Yuan & Song (No 6)  [2025] FedCFamC2F 50

This was the final hearing of a matter with a long history before the Court and, as such, was Judgment number six.  It involved a female child, X, who was 14 years old at the time of the hearing in November 2024 and living in Queensland with her father.  The Orders provided for X to live with the father and spend very, very limited time with the mother who resided in Melbourne.

There had been previous final orders made five years earlier, on 14 February 2020, providing for X to live with the father and spend time with the mother.  The mother initiated these proceedings on the basis of non-compliance with those Orders and sought a reversal of X’s primary residence such that X would live with her and that there be no time with the father for an initial period. 

The mother had also filed a Contravention Application, Yuan & Song (No 5)  [2025] FedCFamC2F 49, which was heard on day one of this final hearing and Judgment delivered on 23 January 2025, immediately prior to Judgment in the substantive proceedings.  There were four counts pressed at trial, three of which related to not facilitating time and one of discussing the proceedings with X.

Interestingly, the Judge found against the father on all four alleged counts and the matter was thereafter adjourned for sentencing the following month (at the time of writing, the penalty issued has not been reported).  Interestingly because the Final Orders, as already noted, provided for very minimal time with the mother, notwithstanding that the Judge’s comments on the father’s credibility, which were repeated in the Judgment for the substantive proceedings. 

At paragraph 32 of the Contravention Judgment Her Honour opined ‘Unfortunately, the father was an unimpressive witness who was often vague, unresponsive or evasive in his answers.’

Then, at paragraph 34 of the Judgment in the substantive proceedings Her Honour opined ‘In terms of the parties’ evidence, I have already made observations about the father as a witness in the contravention proceedings. The father continued to be a difficult witness in the substantive proceedings. At times he objected to answering questions and at other times he answered with “no comment.” In final submissions counsel for the father endeavoured to excuse the father’s poor evidence by pointing out that he had been self-represented when he prepared his affidavit material, however, there was no attempt to rectify any defects in that affidavit, which the father accepted as true and correct nor was there any application for leave to adduce further evidence.’

Further, the Family Report Writer shared the mother’s primary concern which was that the father was not encouraging X to have a relationship with her.

Ultimately, Her Honour was required to determine the following issues:

Risks to X

At play here was X’s belief, fuelled by the Father, that the Mother had abandoned her at a young age.  Her Honour found that whilst there was an unacceptable risk of psychological harm to X if she remained in the father’s care, that risk could be ameliorated by restricting overseas travel.

X’s views

X had expressed conflicting views at various times and ultimately Her Honour found, at paragraph 67, ‘In light of this evidence, it is not possible in my view to ascertain to what extent X’s views are influenced by the ongoing conflict between her parents and her perception that she must choose between them. Accordingly, it is difficult to place any significant weight on what X has to say in this matter.’

X’s needs

X had various health concerns.  She was diagnosed with ADHD, suffered from language difficulties, anxiety and behavioural issues, most of which appeared to be going untreated, despite previous recommendations for ongoing and regular psychological intervention.

The father appeared dismissive of X’s needs and there had been a decline in her mental health leading to suicidal ideation and self-harm. Her Honour was not satisfied with either parent’s ability to prioritise X’s health.

Family Violence

Both parties, as well as X, made serious allegations however there was a lack of evidence and no findings could be made on this issue.

Parental Responsibility

The parties were incapable of communicating with each other and had agreed that Parental Responsibility should be allocated to X’s primary carer. The ICL sought comprehensive Orders in respect of communication which was the ultimate outcome.