Heng and Long & Ors

[2019] FamCA 781

FAMILY COURT OF AUSTRALIA

HENG & LONG AND ORS [2019] FamCA 781

FAMILY LAW – PRACTICE AND PROCEDURE – Affidavits – Where both the Applicant and First Respondent made applications to rely upon affidavits of individuals who live in China and could only be cross-examined by telephone – Where no previous application was made by either party to have their evidence taken by telephone – Where the Family Court Rules 2004 (Cth) were not complied with – Where the applications made by both parties are refused.

FAMILY LAW – PRACTICE AND PROCEDURE – Affidavits – Where the First Respondent sought to rely upon an affidavit of his which had yet to be filed but was served on the Applicant’s legal representatives two days before the trial began – Where no adequate reason was provided for allowing the filing of this new affidavit outside the directions previously given – Where the application is refused.

FAMILY LAW – PRACTICE AND PROCEDURE – Affidavits – Where the Applicant applies for leave to be refused to the Second Respondent to read and rely upon annexures to her trial affidavit – Where hardcopies of the documents were not served on the Applicant, but the Applicant’s legal representatives had previously seen all the annexures by email – Where the application is refused.

Family Law Rules 2004 (Cth)

APPLICANT: Ms Heng

FIRST RESPONDENT: Mr Long

SECOND RESPONDENT: Ms Song

THIRD RESPONDENT: Ms Long

FILE NUMBER: BRC 12699 of 2016

DATE DELIVERED: 11 February 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 11 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Yu

SOLICITOR FOR THE APPLICANT: Mr Pi-En Hsu

THE FIRST RESPONDENT: Self-Represented

THE SECOND RESPONDENT: Self-Represented

THE THIRD RESPONDENT: Self-Represented

Orders

1. That leave be granted to the applicant to read and rely upon her affidavit filed 23 April 2018 attaching a valuation.

2. That the applicant’s oral application to read and rely upon the affidavits of her witnesses, Ms AA Heng and Mr Heng, be dismissed.

3. That leave be granted to the second respondent to read and rely upon his affidavit filed 20 September 2018 in relation to an insurance claim.

4. That the first respondent’s oral application to read and rely upon his affidavit filed 20 October 2017, be dismissed.

5. That the first respondent’s oral application to read and rely upon the affidavits of his witnesses, Ms BB and Ms CC, be dismissed.

6. That the first respondent’s oral application to file and read a fresh affidavit sworn by him on 7 February 2019, be dismissed.

7. That leave be granted to the second respondent to tender the bundle of annexures attached to her trial affidavit.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Heng & Long and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 12699 of 2016

Ms Heng

Applicant

And

Mr Long

First Respondent

And

Ms Song

Second Respondent

And

Ms Long

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Before me this morning, an oral application was made on behalf of the Applicant to be able to read and rely upon two affidavits of evidence on her behalf, other than her own trial affidavit.  The first of those affidavits purports to be an affidavit of Ms AA Heng.  Ms AA Heng is, it is said, the Applicant wife’s mother.  The other affidavit purports to be an affidavit of Mr Heng.  Mr Heng purports to be the Applicant wife’s father.  Each of those two people gives their address as EE Street, City FF, in China.  Each of them refer, over two pages, to evidence given in this case.  Both of them say that due to the inconvenience of an international trip, uncertainty of visa arrangements and costs, they can only appear by telephone. 

2. I know nothing at all, because nothing is said in their affidavits and no other affidavits have been filed in support of the oral application for them to give telephone evidence, about their capacity to speak, read and understand the English language.  Unfortunately, I have no capacity to read, speak or understand the Cantonese or Mandarin languages, so I would not be able to take any evidence from them in either of those languages.  Curiously, their affidavits are written in English.  There is nothing said about any interpreting of the affidavits having been undertaken before they signed them. 

3. In addition, they are purported to be witnessed before a person named DD, who described himself or herself as a lawyer, but as Mr Long says, I do not know anything about the qualifications of that lawyer to witness an affidavit. 

4. Significantly, no application was made before this morning for their evidence to be taken by electronic communication via telephone and as I have pointed out, none of the rules about the evidence that is needed when making an application for evidence by electronic communication were complied with. No application and affidavit setting out the relevant information were filed in advance and most importantly, r 16.06 of the Family Law Rules 2004 (Cth) (“the Rules”), which relates to the hearing of an application for evidence to be given by telephone communication from foreign countries such as China, was not complied with.

5. It would, in my judgment, be offensive to notions of international respect between nations, for me to simply ignore those rules and to allow the evidence to be given by telephone today.  As I understand things, the content of the affidavit material is in dispute and the credibility of the Applicant wife’s parents is challenged. It would be most uncommon for serious evidence that is in doubt insofar as honesty, accuracy and truthfulness is concerned to have witnesses give their evidence over the telephone where I have no opportunity to look at them and assess them. 

6. Accordingly, I refuse leave for them to be cross-examined by telephone and accordingly I do not allow the Applicant wife to rely upon the affidavits of her mother and her father in this particular case.

7. The First Respondent husband, Mr Long, seeks to read and rely upon an affidavit of Ms BB.  Mr Long says she swore that affidavit in Australia before an Australian lawyer. That is all well and good, but Mr Long informed the Court that she is now back in China.  Mr Yu of Counsel for the wife says he wants to cross-examine her.  Mr Long says she cannot be made available in person for cross-examination and as such he is seeking for her to be cross-examined by telephone.

8. For all of the same reasons I just gave in response to Mr Long’s objection to Ms Heng’s parents giving evidence and being cross-examined by telephone, I refuse to allow Mr Long to call Ms BB to give her evidence by telephone.  As she is not here to be cross-examined, I will not give leave to Mr Long to read and rely upon her affidavit.

9. Mr Long also seeks to read and rely upon an affidavit of his sister.  She is an Australian citizen and she swore the affidavit when she was here in Australia.  It purports to give some fairly significant evidence because Mr Long says he owed his sister AUD28,000 and he repaid it to her.  I think her evidence is she says that this is true and she gives a lot of evidence that supports Mr Long.  Mr Yu for the Applicant says he wants to cross-examine her.  That is not surprising and he is entitled to do that if he wants to.  He is allowed to challenge her evidence.  Mr Long says, just like his other witness, his sister is not available for cross-examination because she returned to City FF to celebrate her mother’s birthday with her. 

10. Again, for all of the reasons I gave before, I will not allow her to be cross-examined by telephone and therefore, unfortunately for Mr Long, he is not able to read and rely upon her affidavit and he will not be able to refer to it in the case before me today.

11. Mr Long seeks to file and read an affidavit prepared on 7 February 2019. He concedes that the affidavit was only served by email on the Applicant wife’s solicitor on Saturday. That is not even one working day before the trial was due to commence.  Mr Yu informed the Court he only received a copy of it yesterday and has only had a chance to give it some quick consideration.

12. My directions for preparing this matter for trial were very clear. One trial affidavit was to be relied upon per person.  I am going to hold to my directions. I do not consider that Mr Long has offered any good reason as to why I should give leave to file this affidavit other than he says that it supplements his trial affidavit and responds to the wife’s affidavit.  To give the First Respondent leave to do this would be, at this stage, without warning to the wife’s side other than notice on Saturday, unfair to her given she was not given the same rights to file a response to the First Respondent’s affidavit.  I am not going to give the First Respondent leave to file this affidavit.

13. An application is also made on behalf of the Applicant for me to refuse to give leave to the Second Respondent, Ms Song, to hand up hardcopies of the annexures that she refers to in her affidavit. Mr Yu told the Court that the Second Respondent never served his instructing solicitor with hardcopies and is therefore not in compliance with the Rules.

14. I handed the bundle to Mr Yu and asked him to have his solicitor check the documents. They confirmed, as I understood, there are no documents in there they have not seen before. In those circumstances, I consider that in the appropriate administration of justice, I will waive compliance with the rule of hardcopies having to be served, especially as electronic copies were served by email.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 11 February 2019.

Associate: 

Date:  26 November 2019