Wei & Xia (No. 2)

In *Wei & Xia (No. 2)*, Harper J of the Family Court of Australia considered an application by the First Respondent Husband to attend the final hearing of proceedings by electronic communication. The matter had previously experienced substantial difficulties when the husband, who resides in China, gave evidence remotely. The husband sought to continue giving evidence electronically due to concerns he might be prevented from re-entering China after the hearing concluded.

The central legal issue before the Court was whether to exercise its discretion under Rule 16.05 of the *Family Law Rules 2004* (Cth) to permit the husband to attend the final hearing by electronic means. This rule allows for such attendance, but the onus is on the party making the request to persuade the Court. The husband’s primary argument was the risk of being unable to re-enter China, where he lives with his wife and two young children and holds a Residence Permit for work valid until November 2023. He relied on Chinese government announcements from 2020 regarding entry restrictions for foreign nationals during the COVID-19 pandemic, particularly those with work residence permits.

Harper J found that the husband had not demonstrated a sufficiently clear reason why he could not travel to Australia for the hearing. The Court was not satisfied that there was a real risk of him being unable to re-enter China, noting that a later announcement in 2020 permitted foreign nationals with valid work residence permits to re-enter China after a specified date, and there was no evidence this had been revoked. Furthermore, the Court considered that the physical presence of the husband would avoid the technical difficulties experienced in the first tranche of the trial and would better facilitate the process of putting numerous documents to him in cross-examination. The husband's argument regarding the risk of contracting COVID-19 while quarantining in Australia was deemed too contingent.

Accordingly, the Court refused the First Respondent Husband's request to attend the final hearing commencing on 28 June 2021 by electronic communication.