Fing & Ma

Case [2023] FedCFamC1F 938

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Fing & Ma [2023] FedCFamC1F 938

File number(s): MLC 321 of 2022
Judgment of: MCNAB J
Date of judgment: 9 November 2023
Catchwords: FAMILY LAW – PROPERTY – Practice and Procedure - Where parties seek further and better particulars - – Where the second and third respondent seek to have six witnesses give evidence via video link from Country H further to rule 15.16 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) –– Where there is conflicting Federal Court authority regarding the operation of s 47A of the Federal Court of Australia Act 1976 (Cth) which impacts on determining the proper approach regarding whether permission is required from the government of Country H to adduce video-link evidence from a witness from that country - Where all witnesses are required to give evidence in Court in Australia.
Legislation:

Family Law Act 1975 (Cth) ss 102C, 102D and 102E

Federal Court of Australia Act 1976 (Cth) s 47A

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.06, 15.26, 15.17
Cases cited:

Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732

Liu v Option Funds Management Limited [2022] FCA 444

Moy and Pao (No 3) [2021] FamCA 310

Palmer v McGowan (No2) [2022] FCA 32

Division: Division 1 First Instance
Number of paragraphs: 44
Date of last submission/s: 1 November 2023
Date of hearing: 30 October 2023
Place: Melbourne
Counsel for the Applicant: Mr Clarke
Solicitor for the Applicant: Francis Lim Barristers and Solicitors
Counsel for the First Respondent: Ms Chia
Solicitor for the First Respondent: Lakey Family Law
Counsel for the Second and Third Respondents: Mr Seelig
Solicitor for the Second and Third Respondents: Destra Law

ORDERS

MLC 321 of 2022

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

MR FING

Applicant
AND:

MS MA

First Respondent

MS LIAN

Second Respondent

B PTY LTD

Third Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

9 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The Amended Application in a Proceeding filed by the applicant on 2 October 2023 be dismissed.

2.The Amended Response to an Application in a Proceeding filed by the first respondent on 17 October 2023 be dismissed.

3.The second and third respondents’ Response to an Application in a Proceeding filed on 9 October 2023 be dismissed.

4.The parties’ costs of and incidental to the applications in a case be reserved to trial.

5.Each of the witnesses proposed to be called by the parties give evidence in person in Court in Australia

6.The matter be adjourned for Mention on 17 November 2023 at 9.30 am via MS Teams.

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…

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AGLC
Fing & Ma [2023] FedCFamC1F 938
Case
[2023] FedCFamC1F 938
Decision Date

CaseChat Overview and Summary

In Fing & Ma, the parties were engaged in a contentious family law property dispute. The case involved complex issues relating to the admissibility of evidence from witnesses in Country H, as well as allegations of improper conduct during a spousal visa application. The court had to decide whether permission from the government of Country H was required to allow six witnesses to give evidence via video link from that country, and whether the claims made by the parties were adequately particularised.

The central legal issues were whether the evidence of the witnesses from Country H could be admitted via video link, and whether the applicant had sufficiently particularised the allegations of improper conduct during the spousal visa application. The court examined the relevant provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and the Federal Court of Australia Act 1976, considering conflicting authority on the operation of section 47A of the latter Act. The court also considered whether the evidence of the witnesses was contentious and required further particulars.

The court concluded that permission from the government of Country H was not required to allow the witnesses to give evidence via video link, as considerations of sovereignty or comity did not arise. The court found that the approach taken by the solicitors for the second and third respondents to the Country H Consulate was not sufficient to establish that permission had been obtained. The court also rejected the second and third respondents' argument that the evidence of the witnesses should be admitted via video link, finding that all witnesses were required to give evidence in person in Australia. The court further found that the claims made by the parties were adequately particularised and did not require further particulars.

The court dismissed the applications made by all parties and reserved the costs of the applications to trial. The court ordered that each of the witnesses proposed to be called by the parties give evidence in person in Court in Australia. The matter was adjourned for mention on 17 November 2023 via MS Teams.

Orders

Orders of the court

MLC 321 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR FING

Applicant

AND:

MS MA

First Respondent

MS LIAN

Second Respondent

B PTY LTD

Third Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

9 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The Amended Application in a Proceeding filed by the applicant on 2 October 2023 be dismissed.

2. The Amended Response to an Application in a Proceeding filed by the first respondent on 17 October 2023 be dismissed.

3. The second and third respondents’ Response to an Application in a Proceeding filed on 9 October 2023 be dismissed.

4. The parties’ costs of and incidental to the applications in a case be reserved to trial.

5. Each of the witnesses proposed to be called by the parties give evidence in person in Court in Australia

6. The matter be adjourned for Mention on 17 November 2023 at 9.30 am via MS Teams.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The second and third respondents raise by correspondence dated 14 September 2023 (referred to in written submissions filed on 30 October 2023) that the applicant has failed to properly particularise the allegation that he derived funds to purchase properties from substantial business activities in Country H. The husband has now filed his trial affidavit which goes into considerable detail in relation to claims made in the Statement of Claim. I am not minded to order further and better particulars of the Further Amended Statement of Claim or to strike out parts of the claim. The question of whether the claims made by each party in their respective pleadings are established by the evidence that they file is a matter for trial and final submissions. The parties have fixed the case that they intend to make by the pleadings and they shall not be permitted to move beyond the pleaded cases. The Taking of Evidence by Witnesses from Country H by Video-Link Each of the witnesses being asked to give evidence by video-link from Country H are to give evidence in relation to the business dealings of the deceased father of the daughter including about events which took place prior to 2005 and subsequent to that time. All of the evidence that is sought to be called is contentious as it goes to prove a state of affairs directly contrary to that put by the applicant. The evidence of these people will involve reference to documents and require the witnesses to recall events that took place in part about 18 years ago. All witnesses will require a translator. The documents that the witnesses will be referred to are in Country H language. The second and third respondents point to the applicant’s previous non opposition to the calling of witnesses from Country H by video-link as a basis for the Court granting permission for that to occur. They refer to correspondence from the solicitors for the applicant dated 19 September 2023 at [30] of the Mr J affidavit wherein those solicitors stated: Our client will consent to your clients adducing evidence from witnesses in [Country H] via AVL from [Country H] provided:(a)Your clients provide us with credible documentary evidence that they have complied with Rule 15.17(b)-(d) of the Rules.(b)Your clients provide us with the information set out in Rule 15.16(3)(c) and Rule 15.16(4)(c)-(e) of the Rules.(c)No less than 14 days prior to the trial date, each witness in a foreign country ("Foreign Witness”) must have their identity verified at an Australian Embassy, High Commission or Consulate ("Identity Verification'?. For the purposes of the identity verification, each foreign witness must provide at least two current and valid photo identification including a [Country H] passport, and a [Country H] resident identity card (“Identity Documents”)(d)The identity verification is completed using the prescribed Department of foreign affairs and trade (D fat) Certification Form (“Certification”)(e)no less than seven days prior to the trial date the party intending to adduce evidence from a foreign witness must served on the other party a copy of:(i)the signed, dated and endorsed certification of each foreign witness;(ii)the signed, dated and endorsed copy identity documents of each foreign witness

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

By an affidavit filed on 26 October 2023 the husband raises issues regarding the conduct of the wife and the second respondent in relation to their application for a spousal visa which was applied for in early 2007. The husband alleges that in the course of that application a person impersonated the late Mr G, who was then deceased, for the purposes of a telephone interview between an immigration officer and someone purporting to be Mr G. This affidavit has not been responded to, but it does raise issues regarding the conduct of the respondents in that application which I am not presently required to determine.CONSIDERATION The second and third respondents rely principally on a decision of Liu v Option Funds Management Limited [2022] FCA 444 (Wigney J) in support of this application. At [36] Wigney J held after considering competing submissions about the effect of a specific article of the Country H Civil Procedure Law: Nothing in the text of [the article] or the report of Prof Tan supports the proposition that by permitting Mr Zhu to give his evidence via video link, the court would somehow contravene [the Civil Procedure Law] or any provision of any other [Country H] law. In those circumstances, considerations of sovereignty or comity do not arise or provide any basis for the court to refuse to exercise the power under section 47A(1) of the FCA Act. It may be accepted that it would be different if [the article] prohibited Mr Zhu from giving evidence by video link from [Country H]. … The issue of the operation of the article was not fully argued before me nor was the question of whether the approach made by the solicitors for the second and third respondents to the Country H Consulate constituted proper enquiries for the purposes of rules 15.16 or 15.17. It appears that a relevant authority Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732 (Robb J) was not referred to Wigney J. That authority is referred to in Moy and Pao (No 3) [2021] FamCA 310 at [38] – [39] (Wilson J) where his Honour stated: 38.Ms Clarkin relied on the decision in Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd,[9] a decision of Robb J of the Equity Division of the New South Wales Supreme Court. That decision bore certain factual similarities to the facts of this case. Robb J was concerned with a contested application to vacate a trial by reason of the plaintiff’s witnesses being in [Country H]. As with this case, in that case border closures associated with the COVID-19 pandemic prevented witnesses travelling from [Country H] to Australia. The question arose whether audio-visual technology could have been enlivened so that the witness could have given evidence by video link in [Country H]. In that case, Robb J addressed Perram J’s observations in Motorola Solutions Inc v Hytera Communications Corporation Ltd [10] where it was conceded that the time had well passed for official permission to have been obtained by the relevant organ of the [Country H] government through official channels under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. Perram J in Motorola also addressed the effect of the Civil Procedure Law […] and the argument that the effect of the Civil Procedure Law was that witnesses located within [Country H] who could not attend a trial in Australia because of the COVID-19 pandemic could not be cross-examined on their affidavits because the taking of evidence by the Federal Court of Australia would be an exercise of sovereignty by the Commonwealth of Australia within the territorial confines of [Country H], requiring permission of the [Country H] state.39.At paragraph 45 of Robb J’s decision in Haiye Developments, his Honour applied that approach of Perram J in Motorola. There, Robb J held as follows -This Court may take some comfort from the fact that Perram J was sufficiently satisfied that the [Country H] Procedure Law may make it unlawful for persons within the mainland of [Country H] to give evidence in Australia by audio video link to justify his Honour proceeding on that basis.[2][2]Moy and Pao (No 3) [2021] FamCA 310 at [38] – [39] (Wilson J).