FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ling & Yahui (No 3) [2023] FedCFamC2F 1568
File number(s): MLC 14370 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 16 November 2023 Catchwords: FAMILY LAW – interim parenting orders – father’s application for overnight time – allegations of family violence – section 102NA order made – interpreter required – family report ordered – orders made for unsupervised time – appointment of independent children’s lawyer – child lives with mother – airport watchlist order extended – previous parenting orders discharged Legislation: Family Law Act 1975 ss 102NA(a), (b) (c)(ii)(iv), 60CC(2)(A) Cases cited: Middleton & Redmond [2021] FCCA 316
Nasar & Tarvin (No.2) [2023] FedCFamC2F 247
Division: Division 2 Family Law Number of paragraphs: 55 Date of last submission/s: 16 November 2023 Date of hearing: 16 November 2023 Place: Melbourne The Applicant: Appearing in Person Solicitor for the Respondent: Brendan Rothschild Legal Group ORDERS
MLC 14370 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:
UNTIL FURTHER ORDER:
1.All previous parenting orders be and is discharged.
2.The child X born in 2016 (‘the child”) live with the Mother.
3.The child spend time with the Father each and every Saturday commencing 18 November 2023 from 10.00am until 6.00pm
4.Each parent keep the other parent advised of their;
(a)Residential address;
(b)Mobile phone number; and
(c)Email address
5.Each parent be and are permitted to communicate with the other by text message, letter or email, only concerning arrangements about the implementation of these orders as to the child’s time with his Father, including in emergency, but only about matters directly relating to the child’s welfare and practical arrangements such as changeover.
Changeover
6.Until further order changeover is to occur at the McDonalds Restaurant at G Street, Suburb H.
Schooling
7.Each parents be and is hereby authorised to:
(a)consult with teachers and request to obtain information regarding the child’s education at their own expense;
(b)attend upon school events that parents are usually invited to attend.
Section 102NA
8.It is declared that pursuant to section 102NA(1)(a), (b) and (c),(ii) & (iv) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and Mr Ling and Ms Yahui must not cross examine the other personally.
9.IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Father under the Commonwealth Family Violence and Cross Examination of Parties Scheme
10.For the purpose of order 9 hereof, the Father do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his legal representation at Final Hearing.
Property
11.That if either party expects any property alteration orders to be dealt with at the hearing listed for 15 April 2024, such application be filed and served no later than…
Continue reading Ling & Yahui (No 3)
Sign in free to access the full text
- AGLC
- Ling & Yahui (No 3) [2023] FedCFamC2F 1568
- Case
- [2023] FedCFamC2F 1568
- Decision Date
CaseChat Overview and Summary
The court had to decide several legal issues, including whether to grant Mr Ling overnight time with the child, how to manage the allegations of family violence, and whether to impose restrictions on cross-examination of the parties. Furthermore, the court needed to consider the appointment of an Independent Children's Lawyer due to the serious allegations of abuse reported to state welfare authorities and the police. The court also had to address the need for a family report to assess the impact of the proposed parenting orders on the child and the child's relationships with both parents.
Judge O'Shannessy concluded that the child should live with the mother but spend time with the father each Saturday from 10.00 am to 6.00 pm, starting on 18 November 2023. The court discharged all previous parenting orders and mandated that the child's name be placed on the Family Law Watch List to prevent international removal until 30 April 2024. Additionally, the court ordered that an Independent Children's Lawyer be appointed to represent the child's interests, and a family report be prepared by a Court Child Expert or Family Consultant. The court also restrained both parties from denigrating each other, discussing the proceedings, physically disciplining the child, and sharing their opinions on the nature of their relationship prior to separation and any incidents of family violence. The final hearing was set for 15 April 2024.
The court's orders reflect a careful balancing of the child's welfare and best interests, taking into account the serious allegations of family violence and the need for an Independent Children's Lawyer to advocate for the child's interests. The court also considered the necessity of a family report to inform its decision-making process regarding the interim parenting arrangements.
Orders
Orders of the court
MLC 14370 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:
UNTIL FURTHER ORDER:
1. All previous parenting orders be and is discharged.
2. The child X born in 2016 (‘the child”) live with the Mother.
3. The child spend time with the Father each and every Saturday commencing 18 November 2023 from 10.00am until 6.00pm
4. Each parent keep the other parent advised of their;
(a) Residential address;
(b) Mobile phone number; and
(c) Email address
5. Each parent be and are permitted to communicate with the other by text message, letter or email, only concerning arrangements about the implementation of these orders as to the child’s time with his Father, including in emergency, but only about matters directly relating to the child’s welfare and practical arrangements such as changeover.
Changeover
6. Until further order changeover is to occur at the McDonalds Restaurant at G Street, Suburb H.
Schooling
7. Each parents be and is hereby authorised to:
(a) consult with teachers and request to obtain information regarding the child’s education at their own expense;
(b) attend upon school events that parents are usually invited to attend.
Section 102NA
8. It is declared that pursuant to section 102NA(1)(a), (b) and (c),(ii) & (iv) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and Mr Ling and Ms Yahui must not cross examine the other personally.
9. IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Father under the Commonwealth Family Violence and Cross Examination of Parties Scheme
10. For the purpose of order 9 hereof, the Father do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his legal representation at Final Hearing.
Property
11. That if either party expects any property alteration orders to be dealt with at the hearing listed for 15 April 2024, such application be filed and served no later than 5.00pm 22 December 2023.
Appointment of the Independent Children’s Lawyer
12. Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed for:
(a) X, born in 2016
13. Victoria Legal Aid is requested to make arrangements as soon as possible for appropriate representation for the child. and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.
14. The Court advise … of this order forthwith.
15. Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children’s Lawyer copies of all relevant documents.
16. Leave is granted to the Independent Children's Lawyer to issue such subpoenas as they consider necessary for the appropriate conduct of the matter and/or as is reasonably requested by a party.
17. Leave is granted to the Independent Children’s Lawyer to seek orders (at short notice) for any psychiatric or psychological examination of the parents as to what the Independent Children’s Lawyer deems fit.
18. Watchlist Order
19. Both parties and their 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 from the Commonwealth of Australia. This order ceases to have effect on 30 April 2024.
20. The Court requests that the Australian Federal Police give effect to this order by placing the name 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 on 30 April 2024.
21. 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.
Family Report
22. Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and X born in 2016 attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 1 March 2024 and that the family report address:
(a) 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;
(b) the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c) the impact upon the child and upon the child’s relationship with the Mother if the Court made orders as sought by the Father;
(d) the impact upon the child and upon child’s relationship with the Father if the Court made orders as sought by the Mother;
(e) any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
23. Not later than 4.00 pm on 24 November 2023 the parties must provide their contact telephone numbers and email addresses to FinalHearingReports.CCS@fcfcoa.gov.au.
24. Each party will do all things necessary to ensure the child attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
25. The parties and the child shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
26. The Family Consultant shall be at liberty to inspect any material filed by the parties.
27. Leave is granted to each of the parties and the Independent Children’s Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.
Restrains by injunction
28. Until further order, the parties, their servants and agents be and are hereby restrained by injunction from;
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other;
(b) discussing these proceedings;
(c) Physically disciplining X; and
(d) Informing or sharing with X their opinion of the nature of the relationship of the parents at any time prior to separation and any alleged incidents of Family Violence.
Final Hearing
29. The proceedings be adjourned to 15 April 2024 at 10.00am for Final Hearing (with an estimated hearing time of 4 days) at the Federal Circuit and Family Court of Australia at Melbourne Registry.
30. The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which she/he seeks to rely by no later than 28 days prior to the Final Hearing.
31. The Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which she/he seeks to rely by no later than 14 days prior to the Final Hearing and the obligation to file same applies whether or not the Applicant has filed trial material in accordance with the previous order.
32. The Applicant file and serve any Amended Response to the Respondent’s trial affidavit 7 days prior to the Final Hearing.
AND THE COURT NOTES THAT:
A. An Independent Children’s Lawyer has been appointed for the following reasons:
(a) There are allegations of physical, sexual or psychological abuse which apparently have been reported to the state welfare authorities and the police.
B. Victoria Legal Aid has been given access to this file via the Commonwealth Courts Portal (“CCP”) and is granted leave to view copies of documents available on the CCP.
C. The relevant application referred to in order 9 hereof is available to the parties at https://www.legalaid.vic.gov.au/find-legal-answers/commonwealth-family-violence-and-cross-examination-of-parties-scheme.
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.