Ling & Yahui

[2023] FedCFamC2F 1070

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ling & Yahui [2023] FedCFamC2F 1070

File number:	MLC 14730 of 2022
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	14 August 2023
Catchwords:	FAMILY LAW – interim parenting and property orders – airport watchlist order made – whether the father should spend time with the child – order for child impact report – restraint on damaging, disposing of or dealing with any property of the other party.
Legislation:	Family Law Act 1975 (Cth) s 69ZL
Division:	Division 2 Family Law
Number of paragraphs:	25
Date of hearing:	14 August 2023
Place:	Melbourne
Solicitor for the Respondent:	Brendan Rothschild Legal Group
The Applicant:	Self-represented litigant

ORDERS

MLC 14730 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR LING

Applicant

AND:

MS YAHUI

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	14 AUGUST 2023

THE COURT ORDERS THAT:

Child Impact Report

1.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and X born in 2016 (‘the child’) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.

Part 1 of the event will occur by video, using Microsoft Teams, on 26 October 2023 with:

(a)the Applicant to attend at 9.00am; and

(b)the Respondent to attend at 10.30am.

Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.

Part 2 of the event will occur in person at the Melbourne registry on the morning of 27 October 2023. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.

2.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.

3.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.

4.Not later than 4.00pm on 21 August 2023 the parties must provide their contact telephone numbers and email addresses to [email protected].

5.Pursuant to order 1 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:

(a)any agreement reached between the parties;

(b)identification of key issues requiring resolution;

(c)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;

(d)the impact of the issues/dispute before the Court on the child.

(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child.

6.Upon completion, the Child Impact Report shall be provided to the registrar for release to the parties, including by way of order made in Chambers.

7.The Court Child Expert shall be at liberty to inspect any material filed by the parties, and any subpoenaed documents.

Further proceedings

8.The hearing on 10 October 2023 be vacated.

9.The matter be adjourned to 16 November 2023 at 10:00am for Interim Defended Hearing at the Federal Circuit and Family Court of Australia at Melbourne.

10.On or before 4pm on 7 September 2023 the Respondent file and serve any response with respect to the Applicant’s application for time with the child.

11.On or before 4pm on 28 September 2023 the Applicant at liberty to file any response to the Mother’s filed material with respect to order 9 herein.

12.On or before 4pm on 28 September 2023 the Applicant file and serve an amended application, affidavit (if any) and financial statement, containing any property orders he seeks.

Watchlist Order

13.The Respondent, MS YAHUI born in 1974, her servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the child X born in 2016 from the Commonwealth of Australia.  This order ceases to have effect on 31 December 2023.

14.The Court requests that the Australian Federal Police give effect to this order by placing the name/s of the child on the Family Law Watch List in force at all points of international arrival and departure in the Commonwealth of Australia and maintain the child’s/children’s name/s on the Family Law Watch List for the said period, until the Court orders its removal, or with the consent of all parties.  This order ceases to have effect 2 years after the date on which it is made.

15.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.

Child’s time with Father

16.The children spend time and communicate with the Father each Friday from the conclusion of school (or 3:30pm if a non-school day) until 8:00pm that day with such time to be effected as follows:

(a)The Father shall collect the child from school if a school day, or from the Mother’s residence if a non-school day;

(b)The Father will return the child to the Mother’s residence at the conclusion of time;

(c)The Father is restrained from remaining out the front of the property after the child is collected/returned or from entering the Mother’s property;

(d)The Father is to send a text message to the Mother once the child is out the front of the Mother’s house for return.

Communication

17.In the event of an emergency only, the parties be and are permitted to communicate by text message or phone calls to their designated mobile number and both parties shall ensure that the other parent has their current mobile number.

18.Both parties be at liberty to obtain any information normally obtained by parents from any school the child attends from time to time, including but not limited to communicating with the school and obtaining newsletters, reports, photograph orders form and the like.

Restraint

19.Until further order, the Mother be and is hereby restrained from damaging or disposing of or dealing with any property of the Father or of the child within or stored at the property at B Street, Suburb C.

AND THE COURT NOTES THAT:

A.In the event the Father does not file an amended application or financial statement with respect to property matters in accordance with order 12, the court is to consider on the adjourned date whether to discharge the restraint order against the Respondent.

B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

D.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and passages of authorities added and an attempt has been made to make the orally delivered reasons easier to read but the substance is unchanged.

2. Today I am asked to decide three questions for young X, 4½ years old. 

   (1)Should there be an Airport Watchlist order? 

   (2)Should the father spend time with X and how? 

   (3)Should there be a restriction on Ms Yahui removing Mr Ling’s property from the former matrimonial home (‘the house’)? 

3. X’s parents disagree about how regularly he should go to Country D.  Ms Yahui, his mother, took him to Country D in June 2023 and returned in July 2023.  She tells me that she plans to go to Country D again during the September holidays. 

4. Mr Ling, the father, is a sales representative and came to Australia in 1993, and is 56 years of age.  The parties commenced to live together in 2015 and X was born in 2016 and is now seven years old.

   These proceedings

5. The proceedings commenced by Mr Ling filing an application on 28 February 2023, whereby he only sought a Watchlist order.  The matter came before a Judicial Registrar of the Court on a number of occasions and on 14 March 2023, there was no appearance by Mr Ling. The respondent, Ms Yahui, did not appear on that day either.  On 6 June, there was no appearance by the applicant, Mr Ling and Ms Yahui appeared by her solicitor.  On 25 July 2023, Mr Ling appeared on his own behalf and Mr Romanov, solicitor, appeared on behalf of Ms Yahui.  The hearing was by video conference.  On that day, Mr Ling was ordered to file an amended initiating application by no later than 31 July 2023, and he did so.  He was ordered to file an affidavit of evidence to be relied upon, by 7 August 2023, and he did so.  Ms Yahui was ordered to file an affidavit to be relied upon by 7 August 2023, and she did so. 

6. Mr Ling's amended application sought that X be placed on the Watchlist and, as final orders, that he spend three days of quality time with him each week.  As interim orders, he sought a Watchlist order in regard to X and "at least 24 hours of quality time spent with my son each week."  His affidavit in support included the following:

   10.[Ms Yahui] has made it difficult for me to spend time or communicate with [X], as I have not had the opportunity to contact either of them since the IVO was made on September 20, 2022. 

   11.Prior to the IVO, I was actively involved in [X]’s life and contributed to his upbringing in various ways, including taking him to parks and nature activities, almost daily pick-up and drop-off at school during elementary school, taking him to weekly speech therapy sessions, and handling financial matters related to his upbringing. 

   12.I have a good relationship with [X] and the removal of [X] to [Country D] would have a significant impact on our relationship. 

   …

   24.I sincerely believe that it is in [X]’s best interests to remain in Australia and continue to have a relationship with both of his parents.  I am willing to take whatever steps are necessary to ensure his safety and well-being, including paying damages if required by the court.

   25.An application for a prohibition on [X]’s travel can be made with conditions, such as requiring both parents’ consent for any particular trip.

   26.I applied for mediation through [E Counsellors] based on the final IVO’s conditions. I submitted my application on 16/01/2023, and [E Counsellors] conducted an interview with me on 14/02/2023. Following [E Counsellors] process, they were supposed to interview [Ms Yahui] as well to understand both parties’ situation as soon as possible. By the end of March, I called [E Counsellors] to inquire about the progress of the mediation, [E Counsellors] informed me that there was a delay because [Ms Yahui] postponed her interview with [E Counsellors]. After conducting the interview with [Ms Yahui], [E Counsellors] confirmed the mediation date on 15/05/2023. However, on 12/05/2023, [E Counsellors] suddenly notified me that the mediation needed to be postponed due to [Ms Yahui’s] last-minute request for an extension. Finally, [E Counsellors] rescheduled out mediation dated on 13/06/2023, but we did not reach any agreement.

   27.On 26/06/2023, [Ms Yahui] initiated mediation through the Family Dispute Resolution Service (FDRS), and I responded, agreeing to participate. However, on 26/07/2023, I received a letter from FDRS stating that the mediation will no longer proceed.

7. Ms Yahui's affidavit does not deal with the issue of X spending time with his father at all.  I have, this afternoon, pressed Ms Yahui’s solicitor for why that is so.  It appears to be a combination of not being convinced that Mr Ling would actually turn up to argue his case at the hearing today and the lack of precision of the orders that he sought. 

8. It is important to note that on her lawyer's advice, Ms Yahui, having left Australia with X in June, cut short that trip to return to Australia in July 2023. 

9. Mr Ling's affidavit also refers to a concern that his property may be being removed from the house, where he had previously lived.  He says that he has been told that a skip bin, filled with materials, was recently seen outside the house.  It was his case that the house, in which Ms Yahui currently resides, is a property owned by him prior to cohabitation and that Ms Yahui owns another property in Suburb F.  That causes him, he said, to seek an order to protect his personal belongings. 

10. Mr Romanov had not taken instructions in regard to that property matter and had not taken instruction in regard to Mr Ling's application to spend time with X.  Ms Yahui was appearing electronically because she was suffering a medical condition and had been unwell since last Friday or Saturday.  In those circumstances, I permitted her to tell me about what her side of the story was in regard to Mr Ling seeing X, and also in regard to the order or injunction that he sought to protect his property.  

11. Both parents utilised interpreters provided by the Court. 

    Time between the child and his father

12. When asked about what she had to say about Mr Ling's application to see his son, Ms Yahui told me that she was not sure he was a caring father.  She said that when they lived together, he had bathed him less than 10 times.  She said he only took X to the park and on nature activities on about three occasions when he was three years old.  She said that Mr Ling's statement that he had daily done pick up and drop off of X at elementary school, was exaggerated because he did not do this daily.  She also said that he had not taken X to all of the weekly speech therapy sessions, only some of them.  Ms Yahui's solicitor told me that Ms Yahui was concerned that X had been hit by his father in the past.  I asked about when and where and what was the context to that allegation and I was told that Mr Ling was in the habit of hitting children, an allegation that Mr Ling denies by shaking his head when the matter was raised before me. 

13. In all of the circumstances, I am concerned of the amount of time that has transpired since X was able to see his father.  It is common ground that Mr Ling has been seeking mediation to regularise his time with X since at least May of 2023.  On an interim basis, Mr Ling seeks to spend 24 hours and overnight with his son, X. 

14. I am also satisfied that Ms Yahui did not have the affidavit that Mr Ling filed on 7 August sent to her or wholly translated to her.  That affidavit should have been sent to Ms Yahui so that she could make her own arrangements for its translation.  I am satisfied that, at the time it came to the notice of her solicitors, in early August 2023, although not translated to her, the substance of the contents was brought to her attention via her solicitor.  I am concerned that Ms Yahui has not put in detail on affidavit what she has got to say about X's living arrangements. 

15. On an interim hearing, I cannot make findings of fact about disputed events or allegations.  From the limited information I have available, it is clear enough that, to some degree, Mr Ling was, prior to the breakdown of the parties' relationship, involved in X's life.  It may be that Mr Ling exaggerates his involvement in X's life, and it may be Ms Yahui minimises Mr Ling's involvement in X's life.  On the minimal information I have available to me, I am satisfied I have that X should commence to see his father, and sooner rather than later.  But I am not satisfied on the evidence that should be on an overnight basis or for school holiday block periods.  That may be doing an injustice to X and to Mr Ling, but, on the limited information I have, that is the best I can do. 

16. To assist me obtain further information as to the nature of X's relationship with both his mother and his father, I propose to order a child inclusive conference.  The parents and X will attend the Court here and be interviewed by an appropriately qualified person, and X is likely to be observed in his mother's company and observed in his father's company.  That will be done at public expense here in the Court building, and will be done over two days with initial interviews on one day followed on observations on another.  That cannot occur until late October or early November, and the parties will be advised of the date of those appointments as soon as I can arrange them. 

17. I will adjourn the further hearing of Mr Ling's interim application until after I have a report from that observation session and conference.  So I will adjourn the further hearing to before me on 16 November 2023 at 10:00 am. 

18. I will make orders for X to spend time with Mr Ling each Friday, from after school Friday, until 8:00pm of that Friday, not overnight.  X is of an age where his father can pull up his car out the front of the house and X can run inside, without Mr Ling entering the premises where Ms Yahui lives with X.  Hence, X is to be collected from school, and if not a school day, at 3:30 pm each Friday and returned to Ms Yahui’s home.  So he is to be picked up from school, and taken back home at 8:00 pm.

19. I will also order that the parents be, and are permitted, to communicate with each other by way of mobile phone numbers, and to cause and ensure that their existing mobile phone numbers are available at all times.  That is in emergency only and when Mr Ling drops X off back to where Ms Yahui lives. 

    The Watchlist order

20. If Ms Yahui takes X to Country D and does not return, there is very little the Court can do about it, and the consequences for X would be drastic.  Ms Yahui has demonstrated that she can travel to and from Country D.  Hence, it appears to me that there is only a small risk that she would take X to Country D and not return.  However, at this time, that small risk is, nonetheless, a real risk.  In the circumstances where Mr Ling has been agitating to see X by way of mediation since at least May of this year (and he says since February this year), and, at this point in time, he has not seen X, I am concerned that there is a real risk that Ms Yahui will not return with X from Country D.  That may ultimately prove to be unfair and a misjudgement of Ms Yahui.  But balancing the risk of that event and the consequences for X if it comes to pass, for the time being until this matter can be looked at more carefully, I am satisfied that there should be a Watchlist order made, but only until the 21st of December 2023.  

1. It is my intention that if Ms Yahui or Mr Ling wish to revisit that matter, that will be one of the matters that I will be revisiting on 16 November 2023. 

   The restraint and property aspects

2. I now turn to Mr Ling's application for an injunction restraining Ms Yahui from getting rid of his personal property, or property including jewels, identification documents, collections, etcetera.  Ms Yahui has denied to me today that any such property has been disposed of, and has told me that she only disposed of, essentially, rubbish - old clothes, shoes, boxes, etcetera.  Ms Yahui denies any such risk or intention to damage, dispose of, or deal with any property of Mr Ling. 

3. There is only a small risk of such property being disposed of.  However, if it was disposed of carelessly or maliciously in the meantime, that would cause great harm to all concerned.  In those circumstances I will make an injunction that until further order, Ms Yahui be and is restrained from damaging, or disposing of, or dealing with any property of Mr Ling, or of X, situated within or stored at the House.

4. Further, I will order that the father is to file an amended application containing any property settlement orders that he seeks, pursuant to the Family Law Act 1975 on or before 28 September 2023, and he is to file a financial statement in the standard form.  You can only obtain property relief or orders if you set out all of your property in a financial statement.

5. In the event that there is no application for property relief, and/or no financial statement filed, I will consider on 16 November 2023 whether I should discharge the order relating to property.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       14 August 2023