Abe & Hou

Case [2023] FedCFamC1F 716

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Abe & Hou [2023] FedCFamC1F 716

File number(s): SYC 6019 of 2019
Judgment of: MCCLELLAND DCJ
Date of judgment: 22 August 2023
Catchwords: FAMILY LAW – PROPERTY – Application to set aside consent orders pursuant to s 79A of the Family Law Act 1975 (Cth) – Where the applicants have failed to appear on multiple occasions – Application does not particularise an arguable cause of action with reference to s 79A – Applicants failed to file points of claim as directed – No reasonable prospects of success – Application summarily dismissed – Applicants to pay the costs of the first respondent in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) ss 79A, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.22, 12.17, 15.19

Cases cited:

Byrnes v Brisconnections Management Company Limited (No 2) [2009] FCA 1432

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Limousin & Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178

Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251; [1996] HCA 14

Pascoe & Larsen (No 2) [2022] FedCFamC1A 126

Ritter & Ritter (2020) FLC 93-957; [2020] FamCAFC 86

Stoian & Fiening (Costs) (2014) FamCA 944
Division: Division 1 First Instance
Number of paragraphs: 28
Date of hearing: 22 August 2023
Place: Sydney
The Applicants: Litigants in person
Counsel for the First Respondent: Mr Bateman
Solicitor for the First Respondent: H & H Lawyers
The Second Respondent: Litigant in person

ORDERS

SYC 6019 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MA

First Applicant

MR DU

Second Applicant
AND:

MS ABE

First Respondent

MR HOU

Second Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

22 AUGUST 2023

THE COURT ORDERS THAT:

1.The applicants’ Initiating Application filed 23 March 2022 is summarily dismissed.

2.Within 28 days of the date of these orders, the applicants pay the costs of the first respondent in respect of and incidental to the Initiating Application filed 23 March 2022 in the fixed sum of $17,440.98.

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 the pseudonym Abe & Hou has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

MCCLELLAND DCJ:

  1. This matter has been…

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AGLC
Abe & Hou [2023] FedCFamC1F 716
Case
[2023] FedCFamC1F 716
Decision Date

CaseChat Overview and Summary

Ms Abe, the first respondent, made an application to strike out the application filed by Ms Ma and Mr Du for orders under s 79A of the Family Law Act 1975 (Cth). The application was for orders in respect of consent orders made by the parties on 19 August 2021. The matter was called in the Federal Circuit and Family Court of Australia, but neither of the applicants appeared. Instead, Ms Kong appeared on their behalf, but she was not authorised to do so. The first respondent objected to Ms Kong being given a right of audience but was overruled by the court.

The court was required to determine whether the applicants had failed to appear before the court as required by r 15.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The court also had to decide if the applicants' interests were being represented by Ms Kong. The court found that neither of the applicants had appeared before the court, and Ms Kong had not been authorised to represent them. The court also found that Ms Kong had an interest in the proceedings, but she was seeking recovery of the funds on behalf of the applicants, which contradicted her earlier assertion.

The court found that both applicants had failed to appear before the court, and they had been duly advised of these proceedings. The court was satisfied that the applicants were absent parties to these proceedings. As a result, r 15.19 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provided that if the absent party is an applicant, the court may dismiss the proceedings. Therefore, the court dismissed the application filed by Ms Ma and Mr Du for orders under s 79A of the Family Law Act 1975 (Cth).

Orders

Orders of the court

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Background

Background to the litigation

This matter has been listed today for the purpose of considering an application by Ms Abe, who is the first respondent, to strike out the application filed by Ms Ma and Mr Du for orders pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”). Those orders are sought in respect to consent orders made by the parties on 19 August 2021.BACKGROUND The relevant events in this matter have been helpfully summarised in the first respondent’s Case Outline, which contains the following chronology: The matter was called outside the body of the Court three times at or about 10.00 am this morning and again shortly thereafter. There was no appearance initially, however at about 10 minutes past 10.00 am, Mr Hou, the second respondent to the current application and the husband of Ms Abe, appeared. Also appearing was Ms Kong. Ms Kong has previously filed an affidavit indicating that she is the current de facto partner of Mr Hou. There has been no appearance by the applicants, Ms Ma and Mr Du, although, Ms Kong advised the Court that she is appearing as the representative of the applicants. Ms Kong provided no evidence to the Court that she has been authorised by the applicants to appear on their behalf, nor has there been any application to the Court by the applicants to appear electronically. Further, Ms Kong has made no application to appear as a McKenzie friend on behalf of either of the applicants. The first respondent Ms Abe, through her counsel Mr Bateman, understandably objected to Ms Kong being given a right of audience before the Court, however in the particular circumstances of the case, I permitted Ms Kong to make submissions assisted by an interpreter. Having provided Ms Kong with that opportunity, there is no evidence that satisfies me that she has, in actual fact, been authorised by the applicants to represent them in Court. In any event, neither of the applicants have been excused from their obligation to personally attend Court, either in physical presence or at least electronically pursuant to r 15.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). In circumstances where I am not satisfied, on the evidence presented to the Court, that the applicants’ interests are in fact being represented by Ms Kong, I find that both of the applicants have failed to appear before the Court pursuant to their obligations under r 15.15. In those circumstances, r 15.19 provides that if the absent party is an applicant, the Court may dismiss the proceedings. In circumstances where I am satisfied that both of the applicants are absent parties to these proceedings and I am satisfied that they have been duly advised of these proceedings. To avoid doubt, Ms Kong advised the Court that she is, in fact, the source of funds provided by the applicants to the first and second respondents and therefore has an interest in the proceedings. That assertion, however, was subsequently contradicted where Ms Kong, through her interpreter, advised the Court that she was seeking recovery of the funds on behalf of the applicants.

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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