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).
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 the pseudonym Wei & Xia is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
The matter was listed before me on 9 March 2022 by reason of the first respondent husband filing a request to appear electronically at the resumption of a part heard hearing on 28 March 2022.
The respondent husband lives in China.
This matter has a long history. It is part heard after a lengthy trial in 2020. A resumption of the part heard hearing on 28 June 2021 was vacated, by reason of a sudden lockdown of the Court building, by reason of the Covid-19 pandemic.
The part heard trial is listed to recommence on 28 March 2022 with an estimate of 10 days.
The respondent husband has made previous applications to attend electronically.
I delivered a judgment on 18 May 2021 refusing such leave in respect of the then listed part heard hearing on 28 June 2021. It is unnecessary for me to repeat, for the purposes of this judgment, the reasons why I refused leave, but I rely upon them as set out in the judgment of Wei & Xia (No. 2) [2021] FamCA 313.
As events transpired, the respondent husband’s application was overtaken by the sudden lockdown of the Court building and as already noted, the part heard hearing listed on 28 June 2021 did not take place.
In support of his most recent application to attend electronically, the respondent husband points to three reasons.
The first reason is that he is a diabetic and if he contracts the Omicron variant of Covid 19, he will be placed in a dire medical situation.
Secondly, the respondent husband contends that getting flights, at least from Australia back to China, will be difficult as China has grounded several airlines making the obtaining of tickets very difficult.
The third reason the respondent husband puts forward, is that he has two young children to look after and it would be more convenient for him to be present at the trial electronically.
The respondent husband confirmed that he proposes to represent himself at the resumed trial on 28 March 2022.
One of the powerful reasons for refusing the respondent husband’s earlier application to appear electronically was that the experience at the first tranche of the trial demonstrated that in circumstances where there are a very large volume of documents and the respondent husband require the services of an interpreter, the process of cross-examination would be hampered to a significant degree if the respondent husband was not present personally in Court to be cross examined.
There was also a question of fairness to the applicant wife who had been in the witness box for some five days in the first tranche of the trial.
I have given consideration to the respondent husband’s medical situation, but it is significant in my view, that he confirmed before me today that he suffered diabetes when he made his application in May 2021 to appear electronically, but did not mention that fact as any reason not to travel to Australia at that time. It is unclear why it was not a reason in 2021 but has become a reason in 2022.
The respondent husband also submitted that these proceedings had been in this court for a long time and that it was his hope, and, he was sure, the hope of the other parties, that the case should finish as soon as possible.
That is a sentiment with which I can only whole heartedly agree but it is also a factor which in my view, militates in favour of declining his application to appear electronically.
The difficulties of conducting a trial where the issues require consideration of complex factual matters, using the Microsoft Teams platform, were evident in the first tranche of the trial. Experience in the last two years has confirmed the deficiencies of the Microsoft Teams platform in relation to hearings of any complexity.
Whilst I do not discount the problems that the respondent husband may well face in travelling to Australia, I am not persuaded that his application to appear electronically is justified for the reasons he puts forward and accordingly, I order that it be declined.
There are two further applications before me.
One of the applications is by the second and third respondents also to appear electronically, noting that they do not live in China but in the state of Victoria, but they contend that they are elderly and suffering serious medical problems.
The second application is an application to set aside a subpoena issued by the applicant wife to the solicitors of the second and third respondents for production of what appears to constitute the majority of the file. The applicant wife issued the subpoena for production as she alleges there has been a waiver of privilege.
After hearing submissions from counsel for the parties, I am satisfied that both applications would be most effectively and expeditiously dealt with by written submissions and in chambers, bearing in mind the proximity of the presumed hearing date on 28 March 2022.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 9 March 2022
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