Chong & Kerimowa [2025] FedCFamC1A 158 | Case summary

Chong & Kerimowa [2025] FedCFamC1A 158 | Case summary | Zoe

[7]

The parties married in 2013 and separated in or about September 2022.
Upon separation, the mother and children vacated the family home. The children were then aged eight (a male) and five years old (a female). The parties amicably arranged for the children to spend time with the father on weekends (at [12]), but such amicability did not last long.
Only a month later, in October 2022, several dramatic developments occurred in quick succession. First, the mother began sending the father messages accusing him of sexual infidelity (at [14]-[16]). Secondly, she informed the police the father had sexually assaulted her numerous times some months beforehand (at [17], [20] and [73]). Thirdly, she alleged the father had sexually assaulted the younger child by touching her vulva and digitally penetrating her (at [2], [21]). Fourthly, she sent the father messages alleging the elder child was afraid of him and that both children were "absolutely terrified" by him (at [18], [21]). The mother then withheld both children from him.
Thereafter, despite not spending any time or communicating with the father, both children made escalating allegations of their physical and sexual abuse by him (at [23]-[24]), some of which were ostensibly quite fantastic - such as the father punching the younger child in the face and stomach, putting the younger child's head in the toilet, cutting the younger child with a knife, suffocating the elder child, and chasing the elder child with a knife.
In early 2023, the mother's allegations also escalated in seriousness. She alleged to the State child welfare agency that the father had trafficked the children to a "known paedophile ring" (at [110]-[111]), from which allegation she eventually resiled in cross-examination (at [115]).
The father commenced proceedings in respect of their children under Pt VII of the Family Law Act 1975 (Cth) ("the Act") in May 2023.
In August 2023, interim orders were made requiring the children to spend supervised time with the father, but the mother failed to ever comply with those orders (at [30]).
The trial of the proceedings began in March 2025. On the third day of trial, the mother's lawyers successfully sought leave to withdraw due to an alleged conflict of interest between she and them (at [38]). The trial then continued with the mother self-represented. At the conclusion of the evidence, the primary judge dismissed the mother's application to re-open and adduce more evidence to try and vindicate her allegation of the father's interest in child pornography (at [40]-[45]), which allegation she first raised in an affidavit she filed about two months beforehand (at [25]).
The father and the Independent Children's Lawyer ("the ICL") both advocated for the reversal of the children's residence and the father's conferral with sole parental responsibility for them. They each proposed the children spend only confined time with the mother, being once every three months, and only then after a lengthy moratorium (at [31], [36] and [37]).
The mother's conduct in advance of the trial evinced her intention to permanently sever the children's relationships with the father (at [21], [30], [32] and [35]). However, on the first day of trial, she proposed orders for the children's slow and incremental re-introduction to the father, culminating in alternate weekend visits (at [33]), but importantly always still subject to "the views and recommendations" of the elder child's psychologist (at [34]).
The mother adhered to that proposal for the remainder of the trial, but there were two problems with it. First, the orders which purported to vest judicial power in a treating psychologist were incompetent (Lainhart & Ellinson [2023] FedCFamC1A 200; (2023) FLC 94-166 at [13]-[33] and [58]-[59]). Secondly, neither the mother nor her lawyers (while they were still engaged) could rationally explain the apparent inconsistency between her proposal and her maintenance of such grave allegations of child abuse against the father (at [35]).
The father was interviewed multiple times by police and other authorities in relation to the allegations of his criminal behaviour. He denied all allegations and has never been charged with any criminal offence (at [28] and [107]). He also gave evidence at the trial denying any impropriety (at [129] and [132]) and the primary judge found him to be a "truthful witness".
The father's denials of misconduct were consistent with various other pieces of evidence, such as: at least some of the children's disclosures of the father's misconduct were induced by the mother's leading questions and conduct (at [78], [94], [99], [101], [118] and [140]); the younger child did not independently make any allegation against the father when first interviewed by police (at [85] and [93]); the allegations made by the younger child to police during a second interview several months later were regarded by the police as "fanciful" (at [104]); the single expert also thought the allegations made against the father were implausible and unrealistic (at [136]); physical examinations of the younger child's body revealed no injury consistent with her alleged vaginal or anal penetration (at [22], [84], [90], [91], [96]-[98] and [107]); the younger child admitted to an officer of the State child welfare agency that she fabricated some of the allegations (at [88]); the mother conceded some of the younger child's allegations simply could not be true (at [106]); and the State child welfare agency considered the mother's conduct caused the children psychological harm (at [105]-[106]).
As it transpired, the primary judge found the mother failed to prove, on the balance of probabilities, her allegations that: she was sexually assaulted by the father (at [130] and [136]); the children were sexually or physically abused by the father (at [107] and [136]); the children had been trafficked by him to a paedophile ring (at [116] and [119]); or that the father produced, viewed or disseminated child pornography (at [134]).
The primary judge conversely found the mother had psychologically harmed the children by her conduct, which caused their enmeshment with her (at [109], [118], [138], [141]-[146] and [153]). The mother's behaviour disturbed the children and caused them to act aberrantly after separation (at [147]-[150]). The primary judge accepted the single expert's opinion evidence that their best interests were not served by continuing to live with the mother (at [150]-[151]).
Accordingly, orders were made for the children to live with the father and for him to have sole parental responsibility for them. The mother is restrained from either seeing or communicating with the children for six months, after which time they will spend professionally supervised time with her four times each year. Although neither the father nor the ICL sought the children's indefinite supervision when with the mother, the issue was well ventilated in final submissions and so she could not have been unfairly surprised by that outcome. His Honour was obliged to make orders in the children's best interests, not just choose between the polarised options posited by the parties (U v U [2002] HCA 36; (2002) 211 CLR 238 at 263 and 284-285).
The mother appealed from all orders. The appeal was resisted by the father and the ICL.

[10]

This ground alleges the mother was denied procedural fairness by being deprived of the opportunity to obtain new lawyers when her existing lawyers withdrew their representation of her during the trial.
Advertence to the chronology of events shows the proposition should be rejected.
Neither party called other witnesses in their respective cases. The father was cross-examined on the first and second days of the trial. The mother's cross-examination began on the afternoon of the second day of trial and, on the morning of the third day of trial, due to an asserted conflict of interest, her lawyers successfully sought leave to withdraw. Such leave to withdraw was eventually granted, but conditionally upon the trial continuing, the lawyers remaining in the trial until the completion of the mother's cross-examination, and the lawyers' provision to the mother of transcript and notes of the evidence given over the first two days of trial (at [38]).
Once the mother's oral evidence was completed by cross-examination on the afternoon of the fourth day of trial, her lawyers withdrew as permitted. The primary judge then entertained and dismissed an adjournment application made by the mother, which the father and the ICL both opposed, and for which ex tempore reasons were delivered by his Honour (Kerimowa & Chong (No 3) [2025] FedCFamC1F 580).
The trial therefore continued the next day. The single expert was the only other witness in the trial and the ICL assisted the mother by cross-examining the single expert (at [39]). The evidence closed on the fifth day of trial.
The gravamen of the complaint of procedural unfairness is that the primary judge's denial of the adjournment application deprived the mother of the chance to either engage a new lawyer or to have sufficient time within which to prepare herself for the cross-examination of the single expert witness on the fifth day. The submission was put this way:
1. ... The report of the [single expert] and the recommendations being pressed by [the single expert] required a fair opportunity for the [mother] to either engage a new legal representative or be given time to frame a cross examination of [the single expert]. Neither could not be achieved overnight. That circumstances presented a procedural unfairness that could not be cured ...

[12]

However, the doctrine of procedural fairness is concerned with ensuring fairness to all parties, not just to one of them. The father and the ICL were also entitled to procedural fairness. Moreover, the doctrine is concerned only with the fairness of the process, not the fairness of the outcome (Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [82]; SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [25]).
While this ground is characterised as a complaint of procedural unfairness, it must really be construed as an assertion that the decision to refuse the adjournment was incorrect, as no litigant can be unfairly prejudiced by a correctly made procedural decision. The consequences of a procedural decision made by a judge about, for example, an adjournment of the trial or the admissibility of evidence might be contrary to the interests of one litigant but cannot be unfairly prejudicial if the decision was correct. All interlocutory decisions entail disappointment for one litigant. Unless the mother can demonstrate the decision to refuse the adjournment was beset by some error and, additionally, it had some adverse bearing upon the final judgment from which the appeal is brought, her mis-characterised complaint of the denial of procedural fairness must fail. She did not identify any such appealable error. The decision is not vitiated simply because it went against her.
The mother was able to make such submissions as she wished in support of the adjournment application. The prospect of her being impelled to personally deal with the evidence of the single expert the next day was the foreseen consequence of refusing her adjournment application and was therefore considered by the primary judge as but one factor influencing the discretionary decision. Other relevant considerations militated against the adjournment application, like the desirability of finishing the trial in a timely way, the likely unavailability of Court time for many more months to accommodate the remainder of an adjourned trial, the desirability of resolving the stressful conditions under which the children were then living as soon as possible, and the statutory imperative to finalise the litigation quickly, inexpensively and efficiently (Kerimowa & Chong (No 3) at [16]-[17]). Although not expressly mentioned by the primary judge, there was also the unlikelihood of the mother being able to meet the costs of the father and the ICL thrown away by an adjournment.
In this appeal brought from the final orders, the mother was not estopped by s 26(2)(b)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCA Act") from challenging the probity of the anterior decision to refuse her adjournment application. In any appeal, an appellant may challenge an interlocutory decision which allegedly vitiates the appealed judgment (s 36(5) of the FCFCA Act; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482-484 and 494-497). Section 26(2)(b)(ii) of the FCFCA Act only prohibits appeals from being brought directly from the interlocutory decision, as the Federal Court of Australia has observed in relation to a counterpart statutory provision (Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226; (2020) 282 FCR 95 at [25]).
It will be noticed the mother was not denied the opportunity to cross-examine the single expert the day after the dismissal of her adjournment application. She was given the chance and took it, having had the previous evening to prepare. Though a lawyer might have acquitted the task of cross-examination more ably than her is not to the point. The mother prepared a list of the questions she had for the single expert, which was marked as an exhibit (Ex W2), and she also asked some unscripted questions. Being a self-represented litigant, she was helped by the primary judge and the ICL, as was proper (Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072 at [234]-[235] and [251]-[253]).
Nor should it be overlooked that, when the mother's lawyers were granted conditional leave to withdraw, the mother consented to the single expert still giving evidence on the fifth day. Her counsel had this exchange with the primary judge:

[14]

True enough, that concession was made on the third day, when the mother anticipated she would have the whole of the fourth day to prepare for the cross-examination of the single expert on the fifth day, but she still had the evening of the fourth day to prepare and on the fifth day she evidently was prepared to proceed with the cross-examination.
Decisions on mid-trial adjournments are pre-eminently procedural decisions requiring speedy disposition. The avoidance of undue delay and the efficient use of public resources are considerations which may transcend the individual interests of a party, particularly in litigation concerning children (Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175 at [25]-[26], [91]-[103], [111]-[113] and [148]-[149]; Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390; Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 at 628-629 and 636). The refusal of the adjournment entailed no error and, although the mother may have found it difficult acting for herself of the fifth day, that does not manifest procedural unfairness.
Though the mother did not assert her deprivation of procedural fairness during the remainder of the trial process, it is as well to affirm she was not so deprived.
At the close of the evidence on 14 March 2025, the trial was adjourned for a week until 21 March 2025 for final submissions (at [39]). That was to enable the mother time to consider the transcript which was being provided to her by her former lawyers. On 20 March 2025, the day before resumption of the trial, the mother sought and was granted an adjournment for another week until 27 March 2025 (at [39]-[40]).
By 26 March 2025, the mother had secured alternate legal representation because, late that evening, the solicitor now acting for her in the appeal filed an application on her behalf seeking to re-open the evidence, which application was dismissed by the primary judge the next day (at [40]-[41]). The mother appeared for herself on 27 March 2025 and told the primary judge the new lawyer she had engaged would only henceforth appear for her if the application to re-open was granted. Upon the dismissal of the application to re-open the evidence, final submissions were taken to conclude the trial and judgment was then reserved.
On 24 April 2025, the mother made another application to re-open the evidence, though this time without legal representation, which the primary judge promptly entertained on 29 April 2025. The application was then dismissed concurrently with the delivery of final judgment two days later (at [42]-[45]).
Consequently, the mother was only without legal representation for the cross-examination of the single expert, but the ICL assisted her to complete that task. The evidence closed on 14 March 2025 and final submissions were not made until 27 March 2025, by which time the mother had consulted new lawyers. Why the new lawyers did not actually appear for her at the hearing on 27 March 2025 was never explained.
The further evidence upon which the mother wishes to rely in the appeal changes nothing with respect to that analysis. This ground fails.

[24]

The proposed conference between the mother and her lawyers at some point between the second and third days of trial fell within the ambit of r 26.1.1.
Upon the resumption of the trial on the third day, the mother's counsel applied for permission for both he and his instructing solicitor to withdraw their representation of the mother due to a conflict of interest. The lawyers were not at liberty to breach the legal professional privilege enjoyed by the mother in their discussions, which she did not relinquish at that point, so counsel could say little other than that it was an "ethical issue".
In support of this ground, the mother wanted to adduce as further evidence in the appeal her affidavit filed on 4 August 2025, for which purpose she now waives legal professional privilege (but only in part) and gives evidence of conversations she had with her lawyers during the trial on the third morning of 12 March 2025 (Mother's affidavit at [5]) and then again on the fourth morning of 13 March 2025 (Mother's affidavit at [9]). The evidence supposedly demonstrates the lawyers had no proper basis to seek their withdrawal.
The mother deposed the first conference held with her lawyers on 12 March 2025 had nothing at all to do with the clarification of her parenting proposal and was entirely confined to them telling her she would "lose all custody" and they believed she had lost faith in them as her representatives. The mother deposed the second conversation, which occurred the next day, was limited to her counsel's refusal to speak with her to elaborate the reasons for their application to withdraw the day before. If the evidence is admitted and accepted in the appeal, it would tend to prove there was no ethical conflict between the mother and the lawyers and hence no proper basis for the lawyers' withdrawal.
It is very difficult, if not impossible, to reconcile the mother's new evidence with what the lawyers told the primary judge in Court that day. Only she and they know the content of their discussions. Either what the lawyers told his Honour, or what the mother now says in her affidavit, must be unreliable.
If what the mother now says is accurate, then she must have realised her counsel gave the primary judge a false account of their private conversation during the trial, yet she did not try and remonstrate to correct the record by then waiving her privilege and giving a true version of the conversations. Had she spoken up, offering her contradictory account and demanding the dismissal of their withdrawal application for lack of merit, his Honour would have been obliged to deliberate the application on a voir dire. Her lawyers, then freed from the constraints of legal professional privilege, could have chosen to either contradict her and pursue their withdrawal application or alternatively concede and abandon the withdrawal application. At least the factual dispute between them would have been capable of resolution by concession or cross-examination.
The mother's current lawyers now allege her former lawyers withdrew "without proper foundation" and their conduct was so "egregious" as to be "incompet[ent]", which contentions rely exclusively upon acceptance of the mother's affidavit. However, her recollection of those conversations in March 2025 was five months old when she prepared her affidavit, was not apparently refreshed by contemporaneous notes, is selective about the parts of the conversation over which she retains and waives legal professional privilege, and is punctuated by this curiosity: she remembers the lawyers using obsolete language - "custody" - which terminology was repealed from the Act many years ago and seems inherently unlikely to have been used by the lawyers.
The mother's characterisation of her former lawyers' request for leave to withdraw as being improper should be approached with some caution, as disappointed litigants have a natural inclination to blame lawyers for their predicament (D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [37]-[39]).
By trying to adduce her new evidence in the appeal, the mother must expect it will be accepted as being truthful and accurate without having to withstand being tested or contradicted by her former lawyers, who are neither parties to nor witnesses in the appeal. But no court is compelled to accept the uncontradicted evidence of a witness (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 414 ALR 635 at [60] and [71]; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587-588), particularly when the evidence is self-serving, deliberately selective and unthreatened by challenge. It is the sort of evidence described this way by the Full Court of the Federal Court in similar circumstances (Mawhinney v Australian Securities and Investments Commission and Ors [2022] FCAFC 159; (2022) 294 FCR 375 at [133]):

[31]

Even if it be assumed the mother's former lawyers had no proper basis to withdraw, as she now asserts in the appeal, the zenith of her grievance is that she was left without legal representation, though the only consequence was she then had to personally cross-examine the single expert witness the next day, with which task she was assisted by the ICL in any event. By the time of final submissions, the mother had engaged her current lawyers.
The mother's lack of legal representation for part of the trial was a misfortune (Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 481), but the lack of representation does not necessarily render a civil trial unfair (Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292). The criteria for determining what amounts to injustice in a civil case necessarily differs from those appropriate to answering the same question in a criminal context and, importantly, an imperfect trial is not the same thing as an unfair trial (Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 26 and 49).
The alleged unjustified withdrawal by mother's lawyers cannot be easily equated with their incompetent forensic performance while still engaged. It is an even greater stretch to equate their withdrawal with a miscarriage of justice, which is the true test for appellate intervention (TKWJ v The Queen at [25], [31], [63], [79] and [97]; Mawhinney v Australian Securities and Investments Commission and Ors at [118]). The test is not fulfilled merely by showing her lawyers withdrew in breach of professional conduct rules, which alleged default may be addressed by her complaint to professional bodies.
While the mother does criticise her former counsel for deciding not to take "appropriate objections" to questions asked of her during the remainder of her cross-examination, there are three problems with her criticism.
First, it is contrary to her counsel's assurance to the Court that he would take objections for the remainder of her cross-examination, which assurance he gave only after confirming the mother wished him to do so. Counsel said this:

[42]

Obviously enough, s 60B is aspirational and sets the tone for the exercise of the wide judicial discretion under Pt VII of the Act, however it does no more work than to "provide context, indicate the legislative purpose of [Pt VII] and operate as an aid to construction of the Act" (Maldera & Orbel [2014] FamCAFC 135; (2014) FLC 93-602 at [74]). It does not displace the prescriptive provisions of Pt VII of the Act.
Comparatively, s 60CA prescriptively requires use of the paramountcy principle to determine causes of action under Pt VII of the Act, though the question of what suite of orders will promote the child's "best interests" demands an answer which, first, is a value judgment formed by the consideration of the numerous factors prescribed by s 60CC of the Act, and secondly, leaves room for reasonable differences of opinion (Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662 at [32]; CDJ v VAJ at [152]-[154], [184]-[186.3] and [200]).
The suite of orders embodying the judgment flowing from an exercise of wide discretion under Pt VII of the Act is strongly presumed to be correct (Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627) and is not shown to be incorrect merely because the appellate court might have devised a different suite of orders (Gronow v Gronow (1979) 144 CLR 513 at 519-520).
Paying little apparent heed to such binding authority, the mother submits in the appeal, either expressly or by implication, there was no room for reasonable differences of opinion in this instance about the nature of the children's future interaction with her. Her submissions have the distinct flavour of contending that, when s 60B and s 60CA of the Act were applied to the evidence, the order for the indefinite professional supervision of the time which the children spend with her was not open and some other outcome was imperative. She submitted this:
1. The effect of the order fails to take into account the inevitable maturation of each child and their capacity to engage in decisions regarding contact with their mother as well as being able to promote self-protective behaviours. The silence on the issue in the judgment of [the primary judge], coupled with the orders, infers an assumption each child of the relationship will remain in a stagnate state of development and maturity and will not be in a position to make either a choice about contact and / or have sufficient self-protective behaviours to protect against the risk of harm the Court has found the [mother] presents at any time during their minority.

[46]

Assuming the children would be eventually re-introduced to the mother, on the quite separate question of whether professional supervision could ever be dispensed with, the single expert said not until the mother had demonstrated her fulfilment of certain conditions, which included her gleaning insight into her maladaptive behaviour by submission to psychological treatment, acknowledging her behaviour had contributed to the children's presentation, and accepting the father's alleged abuse of the children was untrue (at [165(d)] and [166]).
Secondly, the parties and the ICL realised the desirability of finalising the litigation and they all petitioned the Court for final orders to determine the cause of action under Pt VII of the Act, not for interim orders to keep the litigation alive and allow for some future review (Transcript dated 13 March 2025, p.303 line 46; 14 March 2025, p.189 lines 43-45; 27 March 2025 p.358 line 23). But that meant the primary judge had to finalise the litigation on the available evidence and there was no evidence from which his Honour could reasonably predict when the mother would, or even might, satisfactorily develop the type of insight and acceptance which the single expert opined were necessary pre-conditions to the relaxation of the requirement for professional supervision. Any prediction would have been pure speculation. That was especially so when, after the evidence was closed, the mother made two unsuccessful applications to re-open the evidence to try and vindicate her allegations of misconduct against the father.
Similarly, building some form of self-executing mechanism into the final orders to dispense with supervision at some indeterminate point in the future would have been arbitrary. The primary judge soundly avoided falling into error by trying to conjure orders which did not match the evidence (Lainhart & Ellinson at [36]-[49]). The mother, like the father and the ICL, wanted final orders so her complaint about the orders affording "no prospect of review" is misconceived.
Thirdly, these grounds wrongly assume the orders made by the primary judge are immutable. They are not. Parenting orders never can be because of the infinite vicissitudes of life. The mother is able to bring fresh proceedings to re-open the issue and vary the orders at some point in the future (s 65D(2)), subject to her adducing evidence of a material change in circumstances which is enough to justify their revision (s 65DAAA).
With respect to the attendant complaint about the inadequacy of reasons, the primary judge discussed the question of whether the children could spend time with the mother in the future without them suffering psychological harm. Since neither the father nor the ICL countenanced the mother's permanent elimination from the children's lives (at [163]), his Honour turned to consider the way in which they could safely spend time with her in the future. His Honour found the unacceptable risk of psychological harm posed by the mother to the children could be satisfactorily attenuated by professional supervision (at [167], [172], [176] and [187]), which would enable the children to maintain their relationships with her (at [186]).
The primary judge expressly noted how long-term supervision is often regarded as impracticable, saying this:

Chong & Kerimowa [2025] FedCFamC1A 158 (8 September 2025)

At a glance

Court

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Judgment (54 paragraphs)

Legislation Cited (5)

Cases Cited (40)