Yan & Yan & Anor
[2014] FCCA 2519
•15 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YAN & YAN & ANOR | [2014] FCCA 2519 |
| Catchwords: FAMILY LAW – Practice and Procedure – transfer from Family Court of Australia to Federal Circuit Court of Australia – issues for consideration in transferring the proceedings. |
| Legislation: Federal Circuit Court Rules 2001, pts.8, 14, 24 r.8.02 |
| Aon Risk Services and ANU [2009] HCA 27 Feinster & Feinster and Anor [2006] FamCA 232 Sankey v Whitlam (1978) 142 CLR 1 Royal Women’s Hospital v Medical Practitioners Board [2005] VSC 225 Nelson v Nelson [1995] HCA 25 Hutchins v Clarke [1993] FamCA 22 Goldy & Goldy (No 2) [2011] FamCA 418 |
| Applicant: | MR YAN |
| First Respondent: | MS G YAN |
| Second Respondent: | MS YAN |
| File Number: | PAC 2914 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 15 October 2014 |
| Date of Last Submission: | 15 October 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 15 October 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Munk of Matthews Folbigg Pty Ltd |
| Counsel for the First Respondent: | Mr O’Shay |
| Solicitors for the First Respondent: | Wang Lawyers Pty Ltd |
| Solicitors for the Second Respondent: | Mr Guan of Paul Guan & Associates |
ORDERS
Strike out the objection filed 14 October 2014 and remove that issue from the list of matters awaiting hearing.
Transfer these proceedings to the Family Court of Australia, sitting at Parramatta to be listed before a Registrar as expeditiously as possible to guide the future conduct of the matter.
Reserve the costs of the wife with respect to the objection to subpoena addressed above.
IT IS NOTED that publication of this judgment under the pseudonym Yan & Yan & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2914 of 2013
| MR YAN |
Applicant
And
| MS G YAN |
First Respondent
| MS YAN |
Second Respondent
REASONS FOR JUDGMENT
Before the Court today are proceedings which have been on foot for some little time having been commenced by an application initiating proceedings filed 11 July 2013. That application sought certain orders with respect to property adjustment.
It would appear common ground between the myriad parties whom I shall enumerate shortly, that there are issues of both legal and factual complexity involved in the proceedings.
Parties
The parties to the proceedings are a husband and wife together with a third party (second Respondent), a relative of the husband and who asserts an interest in certain parcels of real estate in which the husband and wife, whether jointly and/or severally, hold an interest.
Issues
There are two issues that must be dealt with by the Court today and thus I propose to deal with them as briefly as is possible, they being:
a)Whether the proceedings are to remain within this Court and be listed for hearing, and
b)An objection to subpoena.
I propose to deal with the issue of listing first.
History
The proceedings were commenced in the Family Court of Australia and were before that Court from 11 July 2013 and until today being a period of 15 months. During that time the proceedings would appear to have occupied some 13 court events, mostly before a Registrar, but including one interlocutory hearing before a Justice of that Court who is at least apprised of the proceedings if not seized of them.
The hearing before her Honour was to deal with certain jurisdictional issues. It had been suggested by one or other of the parties that the length of or suggested date of termination of the de facto relationship between the Applicant and Respondent was such that the Court had no jurisdiction or the application was out of time. Her Honour would appear to have been satisfied that a relationship as required by the legislation existed.
The relevant rules, both the Federal Circuit Court Rules 2001 and Family Law Rules 2004, provide for transfer of proceedings between the respective Courts. As the proceedings are now before this Court, I propose to deal with the matter by reference to the relevant provisions of the Federal Circuit Court Rules.
Part 8 of the Federal Circuit Court Rules deals with transfers. Proceedings may be transferred at the request of a party or of the Court’s own motion to either the Federal Court (in general federal law jurisdiction) or the Family Court (in family law jurisdiction). I am advised by the parties that no request was made by them to transfer the proceedings to this Court.
Rule 8.02(2) provides:
Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceedings.
I am, today, considering transfer or return of the proceedings, on the first court date.
The proceedings were transferred to this Court by a Registrar of the Family Court after 13 court events before that Court. There is nothing to indicate why the Registrar, of their own motion, transferred the proceedings to this Court.
The Rules provide in subsection (4) the matters which must be considered by the Court. I propose to deal with each briefly.
Whether the proceedings are likely to involve questions of general importance, such that it would be desirable for the decision to be made by the superior court on one or more of the points in issue
The parties agree that there is a complex factual history to these proceedings.
The parties were initially married; however, they separated and were divorced during the late 1990’s. On the evidence of both the Applicant and the first Respondent they resumed a relationship with each other and they cohabited (within the terms of the definition in the Family Law Act 1975) in a de facto relationship.
It would seem that there remains some controversy as to the date of separation of the parties. The husband alleges that separation occurred in 2010 and on that basis asserts that the wife’s application filed 11 July 2013 would be out of time. That was the subject of the hearing before her Honour and any issue as to her Honour’s findings should be addressed by her Honour as a superior court Judge and not by me.
The husband does not allege separation prior to 1 June 2009, when jurisdiction was assumed by the court by referral of state powers. Accordingly, even if there remains, after her Honour’s orders, any controversy as to separation, that is an issue of leave and maintenance of proceedings, rather than a determination as to whether the Court has any jurisdiction. However, those issues and controversies give rise to somewhat complex legal issues as to section 90RD declarations (if not already made) and leave to apply out of time. The determination of those issues, by and of themselves and without any consideration of the substantive issues raised in the proceedings, is a determination that may well take some significant time.
In recent experience determinations of jurisdiction or leave under section 90RD, involving as they do an intimate address of facts and circumstances known to the parties and which have occurred primarily in a private context, take some days. That is all the more so as in these proceedings, at least two of the three parties require an interpreter to assist them.
In addition to the above considerations the proceedings involve:
a)Allegations of equitable interests arising from suggested transactions between the first and second Respondents;
b)Overseas transactions and property;
c)Non-compliance with orders for disclosure and valuation made by Family Court Registrars;
d)Possible inconsistencies between statements to government agencies and the Court.
The legal issues and the factual issues are of a sufficient degree of complexity by and of themselves that I am satisfied that the proceedings should be heard and determined in the superior court.
The parties indicated, when the matter was first mentioned today, that the matter had been transferred by the Registrar “so that hearing dates could be allocated”. The parties agree that the hearing will take “at least 4 days” and that they had advised the Registrar of this.
The protocol between the two Courts provides that if the hearing is likely, (whether with respect to the leave issue, the substantive issues or the two heard and determined at the same time, assuming that that is determined as the appropriate course), to require four days of hearing or more than the matter should be transferred to the superior court. Thus, based upon the protocol it is difficult to understand why the matter would not be transferred (or why it was ever transferred to this Court).
If the proceedings are transferred, whether they are likely to be heard and determined at less cost and more convenience to the parties
What is curious with respect of these proceedings, as would be apparent from the above, is that the matter, until orders were made of the Court’s own motion on 23 September 2014, had been commenced and conducted at all times before the Family Court. No party sought to transfer the proceedings to this Court.
I can readily envisage circumstances whereby a transfer of proceedings at a late stage is entirely appropriate. It arises infrequently but includes transfer from this Court to the Family Court and vice versa when issues become more or less complex or are discovered to be so when it was not previously apparent. Nothing has changed in these proceedings. If anything they have become more complex and the matter is suggested to have been transferred for no reason other than “to get hearing dates”.
Following some 13 court events, including a listing for hearing before a Justice of the Family Court, the proceedings were transferred to this Court. This has potentially, and I would suggest in reality, occasioned significant disadvantage and further cost to the parties. It is difficult to understand what convenience was served through a transfer of the matter to this Court.
The parties have operated their litigation under the auspices of the Family Law Rules and are now transferred to this jurisdiction with a mandate, by its enacting legislation, to deal with proceedings informally and under the Federal Circuit Court Rules.
On any cursory examination of the issues raised in the proceedings, factual let alone legal, some degree of formality is required. That is particularly so as there are clearly significant issues raised by the parties and in particular by the wife regarding frustration in obtaining disclosure, let alone discovery from the second Respondent.
The parties would benefit from the proceedings being heard and determined under the Family Law Rules and through the case management processes of the superior court. The proceedings have, at all times and at the choice of the parties been conducted in the Family Court. The proceedings have been transferred without any application by any of the parties. The proceedings are transferred to this Court, it would seem, with the intention that this Court would allocate hearing dates to the matter, which matter the Court has never previously been involved with and had no engagement with.
Thus the Court is required to inquire into various issues, determine the readiness of the matter for hearing, determine various other issues regarding disclosure, valuation and the like, all of which presumably have been or could continue to be addressed entirely appropriately under the Family Law Rules by the Family Court.
Whether the proceedings will be heard earlier in this Court
It is a matter of public record that this Registry of the Federal Circuit Court has recently shrunk from five full-time judges to three. Each of those judges has circuit commitments of at least 10 weeks per year. The delays that presently exist within this Court, the subject of recent media attention as being in excess of the national average, are about to increase further. In those circumstances it is relatively easy to predict that the matter would not be heard earlier in this Court. Additionally, a hearing of this matter in this Court, estimated as “not less than 4 days”, would have the additional impact of displacing or further delaying various of the over 600 matters on my docket.
The Family Court is as well resourced as this Court and I use that term reservedly as neither Court would appear to have the resources that are necessary to enable either to dispense justice in the fashion which each desires. However, the matter can be heard as quickly if not more quickly and certainly without a duplication of effort and work by the parties and the Court, by it remaining in or returning to the Family Court.
This is the first occasion that the matter has been listed before this Court. It is the 14th court event in the proceedings. I simply cannot understand how or why the matter was ever transferred, but clearly on the basis of the matters considered above, the proceedings should have remained in the Family Court, and they will return there.
The availability of particularly procedures
I have already touched upon this. In these proceedings, there is considerable resistance to disclosure and discovery and significant difficulty alleged by the parties or one or more of them in obtaining appropriate disclosure and discovery. The more formal processes of the Family Court are those which are required. There are also significant issues involving overseas transactions and documents, which are very much more appropriately addressed in the superior court.
Wishes of the parties
At the time that the proceedings were transferred none of the parties had sought a transfer. In any event, and irrespective of the wishes of the parties as regards the use of this Court’s resources, as to which I have a responsibility (see, for example, Aon Risk Services and ANU [2009] HCA 27), the parties would be better served and would, in fact, be significantly less delayed and significantly less disadvantaged financially by returning to the court from which they should never have been transferred.
Accordingly, I propose to make an order in due course returning the proceedings to the Family Court. Before doing so, I propose to deal with an objection to subpoena that is lodged.
Objection to Subpoena
A subpoena has been issued by the wife’s attorneys addressed to the proper officer of the Department of Immigration and Citizenship. That subpoena seeks records as follows:
a)All records, file notes, memorandums, writings, correspondence, visas and other documents and/or information in relation to the residence status, citizenship and other relevant information pertaining to Ms Yan, born (omitted) 1968;
b)All documents for all applications that Ms Yan, born (omitted) 1968, has made, either written, either within Australia or outside of Australia;
c)All movement records for or in relation to Ms Yan, born (omitted) 1968;
d)All electronic case dump in relation to Ms Yan, born (omitted) 1968.
It would appear from a search of Casetrack that the documents the subject of that subpoena have not yet been produced to the Court. However, the time for production of those documents has not yet passed.
The subpoena was filed in this Court 10 October 2014.
Documents are required to be produced to the Court no later than 31 October 2014, assuming service on 17 October 2014. I am satisfied that the objection can be dealt with notwithstanding the material is not here as:
a)It will expedite address of the issue;
b)Will aid disclosure and attempted resolution; and
c)To do so to pare resources of the superior court (especially as the power to determine an objection would not appear to be delegated to a Registrar and may require judicial time).
It is submitted in the wife’s case that the documents are relevant in that they go fundamentally to material that was provided by the parties or by the second Respondent or both, to the Department of Immigration and Citizenship in dealing with and processing certain applications for visas and resident status. Those documents relate to financial transactions which are suggested, on the wife’s case, to have an intimate connection to the subject matter of the controversy as between the husband and wife and as between the parties and the second Respondent.
The subpoena is objected to on the following basis:
The documents subpoenaed have nothing to do with the property disputes in the proceedings involved [sic] my client’s personal and confidential information. It is severely infringing my client’s proper rights.
The rights that are suggested to be infringed are not readily identified from the objection.
In submissions, it is suggested that a right of privacy is infringed. As has been observed by the Privacy Commissioner Mr Wilson, there is no statutory or legislative basis for the assertion of any right of privacy, although it is recognised in certain contexts within legal proceedings and other fora.
As was observed by Chisholm J in Hutchins v Clarke [1993] FamCA 22; (1993) 92-373:
There is a general public interest in the proper administration of justice which is promoted by the principles that “all relevant evidence should be adduced to the court when it makes its decision” (Baker v Campbell (1983) 153 CLR 52 at 66 per Gibbs CJ).
Whilst his Honour goes on to recognise that there are various exceptions to the principle, his Honour rejects the contention that there is established within Australian law, whether legislatively or at common law, any public policy basis for objection.
Watts J in Feinster & Feinster and Anor [2006] FamCA 232 similarly conducted a thorough and erudite review of public interest decisions and rejected such a basis for objection within the context of those bases included bases as suggested herein. His Honour germanely noted:
Australian courts have confirmed that the public interest immunity doctrine requires resolution of the tension between preventing the disclosure of material which may harm national or public interest and ensuring that justice is not frustrated in individual cases by the withholding of documents.
I make clear that I am fully aware and conscious that public interest immunity is not that which is asserted by the second Respondent. However, by analogy, if one cannot find in the decisions discussed by Watts J in his erudite review in Feinster & Feinster and Anor [2006] a basis by which such a serious and significant longstanding basis for the non-production of relevant material might be found, it is difficult to comprehend how this objection could be maintained.
Similarly, his Honour referred to the decision of Gibbs ACJ, as he then was, in Sankey v Whitlam (1978) 142 CLR 1 regarding similar issues.
Perhaps more importantly, one can turn to the discussion in Royal Women’s Hospital v Medical Practitioners Board [2005] VSC 225 wherein Gillard J held:
The public interest in a proper investigation using all of the evidence outweighed the public interest [there asserted by a hospital] in maintaining a confidential relationship with its patients.
A non-legislative suggestion of confidentiality such as the assertion of a “right to privacy” can be readily addressed as inappropriate. Goldy & Goldy (No 2) [2011] FamCA 418 contains a discussion of similar issues.
What is important to note in the context of these proceedings is that the parties are required to conduct their litigation with transparency. Under the Family Law Rules, those which have to date applied to the parties, and under the Federal Circuit Court Rules (see parts 14 and 24) there is an absolute obligation upon parties – and in this case, parties plural – to provide full and frank disclosure. That extends to discovery on oath, (that being something which requires the Court’s leave under this Court’s Rules consistent with this Court’s mandate to conduct proceedings with as little formality as possible).
The second Respondent is a party. They sought or consented to joinder. The second Respondent is bound by the same obligation of full and frank disclosure. The second Respondent cannot assert an interest in property and then argue that relevant evidence is “private and confidential”.
It is suggested by the Applicant that the material which is to be produced by the subpoenaed party is relevant to issues in live dispute. Clearly on the basis of the submissions of the wife, that is prima facie so. It is indeed potentially fundamental in that:
a)In the event that prior assertions have been made to government agencies inconsistent with that which is now sought to be led by the husband or the second Respondent, the High Court’s decision in Nelson v Nelson [1995] HCA 25 may well operate not as equitable estoppel but as a rule of law to preclude contrary evidence being led or admitted.
b)The transactions which are the very basis of that alleged by the second Respondent to create an interest in real estate are entirely inconsistent with that which is alleged by the wife as regards the subject matter of these proceedings. Thus documents which would corroborate or disprove one allegation or the other are, on their face, highly relevant.
Accordingly, the categories of documents sought would appear to speak directly to issues in dispute, issues of relevance, and, indeed, of fundamental relevance, to the determination of the proceedings. Thus, I am satisfied that:
a)There is no right asserted by the second Respondent, founded in public interest or otherwise, upon which the production of relevant and admissible material should be excluded.
b)No objection having been raised by the third party as to the production of material on those bases (although I do note the time for production has not yet ended and thus any objection raised by them can and will be dealt with in due course).
c)The documents are prima facie relevant.
It is fundamental from section 55 of the Evidence Act 1995 (Cth) that the starting point of admissibility of evidence is relevance. Prima facie and, these being interlocutory proceedings, without the need to determine the veracity of that position, the material is relevant.
I am satisfied not only that there is no basis for the objection but more importantly that, in accordance with the authorities referred to above and considered, that the material should be before the Court to enable justice to be done and seen to be done.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 12 November 2014