Ling & Yahui (No 2)

[2023] FedCFamC2F 1567

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ling & Yahui (No 2) [2023] FedCFamC2F 1567

File number(s):	MLC 14730 of 2022
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	16 November 2023
Catchwords:	FAMILY LAW – oral adjournment application – late release of child impact report – mother seeking further time to make decision of orders she seeks  – adjournment application dismissed
Legislation:	Family Law Act 1975 (Cth) s 69ZL
Division:	Division 2 Family Law
Number of paragraphs:	16
Date of hearing:	16 November 2023
Place:	Melbourne
The Applicant:	Appearing In Person
Solicitor for the Respondent:	Brendan Rothschild Legal Group

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:	16 NOVEMBER 2023

THE COURT ORDERS THAT:

No orders made.

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 EX TEMPORE JUDGMENT

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. The matter of Ling & Yahui was before me on 14 August 2023 when, in contested interim proceedings, I made orders adjourning the matter to this day with a child inclusive report to be obtained in the meantime.  The proceedings concern the welfare of the child of the parties, X who is 7 years of age.  I refer to and repeat the observations as to the proceedings at paragraph 5 of the reasons delivered on 14 August 2023.

   5The 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. 

3. The parties commenced cohabitation in 2015 and their relationship ended on or about 22 or 23 September 2022.  The Father issued proceedings seeking to see the child X on 28 December 2022.  At the time of issuing proceedings, the Father had not seen X since separation.  At the time of issuing the proceedings, the Mother had not provided any proposal as to how and when, if ever, X should see his Father. 

4. The Court Children’s Services undertook a Child Impact Report, and the interviews for that report were undertaken over 30 and 31 October 2023, and the report itself was released to the parties on Friday, 10 November 2023, that is, six days ago, and uploaded to the portal on the following Monday, 13 November 2023.

5. The matter was listed for interim defended hearing at 10 am on 16 November 2023.  At 10 am, the parties appeared, but the matter was not able to proceed at that time as both parties had, very late in the piece, requested that the Court arrange interpreters. 

6. When requested, the Court officers promptly requested interpreters and the matter was stood down until 12.30pm to facilitate interpreters attending.  In due course, at around 12.30pm, interpreters attended for Mr Ling and Ms Yahui.  The matter then proceeded from about 12.30pm until 1.30 pm.

7. The affidavit material that the parties had filed dealt in some detail with the allegations of violence that had occurred during the relationship.  Neither party provided any evidence as to how the time that was ordered on 14 August 2023 had proceeded.  Order 16 of Orders 14 August 2023 are:

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

   (a)The Father shall collect the 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.

8. It is not disputed that Mr Ling has seen X by collecting him from school (or 3.30pm) and returning him to the Mother’s home at 8pm on twelve occasions since.  In that circumstance, I requested Mr Ling to go to the witness box and give evidence as to how that time had proceeded.  Mr Ling was available to be cross examined. Mr Romanov, solicitor for the Mother, indicates that there is a desire to cross-examine Mr Ling about that evidence: but not today.

9. The solicitor for the Mother has, following the Father completing his case at about 2.15pm, made an application for an adjournment.  The application for an adjournment is to adjourn for about a month and that, in the meantime, X could see his Father each Saturday from 10 am until 6 pm. 

10. The reason for the adjournment is that it is said that Ms Yahui needs more time to consider the Child Impact Report and that, until today, Ms Yahui had struggled to articulate a clear position.  Ms Yahui speaks Language D as her native language and it has been difficult for her solicitors to obtain instructions, and also, Ms Yahui struggles emotionally to deal with the content of some of the matters that she is relaying instructions about. 

11. The further reason that the adjournment is sought is that Ms Yahui struggles to speak English and struggles to use a translate app, which has been used by her solicitors.  I raised with the Mother’s solicitor that the affidavits that the Mother had sworn in these proceedings on 2 October 2023 and again on 15 November 2023 were done, on the face of it, without the assistance of an interpreter.

12. When I heard the matter on 14 August 2023, I was concerned at the length of time, which was almost a year, had elapsed between the child and the Father seeing each other.  I remain concerned at the length of that hiatus in X’s life.

13. In these proceedings today, the Father seeks to increase the time that he spends with X by having that from after school, or 3.30 if not a school day, each Friday until 2 or 3 pm of the following Saturday.

14. I have explained to the parties that this is an interim hearing, not a final hearing where all matters relating to X’s welfare and living arrangements would be determined.  In this case, I am satisfied that a Family Report, which is a more detailed and thorough type of report but not dissimilar to the Child Impact Report, would need to be undertaken.

15. In all of the circumstances, I am satisfied that Ms Yahui has had more than enough opportunity to consider the Child Impact Report and, more importantly, to consider the issue of time that it is appropriate for X to spend with his Father.  Ms Yahui has been able to provide me with a detailed account of her experience of living with Mr Ling, including what she characterises as severe physical discipline of X by Mr Ling. 

16. In all of the circumstances, I am not satisfied that it is in X’s best interests or procedurally fair to Mr Ling to adjourn the matter, so the application for an adjournment is refused and I will continue hearing the matter.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       5 December 2023