the mother made of the Queensland Police Service as to what constitutes domestic violence.

85. The chronology is in the material, but it seems that the mother may have told police that she had received emails from the father and was not sure whether they would constitute a breach of any order.

86. She may well have told police – because this is what is recorded – that the content was not threatening in nature, or they formed the view that it was not threatening in nature.

87. The claim by the father is that the Independent Children’s Lawyer had filtered out a quote which may – or in his view proves that, in my view, may go to prove that anything he said was not threatening to the mother or she did not believe it was threatening to the mother.

88. Firstly, it is up to the court to determine whether something is threatening.

89. Obviously, if a person does not feel threatened, that may be the end of the matter.

90. A person may very well misconceive any information they receive from another party who may well be acting in a threatening manner if, in fact, other circumstances can be taken into account.

91. None of these issues have been put before this court in a trial sense for any conclusion to be reached.

92. But it is not the Independent Children’s Lawyer who is filtering material.

93. The Independent Children’s Lawyer merely prepared a chronology.

94. A chronology is not evidence.

95. It is an aid, but it is not the evidence.

96. The evidence will come from either of these parents and come from documentary evidence admitted from the Queensland Police Service, if such has been obtained under subpoena.

97. It is not an issue upon which the Independent Children’s Lawyer would be discharged.

98. There are two other issues.

99. The first is an odd issue.

100. The father’s house, as I understand the evidence, was raided at one stage and some man he had in the house living there, as I understand this, was found with child exploitation material on his computer.

101. Obviously, the court is going to be concerned as to why a person is in the father’s house has child exploitation material.

102. It seems that there may be evidence that the police in Western Australia at some stage formed a policing view that the father was not a person of interest.

103. Now, that is as far as I can go.

104. It is up to the Independent Children’s Lawyer – it is important that she put this material at the relevant time before the court, which she did.

105. The father complains that the Independent Children’s Lawyer did not tell Kent J in the Appeal that the father was not a person of interest.

106. I do not know what the Independent Children’s Lawyer told Kent J in the Appeal.

107. I do know Kent J said he did not consider it necessary to address all the issues.

108. He also said it appears it was the man who police were interested in rather than the father. Note the words ‘it appears’.

109. The father is quoting from the Appeal judgment. Kent J has not made any findings either.

110. He is merely stating what I am stating as from the evidence.

111. I do not know how this case is going to be presented.

112. It may be presented in such a way where I am required to make a finding on why this man is in the father’s house, but the issue here is, is there any misconduct, any bias or anything which would lead the court to form the view that the Independent Children’s Lawyer ought to be discharged on this issue?

113. Clearly, the answer is no.

114. The Independent Children’s Lawyer has performed her duty on this issue.

115. The last issue is with regard to a recovery order on 3 July 2020 which the father sought.

116. The Independent Children’s Lawyer did make some submissions to the court on 21 September 2020. She said this:

     But it appears from the evidence and the emails that the father has not complied either with the order of Judge Coates on 9 March to book the child’s ticket, nor did he comply with the order of 3 July to book a ticket for the child or make arrangements to come to Brisbane.

117. Now, all she has said is “it appears from the evidence”.

118. She is not stating that as a final position because, obviously, she does not know all of the evidence which may be available.

119. There is nothing wrong with that statement.

120. It is one the father does not like, but there is nothing wrong with it.

121. The father says she seems to have ignored the fact that the mother and he later came to an agreement for the child to spend time with him.

122. There is nothing there which shows any bias, any misunderstanding of the case, any practice which would jeopardise the case of either party because of some misleading behaviour.

123. The father does have a right to run his case. He will run his case, but it is not on the basis that the Independent Children’s Lawyer here ought be discharged, because there is no evidence to support what I think this is all about, and, that is, his view that the Independent Children’s Lawyer may be against him.

124. On that basis this application is dismissed.

125. I set this trial for four days from next week. It is the second time I have set the trial.

126. I have been trying to set a trial for some time.

127. The father has made more than one application for an adjournment. He has now made this second application and there does not appear to be grounds to adjourn the trial.

I certify that the preceding one hundred and twenty-seven (127) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coates.

Associate:

Dated:       11 February 2021