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:

1. 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. 

2. 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. 

3. 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 (“the husband”) remained in China and gave some instructions through an interpreter. The Applicant Wife (“the wife”) gave her evidence in person in the witness box over the course of some five days. 

4. The matter was then listed for a resumed hearing on Monday, 28 June 2021. But on the morning of the hearing, the matter was, again, vacated on the basis that a sudden fresh lockdown had been imposed in New South Wales by government direction the previous Friday. It was the common position of senior counsel for the wife and senior counsel for the Second and Third Respondents that, in light of the vast documentary material required to be canvassed in the proceedings and during cross-examination of all parties, it would be wholly inappropriate for the proceedings to continue by way of Microsoft Teams. Since June 2021, the experience of the Court has been that whilst of some general assistance as an electronic platform to conduct hearings, for complicated final hearings Microsoft Teams does manifest a number of deficiencies. 

5. For example, it is often the case that a connection will become broken or fragmented, and it can be difficult to understand what a witness has said. It is obvious that these sorts of difficulties are exacerbated in circumstances where interpreters are necessary, where parties are unable to understand the proceedings because English is not their first language or they have an insufficient facility in English to properly comprehend what is happening without the assistance of an interpreter.

6. When the matter was vacated in June 2021, further orders were made for the Second and Third Respondents to provide affidavit material. That material appears to have been provided, but well outside the time limit set by the Court, to the extent it appears the service of the affidavits was in excess of six months beyond the date upon which they should have been filed and served. This may become a matter about which cross-examination will be conducted at any resumed hearing.

7. The matter was listed on 9 March 2022 for a compliance and case management hearing. The day before, it appears, the Second and Third Respondents raised the question of giving their evidence by electronic means, rather than being present in court. They have made this application pursuant to r 15.16 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Rule 15.16 sets out, in comprehensive terms, what must be addressed by a party requesting permission to attend or give evidence by electronic means, particularly in subrule (3), for example, the request must be made in writing, at least five days before the relevant court event and several other maters which it is unnecessary to set out. 

8. Subrule (6) provides that:

   The court may take the following matters into account when considering a request –

   (a) the distance between the party’s residence and the place where the court is to sit;

   (b) any difficulty the party has in attending because of illness or disability;

   (c) the expense associated with attending;

   (d) the expense to be incurred, or the savings to be made, by using the electronic communication;

   (e) any concerns about security, including family violence and intimidation;

   (f) whether any other party objects to the request;

   (g) the nature of the hearing.

9. In support of their request to give evidence electronically, the Second and Third Respondents point to the following matters. First, that there is an ongoing COVID-19 pandemic in which the Omicron variant and, potentially, the Delta variant are still at large in the Australian community. Secondly, that because they live in Melbourne, they would be compelled to travel to Sydney. Thirdly, that they are elderly, being 71 and 73 respectively, and are, therefore, in a demographic category which is more vulnerable to COVID-19. Fourthly, they presently suffer comorbidities. In the case of the Second Respondent, he, for example, is suffering diabetes and depression, whilst the Third Respondent was diagnosed some years ago with cancer, has a compromised immune system, and suffers an additional problem of pulmonary effusion. 

10. I note here that as part of their argument, the Second and Third Respondents compare their position to that of the husband. The husband has made a number of applications to appear electronically, which have been refused. They distinguish their position because they are older and suffer the health issues just identified. I note that the husband is resident in China.

11. The wife strongly resists the application for the Second and Third Respondents to give evidence electronically. She contends that the medical evidence which has been put forward by the Second and Third Respondents is incomplete and equivocal. She points out that although the Second and Third Respondents do appear to suffer bona fide medical conditions, it is not clear that anything has changed since October 2020, apart from the fact that the Second and Third Respondents are now some 18 months older.  I point out here that the Second and Third Respondents were present at Court for the hearing that took place in October 2020.

12. The wife points out that the medical evidence provided by the Third Respondent indicates that she has been receiving medical treatment in relation to her cancer diagnosis for about four years and that, of itself, it was clearly not a reason preventing her from attending court in October 2020. As to the Second Respondent, the medical evidence indicates that he is suffering from a number of illnesses, but that does not, except to the extent it mentions a problem with travel for a long distance, make clear that the Second Respondent is unable to travel the distance between Melbourne and Sydney, nor does it suggest that his current health conditions arose after October 2020. 

13. The wife also makes the point that, although it appears that there is some evidence that medical issues were given as partial reasons why the affidavits of the Second and Third Respondents were filed six months late, these reasons were not raised as a problem either in preparation of an affidavit or for appearance in person at the resumed trial until very close to the procedural hearing on 9 March 2022. The inference that I am asked to draw is that the health issues to which the Second and Third Respondents point, if sufficiently serious to prevent them preparing their affidavits, should have been raised with the applicant and the Court many months ago and not so close to the resumed hearing date.

14. Whilst I give considerable weight to the Second and Third Respondents’ medical conditions and accept that they are broadly bona fide, I am not persuaded that they are of recent origin so as to significantly change the position from that which appertained in October 2020 when they were able to travel to Sydney. 

15. I also give considerable weight to the fact that their own legal representatives, quite properly, acknowledged in June 2021 that the nature of the proceedings and the volume of the documentary evidence meant that Microsoft Teams was a wholly inappropriate platform. Since the Second and Third Respondents are fundamental parties to the proceedings and fundamental to the proper identification of the asset pool which will ultimately be the subject of the Court’s determination, it seems inevitable for their cross-examination to be conducted in a manner which most efficiently and clearly allows the Court to understand the evidence which, as I have said, is of a complex nature.

16. The Second and Third Respondents, in their submissions, pointed out that the possibility of giving evidence electronically was something the Court had raised in June of 2021. 

17. But, this application has to be determined on its merits as presented to the Court in support of it at the time it is heard. In determining the application, the Court must take account of the broader case management considerations that apply in relation to the hearing which is to take place at the end of March 2022.  One thing that has changed since October 2020 and June 2021 is that the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the new Act”) has come into operation as of 1 September 2021, as have the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Section 67 of the new Act sets forth the overarching purpose which must be promoted and applied by the Court in making its procedural directions. Sections 68 and 69 set out the duties of parties in promoting the overarching purpose.

18. Balancing all these considerations, I have come to the view that I should refuse the request of the Second and Third Respondents to give their evidence electronically. In my view, on balance, insufficient reason has been shown why they cannot travel from Melbourne to Sydney for the purpose of doing so. It is open to them, once having given their evidence, to continue to participate in trial as observers by electronic means if they wish, and at that point in the proceedings, to return to Melbourne. However, the application that I have been asked to consider is whether or not they should give their evidence and remain in Melbourne for the entirety of the resumed trial. In the circumstances, I am not prepared to accede to that request. 

19. It is most consistent with procedural fairness for all the parties to be present to give their evidence. It is also most consistent with the efficient completion of the trial in an orderly and comprehensible way, in light of the complex factual material with which the Court is likely to be presented. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 25 March 2022.

Associate:

Dated:       13 April 2022