FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yuan & Song (No 6) [2025] FedCFamC2F 50
File number(s): MLC 13323 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 23 January 2025 Catchwords: FAMILY LAW – PARENTING – psychological risk to child of having no relationship with her mother – impact on child of change of residence, change of state and change of school – mental health issues – ADHD – parent’s ability to meet child’s needs – history of moving countries, houses, and schools – child engaged with psychologist and school counsellor – need for stability – child’s best interest met by remaining in father’s primary care – father not likely to comply with orders – father not permitted to take child overseas – watch list order to remain in place. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 65D
Cases cited: Batas & Gaire (No 2) [2024] FedCFamC1F 672
Grella & Jamieson [2017] FamCAFC 21
Isles & Nellisen [2022] FedCFamC1A 97
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Division: Division 2 Family Law Number of paragraphs: 98 Date of last submission/s: 18 November 2024 Date of hearing: 14 & 15 November and 18 November 2024 Place: Dandenong & Melbourne 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 Solicitor for the Independent Children's Lawyer: ELR Law Counsel for the Independent Children's Lawyer: Mr Pollock ORDERS
MLC 13323 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS YUAN
Applicant
AND: MR SONG
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
23 JANUARY 2025
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Decision Making
2.The father have sole decision making for the major long-term issues of X born in 2010 (“X”).
3.At least four (4) weeks prior to making any significant decision (or as soon as possible if it is not possible to allow this timeframe) the father shall:
(a)Contact the mother in writing setting out the decision to be made and any other information relevant to that decision along with what he believes is his position in relation to the issue and seek the mother’s views on the subject;
(b)Within two (2) weeks the mother shall respond in writing setting out her views and any other information relevant to those views (or as soon as possible if it is a shorter timeframe).
4.The father shall advise the mother in writing of the decision he has made within three (3) days of making that decision.
Lives with
5.X live with the father.
Spend Time
6.X shall spend time and communicate with her mother at all times as agreed between the parents and at any time X expresses a wish to do…
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- Yuan & Song (No 6) [2025] FedCFamC2F 50
- Case
- [2025] FedCFamC2F 50
- Decision Date
CaseChat Overview and Summary
The court had to decide whether sole decision-making responsibility should rest with the father, given his history of compliance issues and the child's engagement with a psychologist and school counsellor, which highlighted the importance of stability. Additionally, the court needed to address the risk to the child of having no relationship with her mother and the potential for the father to disregard court orders. The court was also required to consider whether Mr Song should be allowed to take the child overseas and whether a watch list order should be maintained to prevent the child from being removed from Australia.
Judge Jenkins concluded that the child's best interests would be served by remaining in the father's primary care, while ensuring that the mother retained a meaningful relationship with X. The court found that the father was not likely to comply with court orders, and thus, it was necessary to impose specific conditions on the father's decision-making process to involve the mother. The court also determined that Mr Song should not be permitted to take the child overseas and maintained the watch list order to prevent the child's removal from Australia. Consequently, all previous parenting orders were discharged, and new orders were made to facilitate X's care and wellbeing.
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
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
23 JANUARY 2025
THE COURT ORDERS THAT:
1. All previous parenting orders be discharged.
Decision Making
2. The father have sole decision making for the major long-term issues of X born in 2010 (“X”).
3. At least four (4) weeks prior to making any significant decision (or as soon as possible if it is not possible to allow this timeframe) the father shall:
(a) Contact the mother in writing setting out the decision to be made and any other information relevant to that decision along with what he believes is his position in relation to the issue and seek the mother’s views on the subject;
(b) Within two (2) weeks the mother shall respond in writing setting out her views and any other information relevant to those views (or as soon as possible if it is a shorter timeframe).
4. The father shall advise the mother in writing of the decision he has made within three (3) days of making that decision.
Lives with
5. X live with the father.
Spend Time
6. X shall spend time and communicate with her mother at all times as agreed between the parents and at any time X expresses a wish to do so, and failing agreement as follows:
(a) Once each school holiday period for a period of three (3) nights from the first Saturday of the holidays for three (3) consecutive nights:
(i) in Brisbane in 2025; and
(ii) in 2026 and each year thereafter, for the first and third term holidays in Brisbane and the second and fourth term holidays in Melbourne or any other place that the mother chooses.
(b) by electronic communication each Wednesday at 7.00pm, X’s time, with the mother to initiate the call to a phone number nominated by the father, with the father to ensure that the phone is charged and able to accept calls from the mother, with X to be given privacy during those calls;
7. The mother is at liberty to send X cards and gifts at any time but at least on:
(a) X’s birthday;
(b) Christmas;
(c) Easter;
(d) Lunar New Year; and
(e) Mother’s Day.
8. For the purpose of time referred to in Order 6 hereof, the following shall apply:
(a) In 2025 changeover shall take place at the front entrance of Coles at Q Shopping Centre at midday at the commencement of time and at 5.00pm at the conclusion of time; and
(b) Commencing 2026 and each year thereafter, the mother shall pay for the child’s return flights for the second term holidays and the father shall pay for the child’s return flight in the fourth term school holidays; and
(c) when time is taking place in Melbourne, changeover shall take place at Melbourne airport at the commencement of time and at Brisbane airport at the conclusion of time; and
(d) the parents will provide each other with a copy of X’s airline ticket no less than seven (7) days before the intended travel and will ensure that X is at the airport in plenty of time to board the scheduled flight.
Communication
9. The parents will communicate about matters concerning X by a messaging app.
10. These orders authorise the mother to participate in and attend and receive information from any of X’s educational facilities, counsellors and medical practitioners and extra-curricular providers.
Parents Responsibilities
11. Both parents will:
(a) Keep the other informed of their current residential address, email address and mobile contact number and advise the other of any change within 24 hours of any change.
(b) Advise the other within 24 hours or as soon as practicable in the events of an emergency of any major medical issue or illness suffered by X including the name of the treating medical practitioner and advice and medication given.
(c) Speak respectfully of the other and the other’s family.
12. Neither parent will:
(a) denigrate the other in the presence of X, nor allow a third party to do so in the presence of X;
(b) discuss with X the proceedings, any allegations made in the proceedings or any matter of an adult nature likely to place upon X a loyalty demand, including any aspect of her preference with regards to where she lives, what contact she has with the other parent and what school she attends;
(c) seek and/or allowing X to communicate matters as between each parent on their behalf;
(d) consume alcohol in excess of the legal driving limit in the presence of X, or within twelve (12) hours prior to contact, or from allowing X to remain in the presence of any other person consuming alcohol in the excess of the legal driving limit; or
(e) physically discipline X or permit any other person to do so.
13. The father will:
(a) Ensure that X continues to attend upon Dr N as and when directed by Dr N, or any other person nominated by Dr N;
(b) Ensure that X attends a paediatric review each six (6) months; and
(c) Not permit X to call his partner “mum.”
Dispute Resolution
14. The parties will consult a Family Dispute Resolution Practitioner to assist with the resolution of any dispute that arises in respect of the operation, interpretation, implementation or enforcement of these Orders or in respect of the child’s care or wellbeing and for this purpose the following shall occur:
(a) Within seven (7) days of the dispute arising, the parent raising the dispute will provide the other party with a panel of three (3) nominated Family Dispute Resolution Practitioners, which can include a community family relationship centre; and
(b) Within seven (7) days of being provided with the panel of Family Dispute Resolution Practitioners, the other parent will nominate one practitioner from the panel and where there is a failure to nominate a Family Dispute Resolution Practitioner in writing, the parent raising the dispute will choose a practitioner from the panel.
Airport Watchlist
15. Until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 (Cth), MR SONG born in 1959, his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child X born in 2010 (female) from the Commonwealth of Australia until further order of this Court orders its removal.
16. IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child X on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period, until the Court orders its removal.
Procedural Order
17. All extant applications be otherwise dismissed.
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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