Tang & Fan (No 3)
[2023] FedCFamC1F 720
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tang & Fan (No 3) [2023] FedCFamC1F 720
File number(s): SYC 6104 of 2015 Judgment of: CHRISTIE J Date of judgment: 22 August 2023 Catchwords: FAMILY LAW – ADJOURNMENT APPLICATION – APPLICATION TO ISSUE SUBPOENA – Where the applicant has not complied with trial directions – Where the circumstances make it difficult to ensure the applicant is afforded procedural fairness – Final hearing dates vacated – Where the applicant seeks that a subpoena be issued to a person the respondent has at this stage not elected to call in her case – Where the applicant has not established the subpoena is necessary – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 22 August 2023 Place: Sydney For the Applicant: Litigant in person Counsel for the Respondent: Mr McMahon Solicitor for the Respondent: Jack Rigg Solicitors ORDERS
SYC 6104 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TANG
Applicant
AND: MS FAN
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
22 AUGUST 2023
THE COURT ORDERS THAT:
1.The final hearing listed for 24 and 25 August 2023 are vacated.
2.The applicant husband’s application for a subpoena to be issued to the wife’s father is dismissed.
AND THE COURT NOTES:
A.Final hearing dates, not within the next six weeks, will be allocated to the parties in Chambers.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
These are proceedings for an adjournment of the final hearing which is listed for two days commencing on 24 August 2023. The applicant husband filed an Application in a Proceeding seeking to vacate the hearing in circumstances where his mother was discharged from hospital following treatment for a medical episode in August 2023.
Effectively from the bar table, the applicant husband has told me that he has been able to work for short periods of time from home. His affidavit tells me that he is otherwise the person solely responsible for her care.
The application also seeks the issue of a subpoena to the wife’s father.
The background to the matter is that the application for final orders filed by the husband originally in this Court was filed on 16 September 2015 – eight years ago.
I made final trial directions on 12 April 2022. There was not initial compliance with those trial directions. The wife has filed all material upon which she wishes to rely and seeks to retain the hearing dates. I am sympathetic to the wife’s positon in this regard because the parties need finality.
The husband has not filed his affidavit material. When asked about why that was he indicated that it is almost ready but that he has responsibility for his mother. That cannot be a full explanation in circumstances where the material was due to be filed in 2022. In addition to that, the husband tells me that he has had difficulties with disclosure.
At the end of the day a party is obliged to file his or her trial affidavit in accordance with the directions whether they have problems with disclosure or not.
The parties’ final property proceedings deal with one piece of property located in Australia and superannuation entitlements in Australia against a background of significant legal proceedings in Country B relating to properties in that country.
At some point these proceedings will need to be heard and determined.
The husband has the benefit of an order made under s 102NA of the Family Law Act 1975 (Cth) which was made on 12 April 2022. To that end he has a solicitor who will appear for him at the hearing.
As I indicated to the parties during this hearing I am concerned that in circumstances where the husband’s first language is not English and where I have in the course of these proceedings have had some difficulty in satisfying myself that he has understood my question when he has used English, I am satisfied that he requires an interpreter in order to be accorded procedural fairness in these proceedings.
I am concerned that if his lawyer is in one location, his interpreter in a different location and the husband may be in a third location, this would be difficult circumstances in which to ensure he was afforded procedural fairness. I add to that what he has told me about the commitments in looking after his mother.
The wife for her part raises a reasonable point. That is, that the husband in his affidavit material does not tell us when this situation will be remedied and accordingly it is difficult to know when these proceedings can be dealt with on a final basis. I accept that her concern in that regard is a legitimate one.
The best the evidence got to was that the husband told me that the assessment might be available in six weeks’ time and that he thereafter might expect to have the assistance of someone potentially five hours per day.
Doing the best I can with the evidence and submissions from the bar table, I find that it I inevitable that these proceedings will again be adjourned.
I do not immediately have dates available to allocate to the parties but I am conscious that this matter has to be allocated. Accordingly what I intend to do is vacate the hearing which is listed for 24 and 25 August 2023 and I will allocate dates to the parties in Chambers which will not be within the next six weeks.
The husband through his Application in a Proceeding also raised a concern that the Court should issue a subpoena directed to the wife’s father in circumstances where she told me when the matter was before the Court for case management that her father would not be giving evidence as he was in Country B.
The husband through his affidavit attaches photographs where he asserts that the wife’s father was actually in Australia, at least recently, for a P Company event. The husband may be 100 per cent accurate in his observation.
The evidence upon which each party relies in the proceedings is a matter entirely for them. If in due course I find that the wife’s father was an important witness who ought to have been called in the wife’s case and the wife failed to call him, that could have consequences for the wife.
I am not convinced that it is necessary to issue a subpoena for the wife’s father to attend and there is no application before me for a subpoena that the wife’s father produce documents.
That application is therefore dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 22 August 2023
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