Ling & Yahui (No 4)
[2024] FedCFamC2F 530
•15 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ling & Yahui (No 4) [2024] FedCFamC2F 530
File number(s): MLC 14730 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 April 2024 Catchwords: FAMILY LAW – Final hearing vacated – section 102NA orders – Lawyer not able to be assigned – No evidence in chief filed – Lawyer sought leave to withdraw – Application of lawyer to withdraw refused – Interim application to extend time with 7-year-old child – Untested family report of considerable assistance – Watchlist order extended. Legislation: Family Law Act 1975 (Cth) section 102NA Division: Division 2 Family Law Number of paragraphs: 33 Date of hearing: 15 April 2024 Place: Melbourne The Applicant: In Person Solicitor for the Respondent: Roman Romanov Counsel for the Independent Children's Lawyer: Ms O’Connell Solicitor for the Independent Children's Lawyer: Ebejer & Associates ORDERS
MLC 14730 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LING
Applicant
AND: MS YAHUI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 APRIL 2024
THE COURT ORDERS THAT:
UNTIL FURTHER ORDER
1.All previous parenting orders be and are discharged.
2.X born in 2016 (“the child”) live with the Mother.
3.The child spend time and communicate with the Father as follows:
(a)commencing 19 April 2024, each Friday from the conclusion of school (or 3.30pm on a non-school day) until 8.30pm;
(b)commencing 20 April 2024, each Saturday from 10.00am until 6.00pm; and
(c)by telephone, each Wednesday for 15 minutes with:
(i)the Father to telephone the number as provided by the Mother between 7.00pm and 7.30pm; and
(ii)the Mother to facilitate such calls.
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.Changeover is to occur at the McDonalds Restaurant at G Street, Suburb H.
Airport Watchlist
7.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 25 October 2024.
8.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 name 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 25 October 2024.
9.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.
Authorisations
10.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; and
(b)attend upon school events that parents are usually invited to attend.
Restraints by Injunction
11.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 the child; 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
12.The final hearing listed on 16, 17 and 18 April 2024 be and is vacated.
13.The proceedings be adjourned to 21 October 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 (“the Final Hearing”).
14.The matter may be listed for a compliance mention prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.
15.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
16.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 56 days prior to the Final Hearing.
17.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 42 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.
18.The Independent Children's Lawyer file and serve any material on which they seek to rely by no later than 28 days prior to the Final Hearing.
19.Each of the parties be at liberty to file a short affidavit in reply by no later than 21 days prior to Final Hearing.
20.The parties be at liberty to rely upon any affidavit material previously filed in these proceedings and merely file an updating affidavit, provided that written notice is given to the other party at the same time as required for filing a trial affidavit provided above.
21.Each party file and serve a case outline no later than 7 days prior to trial and provide a copy in Word format to the associate with the case outline to include:
(a)a list of the application/response and all affidavits to be relied upon including the dates of filing:
(b)a brief chronology of relevant events;
(c)a precise minute of the orders the party is seeking; and
(d)a list of authorities to be relied upon, if any.
22.For face to face final hearings, parties are directed to have multiple copies of the paginated documents they seek to tender or cross examine upon (a judge’s working copy, a copy for each counsel and solicitor and a witness copy that will become the exhibit) and have a copy of documents available to witnesses including the witness’ own affidavit.
23.No later than 3 days prior to trial, the legal representatives (and the parties themselves if self represented) jointly prepare a trial plan outlining any witnesses for cross-examination and an indication of the time they anticipate required for cross-examination of each witness.
Section 102NA
24.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 the Father, Mr Ling and the Mother, Ms Yahui must not cross examine the other personally.
25.IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Father under the Commonwealth Family Violence and Cross Examination of Parties Scheme.
26.For the purpose of order 26 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.
27.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 the Mother, Ms Yahui and the Father, Mr Ling must not cross examine each other personally.
28.IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Mother under the Commonwealth Family Violence and Cross Examination of Parties Scheme.
29.For the purpose of order 27 hereof, the Mother 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.
30.In the event that a lawyer appointed by the Commonwealth Family Violence and Cross Examination of Parties Scheme for either parent has not been appointed by 30 June 2024, then the parties shall request this matter be fixed for mention and such request be made from all parties.
31.IT IS REQUESTED THAT Victoria Legal Aid review the process of Mr Ling’s application for legal representation under the Commonwealth Family Violence and Cross Examination of Parties Scheme.
32.IT IS REQUESTED THAT Victoria Legal Aid review the process of Ms Yahui’s application for a grant of legal aid.
Miscellaneous
33.Brendan Rothschild Legal Group be and is excused from further representing the Mother at the conclusion of this day.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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.
B.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.
C.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.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.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 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 and evidence 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, I need to determine what should happen before I can get back to this case again on a final hearing. The circumstances are that the parents of X, who is seven years old, disagree about the time he should spend with his father, Mr Ling (‘the Father’). The matter was listed for a final hearing for four days before me, and I had previously made an order pursuant to section 102NA of the Family Law Act 1975 (Cth), that prohibited the Father from personally cross-examining the respondent mother, Ms Yahui (‘the Mother’). Of course, the consequence of that Order is that the reverse would apply – the Mother would not be able to personally cross-examine the Father.
102NA Order trainwreck
Section 102NA provides that:
(1)If, in proceedings under this Act:
(a)a party (the examining party) intends to cross - examine another party (the witness party); and
(b)there is an allegation of family violence between the examining party and the witness party; and
(c)any of the following are satisfied:
(i)either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii)a family violence order (other than an interim order) applies to both parties;
(iii)an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv)the court makes an order that the requirements of subsection (2) are to apply to the cross - examination;
then the requirements of subsection (2) apply to the cross - examination.
(2)Both of the following requirements apply to the cross - examination:
(a)the examining party must not cross - examine the witness party personally;
(b)the cross - examination must be conducted by a legal practitioner acting on behalf of the examining party.
At the time I made the 102NA Order in regard to the Father personally cross-examining the Mother, there was in place a final intervention order. The Father had told me that he challenged some of the evidence of the Mother, and that he would wish to cross-examine her. Hence, the first limb of the tree of section 102NA was satisfied; that is, an intention to cross-examine the other party. The second limb of section 102NA was clearly satisfied in that there were allegations of family violence between the Father and the Mother. The third limb was at that time satisfied pursuant to section 102NA(1)(c)(ii); that was, a family violence order (other than an interim order) applied to both parties.
Hence, there was no discretion as to whether or not that Order was made. If I had had a discretion, in the circumstances of this case as the parties have presented to me, it would have been appropriate to make that Order in any event because of the significant possibility that, in fact, the Mother may well be distressed and unable to give a proper account of her case if she was to be personally cross-examined by the Father. And I say that as a possibility, not certainty, because I am not making any findings at this stage.
Thereafter, as set out in Exhibit C1, the following communications occurred with the branch of Victoria Legal Aid (‘VLA’) that has the burden and duty to administer the section 102NA scheme on behalf of the Commonwealth of Australia.
CHAMBERS: Good morning,
May I please request an update on the below request.
Chambers was advised by [Mr Ling] that he did make an application to the scheme and has not had a lawyer assigned to him pursuant to the scheme.
This information was emailed to chambers at 9.15pm last night.
If you could provide an update if [Mr Ling] did make an application, that would be much appreciated.
VLA: Dear Associate,
Thank you for your email.
We can confirm that we received an application from [Mr Ling] for the family violence cross examination scheme but that we were unable to allocate representation to him under the scheme due to difficulty assigning a lawyer.
Apologies for any inconvenience caused.
If chambers could let us know if the hearing dates changes, we will continue to attempt to find [Mr Ling] representation under the scheme for those new dates.
CHAMBERS: Good morning,
Can you please confirm when [Mr Ling] made the application to the scheme?
VLA: Hi,
His application was made in November.
After making his application in November (last year), the Father simply waited for the lawyers that he had been told would contact him to contact him, and they never did. He found out today that the reason the lawyers did not contact him was because there was never any lawyer appointed because the relevant office of VLA could not obtain a lawyer to represent him pursuant to the section 102NA scheme. That would have been sufficient to mean that this Final Hearing could not proceed, and in the circumstances where the Father had commenced these proceedings on 28 December 2022, the vacation of the Final Hearing contributes to an unfortunate delay.
Decision to vacate final hearing
Dates for final hearings are not like cards in cereal boxes. They are a serious allocation of the public resources of the Court to this family's dispute. Public resources have been applied by this family having the benefit of a Child Impact Report from within Court Child Services and a Child Impact Report that, although not tested in cross-examination, is on its face of a high quality. In addition, this family has had the resources of a Family Report that again, though it has not been tested by cross-examination, on its face, appears to be of a high quality. Hence, it is with great regret that it is necessary to vacate this Final Hearing.
Interim application
When vacating the Final Hearing became likely, or at least possible, the Father made application for interim orders to increase his time with X. The Father currently enjoys each Saturday from 10.00 am until 6.00 pm with X. That was a time that had been suggested by the Mother back in November 2023, when I made the 16 November Orders. I had initially made Orders in August 2023 that the Father see X each Friday evening from after school until 8.00 pm – at a time when any time (or orders) at all was opposed by the Mother or alternatively, if there was to be time, she sought time once per month. With the benefit of a Child Impact Report, the Mother was able to make a different proposal in November 2023, which I ultimately accepted.
Representation of the parties
This matter came on for final hearing today (Monday 15 April 2024) and the Father had been ordered to file his affidavit of evidence for final hearing four weeks earlier. Under questioning by me, when I called him to give evidence in the witness box, he told me that he simply did not know what to do or put in his final material without the assistance of his lawyers.
Independent of the Father’s trouble with having a lawyer appointed pursuant to the 102NA scheme, the Mother had her own difficulties with representation. The Mother is represented by the Brendan Rothschild Legal Group (‘the BRLG’) and has been throughout these proceedings, and throughout these proceedings has had, or did have the benefit of a grant of legal aid.
The Mother was represented this morning by Mr Romanov, who has represented her in hearings before me on prior occasions as well. Mr Romanov appeared before me as a courtesy and sought leave to withdraw from the proceedings in the circumstances of not having a current grant of legal aid. I spent some time inquiring and trying to ascertain just what was the course of conduct of the Mother's legal aid applications, refusals and so on. Whilst he was not initially well prepared to be subject to an interrogation from me as to just what had happened with the legal aid position, Mr Romanov was of significant assistance to me as he was able to provide me with information by searching his firm's records.
Five months’ notice of final hearing
I had previously set this matter down for hearing on 16 November 2023, which gave the parties five months' advance notice of the Final Hearing. Mr Romanov told me that at that time, it had been anticipated that the cap of legal aid funding may or would be exceeded. The Mother did not make application for legal aid for this Final Hearing until 13 February 2024. That is roughly some three months after the matter was set down for final hearing.
Mother’s legal aid refused
On 10 March 2024, the Mother’s solicitors received a request from Legal Aid Victoria for additional information. That additional information was not provided before 2 April 2024, that is two weeks ago.
On 2 April 2024, Legal Aid refused the Mother’s application for legal aid on the basis that they had not been provided with sufficient information about the circumstances and applicability of legal aid guidelines. In fact, they had not been provided with any information at all following their request on 10 March 2024. At the same time as that was happening, or rather overlapping with it, on 27 March 2024 – and I infer, fearing that legal aid would not be granted – notwithstanding the further information sought had not been provided, the Mother's solicitors made application, or purported to make application, to the 102NA cross-examination scheme, though the only Order made regarded the Father.
102NA assistance refused
Notwithstanding that the making of an order restraining one party from personally cross-examining the other has the likely inevitable consequence that the latter would be restrained from cross-examining the former, that application to the scheme was refused on the same day as it was made – 27 March 2024. I infer that the application was refused because there was no order specifically referring to the Mother in regard to section 102NA. The end result of that was that the Mother did not file any affidavit or trial material at all. Hence, the Father and the Mother had both failed to comply with the Court's directions, though for slightly different reasons. But at the heart of both failures to comply was the fact that one party was not represented at all and was waiting for contact from the 102NA-appointed lawyer, and the other party, though represented, did not have a grant of legal aid to actually do the work that would have been necessary to comply with the Order.[1]
[1] Sigh.
Leave to withdraw as lawyer
At 12.45 pm, when asked for submissions about why I should or should not refuse the application of the solicitor employed by the BRLG for leave to cease to represent the respondent mother on an interim hearing, it was requested that I stand the matter down for a further hour and for, effectively, my associate to assist in an urgent application for legal aid. I am not prepared to do so. I am not going to get involved with applications for legal aid if, for no other reason than I know nothing about the parties’ financial circumstances, and there may be a good reason why the parties choose not to do the ordinary thing and pay lawyers, or there may not be. It’s a free country, you don’t have to be represented by a lawyer. But, in this case, the parties can’t proceed on a final hearing representing themselves because the law prohibits each of them from cross examining the other and for, in this case, good reason.
Leave to withdraw not granted
I ruled that I would grant leave to the BRLG to withdraw from the case at the end of the day’s hearing because the Court needed the assistance of a lawyer representing the respondent.
Family report
Whilst the legal aid and 102NA applications were wending their way through the administrative schemes, pursuant to my Court Order, the Court Child Expert, in fact a Regulation 7 Family Consultant, Mr L, had contacted the family and interviewed the parties. It did not get off to a good start as the initial interview with the Father had been scheduled to be on 20 February 2024, but the Father did not attend because he had overlooked or did not notice the email sent to him by the Family Consultant. I have some sympathy for people who do not notice emails, as we all now get dozens and dozens of emails every day, some of which are genuine, some of which are spam, but nonetheless, society works on the basis of:
I have sent the email, therefore you have received it and read it.
That is far from my experience, but nonetheless, that is the way that a good deal of society works these days. Also fixed that day was the Family Consultant's intention to interview the Mother. The Mother did not attend for her interview, and she had a slightly different explanation, and that is that her solicitors had not informed her of the appointment. Nonetheless, the Family Consultant persevered and made other appointments which, with the benefit no doubt, of some encouragement from the Family Consultant, both parties were able to attend the second time around. And I am grateful to them for being able to cooperate with the Court's requirements to that extent.
The Family Report was then released on 11 March 2024. At this point, the 102NA indirect application of the Mother had not been made and, at this point, the Father is still waiting for contact by his solicitor that he believed, or hoped, would be appointed, pursuant to my November last year section 102NA Order. The Family Report is very helpful to me. The Family Report Writer expresses some surprise that I had ordered unsupervised time between X and his father back in August, at a time when I did not have any independent expert information or psychological counselling or the benefit of family therapy.
The Family Consultant's surprise is understandable in the circumstances that though the Father had issued the proceedings in December 2022, he had not seen X since separation in October 2022 and hence it was roughly ten months before X was able to see his father after the separation of his parents. I set out the unfortunate history of delay in these proceedings in my reasons from August 2023 as follows:
5The proceedings commenced by [Mr Ling] filing an application on 28 [December 2022], 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:
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.
…
26. I applied for mediation through [E Counsellors] based on the final IVO’s conditions. I submitted my application [in early] 2023, and [E Counsellors] conducted an interview with me [in early] 2023. Following [E Counsellor’s] 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 [in mid]-2023. However, [on the day of mediation], [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 ou[r] mediation dated [for mid]-2023, but we did not reach any agreement.
27. [In mid]-2023, [Ms Yahui] initiated mediation through the Family Dispute Resolution Service (FDRS), and I responded, agreeing to participate. However, [on the day of mediation], I received a letter from FDRS stating that the mediation will no longer proceed.
The Report Writer's observations about X's relationship with his father were of great assistance to me. The Mother is of the view that X's statements of enjoying his time with his father are not genuine and are feigned. However, the Family Report Writer observed as follows:
54. [X] (now 8 years old) was interviewed on his own after first a joint introductory meeting with [Ms Yahui]. At interview, he gladly spoke about his schooling and plans for a future career. He impresses a confident, outgoing and articulate boy. He is a credit to both his parents and this needs to be acknowledged. He also spoke about the gifts he received from [Mr Ling] and [Ms Yahui] last Christmas.
55. An observation of the father/child relationship was conducted via [a messaging app]. [X] presented as relaxed and comfortable when with [Mr Ling]. As was the case when observed with [Ms Yahui], [X] did not appear fearful of contradicting [Mr Ling]. He was observed to be affectionate and repeatedly entered [Mr Ling]’s physical space. [X] is spending time with [Mr Ling]. According to [Mr Ling], [X] is enjoying spending time with him. [Ms Yahui] claims instead the boy does not and is at times resistant to going to [Mr Ling] on a Saturday morning.
56. [X] spoke with some animation and enthusiasm about activities he has been sharing with [Mr Ling] which included visiting parks and trips to [sports games] and beaches. He gave the impression he enjoys the activities [Mr Ling] provides for him.
…
58. [X] was excited that he was to go to a park with [Mr Ling] before being returned to [Ms Yahui]. Despite [Mr Ling]’s[2] belief that the child at time feigns enjoyment regarding activities [Mr Ling] provides for him, there was certainly an air of genuine delight and anticipation about this prospect. Actually, [X] was very impatient for the observation being conducted by this Family Consultant to end so he could go to the park.
59. [X] was physically close to [Mr Ling] and showed no sign of fear or apprehension. Once again, [Ms Yahui] thought [X]’s behaviour on this instance (perhaps she asked him about the observation conducted), was artificial and contrived, fearing he would get into trouble from [Mr Ling] if not manifested. (In this Family Consultant’s experience, children of this age tend to be transparent and find it difficult to sustain such an act consistently. Having said this, it is not unusual for children who have been abused to crave the love, affection and attention from a parent who has abused them. Perhaps [X]’s behaviour is an example of this but this is by no means certain.)
…
62. [Mr Ling]’s relationship with [X] has been restored and, notwithstanding [Ms Yahui]’s reservations, she has been making the child available to [Mr Ling] regularly for about six months.
…
82. Generally speaking, children need to have a sound and meaningful relationship with both parents for their normative development. This is core to their identity formation. Attachment to a trusted care giver on each side of the family offers emotional security. A child needs a strong and secure attachment with both parents to affirm identity with both sides of a family. A secure psychosocial base, derived from strong attachment to each parent, can positively support relationships in the broader community in adult life. Having said this, above all children need to be physically and emotionally safe.
83. Children of separated parents usually show better outcomes emotionally, socially and academically when they maintain a relationship with both parents but in a low conflict environment. [Mr Ling] and [Ms Yahui] need to mindful of this.
84. The parental relationship has been a conflicted one and their conflict and disagreements are about to continue in a legal forum. It is not in [X]’s interest that the two most significant people in his life maintain their conflict. There is ample research indicating that children exposed to prolonged levels of parental conflict are at risk of having their future mental health seriously compromised. [Mr Ling] and [Ms Yahui] need to be aware of this. As ongoing conflict between parents can be harmful to a child, ongoing/prolonged litigation is also harmful to parents.
[2] I believe this reference to the Father to be a typographical error, where the Report Writer inadvertently referred to [Mr Ling] instead of [Ms Yahui].
Decision as to X’s time with his father
This day, the Father told me of his involvement with a Men's Behavioural Change Program with the assistance of the court FASS consultant. The Father had been referred by FASS to the Men's Behavioural Change Program that catered for his first language. He told me, and ultimately I accepted, that he had applied to the Program in mid-2023, had been placed on a waiting list, was interviewed in late 2023 and had his first appointment or session, or as he calls it, section, in early 2024. The Father has attended eight or nine, he says, sections of the 20-section program.
Two of those weeks' sections have been cancelled for matters outside his control, he says, one of them being an air-conditioning failure and one of them being a need for the facilitators to attend another session. Otherwise, the Father has attended almost every week. He told me about what he had learnt from the Program, and for the purpose of this interim hearing – which, of course, would be subject to testing on a final hearing – I am satisfied that the Father was genuine when he told me that he had found what he had covered in the Men's Behavioural Change Program so far as very helpful to him, and I gained the impression that he did not doubt or question the authority and wisdom of what he was being instructed in that Program. The Father told me, and I accept, that had he known of the things that he had learnt in those sections, he would have been a quite different parent than he had been. I accept that for the purpose of this hearing.
I then called the Father to the witness box where he confirmed that what he told me from the bar table (representing himself) was correct. The Father was then cross-examined about that evidence by Mr Romanov. The thrust of Mr Romanov's cross-examination was consistent with the Mother’s presentation to the Family Report Writer, which was that the Mother could not understand, or at least found perplexing, that the Father had cancelled sessions of his time with X.
I do not make any finding one way or another on that, but the Father’s explanation about why he had missed sessions – and I note he had appropriately notified the Mother that he would be unable to exercise time a day or two beforehand on each of the occasions – rather than the unfortunately too familiar just do not turn up scenario, was that he was interstate or overseas and with business. Both the Mother and the Father are professionals employed independently of each other. The Father's motivations in not attending are entirely consistent with the ordinary everyday need to provide an income for himself and his family, but I make no finding about that.
However, I am not satisfied that those missed times were of themselves a reason not to consider the application for extended time. The Father sought the extension of time from Friday after school to overnight so that his time would start on the Friday night rather than the Saturday morning. In addition, he sought regular telephone time to be able to speak to X by telephone. Ultimately, after discussing the matter with me, he acquiesced in a more likely order being one fixed time of telephone time each week if that was to occur, notwithstanding that his preference was to speak to X much more frequently than once per week.
At about 1.30pm when I pressed Mr Romanov who, for reasons I set out earlier, was still representing the Mother, she indicated that she would prefer to negotiate with the Father to be able to find a time acceptable. I then adjourned over lunch and resumed at about 2.40pm this afternoon. Despite the best intentions of at least the Mother, the parties were unable to reach any agreement about what time should happen in the meantime.
Mother’s final proposal for increased time
The Mother's proposal in the afternoon was that the telephone time should be of a Wednesday, each Wednesday between 7.00pm and 7.30pm for 15 minutes of telephone contact and that there should be additional time, and that additional time should be each Friday from after school until 8.00pm.
The Father ultimately put an alternative proposal in the circumstances where if he was not going to be able to have overnight time, that time should be of a Friday evening until 8.30pm. I broadly, but not entirely, follow the Mother's suggestions for the increase in time, and I might say her proposal to increase that time stands well to her credit as a parent in that she has taken on board the matters contained in the Family Report, whether or not she agrees with them entirely. The Father has also taken on board the matters in the Report, whether or not he agrees with them entirely.
Watchlist order
The other matter is that I had previously made a Watchlist Order which is very strongly opposed by the Mother. The Mother has also demonstrated that she can return from Country D to Australia when she voluntarily returned in the middle of 2023 at the request of her lawyers to participate in these proceedings. I indicated that that Watchlist Order would be reviewed this day on the Final Hearing. The ICL has indicated to me that the matter being would require that Order to be extended. I have not given the Father and the Mother the opportunity to address me about that directly, though they have had that opportunity indirectly. [I sought submissions as to the Watchlist Order].
After further inquiry, the Mother acquiesces in the extension of that Watchlist Order until final hearing when it will be reviewed, and I am grateful to her for having the courage and the maturity to make that difficult decision.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 2 May 2024
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