Ling & Yahui (No 3)
[2023] FedCFamC2F 1568
•16 November 2023
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 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 [email protected].
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 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
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/or passages of authorities added and an attempt has been made to make the orally delivered reasons easier to read. But the substance is unchanged.
In the matter of Ling & Yahui, the matter returns before me for determination of competing applications, which on the Father’s part is to increase the time that he is spending with the parties’ son, X. He seeks that I increase that time on an interim basis from Friday after school (or 3.30pm if a non-school day) until 2pm the following Saturday. That is one night of overnight time each week.
The Respondent Mother (“the Mother”) alleges sexual and physical assault by the Father and in terms of the allegations of family violence, they are very serious. The Applicant Father (“the Father”) however, denies those allegations.
The Mother also alleges severe discipline of the child by the Father. The Father alleges that he did so at the request of the Mother. The Mother denies that there was any such request.
It is not disputed that the Father has, as a means of discipline, struck the child. It is disputed that the striking of the child was a smack of discipline, or in anger, and is determined depending on how you look at the matter.
This matter was raised with the parties in the Child Impact Report. By way of background, I refer and repeat part of the first reasons delivered in these proceedings.
3The 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.
…
7The 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.
The Child Impact Report writer observes as follows, at paragraph 28:
[X] did not indicate that he had any fears of spending time with his father and is clearly at an early stage of re-establishing a relationship with his father. [Mr Ling] appears to be supportive of [X] having a relationship with both parents. Although [Ms Yahui] stated she was supportive of [X] having a relationship with [Mr Ling], her primary narrative was about the alleged past family violence by [Mr Ling] towards her, and his inability to regulate his emotions, particularly in relation to parenting [X].
[Mr Ling] acknowledged that he had inappropriately used physical discipline with [X] in the past and took responsibility for his actions and stated he would not use physical discipline in the future.
The report went on, at paragraph 29:
Should the Court determine there is no risk to [X] spending time with [Mr Ling], he would benefit from increased time with [Mr Ling] in order to continue progressing his relationship with his father. It will be important and necessary for [Ms Yahui] to not either directly or inadvertently communicate adult issues or discuss her own past alleged experience of family violence by [Mr Ling] with [X]. If [X] continues to be exposed to parental conflict there is a risk that a resist/refuse dynamic may arise when [X] becomes increasingly resistant to wanting to spend time with [Mr Ling] as a means to extricate himself from parental conflict.
The Child Impact Report writer had earlier observed X informing the writer of his Mother discussing or informing him of what she says has happened to her in the past at the hands of the Father.
It is noted within this Judgment that the Mother filed an affidavit relied upon on 15 November 2023, at 7.51 pm, that is, filed and served the night before the hearing. I regard that as a disgrace that that affidavit was so late. But nonetheless, I have permitted it to be relied upon and permitted Mr Ling to respond to it.
The affidavit purports to annex a photograph of a red mark on the Mother’s body, which would corroborate the allegation of her being punched, back in late 2020. As bad luck would have it, and perhaps representing the shambolic conduct of the Mother’s case, that photograph is not annexed to the affidavit, nor available in the courtroom, or so it appears.
However, rather than the photograph there is a report from a hospital which shows the Mother consulting and seeking medical care in late 2020, and her account given and recorded in the hospital notes is consistent with her account at paragraph 6 of that affidavit.
The Mother’s affidavit also refers to an incident of severe discipline, or assault, depending on the characterisation, at paragraph 7 of her affidavit, on 6 August 2021. Ultimately the Mother’s solicitor pressed that I view the video that the Mother’s affidavit refers to. It is a very short video. In the circumstances where Mr Ling had said that he had watched it previously, I permitted that to be tendered in evidence.
The video is more or less as described by the Mother in the affidavit and is indeed described by Mr Ling when he tells me about the incident from the bar table. That is, the Father struck the child on the buttocks, or bottom region, with force, and considerable force, for the purpose of disciplining the child. The child was swiftly struck three times. The child was then admonished in a severe and loud voice for a couple of words and then the incident ceased altogether. The child did not appear distressed and immediately moved to return to a chair and resume what he was doing. The child’s resilience in the face of the discipline is remarkable.
When the matter came before me, both parties’ affidavits then dealt in some detail with all the events that had occurred to separation. That is prior to September 2022. It is common ground that following the orders of 14 August 2023, the Father has spent the Court ordered time with X on 12 occasions.
I asked the Father to give sworn evidence of, effectively, how those occasions had gone. The gist of the Father’s sworn evidence was that the occasions had gone quite well and that the child had enjoyed his time. On the first two occasions the child had been happy to see him to the extent that Father and son hugged each other. Thereafter the child was in the routine of spending the Friday afternoon and evening with his Father.
The Mother has no evidence before me that would contradict that those times proceeded well. I note that the Child Impact Report interviews occurred after 10 of those Friday sessions. The report does not go into detail about the child’s interaction with either parent, but does say that the child did not indicate he had any fears of spending time with his Father and is clearly at an early stage of re-establishing a relationship with his Father. This is also explained within paragraph 29 of that report which is recited above.
It is not disputed that the photograph, that was purported to be annexed to the 15 November 2023 affidavit of the mark on the body is in fact the same photograph that X referred to in the Child Impact Report at paragraph 13.
13.When asked about what he remembers whilst living with both parents, [X] responded that his mother does not like “his daddy.” Upon further enquiry, [X] stated his father hit his mother. When asked how he knew this, [X] replied that his mother had shown him a picture of her [body] that had a red circle on it. When asked how [X] felt about this, he replied “not sure.” When asked if [X] ever felt scared of his father, [X] replied “not sure.” [X] indicated that he enjoyed spending time with his father, such as going to [J Café].
I would hope that Ms Yahui, with the assistance of the interpreter, would as least listen to these reasons, but I am not convinced that she actually is, because she is busy on her phone texting her solicitor who sits next to her. The same firm of solicitors that she has had for months.
I do not have great confidence that Ms Yahui will ultimately read, and have interpreted to her, the settled reasons, because it is quite apparent that she has limited English language skills and English comprehension, yet relies upon an affidavit of 15 November 2023 and the 30 October 2023 that were apparently prepared and sworn without an interpreter. The ordinary course is it is assumed that a party would receive the reasons and either read them, if they were able to in English, or have them translated. I am pessimistic about that ordinary course would happen in this case because of the nature of the Mother’s language skills and the circumstances of the 30 October 2023 and the 15 November 2023 affidavit.
The report writer’s concern about the child being involved in the parental dispute involving X in her history of abuse at the hands of the Father is well founded. I will raise with the Mother’s solicitor whether there should be a specific injunction restraining the Mother from continuing to so involve X in the parental dispute of really serious matters.
The Mother puts the case that there should be an increase of time to include overnight time as sought by the Father, only if there is no risk whatsoever. I do not accept that this is the test.
Matters that indicate some emotional lability on the Father’s part include his demeanour when he appeared in front of me on 14 August 2023. The circumstances were that the Father had been effectively prevented by the Mother from spending any time at all with X since the previous September of 2022. The Father became visibly, and genuinely, emotionally upset at the concept of seeing X again. That emotional lability is understandable in that circumstance. Today, when addressing me again, the Father again became emotionally upset when addressing me about the joy that he experienced when he was able to see X for the first time and as I recite these reasons, the Father is again visibly, but genuinely, emotionally upset.
The other matter that occurred during the hearing was the Father appeared to me to simply become noticeably angry and raise his voice when looking in the direction of Ms Yahui when he characterised the manner in which information had been provided about assaults and allegations as being manipulative and having an ulterior motive.
The other aspect to the evidence is that it is the Father’s case, and he told me that on the occasion where the Mother had videoed, or recorded, him smacking the child on the three occasions. It is the Father’s evidence that the Mother told him that if he transferred the house that they were then residing in, to her, she would not contact the police. It is common ground that the house is registered in the Father’s name and has been owned by him for some 20 years The Father says that he refused to agree to that demand and so the Mother duly contacted the police.
If that is true, one can understand, or anyone can understand, how that would concern the Father. Nonetheless, the demonstration of his demeanour in the formality of the Court process, when I felt it was necessary to bring his anger to his attention, and I note he duly apologised and I am grateful for that, concerns me.
I am concerned at the emotional state, or the capacity for the Father to become overwhelmed by the emotional circumstances that he is in. I am unable to determine on an interim hearing whether the very serious allegations of the past family violence are correct or not as they are mostly denied.
Mr Ling alleges that the incident occurred when the Mother struck him, and he hit her back on her body and he denies punching her. But I am unable to make a finding of fact of which version is true on an interim hearing. That is for trial.
I am able to order a Family Report to be undertaken and released by 1 March 2024, when I will receive significantly more information about the relationships between X and his parents. Subject to anything further from Mr Romanov (who appears for the Mother) and Mr Ling, I propose to make that order for that Family Report. I propose to order the appointment of an Independent Children’s Lawyer. At this stage, on the basis that the matter would be able to be contained within four days, I will list the matter on 15 April 2024 as the only matter listed for that day. I am pessimistic about the matter completing in three days (as I was told it would), given the amount of time the proceedings have taken today. It must be added that the parties contributed to that length of time. I will set it down for a hearing of up to four days.
I apply all of the provisions of part 7 of the Family Law Act and the key controversy at this point in time is the balancing of section 60CC(2) and (2)(A). That is the benefit to the child of a meaningful relationship and balancing that with the risk of physical or psychological harm to the child.
I also note that when pressing for an adjournment which was refused, and for the reasons that I have set out earlier, the Mother’s proposal was that the matter be adjourned and that there not be overnight time, but that the child spend from 10 am Saturday until 6 pm weekly.
That is a significant movement on her position in affidavit of last night, which was that the Friday after school, or 3.30 if not a school day, until 8 pm should be reduced to once a month. In all of the circumstances, and having viewed the video of the Father disciplining the child with force, the Father’s demeanour during proceedings on 14 August 2023, and his change in emotions when he suspected there was an ulterior motive in the Mother’s conduct of the proceedings and the allegations, all cause me to not be satisfied that it is appropriate to move to overnight time at this stage. It may be I am so satisfied when I receive the further information in the Family Report and each of the parties’ evidence is tested in more detail.
It weighs heavily on me that X’s relationship with his Father may be unnecessarily restricted because of these allegations. It would be of considerable benefit to me, and perhaps to the Independent Children’s Lawyer, if both of the parties were to undertake psychological examinations, or psychological evidence as to their psychological health.
I am satisfied that the parenting courses recommended by the report writer should be undertaken. I am not going to order the Father to undertake a men’s behavioural change program because he is already enrolled, or sought to enrol, and says that he is going to do that in any event. I will leave that to him and it will be a matter for him as to how he conducts that.
It would be of great advantage to the Father were he to have legal advice in the proceedings, but this is a free country and he does not have to be represented by lawyers or take independent legal advice. He is at liberty to represent himself, and by and large he does a reasonable job at that.
I will raise shortly with the parties the issue of section 102NA. That is a severe restriction on the Father’s conduct of the case, and indeed on the Mother were she to become unrepresented. If those provisions apply the parties cannot personally cross-examine the other.
Balancing all of those matters I am satisfied that it would benefit X to have a meaningful relationship with his Father. I am satisfied that there is a real concern or risk of the need to protect X from inappropriate discipline in his Father’s care. I am satisfied that there is a need to protect X from the psychological harm of being exposed to his Mother’s view and history of the relationship when in his Mother’s care. I also note that the Father’s tendency in addressing me was to be critical of relatively minor aspects of the Mother’s care of X.
Balancing all of those matters I am satisfied that the existing orders as to time should be discharged and that the order should be that on each and every Saturday, X spend time and communicate with his Father from 10 am until 6 pm. I had contemplated the issue of the Mother being freed from the weekly obligation to arrange her life so that that was available, but I have no evidence or submission as to the need for that, so I am simply going to leave that at each and every week.
That may interfere with the Mother’s plans for holiday but the issue of X’s relationship with his Father being at a re-establishing “stage” overrides that consideration. Further when I should be able to deal with the matter on a final basis as soon as April, means that it is a few more months that I would be inconveniencing the Mother if that were so. I acknowledge that the lack of moving to overnight time will be deeply disappointing to Mr Ling but I am satisfied that the limitation of the time, at this stage, not to move to overnight time is in X’s best interests.
Below where I set out from a previous judgement is an analogy of the three limbs with the four branches of Section 102NA of the Family Law Act 1975. I recite a description of the scheme of section 102NA in Middleton & Redmond [2021] FCCA 316.
67I also considered, and I follow, the decision of Gill J in Owen & Owen [2020] FamCA 90 (‘Owen & Owen’) delivered on 17 January 2020, where his Honour dealt extensively with the exercise of the discretion contained in the fourth branch of the third limb. In this case, because the first and second limb apply (described as “necessary precursors” by Gill J) I had a discretion as to whether to make an order that section 102NA (2) applies as the mechanism that would trigger the third limb and hence the then mandatory ban on personal cross-examination. This is so notwithstanding that none of the other three conditions of the third limb applied.
I also adopt the description of the concept of the scheme of section 102NA from Nasar & Tarvin (No.2) [2023] FedCFamC2F 247
61I have found from experience of explaining section 102NA to litigants in person on dozens of occasions over the last couple of years that one convenient way to think of section 102NA is as having three substantial limbs (being 102NA(1)(a), (b) and (c)), but with the third limb having four separate branches (being the subsections of 102NA(1)(c)(i) to (iv)).
…
67It must be acknowledged that section 102NA is a draconian and drastic restriction upon the time honoured right of a party to cross-examine another party or witness giving evidence contrary to him. The section 102NA scheme is, as discussed in the decisions cited, for the protection of victims of alleged family violence, and to prevent the re-traumatisation of the alleged victim by the cross-examination process when it is being carried out personally by the other party.
68Hand in hand with that draconian restriction is the generous scheme when a party is prevented from cross-examining. Parliament has set aside a separate bucket of money to be administered by state legal aid bodies for the purpose of ensuring the representation of the restricted party. In this way, the other party can be cross-examined, but not by the litigant in person but by a lawyer. This has the collateral benefit that, inevitably, the otherwise unrepresented party obtains the benefit of the legal advice of the lawyer that would be undertaking the cross-examination.
69Further, certainly in Victoria, the scheme being administered by Victoria Legal Aid has imposed conditions upon that grant of aid such that the lawyer appointed under the scheme effectively has the responsibility of the conduct of the entire case, not just the cross-examination of the other party. That comes with real advantaged and disadvantages. A litigant in person has at first been excited about the prospect of having a lawyer appointed for them at public expense, only to be profoundly disappointed when the lawyer has provided legal advice that runs contrary to what the person wanted or expected to hear.
…
71If section 102NA mandatorily applies there is no discretion: the parties cannot cross examine each other and the resources of the section 102NA cross examination scheme are made available and not means tested…
The first limb is if Mr Ling intends to cross-examine Ms Yahui. Given the factual matters that are in dispute, if he understood the consequences of not cross-examining, it is likely that he would want to cross-examine because that is the ordinary way that evidence is challenged. I am satisfied, and I see him nodding as I raise that, that 102NA(1)(a) is in play, that is that Mr Ling intends to cross-examine Ms Yahui.
102NA(1)(b) is that there is an allegation of family violence. There certainly is an allegation of family violence here in this case.
The third limb has four branches; Involving either party that has been convicted of or charged with an offence involving violence or the threat of violence to the other party. As at today there is a final intervention order in place, that expires in December. Which means it would not be in place for trial but it might be extended, but in any event, I am satisfied that 102NA(1)(c)(iv) is appropriate that I prohibit personal cross-examination and so the fourth branch of the third limb applies in this case.
The other side to that coin is that when I make an order prohibiting cross-examination, I request the Legal Aid Commission of Victoria to appoint a lawyer for Mr Ling for the purpose of conducting the trial, so that any cross-examination is only by a lawyer.
The scheme is that if section 102NA applies, and that does not mean that I find that any of the allegations are proven, merely allegations exist. The government has set aside a separate bucket of money for the purpose of providing, at taxpayer expense, representation in the proceedings.
That does not mean that Mr Ling must be represented by the lawyer that the Legal Aid Commission would appoint, but he is free to do so if he chooses. However, that can only happen if Mr Ling makes the appropriate application to Victoria Legal Aid.
I am satisfied that section 102NA(a), (b) and (c)(ii) and (iv) apply at this point in time and so I will make that request. It sometimes sounds like a good idea to be represented by the lawyer that Legal Aid appoints for a person, but of course it does not follow that the party and the lawyer will agree on things like strategy and advice and so on. Mr Ling is still at liberty, if he chooses, to retain a lawyer as he chooses and pay that lawyer as that lawyer requires. Hence he will have that option to either represent himself but not be able to cross-examine Ms Yahui personally, or to have the lawyer that Legal Aid is likely to appoint (provided everything is done promptly) and that lawyer has the conduct of the case; or thirdly, to choose and make arrangements to pay the lawyer that he chooses entirely independent of Legal Aid Victoria and the section 102NA scheme.
The other aspect that I will raise with the parties now is the issue of property proceedings. There is an extant injunction that prevents Ms Yahui from disposing of Mr Ling’s property. I had ordered, that he would file an amended application dealing with property proceedings, and as I understand it he has not done so, nor has Ms Yahui.
The circumstances, as I understand them, is that Ms Yahui lives in Mr Ling’s house. That means that without an order of this Court, or a family violence order, that Mr Ling could request Ms Yahui to leave his house. But at the moment it appears to me that she has no legal right of ownership or interest in that house, it may be that the family violence order, whilst it exists, permits her to continue to reside in that house, but I am uncertain of that.
However, it is significant that neither party, that is the party living in the other party’s house, or the party that has to bear someone else living in his house, has made an application for property proceedings to the Court. If they intend to do so for the final hearing, they better not do it at the last minute.
Now, that does not mean that the parties have to file an application for property relief, but if they are going to file one intending that that be dealt with in the Final Hearing then that must be filed as set out within the orders. It is not compulsory to file a property application, but I fear that one or the other party will file one at the last minute and that will derail the hearing.
There is also the matter of the existing watchlist order. No party has raised a watchlist order with me today, and I will now raise it. The existing order expires on 31 December 2023. Ms Yahui previously opposed the watchlist order because she wishes to take X overseas again to visit her family.
On the previous occasion Mr Ling opposed that and I made a watchlist order only until 31 May 2024. I am grateful to Ms K, my associate, for bringing that to my attention, lest I would not have noticed it.
In the circumstances of the intense feelings in this case, the emotional lability of both parties and the seriousness of the allegations that are alive, and the need to restrain Mr Ling from undertaking physical discipline on X and the need to restrain Ms Yahui from sharing her opinion of the history of the personal relationship between her and Mr Ling with X, I am satisfied that it is not in X’s interests for either parent to be removing him from the Commonwealth of Australia until further order.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 5 December 2023
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