LONG & SHEN

[2014] FCCA 2929

FEDERAL CIRCUIT COURT OF AUSTRALIA

LONG & SHEN [2014] FCCA 2929

Catchwords:
FAMILY LAW – Property – Application in a Case – where applicant seeks orders for production of documents – where respondent claims application is an abuse of process.

FAMILY LAW – Parenting – Application in a Case – where applicant seeks respondent’s hospital records and consulting reports.

COSTS – Application for costs – where each party seeks a costs – order – where Applicant wholly unsuccessful – where Application in a Case misconceived – abuse of process – costs according to Federal Circuit Court Rules 2001, Sch. 1, Part 1

PRACTICE AND PROCEDURE – Rules 13.04 and 13.07 of the Family Law Rules 2004 do not apply in the Federal Circuit Court.

PRACTICE AND PROCEDURE – Transfer to Family Court of Australia – where final hearing of parenting and property applications estimated to take at least a week.   

Legislation:

Family Law Act 1975 (Cth), ss.62G, 68L, 79, 117

Federal Circuit Court of Australia Act 1999 (Cth), s.39
Family Law Rules 2004, rr.13.04, 13.07
Federal Circuit Court Rules 2001, rr.24.03, 24.04, Sch.1, Part 1

Cases cited:
Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248

Applicant: MR LONG

Respondent: MS SHEN

File Number: SYC 6565 of 2013

Judgment of: Judge Scarlett

Hearing date: 1 December 2014

Date of Last Submission: 1 December 2014

Delivered at: Sydney

Delivered on: 12 December 2014

REPRESENTATION

Solicitor for the Applicant: Mr Lam

Solicitors for the Applicant: Zhang Shijing Lawyers

Solicitor for the Respondent: Mr Nazarian

Solicitors for the Respondent: Phoenix Attorneys

ORDERS

1. The Application in a Case filed on 2 May 2014 is dismissed.

2. The Applicant is to pay the Respondent’s costs fixed in the sum of $2,658.00.

3. The Applicant is allowed three (3) months to pay.

4. The Application is transferred to the Family Court of Australia at Sydney to be listed on a date to be fixed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6565 of 2013

MR LONG

Applicant

And

MS SHEN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application in a Case brought by the Husband, who is the Applicant in the substantive proceedings. The substantive Application seeks parenting orders in respect of the parties’ two children and property orders under s.79 of the Family Law Act 1975 (Cth).

2. A Family Report has been prepared under the provisions of s.62G of the Family Law Act. An Independent Children’s Lawyer has been appointed under the provisions of s.68L of the Act.

3. The parties attended a conciliation Conference with a Registrar on 2^nd April 2014 in respect of the property proceedings but no agreement was reached.

Application in a Case

1. The Applicant filed an Application in a Case and a supporting affidavit on 2^nd May 2014 seeking the disclosure of a number of documents, purportedly under Rule 13.04 of the Family Law Rules 2004. The Applicant seeks property documents in 23 different circumstances and two more sets of documents relating to the Respondent’s medical or psychological state, namely:

   x.  The Respondent wife’s all hospital records in relation to her mental stage (sic).

   y.  The Respondent wife’s regular Consulting Reports.

2. The Respondent filed a Response to an Application in a Case on 8^th September 2014, seeking that:

   a)the Application in a Case should be dismissed as an abuse of process; and

   b)that the Applicant pay the Respondent’s costs on an indemnity basis.

3. The Response was supported by an affidavit of the Respondent affirmed on 9^th September 2014.

4. In the Application in a Case, the Applicant seeks orders that the Respondent disclose within 21 days:

   a)Documents evidencing the Respondent Wife’s family paid the Applicant Husband’s University Fees and University living expenses for $43,720.61 as per para 1 and 2, page 25 of her affidavit. These documents must show the sources of the family money, the withdrawal of money from her bank accounts in P R of China and her foreign currency exchange transaction from Chinese Yuan for the contribution to the Applicant of $43,720.61.

   b)Documents evidencing the transfer from the Wife for the Husband purchasing of one car as per Para 3, page 25 of her affidavit and these documents must show the source of the fund, withdrawal of money from her bank accounts in P R of China and her foreign exchange transactions from Chinese Yuan to US dollars for the contribution of USD$6,500.

   c)Documents evidencing funds were used by the Husband to finance his move to Sydney as per Para 4, Page 25 of her affidavit and these documents must show the withdrawal of money from her bank accounts in PR of China and her foreign currency exchange transaction from Chinese Yuan to Australian Dollars for the contribution.

   d)Documents evidencing funds were used by Ms Shen to finance her studying, living and move to Sydney. These documents must show the withdrawal of money from her bank accounts in P R of China and her foreign currency exchange transaction from Chinese Yuan to Australian Dollars for the contribution.

   e)Documents evidencing cash was paid to Husband for $7,000 as per Para 5, Page 25 of her affidavit and these documents must show the withdrawal of money from her bank accounts in P R of China and her foreign currency exchange transaction from Chinese Yuan to Australian Dollars for the contribution.

   f)Documents evidencing loan’s from the Wife’s family to the wife as per Para 6, Page 25 of her affidavit and these documents should show the source of the fund and the loan agreements.

   g)Documents evidencing the Wife’s sister’s source of funds, withdrawal of money from her bank accounts in PR of China and her foreign currency exchange transaction from Chinese Yuan to Australian Dollars for the contribution of $70,000 to the Property M1 property as per Para 3, Page 26 of her affidavit.

   h)Documents evidencing the Wife’s parents rent as per Paragraph 7, Page 26 of her affidavit and these documents must show the sources of their money used to lease, the lease agreement and payment details.

   i)Documents evidencing loans from the Wife’s family to the wife as per Para 9, Page 26 of her affidavit and these documents should show the loan agreements and/or source of the fund.

   j)Documents evidencing the $70,000 paid by the wife’s parents and sister accounts in China in cash for purchasing the Property M2 as per Para 4, Page 27 of her affidavit and these documents must show the sources of her money used to purchase.

   k)Documents evidencing the wife’s parents’ transfer for $83,560 as per Para 9, Page 27 of her affidavit and these documents must show the source of the fund, withdrawal of money from their bank accounts (in P R of China) and foreign currency exchange transaction from Chinese Yuan to Australian Dollars for the contribution.

   l)Documents evidencing loans from Wife’s family to wife as per Para 10, page 27 of her affidavit and these documents should show the loan agreements.

   m)Documents evidencing the wife’s sister’s withdrawal of money from her bank accounts in P R of China and her foreign currency exchange transaction from Chinese Yuan to Australian Dollars for the contribution of $36,000 as per Para 3, Page 30 of her affidavit.

   n)Documents evidencing the wife’s sister’s withdrawal of money from her bank accounts in P R of China and her foreign currency exchange transaction from Chinese Yuan to Australian Dollars for the contribution of $27,985 as per Para 4, Page 30 of her affidavit.

   o)Documents evidencing the Respondent’s sister’s withdrawal of money from her bank accounts in P R of China and her foreign currency exchange transaction from Chinese Yuan to Australian Dollars for the contribution of total $291,545.00 claimed by her; and the Respondent’s sister’s pay slips, annual tax returns/assessments for five years, employment contracts and her Business License for her (business omitted).

   p)Documents evidencing the wife’s parents loan for $30,000 as per Para 3, Page 31 of her affidavit and these documents must show the source of the money, the withdrawal of money from their bank accounts and loan agreement.

   q)Documents evidencing the wife’s parents’ loan for $17,000 as per Para 4, Page 31 of her affidavit and these documents must show the source of the money, the withdrawal of money from their bank accounts and loan agreement.

   r)Agreement with the agent/s, receipts from the students and/or the agent/s and any other documents in regard to the homestay income. Current homestay student’s contact number and payment details.

   s)All (other) loan agreements between the Respondent wife and her parents and/or her sister.

   t)All the Respondent’s bank accounts statements from the year 2/04/2007 to date, including but not limited to:

   i)Bank Name: (omitted) Bank

   Account Name: Ms Shen (Chinese character)

   BSB: (not published)

   Account number: (not published)

   ii)Bank Name: (omitted) Bank

   Account Name: Ms Shen (Chinese character)

   Account number: (not published)

   u)The Respondent wife’s bank account statements (under her sister’s name) in China from the year 01/01/1999 to date including but not limited to:

   i)Ms W (Chinese character)

   A/c Number: (not published)

   Bank Name: (omitted) Bank branch (omitted) Office

   Address: (omitted)

   ii)Bank Name: (omitted) Bank

   Account Name: Ms W (Chinese Character)

   Account number (not published)

   v)The Respondent’s daughter X (DOB 24//11/1996) has opened a bank account in China for the purpose of retaining the Respondent Wife’s commissions and transfer of funds in relation to the family law proceedings. I would like to request the bank statements of her bank account.

   w)All of the Respondent wife’s parents’ bank account statements for Australian bank accounts from the year 02/04/;2007 to date; for Chinese accounts from 01/01/1999 to date, including but not limited to:

   i)Bank Name: (omitted) Bank

   Account Name: Ms W (Chinese character)

   BSB: (not published)

   Account number: (not published)

   ii)Bank Name: (omitted) Bank

   Account Name: Ms W (not published

   BSB: (not published)

   Account number (not published)

   iii)Bank Name: (omitted) Bank

   Account Name: Ms W (Chinese character)

   Account number: (not published)

   iv)Bank Name: (omitted) Bank

   Account Name: Ms W (Chinese character)

   BSB (not published)

   v)Bank Name: (omitted) Bank

   Account Name: (omitted)

   BSB: (not published)

   Account number: (not published)

   vi)Bank Name: (omitted) Bank

   Account Name: (omitted)

   BSB: (not published)

   Account number: (not published)

   x)The Respondent wife’s all hospital records in relation to her mental stage (sic).

   y)The Respondent wife’s regular Consulting Reports.  

Submissions

1. The Applicant submits that the Respondent has a duty of disclosure , whether general or specific, exists regardless of and despite the bringing of any application. He claims that he has brought his application as a result of a clear breach of rule 13.07 of the Family Law Rules. He claims that the Respondent’s affidavit is not supported by sufficient and seeks costs.

2. The Applicant’s written submission also refers to statements made by the Respondent at the Conciliation Conference in support of his claim that the Respondent should produce these documents. Those statements have not been published and should remain confidential.

3. The Respondent submits that the Application is misconceived. In particular, she submits that when a party requires a document from a person who is not a party, a subpoena should be issued.

4. Further, it is submitted that the Application requires the Respondent to produce documents that are not her documents, namely:

   a)her family;

   b)a bank and currency exchange;

   c)her sister; and

   d)her parents.

5. The Respondent further submits that there is no evidence that she has in her possession, custody or control any of the documents sought in the Application in a Case. The Applicant’s affidavit, it is submitted, is basically a series of arguments as to why the documents should exist but does not provide any evidence that any of the documents, assuming they do exist, are held by the Respondent.

6. The Respondent submits that the Application in a Case should be dismissed as an abuse of process and that an order for costs should be made against the Applicant under s.117 of the Family Law Act, the relevant factor being the Applicant’s conduct in bringing a misconceived Application.

Conclusions

1. There is some force to the Respondent’s submission that the Application in a Case is misconceived. The Application seeks disclosure under Rule 13.04 of the Family Law Rules 2004 and the Applicant accuses the Respondent of a “clear disregard for and breach” of Rule 13.07 of the Rules.

2. It is disheartening to find that, after this Court has been in existence for over fourteen years and has had its own Rules since 30 July 2001, practitioners still seem to be unaware of this fact and seek to rely on the Family Rules 2004. The Rules do not apply in this court, except in certain specific cases.

3. The Rules that do apply in this Court are Rule 24.03, which sets out the requirement for full and frank disclosure of a party’s financial circumstances, and Rule 24.04, which sets out the documents that a party required to file a financial statement must serve on the other party.

4. It should be noted that the documents that the Applicant seeks in his Application in a Case go far beyond the limits of the documents set out in Rules 24.03 and 24.04 (or Rule 13.04 of the Family Law Rules, for that matter).

5. In addition, the Applicant seeks disclosure of documents relating to the Respondent’s mental state and “regular Consulting Reports”, apparently relating to her consultations at the (omitted) Medical Centre[1]. Those documents can hardly be claimed under a rule relating to financial disclosure. This of itself is an abuse of process.

   [1] Affidavit of Mr Long 2.5.2014 Annexure “1”

6. Even more concerning is the scope of the documents sought and the sheer volume of documents that the Applicant claims to be necessary. Many of them clearly are not necessary. A number of the documents sought relate to members of the Respondent’s family, going back to April 2007 or, in some cases, 1 January 1999, nearly 16 years ago.

7. The vast amount of documents sought amounts, in my view, to an abuse of the Court’s process and would be quite oppressive to the Respondent. The aim of the Application in a Case appears to be more towards running up costs for the Respondent than prosecuting the Applicant’s case.

8. I propose to dismiss the Application.

Costs

1. Each side seeks an order for costs against the other. I am satisfied that the Applicant should pay the Respondent’s costs of this Application in a Case, as there are circumstances that justify the making of a costs order.

2. The Applicant has been wholly unsuccessful in his application. The Applicant’s conduct, in bringing this misconceived and oppressive Application, is another matter that has been taken into account.

3. Whilst, in certain circumstances, an abuse of process can justify an order for costs on an indemnity basis (see Colgate Palmolive Co v Cussons Pty Ltd[2]), I am more inclined to the view in this case that an order under the scale provided by the Rules is more appropriate. I propose to allow the lump sum for an interim hearing as a discrete event, being $1,661.00, plus the daily hearing fee of $997.00. This amounts to a total of $2,658.00.

   [2] [1993] FCA 536; (1993) 46 FCR 225; 118ALR 248

4. I will allow three months to pay.

The Future Progress of this Matter

1. The parties are in dispute over parenting and property issues. An Independent Children’s Lawyer has been appointed. A Family Report has been prepared. There are affidavits from the Applicant and each of his parents. Each of the Applicant’s parents deposed in their affidavits that their affidavits were read to them in Chinese by the Applicant’s solicitor, Mr Terry Zhang, before they signed them. 

2. On the Respondent’s side, not only has she deposed to a lengthy affidavit, but her parents and three of her friends have also deposed to affidavits. Again, there is an affidavit of Wen Qing Chen, the Mother’s solicitor, who presumably will not be required to give evidence but who deposed that the Respondent’s parents speak Mandarin but their English is limited. Accordingly, before the parents executed their affidavits, the Respondent’s solicitor, who is fluent in English and Mandarin, read their affidavits to them in Mandarin.

3. There is a possibility of eight witnesses giving evidence, four of whom will no doubt need to give their evidence with the aid of an interpreter, if they are required for cross-examination.

4. The Independent Children’s Lawyer will no doubt wish to cross-examine the parties. The writer of the Family Report may well be required for cross-examination at the final hearing.

5. It seems highly unlikely that this matter can be heard in four hearing days or less. It is likely to take at least a week. It is clearly beyond the hearing time that can be accommodated in this Court and, as provided by the protocol between this Court and the Family Court, it should be transferred to the Family Court for hearing.

6. For that reason, I propose to transfer the proceeding to the Family Court of Australia for allocation of hearing dates. The proceeding will be transferred to the Family Court under the provisions of s.39 of the Federal Circuit Court of Australia Act 1999 (Cth).

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 12 December 2014