Yan and Yu and Anor - [2014] FamCA 423

FAMILY COURT OF AUSTRALIA

YAN & YU AND ANOR

[2014] FamCA 423

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Application to proceed undefended refused.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

A & Z [2006] FamCA 179; (2006) FLC 93-257
Alesh & Maunce [1998] FamCA 172
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Chang & Su [2002] FamCA 156; (2002) FLC 93-117
Lanceley & Lanceley (1994) FLC 92-491
Sali v SPC Limited & Anor [1993] HCA 47; (1993) 67 ALJR 841
State of Queensland & Anor v JL Holdings [1997] HCA 1; (1997) 189 CLR 146

APPLICANT:

Ms Yan

RESPONDENT:

Mr Yu

2^ND RESPONDENT:

Ms Yao

FILE NUMBER:

MLC

4849

2012

DATE DELIVERED:

30 April 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

30 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Love

SOLICITOR FOR THE APPLICANT:

Australian Legal Advisory Centre

COUNSEL FOR THE RESPONDENT:

Mr James

SOLICITOR FOR THE RESPONDENT:

JK Lawyers & Co

THE 2^ND RESPONDENT:

In person

Orders

That the application in a case filed 14 April 2014 is dismissed.
That all outstanding applications are adjourned to 10.00am on 1 May 2014.
That the husband and the second respondent have leave to rely upon their respective trial affidavits notwithstanding they were filed outside of time.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yan & Yu and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4849 of 2012

Ms Yan

Applicant

And

Mr Yu

Respondent

And

Ms Yao

2^nd Respondent

REASONS FOR JUDGMENT

This is an application brought by the applicant at trial, to preclude the husband and the second respondent from, effectively, proceeding with their side of the argument. The application seeks that the court proceed on an undefended basis. The definition of undefended remains unclear. This court has taken a number of different views, from excluding parties in their participation, through to limiting their role.
I have understood the applicant to desire to exclude the husband and I am not entirely sure what the position is in relation to the second respondent, but I suspect it does not matter. The application is supported by an affidavit drawn by the solicitor for the applicant, in which she makes reference to paragraphs in the trial affidavit of the wife. That is the evidence upon which I am determining this discrete application.
On the determination of this application, the matter has to proceed one way or the other, whether with the husband and the second respondent or without. Doing the best I can, there seemed to be four discrete issues and those four fit into two categories. The first relates to what has been described by counsel for the applicant as the contemptuous behaviour of the husband, such as…

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 Yan and Yu and Anor

Details

AGLC: Yan and Yu and Anor [2014] FamCA 423
Case: [2014] FamCA 423
Decision Date: 30 April 2014

CaseChat Overview and Summary

In the matter of *Yan and Yu and Anor*, heard by Cronin J, the application concerned proceedings filed on 14 April 2014. The specific nature of the dispute between the parties, identified as Yan, Yu, and a second respondent, is not detailed in the provided text, nor is the precise nature of the application itself.

The court was required to determine whether to dismiss the application filed on 14 April 2014. Additionally, the court considered applications for adjournment and the admissibility of trial affidavits filed by the husband and the second respondent, which had been filed outside of the prescribed time limits.

Cronin J ordered that the application filed on 14 April 2014 be dismissed. The court also granted leave for the husband and the second respondent to rely on their respective trial affidavits, despite these documents being filed out of time. All other outstanding applications were adjourned to 1 May 2014.

Orders

Orders of the court

That the application in a case filed 14 April 2014 is dismissed.

That all outstanding applications are adjourned to 10.00am on 1 May 2014.

That the husband and the second respondent have leave to rely upon their respective trial affidavits notwithstanding they were filed outside of time.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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