Yeong & Sun
[2025] FedCFamC2F 295
•24 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yeong & Sun [2025] FedCFamC2F 295
File number(s): MLC 7008 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 24 February 2025 Catchwords: FAMILY LAW – Property – Enforcement application – Where wife seeks to enforce consent order providing her sole use and occupation of former matrimonial home – Where existing intervention order pursuant to state law prohibits husband from attending former matrimonial home – No jurisdiction for this court to make consent order in circumstances where matter had already been agitated pursuant to prescribed state law – Application dismissed – Where wife seeks to join husband’s parents to cause them to vacate former matrimonial home – Application for joinder on discrete issue of enforcement application dismissed. Legislation: Constitution of Australia s 109
Family Law Act 1975 (Cth) s 114AB(2)
Family Law Regulations 1984 (Cth) reg 19
Family Violence Protection Act 2008 (Vic)
Division: Division 2 Family Law Number of paragraphs: 21 Date of hearing: 24 February 2025 Place: Melbourne Counsel for the Applicant: Ms Paull Solicitor for the Applicant: Henley Legal Solicitors Counsel for the Respondent: Mr Sweeney Solicitor for the Respondent: Kingston Lawyers ORDERS
MLC 7008 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR YEONG
Applicant
AND: MS SUN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
24 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application for enforcement filed 30 October 2024 by the applicant wife, MS SUN (‘the Wife’), be and is dismissed.
2.The Wife’s application to join the parents of the respondent husband, MR YEONG (‘the Husband’), to the proceedings in respect of the enforcement application be and is dismissed.
AND THE COURT NOTES THAT:
A.The Wife has indicated to the Court via her counsel that she intends to pursue an application to join the Husband’s parents to the proceedings with respect of other issues in the proceedings.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge O’Shannessy
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
In the matter of Yeong & Sun, I am satisfied that the order made on 7 August 2024 should not be enforced because of the circumstance that order is, in substance, prohibited from being made because of section 114AB(2) of the Family Law Act 1975 (‘the Act’) which is as follows:
Section 114AB Operation of State and Territory laws
…
(2) Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless:
(a) where the person instituted a proceeding:
(i)the proceeding has lapsed, been discontinued, or been dismissed; or
(ii)the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and
(b)where the person took other action--neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act.
[emphasis added]
I proceed on the basis that the Judicial Registrar who made the order, the parties, and their lawyers on the day of 7 August 2024 understood, or at least assumed, that there was jurisdiction to make the order.
Background
The background is that the parties, Mr Yeong (‘the Husband’) and Ms Sun (‘the Wife’), were married in 1997 or 1998. They have two children who are now adults. They separated in 2023 and the proceedings in this Court were issued on 11 June 2024. On 7 August 2024, orders were made by consent including the usual orders relating to valuation in regard to the property at B Street, Suburb C, in the State of Victoria.
The controversial order before me is order 4. That order says:
4. That by 23 October 2024, the Husband cause his parents to vacate the former matrimonial home and that the Wife shall have sole use and occupation of the former matrimonial home from the date.
It is clear enough, either by exhibits tendered or sensible concessions made by the parties’ lawyers, that the Victoria Police had taken out the procedure, or order, known as a ‘Safety Notice’ on or about late 2023, and that order was to the effect that the Husband, the respondent in these proceedings, be removed from the property. That safety notice was made into what is commonly called an Intervention Order on or before early 2023. There are two aspects to the early 2024 order. It provided that the Wife have occupation of the home, but also provided that she was to vacate the home for a period for the Husband to attend and collect his belongings.
The order in early 2024 was an interim order and the proceedings then resumed on 27 June 2024 where, I infer, the matter was listed for mention. In mid-2024, what had been an interim Intervention Order was made a final order. That order was to expire in mid-2025, and that order effectively gave the Wife, in substance, protection from family violence only. There is some ambiguity in regard to what the respondent Husband may do in regard to subparagraph (e), where he was permitted to go to the home of a protected person, in the company of a police officer, to collect personal property. However, it is more likely that that order is an artefact of pro forma computer documents because the only order was that the respondent must not “commit family violence against the protected person”.
The next mid-2024 Intervention Order: W2 and W3
The documents known in these proceedings as ‘W2’ include a document headed ‘Magistrates’ Court Family Violence Protection Act 2008 AP. for Variation (FV)’ and states as follows:[1]
Who is making the Application
My full name is [MS SUN]
[1] On page 3 of 3.
The address is blank. The application then goes on:
The application Case No. […]
I seek to:
HAVE THE ORDER VARIED TO ADD THE FOLLOWING CONDITIONS
NOT TO AT[T]END WITHIN 200 METRES OF ANY PLACE WHERE THE PROTECTED PERSON LIVES, WORKS OR ATTENDS SCHOOL, NOT TO APPROACH OR REMAIN W/IN 5 METERS OF THE PP. NOT TO PUBLISH ON ANYWHERE, BY ANY COMMUNICATION FOR ANY MATERIAL ABOUT THE PROTECTED PERSON
It is unnecessary that I insert at this point the reasons or grounds of that application. Those grounds are disputed but suffice to say they allege very serious behaviour against the Husband.
That application – page 3 of 3 of ‘W2’ – was dated mid-2024. In mid-2024, it is clear – and, in any event, conceded – that an order was made, again ex parte, in the proceedings bearing the same case number – that confirmed that the respondent, the Husband, was not to commit family violence but added a suite of other orders that included:
…
2. Intentionally damage any property of the protected person(s) or threaten to do so.
3. Contact or communicate with a protected person by any means.
4. Get another person to do anything the respondent must not do under this order.
5. Publish on the internet, by email or other electronic communication any material about the protected person(s).
6. Approach or remain within 5 metres of a protected person.
7. Go to or remain within 10 metres of any place where a protected person lives or works or attends school/childcare.
OTH order :
…
9. The respondent may:
(c) communicate with a protected person through a lawyer or accredited mediator; or
(d) arrange and/or participate in counselling or mediation; or
(e) go to the home of a protected person, in the company of a police officer, to collect personal property.
BUT ONLY IF the respondent does not commit family violence while doing so.
The substance of the order was that the Husband was not to go to any place where the “protected person lives”. It is common ground that the Wife, at that time, lived at B Street. In mid-2024, as well as that order, the Wife executed the document ‘W3’. That is a declaration of truth of an application. I infer – and, in any event, it is common ground – that the declaration of truth relates to the allegations contained in the document being page 3 of W2, that is, the document referred to above.
The mid-2024 order ultimately came before the Magistrates’ Court in late 2024. On that day, whether or not the proceedings were still known by the description of ‘[Police Officer D] v [Mr Yeong], it is common ground that the Wife’s lawyers appeared on behalf of the Wife and told the Court – and, I infer, the Victoria Police (which would include Police Officer D) – to the effect (my words): ‘We’ve got this’.
That interim ex parte order of mid-2024 was not interfered with in late 2024 and is now listed for a contested hearing in early 2025, just a few days away. I cannot make any assumption about whether the application will be successful or dismissed that day. I do not proceed on the basis that it will be made out, but I do not proceed on the basis that it is without foundation, but it is clear enough that (whether or not the Wife was instituting a proceeding or merely doing something in Police Officer D’s proceeding) the application made in mid-2024 (and I infer caused the matter to be listed the following day) was, on any view, ‘taking any other action under a prescribed law’.
The enforcement application
On 30 October 2024, the Wife brought an application for enforcement of the 7 August 2024 orders and, in particular, order 4. A warrant for possession was sought for the Suburb C property as well as an additional order requiring the Husband to do acts and things, including cause his parents to vacate the home, to give the Wife sole use and occupation.
The action taken under the Family Violence Protection Act 2008 (Vic) in mid-2024 and the following day was pursuant to a prescribed law. Section 114AB(2) refers to a ‘prescribed law’ which is not defined in section 4 of the Act but is defined in Regulation 19 of the Family Law Regulations 1984 (Cth):
19 Operation of State and Territory laws—prescribed laws (Act s 114AB)
For section 114AB of the Act, the following are prescribed laws:
…
(b) the Family Violence Protection Act 2008 (Vic);
…
It appears to me that notwithstanding Police Officer D initiating the proceedings back in late 2023 and maintaining them through until mid-2024, that as and from mid-2024, the Wife was the applicant and hence had instituted a proceeding – that being the matter that was instituted in mid-2024 and listed before the Court the following day. If I am wrong about that, it is clear that her involvement falls within the term, ‘any other action under a prescribed law’. Further to that, we then have the carriage of the action by the Wife’s lawyers on 12 September 2024 when they advised the Court that they were prosecuting the allegations and pursuing the application. As discussed with counsel for the Wife, the fact of the very serious allegations made in mid-2024 and the allegation that there have been breaches of existing intervention orders does not overcome section 114AB(2).
Taking into account the purpose of the legislation and the whole of the Act, rather than merely the literal terms of section 114AB(2), lest I fall into that error, I am satisfied that order 4 of the 7 August 2023 orders was not able to be made because of the provisions of section 114AB(2). The scheme, or purpose, of the provision being that where there is a state law prohibiting a matter or an order pursuant to a state law prohibiting certain conduct, that conduct should not then be re-agitated or re-prohibited in proceedings pursuant to a Commonwealth law. Section 109 of the Constitution does not come to bear because of the clear words of section 114AB(2).
In those circumstances, it is not appropriate that I hear an application to enforce an order that I am satisfied was made in excessive jurisdiction or was ultra vires at the time it was made, notwithstanding the intentions of the parties. So, to the extent the proceedings before me today deal with the enforcement of order 4, I dismiss those proceedings.
Joinder of the Husband’s parents
The other matter for agitation or dispute between the parties today related to the issue of the joinder of the Husband’s parents. I was told and accept that the Wife wished to join the Husband’s parents to the proceeding so that she could agitate the sole use and occupation matter directly against them. I am not satisfied it is appropriate to join them on that basis, given my ruling and decision based on section 114AB. Whether or not that is right – and I note that the Husband’s parents were not parties to the intervention order proceedings – I have no evidence they are on notice of the application to join them today and there is already a proceeding listed where they are sought to be joined.
In the meantime, dealing with risk of family violence which this Court must always deal with, there is an extant intervention order for the protection of Ms Sun. So, I am not satisfied that I should join the Husband’s parents so that a future application can be made. If an application is made against them, they would be parties to the proceeding.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 7 March 2025
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