Yim and Anor and Zieth - [2018] FCCA 3797

FEDERAL CIRCUIT COURT OF AUSTRALIA

YIM & ANOR & ZIETH

[2018] FCCA 3797

Catchwords:
FAMILY LAW – Application in a case – respondent seeks summary dismissal of the proceeding as being fraudulent, frivolous, vexatious and an abuse of process – allegations unsupported by any evidence – respondent hands voluminous material to counsel for the applicants and Independent Children’s Lawyer at commencement of hearing – application dismissed – proceeding set down for trial – order for mediation.

First Applicant:

MS YIM

Second Applicant:

MR YIM

Respondent:

MR ZIETH

File Number:

MLC 10467 of 2018

Judgment of:

Judge A Kelly

Hearing date:

10 December 2018

Date of Last Submission:

10 December 2018

Orders pronounced:

10 December 2018

Delivered at:

Melbourne

Delivered on:

20 December 2018

REPRESENTATION

Counsel for the Applicants:

Mr Carne

Solicitors for the Applicants:

Oakfair Lawyers

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr Marchetti

Solicitors for the Independent Children’s Lawyer:

White Cleland

ORDERS

The proceeding be fixed for Final Hearing at 10.00am on 29 May 2019 in the Federal Circuit Court of Australia at Melbourne before Judge A Kelly with an estimated hearing time of 3 days.
The following directions are made respecting discovery and use of documents at trial:
(a)no later than four months before the trial date, the parties are to confer and identify all documents upon which they propose to adduce in evidence at trial (Documents);
(b)no later than two months before the trial date, the applicants shall prepare, serve and file an indexed paginated folder of the Documents arranged in chronological order;
(c)no Documents (including any valuations, family report or other expert reports) are to be attached to any affidavit, but may only be referred to in an affidavit by page number and volume (if necessary), from the folder(s) of Documents;
(d)save with leave of the Court, no document identified pursuant to paragraph 2(a) of this Order may be relied upon or adduced in evidence at trial.
Each party be permitted to rely upon only one affidavit of evidence in chief for any witness including the applicants and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief) and further:
(a)the applicants electronically file and serve any affidavits to be relied upon at the final hearing not later than 28 days prior to the hearing;
(b)the respondent electronically file and serve any affidavits to be relied upon at the final hearing not later than 21 days prior to the hearing.
Other than as provided in these orders, no party may file or rely upon any further evidence without leave of the court.
The evidence of each party and any witness be by way of affidavit as provided by paragraphs 3 to 4 of this order.
The following directions are made respecting the identity and quantum of all assets, liabilities and financial resources that are claimed to comprise the asset pool (Asset Pool):
(a)no later than two months before the trial,…

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.

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Details

Case: [2018] FCCA 3797
Decision Date: 20 December 2018

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge A Kelly presided over proceedings involving applicants Yim and Anor and respondent Zieth. The dispute concerned family law matters, including the division of property and issues relating to children. The court's orders addressed the procedural framework for the final hearing and the conduct of the parties leading up to it.

The court was required to determine the directions for the final hearing, including the timeline for discovery, the presentation of evidence, and the identification and valuation of assets. Specific attention was given to the preparation and filing of documents, affidavits, and outlines of case, as well as the process for nominating and selecting a mediator. The court also considered the dismissal of an application filed on 25 October 2018 and the reservation of costs.

The court's reasoning focused on establishing a clear and efficient process for resolving the complex issues before it. It applied principles of procedural fairness and case management by setting strict deadlines for the exchange of information and evidence. The orders mandated the chronological arrangement of documents, limited the number of affidavits per witness, and required detailed outlines of case for both children's matters and property division. The court also directed the parties to engage in private mediation to facilitate a potential resolution before the final hearing.

The final orders included fixing the final hearing date, establishing detailed discovery and evidence directions, and requiring the parties to prepare and serve tables of assets and liabilities. The parties were also ordered to file an Outline of Case Document and attend private mediation. The Application in a Case filed on 25 October 2018 was dismissed, and costs were reserved for the applicants and the Independent Children’s Lawyer. Liberty to apply was granted to the parties.

Orders

Orders of the court

The proceeding be fixed for Final Hearing at 10.00am on 29 May 2019 in the Federal Circuit Court of Australia at Melbourne before Judge A Kelly with an estimated hearing time of 3 days.

The following directions are made respecting discovery and use of documents at trial:

(a) no later than four months before the trial date, the parties are to confer and identify all documents upon which they propose to adduce in evidence at trial (Documents);

(b) no later than two months before the trial date, the applicants shall prepare, serve and file an indexed paginated folder of the Documents arranged in chronological order;

(c) no Documents (including any valuations, family report or other expert reports) are to be attached to any affidavit, but may only be referred to in an affidavit by page number and volume (if necessary), from the folder(s) of Documents;

(d) save with leave of the Court, no document identified pursuant to paragraph 2(a) of this Order may be relied upon or adduced in evidence at trial.

Each party be permitted to rely upon only one affidavit of evidence in chief for any witness including the applicants and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief) and further:

(a) the applicants electronically file and serve any affidavits to be relied upon at the final hearing not later than 28 days prior to the hearing;

(b) the respondent electronically file and serve any affidavits to be relied upon at the final hearing not later than 21 days prior to the hearing.

Other than as provided in these orders, no party may file or rely upon any further evidence without leave of the court.

The evidence of each party and any witness be by way of affidavit as provided by paragraphs 3 to 4 of this order.

The following directions are made respecting the identity and quantum of all assets, liabilities and financial resources that are claimed to comprise the asset pool (Asset Pool):

(a) no later than two months before the trial, the applicants shall prepare, and serve in electronic format, a table of each item which is contended to comprise the Asset Pool;

(b) no later than one month before the trial, the respondent shall prepare, and serve in electronic format, an annotated version of such table indicating whether there is agreement or disagreement respecting each item which is contended to comprise the Asset Pool including any additional asset, liability or financial resource.

Not later than one month prior to the final hearing all parties do electronically file and serve an Outline of Case Document (not exceeding 12 pages) including the following:

CHILDREN

(a) a list of the material relied upon;

(b) a brief chronology listing significant events;

(d) a list of contentions with respect to each of the considerations relevant to determining the best interests of the child/ren (s 60CC factors);

(e) a list of contentions relevant to the operation of s 65DAA;

(f) a list of any other contentions relevant to the decision; and

(g) the actual orders sought.

PROPERTY

(a) a list of the material relied upon;

(b) a brief chronology listing significant events;

(c) a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;

(d) main contentions on disputes as to:

i. inclusion of items in the pool; and

ii. the value of items where the value is in dispute;

(e) list of contributions claimed or contended for and the percentage assessment on contributions contended for;

(f) list of other factors relied upon (s 75(2) factors) and percentage adjustment contended for;

(g) other contentions relevant to determining a ‘just and equitable’ division of property; the actual orders sought.

The parties attend private mediation to be held not later than 29 April 2019.

By 24 December 2018 the applicants nominate three proposed mediators and 2 weeks thereafter the respondent shall select one of those three.

10.

Costs of mediation will be borne equally by the parties.

11.

The Application in a Case filed on 25 October 2018 be dismissed.

12.

Liberty to apply on short notice is granted to the parties and any Independent Children’s Lawyer to mention this matter before me, by arrangement with the Associate to Judge A Kelly.

13.

Costs of the applicants and independent children’s lawyer of and incidental to this application be reserved.

AND THE COURT NOTES THAT:

A. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012 (Cth).

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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