Xin & Qinlang (No 3)

[2023] FedCFamC1F 1025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Xin & Qinlang (No 3) [2023] FedCFamC1F 1025

File number(s):	CAC 1782 of 2018
Judgment of:	GILL J
Date of judgment:	29 November 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application of adjournment made by husband the week prior to trial – where the husband no longer has legal representation and s 102NA has mandatory application preventing personal cross-examination – other parties sought to proceed with trial – husband was unable to provide evidence regarding procedural unfairness – application dismissed
Legislation:	Family Law Act 1975 (Cth) - s 102NA
Division:	Division 1 First Instance
Number of paragraphs:	11
Date of hearing:	29 November 2023
Place:	Canberra
Solicitor for the Applicant:	Litigant in Person
Counsel for the First Respondent:	Dr Smith
Solicitor for the First Respondent:	Dobinson Davey Clifford Simpson
Solicitor for the Second and Third Respondents:	Ms Yie-Quach, Lander & Rogers
Solicitor for the Fourth Respondent:	Litigant in Person (did not participate)

ORDERS

CAC 1782 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR XIN

Applicant

AND:

MS QINLANG

First Respondent

MR B XIN

Second Respondent

MS WANG (and another named in the Schedule)

Third Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	29 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The husband’s application in a proceeding seeking an adjournment of the trial is refused.

2.The second respondent is to file and serve the expert evidence in respect of handwriting by 1 pm on Friday 1 December 2023.

3.The respondent wife is to arrange for the filing of the expert evidence of Mr AA, BB Real Estate and superannuation valuations by 4 pm on 30 November 2023.

4.The parties are otherwise to file and serve case outline documents, a draft balance sheet for each, a document setting out the orders sought, a document setting out the objections taken to other material and a tender bundle as previously directed to the parties by 1 pm on Friday 1 December 2023.

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 a pseudonym, has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

GILL J

1. This matter was listed for directions at short notice on the request of the wife following the filing yesterday of a notice of ceasing to act by the lawyers who appear for, or who have appeared for the husband.  Noting that the trial is due to commence on Monday it seemed reasonable to bring the matter before the court to understand the ramifications of such a notice being filed so close to the trial.  In between the listing of the matter and the matter coming on today, the husband has filed an application in a proceeding, along with a supporting affidavit, wherein he seeks the vacating of the trial and the further listing of the trial for directions in February 2024. 

2. I requested of each of the appearing parties whether they sought to deal with the adjournment application today, to which each indicated that they would. This is, of course, despite the fact that neither the wife nor the second respondent was on any significant notice of the application being made.  The matter proceeded to be considered.

3. The matters that were then identified by the husband as supporting his adjournment application firstly related to the preparation of an expert report by Mr AA, which as best as I can understand at this point, is a single expert report in relation to the corporate entities that are in dispute between the parties.

4. The second related to a report prepared by another single expert, this time in relation to the parenting proceedings, being Dr CC. 

5. The third aspect raised by the husband is that absent a lawyer he is unable to cross-examine the wife. This assertion is rightly made as the operation of s 102NA of the Family Law Act 1975, in circumstances where there is a final family violence order in place between the parties prohibits personal cross-examination.  It appears uncontroversial that there is currently such a family violence order in place which is not due to expire until late 2023, being at a point approximate to the end of the trial.

6. Finally, Mr Xin raises the point that he no longer has a lawyer.

7. Dealing with these matters is as follows.

8. Firstly, the complaints made in relation to Mr AA's report focus on an assertion made by Mr Xin that his wife has failed in her obligation to provide to the single expert sufficient material for the preparation of the report.  To make good this assertion the husband did not produce the report to the court, but produced a short extract of a number of paragraphs wherein the report writer sets out limitations in the report that deal with the nature of the material to which the expert has been provided.  The sparse material that has been filed to make good this point is inadequate to do so as it does not identify whether or not the material is important to the views that will ultimately be expressed by the expert, and the importance of those views in relation to the proceedings, and whether or not any deficits can otherwise be cured, including by the potential drawing of adverse inferences on a failure on the part of the wife to disclose.  It should be noted that the wife asserts that she has not failed in that obligation to produce material to the single expert and asserts, without providing evidence in support of it, that she has provided material at each request.  At present the extract from the Mr AA report and the comments made by the husband about it are not sufficient to justify the vacating of a trial which has been set down since June of this year and for which significant procedural directions have been made and, in large part, complied with by the wife and the other respondents.  That is, the extracts provided from the expert’s report did not show that there is a compelling deficit in that report that means that the trial cannot, or should not, proceed.  It may be that further matters arise during the conduct of the trial, but that will be for the conduct of the trial at least in relation of this point.

9. The second of the matters related to the late production of report by Dr CC.  As I noted above, Dr CC’s report relates to the parenting dispute between the parents and I am told was a report that was expected to be made available at the start of November.  It is now apparent that it will not be made available until the last working day before the trial. The husband says that he will need some legal advice in relation to this report. It may be the case that ultimately he does require legal advice in respect of that report, but that is not yet apparent given the contents of the report are not known and is a matter that can be dealt with after the report is released.  It is also a matter that does not necessitate the vacating of a whole trial even if it means that the parenting aspects of the trial cannot go ahead, as it is a matter that could be dealt with by an adjournment of Dr CC’s evidence or bifurcation of the trial.  It is also a matter that one would expect would be able to be dealt with were the husband to obtain legal advice, which then turns to the third and fourth points raised by the husband.

10. The husband correctly observes that he cannot cross-examine the wife absent a lawyer.  The issue as to whether or not this is a matter which points to the vacation of a trial is its connection with procedural fairness in the conduct of the trial.  Typically, procedural fairness on the final trial requires that each of the parties is given opportunity to challenge the cases that are put against them and to challenge by means of cross-examination of those witnesses who are called against them.  The key aspect of that right is that it is the opportunity to do so. The husband has that opportunity provided he secures legal advice or legal representation to enable him to do so.  There are mechanisms in place which would enable a person otherwise unrepresented to avail themselves of that opportunity, although it cannot be expected that those mechanisms can be put in place before a trial due to commence on Monday. Accordingly, the question of loss of that opportunity is connected to the absence of lawyers for the husband.  It should be noted that the husband has been represented throughout these proceedings and that his lawyers have recently filed a notice of ceasing to act. That notice filed on 27 November 2023 must, if compliant with the rules, be predicated on notice having been given to the husband at least seven days prior to that of their intention to cease to act for him. There is no information to suggest that the lawyers did not comply with the rules in placing the husband on notice of their intention to cease to act.  Accordingly, the husband has had some more notice of this matter than he has given to the court and to the other parties.  That however is not the matter which rises to the greatest significance in considering the loss of the husband’s opportunity to cross‑examine the wife and also his loss of legal representation.  The matter which emerges as prominent, is that what the court is advised of is the mere fact of the notice of ceasing to act being filed and the loss of that representation without any explanation as to how or why that has occurred.  Under those circumstances, no conclusion is available that the husband has lost his legal representation and / or lost the opportunity to cross-examine the wife by virtue of matters that stand outside his control.  It is not known for example, whether or not the husband simply chose to terminate the retainer with the lawyers or conducted himself in a manner which forced the termination of that retainer.  Under circumstances where there is such an absence of evidence it is not permissible for me to jump to the conclusion that the husband is being deprived of legal representation and of the opportunity to cross-examine the wife under circumstances which call the fairness of the trial that is to commence on Monday into question.

11. Individually and in aggregate, the matters raised by the husband do not justify the vacating of the trial where the matter has been in place for a significant period of time, involves a substantial listing of the court’s time to hear the matter and where the other appearing parties seek that the trial continue notwithstanding the husband’s position.  It may also be noted that at this stage, to adjourn the trial will undoubtably prolong the stress of litigation, including in circumstances where parenting aspects form a part of the dispute. Further, it would do so under circumstances where there is no proffering of costs to salve the adjournment and, as identified by the legal representative for the wife, it cannot be said that there should be confidence that even if a costs award was made in respect of the vacating of the trial that it will be able to be met by the husband who asserts in his case that there is a negative property pool.  Under those circumstances the application for adjournment will not be allowed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Gill.

Associate:       

Dated:       29 November 2023

SCHEDULE OF PARTIES

CAC 1782 of 2018
Respondents
Fourth Respondent:	P COMPANY, P GROUP PTY LTD AND P HOLDINGS PTY LTD