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 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 Wei & Wei has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex tempore

BENNETT J:

1. This matter is on remittal from an appeal of a financial decision in 2019. Today is the commencement of the final hearing which was estimated to require five days. 

2. The wife appears electrically on the courts’ MSTeams platform. She is in Country TT.  She has recently terminated the services of her Australian lawyers and she has provided an address for service and an email address and a telephone number in Country TT. I have recorded those as her address for service for the time being, pending further or other order of the court or the filing of notice of address for service which nominates Australian practitioners. 

3. The husband appears in person. 

4. Mr XX appears for a named firm of solicitors who claims that the wife owes some $88,000.  I understand that there is agreement that the wife owes the sum of $88,000.  The intervener would be prepared to take that from monies that they have in trust and then put the balance elsewhere, or presumably, continue to act as a stakeholder of it, but the husband does not agree, and says that the wife would not ultimately be entitled to an alteration of property interests in Australia, the equivalent of $88,000 in cash.

5. Mr XX has outlined for me in broad terms that there is $170,000 held in trust by the solicitors.  A business valuation obtained last Friday puts the husband’s net equity in the business at a value of $90,000, although the actual business itself has a negative value.  I have not seen the valuation.  If the business has a negative value, there would need to be assets, either cash at bank or plant and equipment or debtors that would realise that amount. 

6. Mr XX’s description of the assets was that each party claims significant add-backs against the other.  I have tried to explain to the parties, who are both self-represented, that add-backs do not constitute property.  Add-backs are a calculation made in relation to property which the court may ultimately be satisfied has been used wantonly or recklessly, or has been a premature distribution of property or represent paid legal costs.

7. If an add-back is found to be valid, it must be adjusted against property.  If there is no property against which to adjust an add-back, the add-back is of no use. 

8. There are two impediments to this matter proceeding as a final hearing. 

9. The first concerns the wife’s attendance at court. The wife says that she cannot get a visa to enter Australia and, accordingly, she wants to attend by electronic communication. However, I do not have evidence of what steps have been taken by the wife to allow her to give evidence from Country TT.  The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) provide, inter alia, as follows:

   15.16   Attendance by electronic communication

   (1)A party may request permission to do any of the following things by electronic communication at a court event:

   (a)       attend;

   (b)       make a submission;

   (c)       give evidence;

   (d)       adduce evidence from a witness.

   (2)Before making a request, the party must ask any other party whether the other party agrees, or objects, to the use of electronic communication for the purpose proposed by the party.

   (3)      A request must:

   (a)       be in writing; and

   (b)be made at least 5 business days before the date fixed for the court event, or if the court event is a trial, at least 28 days before the date fixed for the trial to start; and

   (c)       set out the facts relied on in support of the request; and

   (d)set out details of the notice in relation to the request that has been given to any other party; and

   (e)       state whether any other party agrees or objects to the request; and

   (f)state the expense to be incurred by using the electronic communication.

   Note:Requests made after the relevant date set out in paragraph (3)(b) above may not be considered.

   (4)      The facts referred to in paragraph (3)(c) above must include the following:

   (a)what the party seeks permission to do by electronic communication;

   (b)the kind of electronic communication to be used;

   (c)if the party proposes to give evidence, make a submission or adduce evidence from a witness by electronic communication—the place from which the party proposes to give or adduce the evidence, or make the submission;

   (d)the facilities at the place referred to in paragraph (4)(c) that will enable all eligible persons present in that place to see or hear each eligible person in the place where the court is sitting;

   (e)if the party seeks to adduce evidence from a witness by electronic communication:

   (i)whether an affidavit by the witness has been filed; and

   (ii)whether the party seeks permission for the witness to give oral evidence; and

   (iii)the relevance of the evidence to the issues; and

   (iv)whether the witness is an expert witness; and

   (v)the name, address and occupation of any person who is to be present when the evidence is given, unless disclosing this address would compromise the person’s safety; and

   (vi)if the party proposes to refer the witness to a document—whether the document has been filed and whether the witness will have a copy of the document; and

   (vii)whether an interpreter is required and, if so, what arrangements are to be made;

   (f)the expense of using the electronic communication, including any expense to the court, and the party’s proposals for paying those expenses;

   (g)whether the other parties object to the use of electronic communication for the purpose specified in the request and, if so, the reason for the objection;

   (h)if the request relates to evidence to be adduced from a witness in a foreign country (as defined by subrule 15.17(2))—the matters required to be addressed under rule 15.17;

   (i)if the request relates to a remote appearance from New Zealand—the matters required to be addressed under Division 2 of Part 6 of the Trans‑Tasman Proceedings Act 2010.

   (5)A request may be considered in chambers, on the documents.

   (6)The court may take the following matters into account when considering a request:

   (a)the distance between the party’s residence and the place where the court is to sit;

   (b)any difficulty the party has in attending because of illness or disability;

   (c)the expense associated with attending;

   (d)the expense to be incurred, or the savings to be made, by using the electronic communication;

   (e)any concerns about security, including family violence and intimidation;

   (f)whether any other party objects to the request;

   (g)the nature of the hearing.

   (7)      If the court grants the request, the court may:

   (a)order a party to pay the expense of using the electronic communication; or

   (b)apportion the expense between the parties.

   (8)If a request is granted, the party who made the request must immediately give written notice to the other parties.

   15.17   Foreign evidence by electronic communication

   (1)In addition to the requirements of rule 15.16, a party who proposes to adduce evidence by electronic communication from a witness in a foreign country must satisfy the court:

   (a)that the party has made appropriate inquiries to determine the attitude of the foreign country’s government to the taking of evidence by electronic communication; and

   (b)whether permission is needed from the foreign country’s government to adduce evidence from a witness in that country by electronic communication; and

   (c)if permission is needed—whether permission has been granted or refused; and

   (d)if permission has been refused—the reason for refusal; and

   (e)whether there are any special requirements for adducing evidence, including:

   (i)        the administration of an oath; and

   (ii)       the form of the oath.

   (2)      In this rule and in paragraph 15.16(4)(h):

   foreign country means a country other than Canada, New Zealand, the United Kingdom or the United States of America.

   Note 1:A party seeking to adduce evidence from a witness in Canada, New Zealand, the United Kingdom or the United States of America does not have to comply with subrule (1) because these countries do not object to the taking of evidence by electronic communication.

   Note 2:The court, instead of granting permission for a party to adduce evidence by electronic communication from a witness in a foreign country, may direct the Registry Manager to send a letter of request to the judicial authorities in the foreign country, requesting the court to take evidence from the witness in accordance with the law of the foreign country. For the requirements for a letter of request to the judicial authorities of a foreign country, see rule 8.07.

10. In this case, all parties said that the trial should be fully attended, not electronic, and I previously made an order to that effect.

11. I have today distributed to the parties an extract of an authority from the United Kingdom in the following terms:

    In Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 286 (IAC), concerning the procedure to be followed when a party to a case wishes to rely upon oral evidence given by video or telephone by a person (including the party themselves) who is abroad i.e. in the territory of a Nation State other than the United Kingdom.

    If a party or any of their witnesses intend to give evidence from somewhere that is not in the United Kingdom, meaning that they are outside the jurisdiction of the Tribunal, case law now provides that they must prove to the Tribunal that there is no legal or diplomatic barrier to the Tribunal taking that evidence from them, from the country or state in which they are located.

    In Agbabiaka, the principle was stated as follows:

    There has long been an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so. Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country's diplomatic relations with other States and is, thus, contrary to the public interest…Whenever the issue arises in a tribunal about the taking of evidence from outside the United Kingdom … what the Tribunal needs to know is whether it may take such evidence without damaging the United Kingdom's diplomatic relationship with the other country… it is not for this (or any other) tribunal to form its own view of what may, or may not, damage the United Kingdom's relations with a foreign State.

12. The wife says that an approach was made by her former solicitors to the Country TT Consulate or Embassy in Australia, asking if the wife could give evidence from Country TT.  However, there is no evidence of that having occurred.  The affidavit upon which the wife either relies today or which was sent by one party in support of today’s position is an affidavit from 2021. At that stage the wife had made an approach to the Region WW government and also to the Country YY government to be able to give evidence in Region WW or Country YY. 

13. Notably, the wife’s affidavit material does not describe that she “has made appropriate enquires to determine the attitude of the [Country TT] government to the taking of evidence by electronic means” as required by r 15.17(1) of the Rules.

14. I have misgivings about the wife seeking to give evidence from another country (such as Country YY) to circumvent any opposition by the Country TT government to her giving evidence from Country TT. To do so may result in her family facing difficulty upon her return to Country TT, and it is not my intention to put her in that position.  However, there should be some evidence from the wife as to what request has been made to the Country TT Government in Country TT or the Country TT Embassy in Australia.  There is no such evidence.  If and when the wife has such evidence, she should circulate it.

15. The second matter that I think limits the ability of the matter to proceed to a final hearing is that, in the brief mention that I have had today (which has run for nearly an hour) the husband and wife behaved poorly. They were insistent on speaking to one another rather than to the court.  This was in spite of being directed to make submissions to the court. 

16. My impression is that it will not be possible for the parties to present their respectful cases as litigants in person in any ordered or acceptable way. Both of them are of Country TT descent.  Each requires an interpreter to interpret everything that is said in court.  The parties come from a different legal system.  I must take their behaviour in court into account when allocating court time for the final hearing.  There is every indication that this matter will take many days to hear because of both the need for simultaneous translation as well as how each interacts with the other and with the court.

17. I have been advised that our Chief Justice would be prepared to convene a mediation of the matter to try to achieve final resolution.  At the moment, there seems to be a very big shortfall between the add-backs that the parties wish to argue should be taken into account and the amount of property there is to be adjusted against.

18. The intervener and the wife were prepared to attend a mediation with the Chief Justice.  The husband is not prepared to attend a mediation with the Chief Justice.  Therefore, there will be no mediation with the Chief Justice.  The only solution that the husband proffers is that the intervener should be “disqualified” because monies owed to the intervener are “nothing to do with me” or words to that effect.  Furthermore, there are apparently several choses in action or incomplete proceedings and, indeed, alleged property situated outside Australia, namely in Country TT, which one or other of the parties seeks be brought into account.  The entitlements in that regard lack definition and there are no valuations. 

19. I have explained to the parties that I have a number of matters to attend to in other cases.  The fact that they are not ready to proceed today means that they have lost their place in the queue.  The least disruptive course, vis a vis my defended list is to adjourn the final hearing to a date to be fixed and allocate a mention date in November 2023 for the case to be fixed.

20. I note that the parties have been representing themselves and their interpreters are paid for by the court, so I do not imagine they have incurred costs for today.  Neither the husband nor the wife have asked me to deal with costs.  The intervener wants its costs reserved which is appropriate and I will do so.    

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       8 August 2023