Wei & Xia (No 2) - [2022] FedCFamC1F 189

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wei & Xia (No 2) [2022] FedCFamC1F 189

File number(s): SYC 196 of 2017

Judgment of: HARPER J

Date of judgment: 25 March 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by Second and Third Respondents to give evidence by video link – Where hearing is complex – Where final hearing has been adjourned from 2020 – Second and Third Respondents raise issues of their age and health issues – Where there has not been a change in circumstances since the final hearing was adjourned – Application refused.

Legislation:
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68, 69

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 15.16

Division: Division 1 First Instance

Number of paragraphs: 19

Date of last submission/s: 18 March 2022

Date of hearing: On the papers

Place: Sydney

Solicitor for the Applicant: Broaden Legal

The First Respondent: Litigant 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:

25 MARCH 2022

THE COURT ORDERS THAT:
1.The application of the Second and Third Respondents to appear to give their evidence electronically at the resumed final hearing, commencing 28 March 2022, 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 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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:

In these proceedings, there have been several applications made regarding a subpoena and an application by the Second and Third Respondents to give their evidence by electronic means. This judgment deals only with the latter application.
The proceedings have an unfortunate procedural history, in the sense that they have already been conducted over a period of some ten days in October 2020, but were adjourned part heard.
In part, the adjournment was brought about by practical difficulties which arose in the course of the hearing by reason of the fact that, although he was represented by counsel, the First Respondent Husband…

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 (No 2)

Details

AGLC: Wei & Xia (No 2) [2022] FedCFamC1F 189
Case: [2022] FedCFamC1F 189
Decision Date

CaseChat Overview and Summary

In the case of Wei & Xia (No 2), the Second and Third Respondents sought to give evidence by video link at the resumed final hearing of proceedings concerning the distribution of assets following the breakdown of a marriage. The applicants were the husband and his parents, who sought to avoid the need to travel from Melbourne to Sydney for the purpose of giving evidence. The wife opposed the application on the basis that the Respondents' health issues were not new and did not constitute a sufficient reason to permit the application. The Federal Circuit and Family Court of Australia was required to determine whether the application by the Second and Third Respondents to give evidence by electronic means should be granted. The Court considered whether the application was in accordance with the relevant rules and whether there were any special circumstances that warranted permitting the Respondents to give evidence electronically.

The Court held that the application should be refused. The Respondents had not demonstrated that there had been a change in their circumstances since the final hearing was adjourned in June 2021, when it was determined that Microsoft Teams was not an appropriate platform for the proceedings. The Court also noted that the Respondents were fundamental parties to the proceedings, and their cross-examination was likely to be complex, involving a significant volume of documentary evidence. The Court found that the Respondents' medical conditions, while acknowledged, were not of recent origin and did not constitute a sufficient reason to permit the application. The Court emphasised the importance of procedural fairness and the efficient completion of the trial, and it was most consistent with both for all parties to be present to give their evidence.

The Court's decision was based on a balance of the relevant considerations, including the complexity of the proceedings, the volume of evidence, and the importance of procedural fairness. The Court concluded that the application should be refused, and the Respondents were required to give their evidence in person in Sydney. However, the Court noted that it was open to the Respondents to participate in the trial as observers by electronic means once they had given their evidence.

In summary, the Court refused the application by the Second and Third Respondents to give evidence by electronic means, finding that there had not been a sufficient change in circumstances since the final hearing was adjourned, and that the nature of the proceedings made it necessary for all parties to be present to give their evidence. The Court's decision was based on a balance of the relevant considerations, including the complexity of the proceedings, the volume of evidence, and the importance of procedural fairness.

Orders