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Yuan & Song (No 5)

Yuan & Song (No 5)

Case [2025] FedCFamC2F 49 23 January 2025

Breach of Contract

Contravention of Final Parenting Orders

Parental Authority

Sentencing

Plea of Guilty with Reasonable Excuse

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yuan & Song (No 5) [2025] FedCFamC2F 49

File number(s): MLC 13323 of 2022

Judgment of: JUDGE JENKINS

Date of judgment: 23 January 2025

Catchwords: FAMILY LAW – CONTRAVENTION – contravention of final parenting orders – not making a child available to spend time – involving the child in the proceedings – plea of guilty with reasonable excuse based on the child’s wishes – court found no reasonable excuse on each count – failure to encourage the child to spend time with the mother – failure to assert parental authority – matter adjourned for submissions on sentencing.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 70NAC, 70NAD, 70NAE, 70NAF

Cases cited:
Galvis & Galvis [2024] FedCFamC1A 123

Hatfield & Rivas [2024] FedCFamC1A 202

Kuligowski v Metrobus [2004] HCA 34

O’Brien & O’Brien [1992] FamCA 52

Stamp & Stamp [2014] FCCA 1269

Stevenson & Hughes [1993] FamCA 14; (1993) FLC 92-363

Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65

Whisprun Pty Ltd v Dixon [2003] HCA 48

WJP & TP [2002] FMCAfam 315

Division: Division 2 Family Law

Number of paragraphs: 72

Date of hearing: 14 November 2024

Place: Dandenong – via Microsoft Teams

Counsel for the Applicant: Ms Evans

Solicitor for the Applicant: InTouch Legal Centre

Counsel for the Respondent: Mr Jones

Solicitor for the Respondent: CG Legal Group
ORDERS

MLC 13323 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS YUAN

Applicant

AND:
MR SONG

Respondent

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

23 JANUARY 2025

THE COURT ORDERS THAT:
1.Counts 1 to 4 of the Contravention Application filed 24 April 2024 are proven without reasonable excuse.
2.The remaining counts of the Contravention Application are dismissed by consent.
3.The matter be adjourned for submissions on sentencing to 19 February 2025 at 9.30am AEDT via Microsoft Teams.

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).
REASONS FOR JUDGMENT
JUDGE JENKINS:

This matter concerns a contravention application filed by the applicant mother Ms Yuan (“the mother”) alleging four contraventions of parenting orders by the respondent father Mr Song (“the father”) relating to the parties’ child X born…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yuan & Song (No 5)

Details

AGLC: Yuan & Song (No 5) [2025] FedCFamC2F 49
Case: [2025] FedCFamC2F 49
Decision Date: 23 January 2025

CaseChat Overview and Summary

Ms Yuan brought proceedings against Mr Song for contravention of final parenting orders. The specific allegations were that Mr Song had not made their child available to spend time with Ms Yuan and had involved the child in the proceedings. Mr Song entered a plea of guilty with a reasonable excuse, arguing that the child had expressed a desire not to spend time with Ms Yuan and had a wish to remain with him. The case was heard in Division 2 of the Federal Circuit and Family Court of Australia. The court had to determine whether Mr Song's actions constituted a contravention of the parenting orders and whether he had a reasonable excuse for his actions.

The court examined the evidence and submissions from both parties, focusing on the specific circumstances of the case and the child's wishes. The court concluded that Mr Song had failed to encourage the child to spend time with Ms Yuan, as required by the parenting orders, and had not asserted his parental authority to ensure compliance with the orders. The court found that Mr Song's actions were deliberate and that there was no reasonable excuse for his conduct. Consequently, the court found that Mr Song had contravened the final parenting orders without reasonable excuse on each count. The remaining counts of the contravention application were dismissed by consent.

In its orders, the court confirmed that counts 1 to 4 of the contravention application were proven without reasonable excuse. The remaining counts were dismissed. The matter was adjourned for submissions on sentencing to enable the parties to address the court on the appropriate penalty. The court ordered that the submissions be made on 19 February 2025 at 9.30am AEDT via Microsoft Teams.

Orders

Orders of the court

MLC 13323 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS YUAN

Applicant

AND:

MR SONG

Respondent

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

23 JANUARY 2025

THE COURT ORDERS THAT:

1. Counts 1 to 4 of the Contravention Application filed 24 April 2024 are proven without reasonable excuse.

2. The remaining counts of the Contravention Application are dismissed by consent.

3. The matter be adjourned for submissions on sentencing to 19 February 2025 at 9.30am AEDT via Microsoft Teams.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Yuan & Song (No 5) [2025] FedCFamC2F 49

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Cases cited in this decision · 11 of 11 shown

Hatfield & Rivas
[2024] FedCFamC1A 202 Para 33

…s amended in May 2024, including the sections concerning contraventions. However, pursuant to the recent Full Court authority of Hatfield & Rivas [2024] FedCFamC1A 202, given all of the contraventions occurred prior to May 2024, the applicable law is that which existed prior to the amendments (“the former legislation”).…
Galvis & Galvis
[2024] FedCFamC1A 123 Para 35

…As per the case of Galvis & Galvis [2024] FedCFamC1A 123, this matter will be adjourned to a further hearing date so that the parties can make submissions as to penalty and costs and so the parties can file any further material they seek to rely on in relation to same.…
Walpole & Secretary, Department of Communities and Justice
[2020] FamCAFC 65 Para 29

…As the court observed in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [53]: The Full Court has said more than once that a judge cannot be expected to rummage through a large volume of documents on the off chance that the facts might emerge.…
Stamp & Stamp
[2014] FCCA 1269 Para 35

…nd school.[2] [1] See Stevenson & Hughes [1993] FamCA 14 and O’Brien & O’Brien [1992] FamCA 52 [2] See WJP & TP [2002] FMCAfam 315; Stamp & Stamp [2014] FCCA 1269. FATHER’S REASONABLE EXCUSE…
Kuligowski v MetroBus
[2004] HCA 34 Para 32

…hat I automatically accept the evidence of the mother, which was at times equally problematic. As was said by the High Court in Kuligowski v Metrobus [2004] HCA 34 at [60]: In general, disbelief in a witness's evidence does not establish the contrary [ Hobbs v Tinling (C T) and Co Ltd [1929] 2 KB 1 at 21 per Scr…
Whisprun Pty Ltd v Dixon
[2003] HCA 48 Para 30

…is not possible to include every aspect of the parties’ evidence in these reasons for judgment. As per the High Court in Whisprun Pty Ltd v Dixon [2003] HCA 48 at [62]: A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial j…
WJP & TP
[2002] FMCAfam 315 Para 35

…mple a child does not want to attend school.[2] [1] See Stevenson & Hughes [1993] FamCA 14 and O’Brien & O’Brien [1992] FamCA 52 [2] See WJP & TP [2002] FMCAfam 315; Stamp & Stamp [2014] FCCA 1269. FATHER’S REASONABLE EXCUSE…
In the marriage of O’Brien
[1992] FAMCA 52 Para 35

…a child, as they would if for example a child does not want to attend school.[2] [1] See Stevenson & Hughes [1993] FamCA 14 and O’Brien & O’Brien [1992] FamCA 52 [2] See WJP & TP [2002] FMCAfam 315; Stamp & Stamp [2014] FCCA 1269. FATHER’S REASONABLE EXCUSE…
Stevenson v Hughes
[1993] FAMCA 14 Para 35

…be able to assert parental authority over a child, as they would if for example a child does not want to attend school.[2] [1] See Stevenson & Hughes [1993] FamCA 14 and O’Brien & O’Brien [1992] FamCA 52 [2] See WJP & TP [2002] FMCAfam 315; Stamp & Stamp [2014] FCCA 1269. FATHER’S REASONABLE EXCUSE…
[1929] 2 KB 1
[1929] 2 KB 1 Para 32

…ki v Metrobus [2004] HCA 34 at [60]: In general, disbelief in a witness's evidence does not establish the contrary [ Hobbs v Tinling (C T) and Co Ltd [1929] 2 KB 1 at 21 per Scrutton LJ]. Similarly, disbelief in the case presented by the moving party does not necessarily permit the court to conclude that the pos…
[1985] 1 WLR 948
[1985] 1 WLR 948 Para 32

…e case of the opposing party is correct. In particular cases it may not be possible to reach a conclusion either way [ Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 955 per Lord Brandon of Oakbrook]: [T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
70NAC, 70NAD, 70NAE, 70NAF 5 mentions
Evidence Act 1995 (Cth)
140 2 mentions (from Para 31)

File number(s):	MLC 13323 of 2022
Judgment of:	JUDGE JENKINS
Date of judgment:	23 January 2025
Catchwords:	FAMILY LAW – CONTRAVENTION – contravention of final parenting orders – not making a child available to spend time – involving the child in the proceedings – plea of guilty with reasonable excuse based on the child’s wishes – court found no reasonable excuse on each count – failure to encourage the child to spend time with the mother – failure to assert parental authority – matter adjourned for submissions on sentencing.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 70NAC, 70NAD, 70NAE, 70NAF
Cases cited:	Galvis & Galvis [2024] FedCFamC1A 123 Hatfield & Rivas [2024] FedCFamC1A 202 Kuligowski v Metrobus [2004] HCA 34 O’Brien & O’Brien [1992] FamCA 52 Stamp & Stamp [2014] FCCA 1269 Stevenson & Hughes [1993] FamCA 14; (1993) FLC 92-363 Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 Whisprun Pty Ltd v Dixon [2003] HCA 48 WJP & TP [2002] FMCAfam 315
Division:	Division 2 Family Law
Number of paragraphs:	72
Date of hearing:	14 November 2024
Place:	Dandenong – via Microsoft Teams
Counsel for the Applicant:	Ms Evans
Solicitor for the Applicant:	InTouch Legal Centre
Counsel for the Respondent:	Mr Jones
Solicitor for the Respondent:	CG Legal Group

MLC 13323 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS YUAN Applicant
AND:	MR SONG Respondent

ORDER MADE BY:	JUDGE JENKINS
DATE OF ORDER:	23 JANUARY 2025