Wei & Xia - [2022] FedCFamC1F 136

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wei & Xia [2022] FedCFamC1F 136

File number(s): SYC 196 of 2017

Judgment of: HARPER J

Date of judgment: 9 March 2022

Catchwords: FAMILY LAW – PROPERTY – Where the respondent husband requests to appear at the resumed final hearing by electronic means – Where the respondent husband lives in China – Where a resumed hearing was previously vacated in 2021 by reason of lockdowns caused by the Covid-19 pandemic – Where there have been previous applications to appear via electronic means – Where previous applications refused because of the complexity of the issues and volume of documentary evidence – When the respondent husband’s application to appear via electronic communications is refused – Questions of costs reserved.

Cases cited: Wei & Xia (No. 2) [2021] FamCA 313

Division: Division 1 First Instance

Number of paragraphs: 23

Date of hearing: 9 March 2022

Place: Sydney

Counsel for the Applicant: Mr Cummings SC

Solicitor for the Applicant: Broaden Legal

The Respondent: In person

Counsel for the Second and Third Respondents: Mr Reynolds

Solicitor for the Second and Third Respondents: MLH Lawyers
ORDERS

SYC 196 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS WEI

Applicant

AND:
MR XIA

First Respondent

MR B XIA

Second Respondent

MS SIANG

Third Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

9 MARCH 2022

THE COURT ORDERS THAT:
1.The application of the first respondent to appear self represented electronically from China at the resumed final hearing commencing on 28 March 2022 is refused.
2.By no later than 4.00pm on 17 March 2022, the second and third respondents take all necessary steps, including the provision of any necessary authority, to make available to the solicitors for the applicant copies of the clinical notes of Dr DD of EE Medical Centre, referred to by the second and third respondents in their application to appear at the resumed hearing electronically filed 8 March 2022.
3.By no later than 4.00pm on 18 March 2022, the parties exchange written submissions setting out the following succinctly, but in detail:
2.1 Their contentions regarding the reasons for or against permitting the second and third respondents to appear at the resumed final hearing electronically; and
2.2 In relation to the subpoena issued by the applicant wife to the second and third respondent solicitors, the resistance of the second and third respondents to producing any documents thereto including contentions by both parties regarding waiver of privilege.

THE COURT NOTES THAT:
A.All questions as to costs are reserved.

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).

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 & Xia

Details

AGLC: Wei & Xia [2022] FedCFamC1F 136
Case: [2022] FedCFamC1F 136
Decision Date

CaseChat Overview and Summary

The case of Wei & Xia involved a dispute between Ms Wei, the applicant, and Mr Xia, the first respondent. The matter was before the Federal Circuit and Family Court of Australia (Division 1) with Harper J presiding. The central issue was whether the first respondent should be allowed to appear electronically from China for the resumed final hearing. The applicant contested this application, which was previously denied due to the complexity of the issues and the volume of documentary evidence. The respondent husband cited his diabetes, difficulties in obtaining flights, and the need to care for his children as reasons for his request. However, the court was not convinced by these arguments and declined his application, citing the challenges of conducting a complex trial electronically and the need for fairness to the applicant.

In addition to the first respondent's application, the second and third respondents also sought permission to appear electronically from Victoria, citing their age and medical conditions. The second and third respondents also applied to set aside a subpoena issued by the applicant to their solicitors for the production of certain documents, claiming privilege had been waived. The court decided that these applications would be most effectively dealt with through written submissions and in chambers due to the proximity of the hearing date. The court also ordered the second and third respondents to provide necessary clinical notes to the applicant's solicitors and set deadlines for the exchange of written submissions on the applications.

The final orders of the court were that the first respondent's application to appear electronically was refused. The second and third respondents were directed to provide clinical notes to the applicant's solicitors by a specified deadline, and both parties were required to exchange written submissions on the remaining applications by another deadline. The court reserved all questions as to costs.

Orders