Wei & Xia (No. 2)

[2021] FamCA 313

FAMILY COURT OF AUSTRALIA

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

File number(s):

SYC 196 of 2017

Judgment of:

HARPER J

Date of judgment:

18 May 2021

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Where the matter is presently part-heard before a Judge – Where there were substantial difficulties in the first tranche of the proceedings regarding husband giving evidence by electronic communication from China – Where the husband presently resides in China – Where husband holds Residence Permit for work in China which expires in November 2023 - Where orders were made at the conclusion of the first tranche of the proceedings for the husband to attend the remaining hearing days in person - Where the husband has since filed a Request to Attend the remaining hearing days by electronic means – Where the husband argues that he may be prevented re-entry to China following the conclusion of the final hearing – Where Court is satisfied husband can return to China – The request for electronic communication is refused.   

Legislation:

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth), rr 12.11, 12.13, 16.05, 16.06, 16.07

Number of paragraphs:

29

Date of hearing:

17 May 2021

Place:

Sydney

Solicitor for the Applicant:

Mr Li

Solicitor for the First Respondent:

Ms Leung

ORDERS

SYC 196 of 2017

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:	18 MAY 2021

THE COURT ORDERS THAT:

1.The request of the First Respondent Husband to attend the final hearing commencing on 28 June 2021 by electronic communication be refused.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wei & Xia has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HARPER J:

INTRODUCTION

1. This matter is part heard.  A trial took place in October 2020 over a two week period.  The parties attempted to resolve the dispute during the trial; they were unsuccessful. The trial did not complete in the allocated time and had to be adjourned part heard.

2. The issues in the proceedings are reasonably complex.  They include allegations by Ms Wei (“the wife”) that properties held by Mr B Xia and Ms Siang (“the second and third respondents”) are held in trust for Mr Xia (“the husband”). She alleges non-disclosure and lack of compliance by the other parties. She also seeks orders that a number of transactions between the other parties be set aside because they were designed to undermine her application for property orders.

3. During procedural hearings prior to the commencement of the trial, Senior Counsel for the wife made clear that she would be contending that adverse credit findings should be made against the husband.  Accordingly, the assessment of the husband as a witness in cross-examination would be particularly important.

4. The husband was nonetheless given leave to appear at the trial from China using Microsoft Teams.  It became apparent during the course of the final hearing that the use of electronic means for the husband to give his evidence was very unsatisfactory.  For example, the connection between China and Australia frequently broke down, and at times it was difficult to see the husband, or statements in Court had to be repeated.  The complications created by these issues were exacerbated by the fact that the husband required an interpreter expert in the Mandarin language and all the oral evidence, submissions and discussions between bench and bar table had to be interpreted.  The interpreter was not located with the husband in China, but was present in Australia and consequently at times was unable to interpret efficiently because of a poor electronic connection.

5. There were additional problems created or likely to arise by the fact that the evidence in the proceedings, according to the parties, required the Court to receive in evidence thousands of pages of documentary material.  It seems clear much of this material will form the basis of cross-examination of the husband, as well as other parties.  There was an obvious issue of great practical importance in that putting numerous documents to the husband in cross-examination, when he eventually came to give his evidence whilst in China, would potentially be afflicted by a disrupted process, delay and potential confusion.

6. By reason of these difficulties, on 20 October 2020 at the point where the final hearing was adjourned part heard, after hearing from the parties, I made the following order:

   5.        The First Respondent be present in person when the hearing resumes.

7. I note that at the point in time when this order was made, the husband did not oppose it, although the possibility of a future request to attend by electronic communication was not ruled out.  On 19 October 2020 I had also ordered the parties to produce a proposed joint trial plan for the balance of the proceedings.  The joint trial plan produced in accordance with this order assumed the husband would be present in person at the resumed hearing.

8. The proceedings were then listed to resume on 28 June 2021 with an estimate of further hearing time of 10 days.  This estimate was based, in part, on the joint trial plan.

9. On 21 April 2021, the husband filed a request to attend by electronic communication, seeking to give evidence from China by electronic communication.  He filed an affidavit in support on 9 May 2021.

10. The matter came before me on 10 May 2021 for mention.  On that occasion I granted leave to the wife to file and serve any affidavit material upon which she proposed to rely in relation to the husband's application to attend by electronic means.

11. In accordance with that leave, the wife filed an affidavit sworn by herself, an affidavit of a registered migration agent, Ms AA, and an affidavit of a solicitor, Ms BB, experienced in assisting Chinese and Australian nationals in migration matters.  All of these affidavits were sworn and filed on 14 May 2021.

    DISCUSSION OF THE EVIDENCE AVAILBLE TO THE COURT

12. The Family Law Rules 2004 (Cth) disclose a clear predisposition for parties to attend in person at Court events. Rule 12.11 provides that a party must attend “each procedural hearing, case assessment conference or conciliation conference” (Rule 12.11(1)).  Non-attendance by a respondent may result in orders being made, including dismissal or hearing on an undefended basis (Rule 12.13(2)).  Rule 16.07(1) provides that “[e]ach party to an application set down for hearing on the first day before the Judge must attend in person”.  Nonetheless, Rule 16.05 clearly permits a party to apply to attend by electronic communication.  This is a dispensation which lies in the discretion of the Court.  The onus lies on the party making such request to persuade the Court that the discretion should be exercised in his favour.

13. I note that Rule 16.05(3) requires the party seeking to attend by electronic communication to file an affidavit which, among other things, sets out the kind of electronic communication to be used, the place from which evidence will be given, the facilities at that location, and whether the other parties object.  It is also necessary for the applicant to address the matters in Rule 16.06(1) which include, where evidence is to be given electronically from a foreign country, including China, whether permission is needed from government of the foreign country.

14. It is clear from the husband's evidence that he does not contend there would be any difficulty for him leaving China and travelling to Australia for the purpose of the resumed hearing.  His primary argument is that he would be unable, potentially, to re-enter China when the trial was finished and he therefore faces the prospect of being separated from his family.

15. The husband is an Australian citizen.  There was no dispute that he currently lives and works in China.  He lives there with his family.  He has a wife and two young children in China and he has been resident in that country since 1 February 2020.  There was also no dispute that, although he is a foreign national, he lives in China on the basis of a Residence Permit No … which is valid until 12 November 2023 and which issued on 20 November 2018.  His Residence Permit specifies that the “Purpose of Residence” in China is "Work" (husband’s affidavit filed 9 May 2021, Annexure “A”).

16. The husband relied upon two announcements made by the Chinese Ministry of Foreign Affairs and the National Immigration Administration of China in 2020 during the height of the Covid-19 pandemic.  The first was a notice dated 26 March 2020 in which the Ministry of Foreign Affairs announced the temporary suspension of entry to China by foreign nationals holding either a Visa or Residence Permit which was valid as at the date of the announcement, that is, 26 March 2020, but only effective from 28 March 2020 (husband’s affidavit filed 9 May 2021, Annexure “B”).  The second announcement was dated 23 September 2020.  This announcement was also made jointly by the Ministry of Foreign Affairs and the National Immigration Administration.  This announcement varied the announcement of 26 March 2020 by stipulating that foreign nationals holding a valid residence permit for work could re-enter China after 28 September 2020 (affidavit of Ms AA filed 14 May 2021, Annexure “C”).  There was no evidence that the second announcement has been revoked or varied in any way.

17. The Consulate General of the People's Republic of China in Sydney posted on their English language website a series of answers to questions concerning the announcement of 23 September 2020 (husband’s affidavit filed 9 May 2021, Annexure “C”).  The husband relied on these questions and answers.

18. Question 1 and the relevant part of its answer are as follows:

    1. Question: How do the announcements of the Ministry of Foreign Affairs and the National Immigration Administration allow foreigners with three types of valid residence permits to enter the country?

    Answer: On September 23, 2020, the Ministry of Foreign Affairs and the National Immigration Administration jointly issued an announcement on the "Regarding the Temporary Suspension of Foreigners Holding Valid Chinese Visas and Residence Permits" jointly issued by the Ministry of Foreign Affairs and the National Immigration Administration on March 26, 2020. Some measures of the "Announcement of Entry" are adjusted as follows:

    Starting At 0:00 on September 28, 2020, foreigners who hold valid Chinese residence permits for work, private affairs and clusters are allowed to enter, and relevant personnel do not need to reapply for visas. If the above three types of residence permits held by foreigners expire after 0:00 on March 28, 2020, the holders can apply to the Chinese diplomatic missions abroad with the expired residence permits and relevant materials provided that the reason for coming to China remains unchanged.

19. It can be seen that the answer to this question appears to make clear that, after 28 September 2020, a foreign national such as the husband, who holds a valid Residence Permit for work is allowed to enter and need not reapply for a Visa.  As already pointed out, the husband's Residence Permit specifically referred to the basis of his residence in China as "Work", and it remains valid until 12 November 2023.  Accordingly, this suggests the husband would have no difficulty returning to China from Australia after the hearing conducted in late June and early July 2021.

20. However, the husband argues this is not correct as a result of a later Question included in Annexure C of his affidavit of 9 May 2021.  Question 3 and its answer is in the following terms:

    3. Can I enter China with a valid foreigner's residence permit?

    Answer: No. According to the announcement on September 23, from 0:00 on September 28, foreigners with valid work, personal affairs or group residence permits are allowed to enter, and relevant personnel do not need to reapply for visas.

21. The husband emphasised that the answer to question 3 begins with an unequivocal "No".  That much is true.  But it seems to me that the balance of the answer clearly picks up part of the answer to Question 1 and makes clear that his valid Work Residence Permit would allow the husband to re-enter China.

22. In my view this conclusion is supported by the evidence filed by the wife.  She gives evidence of a telephone enquiry made by her to the Chinese Visa Application Service Centre on 14 May 2021.  In that telephone call, the wife spoke to a person named "Ms CC".  The wife asked in the conversation about a person entering China if they had a Residence Permit for the purpose of work which was due to expire in 2023.  "Ms CC" responded by saying, "[t]here is no need to apply for a new Visa then.  The permit holder can enter China with the valid permit" (wife’s affidavit filed 14 May 2021, pg. 4-5 [17]).

23. The husband also made reference to potential difficulties for him if he made an application for a Visa to re-enter China, however it seems to me that this is an irrelevant consideration in light of his valid Residence Permit for work.  As a simple matter of construing the answers to Questions 1 and 3 above this seems correct.  The wife’s evidence also supports this view.  Ms AA, the registered migration agent, who has more than 20 years of experience in migration matters between Australia and China, made reference to the husband's Residence Permit for "Work" and the announcements of 26 March 2020 and 23 September 2020.  Ms AA expressed the view that the husband would have little difficulty returning to China on the basis of his Residence Permit.  The evidence of Ms BB was also to the effect that the husband was entitled to re-enter China on the basis of his Residence Permit without having to apply for a Chinese Visa.

24. When the matter returned to Court on 17 May 2021, the wife tendered a printout of the current advice of the Australian government concerning travel from Australia.  This became Exhibit 1.  The husband accepted that this information demonstrated that, because he has been predominantly living in China continuously, there was no existing restriction in place by an Australian government which would hinder or prevent him returning to China at the conclusion of the resumed hearing.

25. In oral submissions on 17 May 2021, the husband’s solicitor made submissions to the effect that for the purposes of the resumed hearing he would have the benefit of greatly improved internet connections and data speeds, up to 10 times faster than Australia’s NBN.  But this submission was not supported by any evidence nor was it explained how these factors, if true, would necessarily solve the technical problems experienced during the first tranche of the trial. There was no evidence of the place from which his evidence would be given, the facilities or how he would ensure the other parties could see and hear the husband.  As noted above, Rule 16.05(3) requires evidence of such matters to be set forth in an affidavit of the applicant.

26. The husband’s solicitor also argued that he had all the relevant documents in his iPad and would have no trouble accessing them during cross-examination.  There was again no evidence of this.  I am unable to be satisfied that the potential problems of putting large numbers of documents to the husband will be avoided in this way.

27. The husband also argued that he was at risk of contracting Covid-19 whilst quarantining in Australia.  He argued that if this happened then he would inevitably be required to give his evidence by electronic means anyway.  That may be so, but if that eventuality came to pass, the husband would at least be giving evidence from another location in Sydney rather than from China, which may enable to Court to make orders or directions which have a greater chance of ameliorating technical problems.  In any event this scenario is too contingent in my view to constitute a sufficient reason for the husband to be permitted to remain in China and give his evidence electronically from that country.

    CONCLUSION

28. I am not satisfied that the husband has demonstrated any sufficiently clear reason why he cannot travel to Australia for the purpose of giving his evidence at the resumed hearing in person.  I am not satisfied that he has demonstrated there is a real risk that he would be unable to re-enter China at the conclusion of the resumed hearing.  On the evidence I am not satisfied the many technical difficulties experienced in the first tranche of the trial will be overcome, and if they are not, the trial may not be completed in the time allocated.  The physical presence of the husband at the trial will avoid any such problem.  It will also avoid or at least attenuate the obvious problems in the process of putting numerous documents to him in cross-examination.

29. Accordingly I propose to decline his application to give evidence by electronic communication.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.

Associate:

Dated:       18 May 2021