Wei & Wei - [2023] FedCFamC1F 631

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wei & Wei [2023] FedCFamC1F 631

File number: MLC 530 of 2017

Judgment of: BENNETT J

Date of judgment: 26 June 2023

Catchwords: FAMILY LAW - PRACTICE & PROCEDURE –where court has ordered that the husband and wife each attend the final hearing in person – where wife says that she cannot get a visa to come to Australia – where wife wants to give evidence from Country TT by electronic means - where rules of court require wife to make appropriate inquiries to determine the attitude of the foreign country’s government to the taking of evidence by electronic communication and there is no evidence of the wife having done so.
FAMILY LAW- PRACTICE & PROCEDURE – where husband and wife behave poorly in court by bickering and argument directly with one another – where each party requires an interpreter – where it is going to be a long and hard trial – where matter adjourned for directions some months hence.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 15.16 & 15.17

Cases cited: Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 286 (IAC)

Division: Division 1 First Instance

Number of paragraphs: 20

Date of hearing: 26 June 2023

Place: Melbourne (via MS Teams)

Counsel for the Applicant: Litigant in person

Counsel for the Respondent: Litigant in person

Counsel for the Intervener: J Lawyers
ORDERS

MLC 530 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS WEI

Applicant

AND:
MR WEI

Respondent

J LAWYERS

Intervener

order made by:

BENNETT J

DATE OF ORDER:

26 JUNE 2023

THE COURT ORDERS THAT:
1.Until further order or until the wife files a Notice of Address for Service in Australia in accordance with Rule 2.25(4)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the wife’s details for the address for service be noted in the records of the court as:
(a)Address: UU Building, District VV, Country TT;
(b)Email as ...@...; and
(c)Telephone: ….

2.The final hearing set down to commence this day, 26 June 2023, be and is hereby vacated.
3.The final hearing be adjourned to a date to be fixed and this matter be listed for directions of 16 November 2023 at 9.00 am to proceed electronically by MSTeams Platform.
4.If the applicant wife receives a response from the Country TT Embassy in Australia, as to the attitude of the Country TT government to the taking of evidence by electronic communication between this Court and other parties in Australia and the wife and several witnesses in Country TT, she forthwith provide a copy of her request and any such response to the Court and each other party to the proceedings.
5.The costs of and incidental to these proceedings of the intervener are reserved.
6.My reasons for decision this day be transcribed and, when settled, a copy be placed on the Court file.

Note: The form of the…

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 Wei & Wei

Details

AGLC: Wei & Wei [2023] FedCFamC1F 631
Case: [2023] FedCFamC1F 631
Decision Date

CaseChat Overview and Summary

This case, Wei & Wei, involves a financial dispute between a husband and wife, heard in the Federal Circuit and Family Court of Australia. The wife, currently residing in Country TT, has been unable to secure a visa to enter Australia and seeks to give evidence via electronic means. However, the Court noted that the wife had not provided evidence of appropriate inquiries made to determine the attitude of the Country TT government regarding electronic evidence, as required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Additionally, both parties have been acting poorly in court, bickering and arguing directly with one another rather than addressing the court, making it difficult for the matter to proceed in an orderly manner.

The legal issues the court was required to decide were whether the wife could give evidence from Country TT by electronic means and if the matter could proceed to a final hearing given the current circumstances. The court found that the wife had not provided sufficient evidence to determine if the Country TT government would allow for electronic evidence to be taken and that the behaviour of both parties in court made it difficult for the matter to proceed as a final hearing. Therefore, the court decided to adjourn the final hearing and list the matter for directions at a later date.

In conclusion, the court ordered the wife's details for the address for service to be noted in the records of the court as her address in Country TT, vacated the final hearing set for that day, and adjourned the final hearing to a date to be fixed, listing the matter for directions for November 16, 2023. The wife was instructed to provide any response from the Country TT Embassy in Australia regarding the attitude of the Country TT government to the taking of evidence by electronic communication. The costs of and incidental to these proceedings of the intervener were reserved.

Orders