Peng & Anh - [2023] FedCFamC1F 281

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Peng & Anh [2023] FedCFamC1F 281

File number(s): SYC 2786 of 2020

Judgment of: CAMPTON J

Date of judgment: 18 April 2023

Catchwords: FAMILY LAW PRACTICE AND PROCEDURE – Whether an order should be made pursuant to s 102NA of the Family Law Act 1975 (Cth) prohibiting the parties from personally cross-examining one another – Where the circumstances of the case do not attract mandatory application of the section – Where the applicant applies for a discretionary application of the section – Where both parties are legally represented – Where there is no evidence that the respondent intends to personally cross-examine the applicant – Application refused.

Legislation:
Family Law Act 1975 (Cth) ss 68B, 90SM, 114

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.10

Cases cited: Owen & Owen (2020) 60 Fam LR 334; [2020] FamCA 90

Division: Division 1 First Instance

Number of paragraphs: 25

Date of hearing: 18 April 2023

Place: Sydney

Solicitor for the Applicant: Ms Ng, Metta Legal

Counsel for the Respondent: Mr Murray

Solicitor for the Respondent: M G O’Callaghan & Associates
ORDERS

SYC 2786 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PENG

Applicant

AND:
MS ANH

Respondent

order made by:

CAMPTON J

DATE OF ORDER:

18 APRIL 2023

THE COURT ORDERS THAT:
1.The Minute of Consent Order executed by the solicitors for each of the parties received by email to my chambers yesterday and dated 17 April 2023 shall be marked Exhibit 1.
2.The respondent’s Application in a Proceeding sealed on 13 April 2023 be dismissed.
3.By no later than 9.00 am on 19 April 2023, the applicant and respondent are to:
(a)Confer and file a joint balance sheet in compliance with Orders 7 – 10 made on 21 March 2023; and
(b)Each file a Case Outline document in compliance with Order 18 made on 21 March 2023.

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 Peng & Anh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:

By an Initiating Application filed on 7 May 2020 in what was then the Federal Circuit Court of Australia, Mr Peng (“the applicant”) commenced proceedings for the adjustment of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Peng & Anh

Details

AGLC: Peng & Anh [2023] FedCFamC1F 281
Case: [2023] FedCFamC1F 281
Decision Date

CaseChat Overview and Summary

Peng & Anh involved a dispute between the parties, with the applicant seeking an order under s 102NA of the Act, while the respondent opposed the application. The case was heard in the Federal Circuit and Family Court of Australia. The primary legal issue the court had to decide was whether the preconditions for the applicant to cross-examine the respondent in person were met. This involved assessing whether the applicant had a reasonable excuse for not being able to cross-examine the respondent through their legal representative and whether such a cross-examination was necessary for a fair trial.

The court examined the evidence provided by both parties and concluded that neither party needed to personally cross-examine the other, as they would be assisted by their legal representatives. The applicant's financial statement indicated a full-time professional role with a substantial weekly salary, and there was no evidence of the applicant's intention to conduct the cross-examination themselves. Additionally, the respondent did not provide sufficient evidence to demonstrate that alternate arrangements for cross-examination could not be made, such as via video-link. The court found that the applicant's potential prejudice from not cross-examining the respondent in person was not adequately substantiated.

Based on these findings, the court decided to dismiss the applicant's application for a s 102NA order and not to make orders as proposed in the Minute of Order dated 17 April 2023. The court also ordered the parties to file their Case Outlines and a joint balance sheet prior to the trial commencing the following day. The final orders were made to reflect these conclusions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Similarly, there is no evidence indicating that respondent is not in a position to continue to engage his current solicitors for the trial commencing tomorrow or that his solicitors are not available to accept that engagement. That proposition, if made, seems at odds with the fact of his current solicitors appearing on his behalf today. Further, the applicant’s Financial Statement filed on 14 April 2023 discloses that he works full-time as a professional, earning a gross weekly salary of $1,050. The applicant has not filed a Costs Notice in compliance with the Rules to indicate what his estimated further legal costs will be to the conclusion of the trial. CONCLUSION On the evidence before me, neither party will be required to personally cross-examine the other and will each be assisted by their legal representatives, who will be able to do so on their behalves should such cross-examination be required. In those circumstances, I am not satisfied the preconditions of s 102NA of the Act are met. If I am in error in the above conclusion, I am still not satisfied that a discretionary order ought to be made pursuant to s 102NA of the Act, in circumstances where:(a)The applicant has not advised the Court as to whether he requires the respondent for cross-examination, and there is no evidence that the applicant intends on conducting that cross-examination (if it is to occur at all) himself, nor is there evidence as to the scope of such cross-examination; and(b)There was no evidence in the respondent’s case as to why alternate arrangements could not be made for the testing of her evidence by the applicant (if it is to be tested at all), including (by way of example) conducting cross-examination via video-link from a room in which the respondent is not physically present; and(c)Insofar as the submission is made that the respondent shall be unfairly prejudiced at the trial should her application for a s 102NA order be refused, I am not satisfied that the evidence relied upon by the respondent is sufficient to establish that her capacity to give clear evidence will be compromised should she be cross-examined by the applicant. Balancing the above considerations, I am satisfied that the respondent’s Application in a Proceeding filed on 12 April 2023 should be dismissed and that orders should not be made in accordance with the parties’ proposed Minute of Order dated 17 April 2023 (Exhibit 1). The matter remains listed for final hearing as to the s 90SM dispute over two days commencing at 10.00 am tomorrow. The parties have each filed their affidavit evidence and Financial Statements to be relied upon at the trial. They have not yet filed Case Outlines or a joint balance sheet in accordance with the trial directions made on 21 March 2023. I will make a further order that they do so prior to the trial commencing tomorrow. For all of the above reasons, I shall make the orders as set out at the forefront of these reasons.

Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 2786 of 2020
Judgment of:	CAMPTON J
Date of judgment:	18 April 2023
Catchwords:	FAMILY LAW PRACTICE AND PROCEDURE – Whether an order should be made pursuant to s 102NA of the Family Law Act 1975 (Cth) prohibiting the parties from personally cross-examining one another – Where the circumstances of the case do not attract mandatory application of the section – Where the applicant applies for a discretionary application of the section – Where both parties are legally represented – Where there is no evidence that the respondent intends to personally cross-examine the applicant – Application refused.
Legislation:	Family Law Act 1975 (Cth) ss 68B, 90SM, 114 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.10
Cases cited:	Owen & Owen (2020) 60 Fam LR 334; [2020] FamCA 90
Division:	Division 1 First Instance
Number of paragraphs:	25
Date of hearing:	18 April 2023
Place:	Sydney
Solicitor for the Applicant:	Ms Ng, Metta Legal
Counsel for the Respondent:	Mr Murray
Solicitor for the Respondent:	M G O’Callaghan & Associates

SYC 2786 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR PENG Applicant
AND:	MS ANH Respondent

order made by:	CAMPTON J
DATE OF ORDER:	18 APRIL 2023