Xin & Qinlang (No 4)

[2023] FedCFamC1F 1042

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Xin & Qinlang (No 4) [2023] FedCFamC1F 1042

File number(s):	CAC 1782 of 2018
Judgment of:	GILL J
Date of judgment:	4 December 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE –Application in a proceeding – Application for disclosure – Application for an adjournment – Applications heard on the first day of trial – Where this follows another application for adjournment the week prior that was refused – Where the husband no longer has legal representation – Where the husband asserts deficiencies in the expert report caused by the wife’s non-disclosure – Disclosure orders not made – Where the single expert report in respect of the parenting proceedings arrived late – Property and parenting proceedings split – Parenting proceedings adjourned – Application to adjourn property proceedings dismissed
Legislation:	Family Law Act 1975 (Cth) s 102NA
Division:	Division 1 First Instance
Number of paragraphs:	21
Date of hearing:	4 December 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
Counsel for the Second and Third Respondents:	Mr Mellas
Solicitor for the Second and Third Respondents:	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

MS WANG

Second Respondent

MR B XIN (and another named in the Schedule)

Third Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	4 DECEMBER 2023

THE COURT ORDERS THAT:

1.The adjournment application in respect of the property proceedings is refused.

2.The further disclosure orders to be made against the wife are declined.

Parenting proceedings

3.I direct that the parenting proceedings be adjourned and split from the financial related proceedings in this matter.

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 judgment concerns multiple applications in a proceeding filed by the husband.  The first being an application in a proceeding that sought to delay the deadline for the production of a single expert report regarding the corporate entities, along with provision for orders to be directed to the wife to produce certain documents in support of that single expert’s report. 

2. The second application in a proceeding is a second application to adjourn the trial, which is based in part upon the first application in a proceeding, but also upon other circumstances that were canvassed in a previous application in a proceeding to adjourn the trial that was made by the husband last week but refused.

3. On that previous application the issues in broad description were, firstly, the husband’s loss of legal representation and, in that context, his inability to personally cross-examine the wife in the trial due to the operation of s 102NA which has mandatory application to these proceedings due to an extant final family violence order between the principal parties. Secondly, purported deficiencies or limitations in the single expert’s report regarding the corporate entities that he asserts are due to alleged nondisclosure of corporate records by the wife and thirdly, the late production of a single expert report in respect of parenting.

4. That application was refused in part on the basis that the husband had failed to adequately identify the circumstances surrounding his loss of lawyers as pointing to there now being an unfairness in continuing with the trial, noting that trial directions were made in this matter in July 2023.

5. Further, consideration was given to the prospect that there could be no confidence that any costs order could be met by the husband given his position in the overall proceedings.

6. Thirdly, a failure on the part of the husband to identify the importance of the identified deficits in the single expert’s report as being of such magnitude as to necessitate the adjournment of the trial and finally, whether the late production of the single expert’s report in the parenting proceedings should be considered once that report was produced, noting that various consequences could flow from the late production of that report including the splitting of the proceedings between the parenting and the property disputes. 

7. Noting that the single expert’s report in respect of the parenting proceedings has only arrived this morning, whereas when I delivered judgment previously it was anticipated to arrive the Friday before the commencement of trial, the consideration of the impact of that is deferred to allow further submissions from the parties on reading that report and to after delivery of judgment on the application to adjourn the property proceedings.

8. I note that if the financial aspects of these proceedings were to be adjourned so too would be the parenting proceedings.  If the financial aspects are not adjourned, then further consideration will be given to whether or not to split off or make other procedural arrangements for the parenting proceedings due to the late arrival of the single expert’s report.

   FINANCIAL PROCEEDINGS

9. Turning then to the financial aspects of the proceedings, the key contention made for the husband is that the expert’s report is limited by failure of the wife to produce particular records. As noted, he asserts that directions be given to the wife to produce material with that aspect of his application supported by the second respondents.  He makes particular reference to annexure F of the expert’s report and to paragraphs 2.17, 2.23, 3.22, 4.16 and 4.17. These he couples with a particular contention derived from the affidavit material he has filed in respect of the various applications that he has made that at least in the case of P Group Pty Ltd the wife had electronic records which were not disclosed to the expert that predated the accounting software records that were disclosed. He makes more general contention that there are other records held by the wife which have not been disclosed.  Against those complaints the wife asserts that she has provided all that she has had under her control and as requested.

10. The issues then on this aspect of the adjournment application are firstly, it remains unclear the importance of the disputed issues. Secondly, if importance is accepted, it remains unclear whether or not the wife has in fact failed to disclose in the manner asserted. Thirdly, if failure to disclose is an issue, the question of whether or not it is for proof at trial leading to potential consequences in the drawing of inferences, the manner of proof of matters and potential other procedural steps.  Fourthly, if there is a genuine issue as to disclosure, noting that it is not one that has arisen in the last five minutes of the litigation.

11. Turning to consider these matters, disclosure has been hotly contested since at least 2020, if not earlier, when orders were made to the wife to disclose documents to the husband. Hence, if there was a default in the wife’s disclosure that needed resolution before the trial, then the time to do that is not in the last moments before the trial, but rather well in advance of the trial.

12. Further, I am unable absent testing of the evidence to conclude whether the husband’s assertions that are now brought to bear are meritorious. That is a matter that requires the scrutiny of trial.  It should be observed that all parties have had their hands on and visibility of the arrangements for the single expert’s report regarding the corporate entities. Those arrangements had a background spanning years of litigation and have unfolded over the months since July 2023 when the trial directions were made.  No adequate explanation is made by the husband as to why, if these issues are genuine, they have been let sit until now.  Nor has a real explanation been given as to why it is not best, if these are real issues, that they be dealt with factually at the trial both as to whether or not the wife has disclosed or has failed to disclose and as to whether or not the limitations contained in the single expert’s report are significant. 

13. These matters together do not warrant an adjournment in the context of long-standing trial arrangements with ample opportunity to procure disclosure and where significant costs are being consumed by all parties, with significant costs likely to be wasted if the adjournment is granted.

14. The adjournment is not warranted where the trial is the proper venue to deal with the matters that are raised by the husband.  Of course that is not a matter that can be considered in isolation but should be considered coupled to the issue of the loss of legal representation by the husband. 

15. From his inadequate explanation last week, the only addition this week is the attribution of the loss of lawyers to cash flow issues related to his parents funding of his litigation. Firstly, it may be observed that this latest aspect of information as to why he has lost his lawyers was undoubtedly material that was in the husband’s hands last week when he made his application. More importantly, the circumstances are still expressed in a veiled form reliant on an opaque description of cash flow.  As described by him the circumstances are unpersuasive that the loss of lawyers is under circumstances that compel an adjournment even with the sharp consequences that he is unable to cross-examine the wife.  Considered individually or together with the other circumstances that the husband has pressed for an adjournment, an adjournment is not warranted.

    PARENTING PROCEEDINGS

16. This application concerns the splitting of the parenting dispute from the financial related dispute.  It may be observed that I have just ruled on whether or not the financial related dispute should be adjourned and have declined to adjourn those proceedings. That is in the context of a highly convoluted and complex property dispute between not only the husband and wife, but also the second respondents, being the parents of the husband who make significant claims in respect of the property pool.

17. The parenting proceedings are likewise complex, carrying with them issues of unacceptable risk, in particular involving allegations of sexual assault that have been levelled by the wife against the husband and the consequences of those allegations for the parenting proceedings. 

18. As of this morning a single expert’s report prepared by Dr CC was made available to the parties.  As yet I have only been able to make the most cursory of examinations of the report, but even on such an examination, it is evident that the matters contained in that report are highly complex and are not fairly able to be dealt with on the run to determine what will be the best interests of these children.

19. The husband seeks that the parenting dispute be split off from the property dispute if the property dispute is to go ahead. The wife opposes that and seeks to deal with all matters.

20. However, I am not satisfied that the husband will be accorded procedural fairness under those circumstances, noting the complexity of the report and the issues that attach to the question of what will be within the children’s best interests.

21. Under those circumstances, the parenting aspects of the dispute will be adjourned with further directions to be given in due course.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       4 December 2023

SCHEDULE OF PARTIES

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