Zong & Lim (No 4)

[2021] FCCA 319

FEDERAL CIRCUIT COURT OF AUSTRALIA

Zong & Lim (No 4) [2021] FCCA 319

File number(s):	BRC 8160 of 2014
Judgment of:	JUDGE COATES
Date of judgment:	20 January 2021
Catchwords:	FAMILY LAW – parenting – application for adjournment of trial.
Legislation:	Family Law Act1975 (Cth), s 102NA.
Number of paragraphs:	39
Date of last submission/s:	20 January 2021
Date of hearing:	20 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:	20 JANUARY 2021

THE COURT ORDERS THAT:

1.That leave be granted for the father’s legal representatives, HCM Legal to withdraw from acting on behalf of the father.

2.That pursuant to r.21.16 of the Federal Circuit Court Rules2001 this matter be certified as appropriate for Counsel.

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

4.That the Final Hearing set down for not more than four (4) days commencing on 25 January 2021 be vacated.

5.That the matter be set down for a Final Hearing for not more than four (4) days commencing at 9.30am on 20 April 2021 in the Federal Circuit Court of Australia at Brisbane.

IT IS NOTED:

A.That the mother and father require Mandarin interpreters for the Final Hearing.

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.4) 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 a matter involving an eight-year-old child.

2. It is a very bitter dispute between the parents, with allegations of risk which are going to be put forward in the mother’s case, whereby the court will be asked to make a no-contact order between the child and the father.

3. There are a number of complications in running this particular trial.

4. The first complication is that both parents are Chinese by birth, and English is not their first language.

5. Even though I am satisfied that they have a grasp of the English language, most certainly the father will need the assistance of an interpreter and the mother may well need such assistance as well.

6. Another complicating factor is that the parties were conducting a relationship together when living in Perth, but the mother and child now live in Brisbane, with the father remaining in Perth.

7. There appears to be no evidence that either party intend moving from those respective cities.

8. The distance, the cost of travel, the time of travel, and the age of the child – because of the geographical situation of both parties – adds to the complexity of the matter which the court will have to decide.

9. The COVID-19 pandemic has also played quite a dominant role in upsetting the timetable for the court being able to hear this matter.

10. Apart from restrictions imposed by various states last year, when this matter came on for mention and for various decisions from time to time, the continuing and different restrictions applied by each state of Australia, because of the COVID-19 virus, causes the father to be in the position whereby if he comes to Brisbane for a trial which was set for next Monday, he may well have some difficulties upon his return to Western Australia.

11. Although he has made submissions about his difficulties, there is no evidence to support those claims.

12. Be that as it may, the fact is that, at any time, various states could impose various restrictions, with little warning, which may cause further disruption and dislocation for the parties in this matter.

13. Now it is obviously not within the ability of the court to estimate – or even guess – what the state of affairs will be next week with regard to the COVID-19 outbreaks, border restrictions, travel restrictions and the general imposition of difficulties associated with all of those things.

14. Another complicating factor is that the father, pursuant to s.102NA of the Family Law Act 1975 (“the Act”), has had solicitors appointed to assist him twice, because of allegations that he has been violent, and now, on two occasions, the court is in the position where he is not represented.

15. On the first occasion, last year, at time of trial, the father claimed that his affidavit did not reflect his instructions.

16. The court has no way of knowing that to be the case, the court really is not concerned with that part of the father’s case but for the fact that he would have appeared unrepresented, because his solicitors withdrew when he made the claim that his instructions were not reflected in his affidavit.

17. It is an important matter, of course, that the affidavit – the sworn evidence – does reflect a person’s instructions.

18. Because the order pursuant to s.102NA of the Act is in place, Legal Aid Queensland appointed another solicitor, and in a hearing yesterday where the father sought – but failed – to have the Independent Children’s Lawyer discharged, the father made a statement in court that he had no trust in his solicitors.

19. That may have come as a surprise to his solicitors – I do not know – but I knew that the matter had to be adjourned overnight so that the father and his solicitor could have a conference.

20. That conference has obviously occurred, because the solicitor sought leave to withdraw today, and such leave was granted.

21. The status of his legal aid, pursuant to s.102NA of the Act, is a decision for Legal Aid Queensland.

22. I do not know whether the Legal Aid Act allows for a discretionary decision with regard to a litigant about whom Legal Aid forms a view that any representation will be met with some claim, some allegation, or some other resistance.

23. That is a matter for Legal Aid, it is not a matter for the court.

24. What is a matter for the court, though, is that there is an allegation that a final protection order is in place, although that apparently has not been seen by counsel for the Independent Children’s Lawyer, and I certainly when looked at the file, and I could not find such an order.

25. It seemed to me that the father may well have been agreeing that there may have been a final order, but I am not sure about that.

26. In any case, if there is a final order, he is prevented from cross-examining the mother.

27. Now, that will most certainly cause difficulty for him, if there is an opportunity for him to be represented through Legal Aid in the future.

28. The father sought an adjournment on the basis, also, that he was not ready.

29. I do not know why he was not ready for this matter. This has been a matter before the court for long enough that I would doubt that anything new could emerge in all of the evidence which has been filed, but he said he was not ready.

30. That alone is not enough for the adjournment, but taking all of the other factors together, what the mother seeks as a final outcome, the COVID-19 crisis, the fact that the father has twice claimed now that he has not received proper representation – which he is entitled to pursue if he has not received such representation and I cannot be critical of him for that – and the difficulties of language, I unfortunately do not think I have any other choice but to adjourn the matter again.

31. This is causing a problem, not only for both parents, because they really need a decision from the court, but it is causing a problem for the court, because this court – and each judge has so many matters – that time has to be found.

32. This is going to be a four-day hearing, because of the need for interpreters, when otherwise it would possibly be a two-day hearing.

33. I think it is a proper exercise of my discretion to grant the adjournment, on the basis of all of those issues I have referred to.

34. What I intend to do, though, is now give you a date.  This matter will go ahead from 20 April 2021.

35. The court, because of the s.102NA of the Act order which is still in place, will inform Legal Aid of the position.

36. It is up to Legal Aid to investigate what the father says has occurred, I assume they have some form of doing that, but that is not a matter for the court.

37. The only way I can see that the trial will not run on 20 April 2021 is because of a serious illness by one of the parties, or a new round of imposition of COVID-19 restrictions.

38. That is the only way I can see that it will not run. There may be other reasons, but I cannot think of any.

39. So it is with regret that I make that decision, but I am also keeping in mind that, even though it is another four-months away, it may be the quickest way of having the matter resolved once and for all.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coates.

Associate:

Dated:       23 February 2021