Yan & Yan & Anor - [2014] FCCA 2519

FEDERAL CIRCUIT COURT OF AUSTRALIA

YAN & YAN & ANOR

[2014] FCCA 2519

Catchwords:
FAMILY LAW – Practice and Procedure – subpoena – objection to subpoena – confidential information – relevance to proceedings.

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
Family Law Act 1975, s.90RD
Evidence Act 1995 (Cth) s.55

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…

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 & Yan & Anor

Details

AGLC: Yan & Yan & Anor [2014] FCCA 2519
Case: [2014] FCCA 2519
Decision Date: 15 October 2014

CaseChat Overview and Summary

In the matter of *Yan & Yan & Anor*, Judge Harman of the Federal Circuit Court of Australia considered objections to a subpoena issued in family law proceedings. The dispute involved the wife's objection to a subpoena, and the court also had to consider the transfer of the proceedings from the Federal Circuit Court to the Family Court of Australia.

The primary legal issues before the court were whether the subpoena sought information that was confidential and irrelevant to the proceedings, and whether the proceedings should be transferred to the Family Court of Australia. The court was required to balance the need for disclosure of relevant information in family law matters against the protection of confidential information.

Judge Harman reasoned that the objection to the subpoena lacked merit and was not a valid basis for withholding the requested documents. The court found that the information sought by the subpoena was relevant to the proceedings. Consequently, the objection was struck out. Regarding the transfer of proceedings, the court determined that it was in the interests of justice to transfer the matter to the Family Court of Australia, Parramatta, for expeditious listing before a Registrar to manage the future conduct of the case. The costs of the wife concerning the objection to the subpoena were reserved.

Orders

Orders of the court

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.

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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