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 RespondentMS 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 law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cun & Zhihui has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These are property adjustment proceedings pursuant to Part VIII of the Family Law Act 1975 (Cth). They have a long history in the court.
On 21 October 2021, I listed the proceedings for final hearing commencing on 15 August 2022, with an estimate of 10 days.
The length of the estimate for final hearing was informed partly by the fact that the First Respondent Husband (“the husband”) is self-represented and requires an interpreter. It also appeared likely, at that point in time, that the trial may have to be conducted electronically by Microsoft Teams. Detailed directions were also made for the preparation for final hearing, including updated trial affidavits and steps for updated valuations of two properties, one at Suburb D and the other at Suburb E.
On 29 June 2022, my chambers contacted the parties concerning arrangements for interpreters. On 4 July 2022, the husband replied by email advising the court not to arrange an interpreter for him because he was not ready for the final hearing. He also referred to an Application in a Case he filed on 25 July 2021, by which, as far as could be understood, he sought summary dismissal of the Applicant Wife’s (“the wife”) claims against him due to breaches of court orders and the Family Law Rules 2004 (Cth), which were then in force. He also mentioned he had complained twice to the Chief Justice.
On 20 July 2022, I made orders in chambers listing the proceeding for mention on 28 July 2022 with orders for filing of Applications in a Proceeding by any party seeking to vacate or delay the final hearing.
On 25 July 2022, the wife filed an Application in a Proceeding seeking to have the hearing dates vacated, with further orders for the parties to engage a nominated valuer to prepare updated valuation reports of the two properties at Suburb D and Suburb E. It is clear that no updated valuations have yet been undertaken in accordance with the trial directions made on 21 October 2021.
The basis for the wife’s application for adjournment is that, counsel long retained by her since 2015 in these proceedings, will be required to undergo a major operation on 10 August 2022, shortly before the commencement of the final hearing. As a result, counsel will be unable to represent the wife due to the length of his recovery.
The wife’s solicitor had earlier contacted chambers asking to delay the commencement of the trial for this reason. But her position changed as at 28 July 2022, to seeking a vacation of the hearing dates after further information was to hand concerning the surgery and recovery to be undergone by her counsel.
On 26 July 2022, the husband filed an Amended Application in a Proceeding which appeared to amend his Application in a Case filed on 25 July 2021. He seeks, again, orders for dismissal of the proceedings against him for failure to comply with a legislative provision or order, or as vexatious, frivolous and an abuse of process.
The allocation of hearing dates in this court is a matter of considerable significance, and the court is extremely reluctant to vacate trials of any length because of the difficulty of finding fresh and proximate hearing dates, and because, if hearing dates are allocated to one matter, it means they often cannot be allocated to another.
Although initially not disposed to vacate the hearing dates, I have come to the view that, in the circumstances, it is on balance more desirable to have the presence of counsel who has been retained for many years in the proceedings to be present for the hearing.
The circumstances of this case present some complexity, not least because of the many issues which appear to be raised by the husband, who, as noted, is self-represented. I note here also that the Second and Third Respondents are also self-represented.
I have come to the view that I will vacate the hearing dates for final hearing commencing on 15 August 2022. I will, however, stand over the two Applications in a Proceeding upon which the husband seeks to move, to 15 August 2022 for hearing. I will also stand over Orders 3–6 of the orders sought by the wife in her Application in a Proceeding filed on 25 July 2022.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 28 July 2022. Associate:
Dated: 18 August 2022
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