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

This appeal concerned final parenting orders where the children were placed in the father’s care, with the mother’s time restricted to indefinite professional supervision four times a year, after a six-month moratorium. The mother appealed, arguing denial of procedural fairness, incompetence of her former lawyers, and error in imposing indefinite supervision. The Full Court dismissed her appeal, holding that the primary judge acted within discretion and properly prioritised the children’s best interests.

🔹 Facts and Issues

• Parties: Married 2013, separated 2022; two children (aged 8 and 5).
• Mother’s allegations: Father allegedly committed serious sexual assaults against her and the children, including extreme claims (assaults, trafficking, child pornography).
• Evidence:
• Police and child protection investigations found no substantiation.
• The children’s disclosures were often induced, implausible, or retracted.
• Single expert reported enmeshment with the mother, poor boundaries, and risk of psychological harm.
• Trial outcome (May 2025):
• Children to live with father.
• Father given sole parental responsibility.
• Mother barred from contact for six months, then supervised visits four times per year indefinitely.
• Appeal grounds:

1. Denial of procedural fairness when her lawyers withdrew mid-trial and adjournment was refused.
2. Incompetence of her former lawyers.
3. Legal error in making supervision indefinite.
4. Orders unreasonable/unjust.

• Key Issues:
• Was the mother denied procedural fairness?
• Did her lawyers’ withdrawal amount to miscarriage of justice?
• Was indefinite supervision an error in law or discretion?

🔹 Rule (Law)

• Best interests of the child: Paramount (s 60CA Family Law Act 1975).
• Factors: s 60CC, including protection from harm.
• Procedural fairness: Ensures fairness of process, not outcome (SZSSJ (2016) 259 CLR 180).
• Adjournments: Discretionary; must balance fairness with efficient case management (Aon Risk v ANU (2009) 239 CLR 175).
• Lawyer incompetence claims: Require proof of miscarriage of justice (TKWJ v R (2002) 212 CLR 124).
• Parenting discretion: Wide and presumed correct (Gronow v Gronow (1979) 144 CLR 513).
• Variation of orders: Orders can be revisited if material change of circumstances shown (s 65D(2), s 65DAAA).

🔹 Application (Court’s Reasoning)

1. Procedural fairness

• Lawyers withdrew on day 3 of trial; mother self-represented for cross-examining the single expert.
• Adjournment was refused: Court prioritised efficient finalisation, minimising delay and stress for children.
• Mother was given opportunity to question the expert, assisted by ICL.
• She had new lawyers by final submissions.
• Held: No denial of procedural fairness (at [31]–[39]).

2. Incompetence of lawyers

• Mother alleged misconduct (conferring under cross-exam, failure to object, withdrawal without cause).
• Court:
• Conferring was permitted under professional rules.
• No evidence of improper conduct or miscarriage of justice.
• Lack of representation for one day ≠ unfair trial.
• Held: Alleged incompetence did not amount to appealable error (at [46]–[72]).

3. Indefinite supervision

• Mother argued orders failed to anticipate children’s maturation.
• Court:
• Expert evidence supported long-term supervised or even no contact.
• No evidentiary basis for finite supervision; any limit would be speculative.
• Orders finalised litigation but can be varied later if circumstances change.
• Held: No error; supervision necessary to mitigate unacceptable risk of psychological harm (at [82]–[92]).

4. Unreasonableness

• Appeal rejected: Orders were consistent with expert evidence, proportionate to risks, and adequately reasoned (at [93]–[95]).

🔹 Judgment

• Appeal dismissed.
• Costs: Mother ordered to pay $15,000 to father and $6,075 to ICL (at [96]–[99]).

🔹 Cited Precedents

• Aon Risk v ANU (2009) – adjournment discretion.
• SZSSJ (2016) – fairness of process, not outcome.
• TKWJ v R (2002) – lawyer incompetence requires miscarriage of justice.
• Gronow v Gronow (1979) – appellate restraint on discretionary parenting orders.
• Bondelmonte v Bondelmonte (2017) – scope of “best interests.”
• U v U (2002) – Court not limited to parties’ proposals.

🔹 Conclusion (Take-Home Lesson)

This case reinforces that:

• Appeals are not opportunities to re-litigate dissatisfaction with outcomes.
• Procedural fairness ≠ guaranteed adjournments—courts balance all parties’ interests, especially children’s need for stability.
• Lawyer incompetence claims rarely succeed unless a miscarriage of justice is shown.
• Parenting orders are grounded in evidence, not speculation: if risks are ongoing, courts will not assume they will dissipate with time.
• Importantly, parenting orders can be revisited if genuine changes in circumstances arise.

👉 Take-home: When allegations are unproven and conduct causes harm, courts prioritise children’s safety and stability over parental wishes—finality and best interests govern, not sympathy for procedural misfortunes.