Yim and Anor and Zieth
[2018] FCCA 3797
•20 December 2018
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, 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;
(c)a list of the significant factual issues requiring determination;
(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.
Costs of mediation will be borne equally by the parties.
The Application in a Case filed on 25 October 2018 be dismissed.
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.
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).
IT IS NOTED that publication of this judgment under the pseudonym Yim & Anor & Zieth is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10467 of 2018
| MS YIM |
First Applicant
| MR YIM |
Second Applicant
And
| MR ZIETH |
Respondent
REASONS FOR JUDGMENT
(Revised from ex tempore reasons)
On 7 September 2018, the applicants filed an initiating application seeking parenting and property relief.
Orders were made, by consent, on 15 October 2018, including that the matter be listed for mention on 10 December 2018.
I note that the orders made on 15 October 2018 were made at a time when the respondent was legally represented.
An order has been made for the appointment of an Independent Children’s Lawyer, as has an order for a Family Report. A Family Report has now been obtained.
Counsel for the Independent Children’s Lawyer has confirmed that a Family Report has been obtained in conformity with the orders that were made and that the contents of that report are largely supportive of the consent orders that were made on 15 October 2018.
Shortly following the making of that Order, on 25 October 2018, the respondent father filed an application in a case which sought the summary dismissal of the initiating application on the stated grounds that it is “fraudulent, frivolous, vexatious and an abuse of process”.
The application in a case further sought an order that “the applicants be reprimanded and/or suitably punished, for providing intentionally false and misleading evidence and statements to the Court, where the Court is acting in Federal jurisdiction”. An order was also sought that the consent orders made on 15 October 2018 be set aside.
By way of response to the respondent’s application in a case, the applicants seek an order for the dismissal of the application with costs.
By his three paragraph affidavit sworn on 25 October 2018, the respondent deposed as follows:
That I make this affidavit in support of my Application in a case dated 25 October 2018.
That the Applicants’ Initiating Application filed on 7 September 2018 is Fraudulent, frivolous, vexatious and an abuse of process.
That I will providing this honourable court with further and better particulars with regards to my application in a case dated 25 October 2018, in a supplementary affidavit as soon as Possible (emphasis added)
In the period which has intervened since the filing of that application and the appointed hearing date on 12 December 2018, the respondent has not filed any further evidence in support of allegations which, as I agreed in the course of my exchange with Mr Yim, are in my view most serious allegations.
I was further informed by counsel for the Independent Children’s Lawyer that the respondent had handed to counsel for the other parties an extensive volume of material, apparently sworn in front of an accountant and which was sought to be relied upon in support of the allegations to be made concerning fraud and as otherwise stated in the application in a case.
In the interim, the applicants have been put to the not insignificant expense of preparing affidavits which would provide further information that the court may seek to consider in its evaluation of what was in the best interests of the children in all of the circumstances.
I cannot but express my considerable frustration that a party, although self-represented, is one who has tertiary qualifications and has failed to provide any cogent evidence in support of allegations of fraud in the period 25 October – 10 December 2018.
In those circumstances, I will make an order that the application in a case be dismissed. I am most concerned that the interests of these children receive proper attention. To that end, I have made an order that the proceeding (both children and property) be set down for trial on 29 May 2019.
I will allow a period of three days for the trial of the proceeding. I seek to emphasise to the parties that the issues calling for determination in this case are very serious if the allegations of fraud are to be persisted with, and if they are to be persisted with, they must be proved by cogent evidence. The parties, for whatever reason, seem intent on finding matters to be in dispute about, rather than to be dedicating their energies and resources toward finding a solution.
I will make an order that the parties attend private mediation to be held not later than 29 April 2019.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 20 December 2018
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