Wei & Xia (No 4) - [2022] FedCFamC1F 204

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wei & Xia (No 4) [2022] FedCFamC1F 204

File number(s): SYC 196 of 2017

Judgment of: HARPER J

Date of judgment: 31 March 2022

Catchwords: FAMILY LAW – EVIDENCE – Where senior counsel seeks to cross-examine on three business cards – Where objection taken by reason of non-disclosure prior to hearing – Where business cards had not been disclosed – Where witness is in the middle of cross-examination and cannot give instructions – Objection overruled.

Legislation:
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04

Division: Division 1 First Instance

Number of paragraphs: 11

Date of hearing: 31 March 2022

Place: Sydney

Counsel for the Applicant: Mr Cummings SC and Ms Lioumis

Solicitor for the Applicant: Broaden Legal

The First Respondent: Litigant in Person

Counsel for the Second and Third Respondents: Mr Richardson SC and 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:

31 MARCH 2022

THE COURT ORDERS THAT:
1.The objection made by senior counsel for the Second and Third Respondents to the use of three business cards during cross-examination by senior counsel for the Applicant Wife be overruled.

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:

These proceedings have a long history in the Court. It is unnecessary to rehearse that to any extent for the purpose of this ex tempore judgment.
During the course of the cross-examination of the Second Respondent, who is the father of the First Respondent Husband, senior counsel for the Applicant Wife sought to put to the witness a business card. Objection was taken by senior counsel for the Second and Third Respondents on the basis that the relevant business card had not been disclosed in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). During the…

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 4)

Details

AGLC: Wei & Xia (No 4) [2022] FedCFamC1F 204
Case: [2022] FedCFamC1F 204
Decision Date

CaseChat Overview and Summary

This case involved a long-standing dispute between Ms Wei and Mr Xia, with Mr Xia being the husband and the father of Mr B Xia and Ms Siang, who were also respondents in the case. The matter was heard by Harper J in the Federal Circuit and Family Court of Australia (Division 1). During the cross-examination of Mr B Xia, senior counsel for Ms Wei sought to introduce three business cards into evidence, which had not been disclosed in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Senior counsel for the Second and Third Respondents objected to the use of the cards on the grounds of non-disclosure and the inability to obtain instructions from their clients due to the late disclosure. The court had to balance the competing contentions and broader case management considerations.

The court considered the obligation of timely disclosure under the Rules and the fact that the case had already been part-heard since October 2020, with a further adjournment due to the COVID-19 pandemic in June 2021. It was noted that at least one of the business cards had come into the possession of Ms Wei's representatives only a few days before the trial commenced on 28 March 2022. The court decided that it was unnecessary and a waste of time to engage in a voir dire to establish the specific prominence of these three business cards and the circumstances in which they came into the possession of Ms Wei's legal representatives, given the length and history of the proceedings. The court overruled the objection by senior counsel for the Second and Third Respondents and allowed the use of the business cards in cross-examination.

In conclusion, the court overruled the objection and permitted senior counsel for Ms Wei to use the three business cards in cross-examination. It was determined that the broader case management considerations and the history of the proceedings outweighed the non-disclosure issue, and it was not necessary to engage in a voir dire to establish the specific prominence of these three business cards. The court made its decision in line with s 67 of the Federal Circuit and Family Court of Australia Act 2021 and r 1.04 of the Rules.

Orders