Sun & Yeng (No 3) - [2023] FedCFamC1F 944

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sun & Yeng (No 3) [2023] FedCFamC1F 944

File number SYC 8025 of 2022

Judgment of WILSON J

Date of judgment 2 November 2023

Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – urgent application to rely on evidence of foreign Country B law – leave granted to the applicant and second respondent to rely on reports from Country B law experts.

Legislation Family Law Act 1975 (Cth)

Division Division 1 First Instance

Number of paragraphs 8

Date of hearing 2 November 2023

Place Melbourne

Counsel for the applicant Mr L. Glick KC with Mr J. Mellas

Solicitors for the applicant Lander & Rogers

Counsel for the first respondent Mr G. Stapleton

Solicitors for the first respondents Longton Legal

Counsel for the second respondent Mr D. Brown KC with Mr D. Edney

Solicitors for the second respondent XR Consulting Pty Ltd
ORDERS

SYC 8025 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN
MS SUN

Applicant

AND
MR YENG

First Respondent

MS HAU

Second Respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

2 NOVEMBER 2023

THE COURT ORDERS THAT –
1.Leave is granted to the applicant wife to rely on the report dated 2 October 2023 of S Lawyers at the trial of this proceeding, such report to found submissions without need for filing an affidavit.
2.Leave is granted to Ms Hau to rely on the report of Ms T dated 1 November 2023 of U Lawyers at the trial of this proceeding, such report to found submissions without need for filing an affidavit.
3.On or before 12pm on Monday 6 November 2023 the wife must file and serve any amendment to her initiating application.
4.The trial of this proceeding is to resume on Wednesday 8 November 2023 in accordance with paragraph 2 of my orders made on 4 October 2023
5.Costs of and incidental to this application are reserved including King’s Counsel.

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 a pseudonym of Sun & Yeng has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J

The trial of this proceeding resumes next Wednesday in accordance with orders made on 11 October 2023. The circumstances against which this most recent application is set…

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 Sun & Yeng (No 3)

Details

AGLC: Sun & Yeng (No 3) [2023] FedCFamC1F 944
Case: [2023] FedCFamC1F 944
Decision Date: 2 November 2023

CaseChat Overview and Summary

Ms Sun, the applicant, has filed an urgent application against Mr Yeng, the first respondent, and Ms Hau, the second respondent, in the Federal Circuit and Family Court of Australia. The primary issue before the court was whether the applicant and the second respondent should be permitted to rely on reports from experts on Country B law at the trial, without needing to file affidavits. The applicant sought leave to rely on a report from S Lawyers, dated 2 October 2023, while the second respondent aimed to rely on a report from U Lawyers, dated 1 November 2023. The court was tasked with determining whether these reports could be utilised as evidence and if the procedural requirements could be relaxed to allow this.

In granting leave to both parties, Wilson J highlighted the importance of ensuring that evidence, particularly from foreign jurisdictions, is properly presented to the court. The judge recognised the complexities involved in cross-border legal matters and the necessity for expert input to adequately address issues of foreign law. The court emphasised the need for flexibility in procedural requirements to facilitate the fair and efficient resolution of such cases. By allowing the parties to rely on these expert reports directly, the court aimed to expedite the proceedings and ensure that all relevant legal considerations were thoroughly examined.

The court's decision underscores a pragmatic approach to managing the intricacies of international law within family proceedings. The judge’s ruling facilitates the inclusion of expert evidence, which is essential for navigating the nuances of foreign legal systems. This decision not only addresses the immediate procedural concerns but also sets a precedent for handling similar situations in future cases. The orders issued by the court reflect a balanced consideration of both procedural efficiency and the substantive legal matters at hand.

In addition to granting leave, the court set specific timelines for the filing of any amendments to the initiating application and scheduled the resumption of the trial. The court also reserved costs, including those related to King’s Counsel, for later determination. This comprehensive approach ensures that the case progresses in an orderly and effective manner, with all procedural requirements being met while accommodating the complexities of international law.

Orders

Orders of the court

SYC 8025 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MS SUN

Applicant

AND

MR YENG

First Respondent

MS HAU

Second Respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

2 NOVEMBER 2023

THE COURT ORDERS THAT –

1. Leave is granted to the applicant wife to rely on the report dated 2 October 2023 of S Lawyers at the trial of this proceeding, such report to found submissions without need for filing an affidavit.

2. Leave is granted to Ms Hau to rely on the report of Ms T dated 1 November 2023 of U Lawyers at the trial of this proceeding, such report to found submissions without need for filing an affidavit.

3. On or before 12pm on Monday 6 November 2023 the wife must file and serve any amendment to her initiating application.

4. The trial of this proceeding is to resume on Wednesday 8 November 2023 in accordance with paragraph 2 of my orders made on 4 October 2023

5. Costs of and incidental to this application are reserved including King’s Counsel.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number	SYC 8025 of 2022
Judgment of	WILSON J
Date of judgment	2 November 2023
Catchwords	FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – urgent application to rely on evidence of foreign Country B law – leave granted to the applicant and second respondent to rely on reports from Country B law experts.
Legislation	Family Law Act 1975 (Cth)
Division	Division 1 First Instance
Number of paragraphs	8
Date of hearing	2 November 2023
Place	Melbourne
Counsel for the applicant	Mr L. Glick KC with Mr J. Mellas
Solicitors for the applicant	Lander & Rogers
Counsel for the first respondent	Mr G. Stapleton
Solicitors for the first respondents	Longton Legal
Counsel for the second respondent	Mr D. Brown KC with Mr D. Edney
Solicitors for the second respondent	XR Consulting Pty Ltd

SYC 8025 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN	MS SUN Applicant
AND	MR YENG First Respondent MS HAU Second Respondent

ORDER MADE BY	WILSON J
DATE OF ORDER	2 NOVEMBER 2023