Cai and Xun

[2017] FCCA 1911

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAI & XUN [2017] FCCA 1911

Catchwords:
FAMILY LAW – Undefended hearing – necessary to adjourn hearing because of applicant’s failure to accord the respondent procedural fairness.

Legislation:

Family Law Act 1975

Federal Circuit Court Rules 2000, r.6.19(b)

Cases cited:

Shaw & Shaw [2016] FamCAFC 159

Allesch & Maunz (2000) 203 CLR 172
Vanderlay & Theodopolos [2008] FamCAFC 119

Applicant: MS CAI

Respondent: MR XUN

File Number: MLC 7942 of 2016

Judgment of: Judge Harland

Hearing date: 31 July 2017

Date of Last Submission: 31 July 2017

Delivered at: Melbourne

Delivered on: 31 July 2017

REPRESENTATION

Counsel for the Applicant: Mr Fronistas

Solicitors for the Applicant: John O'Brien & Associates

The Respondent: No appearance

ORDERS

1. The proceeding is adjourned for final hearing on an undefended basis 22 November 2017 at 10:00am.

2. The wife file and serve any documents upon which she wishes to rely at the next Court event on or before 2 October 2017.

3. Pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001 the Court certifies that it was reasonable for the parties to employ an advocate to appear in the proceedings.

DIRECTIONS

1. The wife serve file an Affidavit of Service prior to the next Court event.

IT IS NOTED that publication of this judgment under the pseudonym Cai  Xun is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7942 of 2016

MS CAI

Applicant

And

MR XUN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter was listed for an undefended final hearing with respect to parenting and property issues today.  The husband has been called and he has not appeared.  The wife commenced the proceedings on 2 September 2016.  In her initiating application she seeks parenting orders, the effect of which is that she have sole parental responsibility for the two children, X, born (omitted) 2000 and Y, born (omitted) 2006 (“the children”), for the children to live with her, and to spend no time with the husband. 

3. The orders sought in the initiating application simply seek a just and equitable property settlement and an amount of maintenance to be determined.  The difficulty with the application drafted in such terms, which have not been amended since, is that it does not enable the respondent to know precisely what case he has to meet.  It is very common in this registry to see applications drafted in such manner; that they do not properly engage with the jurisdiction of the Court, and do not properly identify the applicant’s case and the case the respondent has to meet.  This is something that has been subject of comment by several judicial officers and by the Full Court of the Family Court of Australia in Judge Jarrett in Shaw & Shaw [2016] FamCAFC 159. One of the orders sought by the applicant at the undefended hearing was that pending the sale of the property at Box Hill North the husband have sole occupation and during that occupation he pay the mortgage and outgoings. She sought sole control of the sale and she sought various other orders.

4. The wife’s solicitor filed material on the portal at 2.32am this morning.  That material has not been served, and, of course, the husband has not had an opportunity to consider that material.  The wife has also filed a case outline where for the first time she identifies exactly what property orders she seeks.  She has filed a further affidavit with annexures and an updated financial statement, and some of the figures in that financial statement differ to the first one. 

5. The parties have three pieces of real estate, and I note that the husband adopts the figures that the wife has put in her financial statement for those values of real estate.  So that is not where the problem lies.  One of the problems is that the wife referred to in her first financial statement is the newsagency business that she has was valued at $250,000, and in her second statement she says it is $70,000.  I do not know what the basis is for either or those figures. 

6. There is also an issue with respect to the husband’s business he refers to in his financial statement; it having a value of $250,000 and an overdraft of $130,000.  The wife disputes the overdraft but seems to use the figure, the gross figure, for the business.  These are just illustrating some of the points and some of the difficulties with respect to the case proceeding today.  The wife also includes in the liabilities, a loan she says she has to repay to her grandparents of $416,666 and a loan to her sister of $90,000. 

7. Kirby J in the decision of Allesch & Maunz (2000) 203 CLR 172 refers to procedural fairness in a passage that is often quoted at [38], which I will set out in the written reasons.

The facts and issues are set out in the reasons of Gaudron, McHugh, Gummow and Hayne JJ … Having regard to the circumstances in which the initial proceedings took place in the absence of Mr Allesch (the appellant), it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided31. Affording the opportunity is all that the law and principle require.

1. I invariably raise this issue with practitioners during the course of my duty lists.

2. It is clear that people need to be given the opportunity to be heard and to meet the case against them.  They cannot be forced to take up that opportunity. 

3. I also refer to a decision of Coleman J sitting as a single judge in the appeal division of the Family Court of Australia in the matter of Vanderlay & Theodopolos [2008] FamCAFC 119. In that case, the appellant was successful in having judgment set aside that was determined on an undefended basis. One of the issues in that case was the Court having accepted a lower figure for a former matrimonial home in the husband’s affidavit that was not served on the wife than the figure that he had put in his first financial statement, which the wife had seen.

4. Coleman J described the difficulties as relating to procedural fairness and/or relying on inadmissible evidence and observed at [61], that simply because a party does not appear before the Court does not mean that the Court is absolved from affording that party procedural fairness. 

5. When the matter was first before the Court on 18 October 2016, the husband appeared in person.  He had filed some documents.  They were handwritten and difficult to read, and his response did not engage with what orders he sought (not uncommonly for someone who is self-represented) but rather represented a commentary.  It was clear that he opposed both the parenting and property orders that the wife sought which as I say were unparticularised. 

6. On that day, the parties entered into consent orders which included the respondent filing and serving an amended response and a typewritten affidavit that was to include a translation by a certified translator of any documents annexed in any other language other than English, as he had annexed a document he had purported to translate himself to his first affidavit.  He was also required to provide specified disclosure. 

7. There is no doubt that the wife had been seeking disclosure from the husband for some time, and the husband has acknowledged that himself in his affidavit, and as he annexed the letter from the wife’s lawyers seeking detailed disclosure, and he said that it was unreasonable and that she had all the documents.  It is clear he has not satisfied his disclosure obligations, which may mean that the pool cannot be satisfactorily identified. 

8. This does not mean that the matter can simply proceed today without him being on notice and having a meaningful opportunity to respond to the case that the wife seeks to run.  The matter was before the court again on 8 March 2017, and the husband had not complied with the orders of 18 October 2016, and on that occasion I awarded costs in favour of the wife and listed the matter for an undefended hearing today.  The husband has not filed any further material and has not appeared today. 

9. The Federal Circuit Court Rules 2001 specify at rule 6.19(b), that documents may not be served less than seven days before a hearing.  It is quite clear that when a party seeks to proceed on an undefended basis they must ensure that the respondent has been accorded procedural fairness. The respondent must be on notice, not just of the hearing date but the orders sought by the applicant and the evidence relied on. The respondent was only aware of the date and the general nature of the hearing.

10. The husband needs to be on notice, and is not, of the precise nature of the case the wife is running and what orders she seeks.  Given these difficulties, the matter cannot proceed today, and I will adjourn the matter until 22 November 2017.  I will direct that the wife file any further material she wishes to rely on by 2 October 2017, and direct that she serve that material on the respondent and file an affidavit of service evidencing that.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 14 August 2017