HA & WONG

[2017] FCCA 579

FEDERAL CIRCUIT COURT OF AUSTRALIA

HA & WONG [2017] FCCA 579

Catchwords:
FAMILY LAW – Property – final hearing vacated – respondent failed to comply with orders – now claiming she has commenced proceedings in China.

Cases cited:

Allesch v Maunz [2000] HCA 40

Applicant: MR HA

Respondent: MS WONG

File Number: MLC 10973 of 2015

Judgment of: Judge Harland

Hearing date: 22 March 2017

Date of Last Submission: 22 March 2017

Delivered at: Melbourne

Delivered on: 22 March 2017

REPRESENTATION

Counsel for the Applicant: Ms Francis

Solicitors for the Applicant: Melbourne Family Lawyers

Solicitors for the Respondent: In person

ORDERS

1. The Final Hearing listed for 12 April 2017 at 10:00am for an estimated duration of two days be vacated.

2. The proceeding is adjourned for Mention Hearing on 12 April 2017 at 9:30am.

3. The parties not be permitted to rely on material filed less than (3) three working days prior to the next Court event.

4. Any Subpoena material to be relied upon at the Mention Hearing must be made returnable at least (3) three days prior to the Hearing.

5. Pursuant to order 2 &3 herein, leave will only be granted in circumstances of urgency.

6. The respondent wife file and serve an affidavit that annexes evidence of the proceedings that are on foot in China on or before 6 April 2017.

7. Pursuant to order 13 of the consent minute of the orders made 1 June 2016, the respondent wife pay her share of the valuation fee in the sum of $550 to (omitted) at (omitted), Melbourne Victoria, on or before 4:00pm Friday 24 March 2017.

NOTING

1. If the wife is unable to provide evidence of the proceedings on foot in China, she will be required to file an affidavit by her lawyer in China explaining the status of the proceedings.

2. The wife will need to provide proof that the documents have been served on the husband in China.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10973 of 2015

MR HA

Applicant

And

MS WONG

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 is listed for a final hearing before me commencing on 12 April 2017 for two days.  The applicant husband filed his initiating application on 24 November 2015.  The husband has caused the matter to be listed for mention today because of non-compliance with orders made on 1 June 2016.  The wife has failed to comply with orders to pay her half share of the valuation fee.  The wife says that she will rectify that today and I will order that she do so by 4.00pm on Friday 24 March 2017.  The wife appears without a lawyer and with the assistance of an interpreter.

3. The major difficulty today is the wife’s allegation that there are assets in China and that she has commenced proceedings in China.  There is no evidence before the Court with respect to the Chinese proceedings.  There is a reference in an affidavit sworn by the wife when she had lawyers assisting her, on 12 August 2016 at [8(iv)], which refers to the husband having interests in two companies in China.  It is of great concern to the Court that the matter has got to this late stage of the proceedings and that the issue of Chinese proceedings is only being agitated now.

4. This matter commenced in the Family Court of Australia (“Family Court”) and if the Family Court had been made aware of there being assets in China, then it is likely that the case would have remained before the Family Court, given the protocol for division of work between this Court and the Family Court and the international element to the proceedings.  The husband’s case is that this is a straightforward matter with one main asset, being the former matrimonial home in (omitted).

5. The husband lives in China and the husband, quite properly, was concerned not to go to the expense of preparing for a trial and travelling to Australia only for the hearing not to be able to proceed because of the wife’s failure to comply with the orders made last year and failure to properly agitate her claims with respect to alleged assets in China.  I have made it very clear to the wife that if she does not rectify this situation quickly, then I will entertain this matter being determined on an undefended basis as the husband is entitled to have his claim determined in a timely manner.

6. The fact that the matter cannot proceed to a final hearing on 12 April 2017 is not due to any fault of his.  In Allesch v Maunz [2000] HCA 40 Kirby J at [38] to [40] said the following:

   The facts and issues are set out in the reasons of Gaudron, McHugh, Gummow and Hayne JJ ("the joint reasons") [30]. 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 provided [31]. Affording the opportunity is all that the law and principle require.

   Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.

   Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted [32]), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.

7. I require the wife to file and serve an affidavit by 6 April 2017 annexing a copy, properly certified and translated, of the documents filed in court proceedings in China.

8. Together with evidence as to the status of those proceedings in China.

9. If the wife is not in a position to do that, then she must file an affidavit by her lawyer in China explaining the status of the proceedings.  She will also need to provide proof that she has caused the documents to be served on the husband in China.

10. This matter remains listed on 12 April 2017 but for mention to check on the compliance of the wife with these orders.  It will be listed at 9.30am.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  24 March 2017