Wei & Wei (No 2)
[2023] FedCFamC1F 996
•16 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wei & Wei (No 2) [2023] FedCFamC1F 996
File number(s): MLC 530 of 2017 Judgment of: BENNETT J Date of judgment: 16 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – where matter is unsatisfactorily prepared – where application made for applicant to attend final hearing electronically – where both parties require interpreters – where interpreter for the applicant was not able to provide simultaneous interpretation which delayed proceedings - where both parties are unrepresented – where final hearing of the matter cannot proceed reasonably or fairly by electronic means Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 16 November 2023 Place: Melbourne via MS Teams Counsel for the Applicant: Litigant in person Counsel for the Respondent: Litigant in person Solicitor for the Intervener: Mr AC (AD Lawyers) ORDERS
MLC 530 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WEI
Applicant
AND: MR WEI
Respondent
AD LAWYERS
Intervener
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1.This matter be fixed for a final hearing before me in person on 22 July 2024 estimated to take 5 days (“the final hearing”).
2.The final hearing proceed as a fully attended hearing with parties and witnesses being physically in attendance at the Melbourne Registry.
3.This matter be listed for case management hearing by Microsoft Teams before me on 17 April 2024 at 9.00am for the purpose of making directions for trial.
4.Any party wishing to make application or adduce evidence on 17 April 2024 file and serve any such application or evidence by no later than 17 March 2024 and any respondent file and serve a response and his/her evidence by 5 April 2024.
5.The question of the costs be reserved.
6.Any party requiring an interpreter on 17 April 2024 make arrangements with the Court and ensure that interpretation can be simultaneous and through a separate telephone line.
7.The Registrar of the Court enquire of the Victorian Bar Pro Bono Scheme how the applicant wife may make application for pro bono assistance.
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).
REASONS FOR JUDGMENT
EX-TEMPOREBENNETT J:
This matter comes to me for mention following the hearing on 26 June 2023. These reasons should be read together with my reasons of 26 June 2023.
The matter is still unsatisfactorily prepared. However, I take the view that it is now time the matter be set down for final hearing come what may.
Today, both the husband and the wife appeared in person each with the assistance of an interpreter. The husband’s interpreter was appropriately linked to the husband by a separate line used for the Microsoft Teams call, so that interpretation could be simultaneous and silent to the court. The mother’s interpreter was not linked to the wife by a separate line, which meant that she was required to interpret simultaneously, which interrupts the proceedings and prolongs them by at least 100 per cent.
The wife claims that she cannot enter Australia to give evidence in the proceeding and has not obtained permission from the Country TT government to give evidence electronically.
Today, the wife filed but did not apparently serve an affidavit by her former solicitor, Mr ZZ. In that affidavit, the solicitor deposes to having made contact with the Country AB government and contact with the Country YY government in relation to the ability of his client to enter Country YY and Country AB for the purpose of giving evidence. It is deposed that in early 2021, a visitor’s visa was applied for the applicant to enter Australia but that that was refused. Reference to exhibit “[ZZ2]” leaves me with the impression that a visa application was denied. However, the visa sought was a subclass 600 visa in the visitor’s visa class. The reason for the visa was to permit the wife to attend Court. However, instead, the wife applied for a visa for which the prerequisite was an intention to visit Australia to engage in business visitor activity. It was found, unsurprisingly, that attendance at Court did not constitute a business visitor activity and that no further information was given in support of the application. Moreover, the Family Court hearing was specified to be from 9 June 2021 to 11 June 2021. The visitor’s visa was not applied for until early 2021. It was not refused until mid-2022. But as the Department of Home Affairs notes, the time for the Court hearing had already passed by the time the visa was considered and refused.
It is elementary that the wife seek the correct visa and ask the correct questions in order to obtain helpful answers. Today, through the interpreter, the wife said that she did not have the means or ability to travel to Australia to attend the hearing. However, the affidavit by her solicitor says that, as recently as May 2023, correspondence was again sent to the Country AB government, asking if the wife could enter Country AB and give evidence from there. Presumably the wife had the means and ability to get to Country AB. Otherwise, she would not have caused the enquiry to be made. The wife says that she did not want to attend in Australia because, “due to our domestic violence history, I don’t want to confront the…husband.”
I observe that the parties continue to bicker with each other rather than address the Court. I continue to have serious reservations about an electronic hearing, even as to one party. This adjournment permits the wife one last opportunity to obtain a visa for entry into Australia and to be in a position to prove what she has done.
I will make trial directions on 17 April. By that stage, the wife should have up to date and relevant evidence before the Court, appropriately translated, which establishes that she has made proper inquiries which establish her ability to enter Australia for the purpose of these proceedings.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 16 November 2023
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