Cun & Zhihui - [2022] FedCFamC1F 597

Federal Circuit and Family Court of Australia
(DIVISION 1)
Cun & Zhihui [2022] FedCFamC1F 597

File number(s): SYC 3261 of 2015

Judgment of: HARPER J

Date of judgment: 28 July 2022

Catchwords: FAMILY LAW – ADJOURNMENT – Where final hearing is due to commence in three weeks – Where Applicant Wife’s counsel will be unavailable for final hearing due to a medical procedure requiring lengthy recovery – Where wife’s counsel retained in proceedings for considerable time – Wife seeks orders for updated valuation of property – Where all respondents are self-represented and the husband requires an interpreter – Husband seeks dismissal of the proceedings as vexatious, frivolous, or an abuse of process –– Final hearing vacated – Interim applications stood over for hearing.

Division: Division 1 First Instance

Number of paragraphs: 13

Date of hearing: 28 July 2022

Place: Sydney

Solicitor for the Applicant: Goh Lawyers & Accountants

The First Respondent: Self-represented litigant

The Second Respondent: Self-represented litigant

The Third Respondent: Self-represented litigant
ORDERS

SYC 3261 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CUN

Applicant

AND:
MR ZHIHUI

First Respondent

MR CHEN
Second Respondent

MS CHEN
Third Respondent

order made by:

HARPER J

DATE OF ORDER:

28 JULY 2022

THE COURT ORDERS THAT:
1.The Applications in a Proceeding filed on 25 July 2021 and 26 July 2022 by the First Respondent Husband, and Orders 3–6 of the Application in a Proceeding filed by the Applicant Wife on 25 July 2022 be stood over to 15 August 2022 for hearing.
2.The final hearing dates commencing on 15 August 2022 be vacated.
3.By no later than close of registry filing on 11 August 2022, the parties are to file and serve case outlines in respect of the applications outlined in Order 1.
4.The matter be stood over for final hearing of all outstanding applications, save for those referred to in Order 1, commencing on 1 May 2023 with an estimate of five days.

THE COURT NOTES THAT:
A.All parties have filed the affidavit material upon which they seek to rely for both the hearing of the outstanding Applications in a Proceeding and for final hearing.
B.The final hearing will be required to finish within the allocated time.
C.The parties are advised that the final hearing listed to commence on 1 May 2023 will not be adjourned unless there are exceptional circumstances.

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…

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 Cun & Zhihui

Details

AGLC: Cun & Zhihui [2022] FedCFamC1F 597
Case: [2022] FedCFamC1F 597
Decision Date

CaseChat Overview and Summary

The case of Cun & Zhihui before the Federal Circuit and Family Court of Australia involves a long-standing property adjustment proceeding under Part VIII of the Family Law Act 1975. The Applicant Wife seeks an adjournment of the final hearing due to her counsel's unavailability owing to an impending medical procedure. The husband, who is self-represented along with the other respondents, opposes the application and seeks dismissal of the proceedings. The court had to decide whether to vacate the final hearing dates, which were scheduled to commence in three weeks, to allow the wife’s counsel to recover from surgery, and to determine the appropriate course of action regarding the husband’s application for dismissal.

The court considered the significance of the allocation of hearing dates and the difficulty in finding new dates. It also took into account the complexity of the case, with many issues raised by the self-represented husband. The court found it more desirable to have the wife's counsel, who has been retained for many years in these proceedings, present for the hearing. Therefore, the court decided to vacate the final hearing dates commencing on 15 August 2022. However, the court stood over the interim applications to be heard on 15 August 2022. The final hearing of all outstanding applications, except those referred to in Order 1, was set to commence on 1 May 2023 with an estimate of five days.

The court ordered that the final hearing dates commencing on 15 August 2022 be vacated. The interim applications, including those filed by the husband and the wife, were stood over for hearing on 15 August 2022. The parties were required to file and serve case outlines by 11 August 2022. The final hearing was scheduled to commence on 1 May 2023 and was not to be adjourned unless there were exceptional circumstances.

Orders