Yuan and Song (No 2)

[2019] FamCA 580

FAMILY COURT OF AUSTRALIA

YUAN & SONG (NO. 2) [2019] FamCA 580

FAMILY LAW – PRACTICE AND PROCEDURE – adjournments – application by the respondent to adjourn the final hearing – where the respondent is self-represented – where the applicant filed trial material days before the final hearing – where the applicant’s material was not filed in accordance with orders – order that the proceedings be adjourned to ensure the respondent is afforded procedural fairness.

Family Law Act 1975 (Cth)

APPLICANT: Ms Yuan

RESPONDENT: Mr Song

FILE NUMBER: MLC 8050 of 2015

DATE DELIVERED: 8 August 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 8 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Devine

SOLICITOR FOR THE APPLICANT: Intouch Legal Centre

THE RESPONDENT: No appearance

Orders

1. The applicant have leave to withdraw the case summary document filed this day.

2. That by 4.00pm on 22 August 2019 each party file and serve a case summary document setting out:-

   (a)       a concise set of orders to be sought if different from those already filed;

   (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

   (c)       a list of assets and liabilities;

   (d)       a list of objections on which rulings are required;  and

   (e)       a bullet-point summary of argument in relation to the issues in dispute.

3. That all extant applications be adjourned for final hearing with respect to property before Johns J at 10.00am on 6 November 2019 as a two day matter.

4. That the respondent personally attend at the adjourned hearing on 6 November 2019.

5. That no party file any further material after 4.00pm on 22 August 2019.

AND THE COURT NOTES:-

A.That the respondent’s counsel has previously informed the Court that the respondent does not intend to return to Australia, notwithstanding orders previously made requiring his attendance at Court.

B.In communications with the registry, the respondent had indicated his intention to attend at the hearing listed this day.  However this week, the respondent has informed the Court of his inability to attend due to health issues.  It is in those circumstances that he sought an administrative adjournment of these proceedings.

C.The applicant has informed the Court that in the event of the respondent’s non-attendance at the adjourned hearing on 6 November 2019, the applicant will seek leave to proceed with her application for final property orders on an undefended basis.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8050 of 2015

Ms Yuan

Applicant

And

Mr Song

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today for a final hearing in relation to outstanding property issues.  The matter was listed this day pursuant to orders made by me on 2 May 2019.  That day, I also made trial directions for the filing of affidavit material.  In particular, order 2 required that the applicant file and serve affidavits in reply by 4.00pm on 28 June 2019. 

2. That order has not been complied with by the applicant.  Her affidavits were, in fact, filed more than a month after that date on 31 July 2019 and 1 August 2019.  Further, at 6.26 am this day, a case summary document was filed on behalf of the applicant.  The failure to comply with those orders poses significant difficulties with the matter proceeding today. 

3. The respondent is a self-represented litigant.  In the last few days, he has forwarded a number of emails to this registry requesting adjournments.  He raises health issues, financial hardship and also complains about the late filing of documents.  Notwithstanding orders that I made on 2 May 2019 requiring the respondent to personally attend today’s hearing, the respondent has not attended Court today.  He was called at the commencement of the hearing, but did not answer the call.

4. Ideally, the matter should have proceeded today.  However, in circumstances where the applicant’s material sought to be relied upon has been filed so late, in my view, in order to ensure that procedural fairness is afforded to the respondent it is necessary, albeit reluctantly, to accede to his adjournment application. 

5. Having regard to the history of the matter, what I intend to do is make provision for each of the parties to file a case summary document which outlines, with precision, the following:-

   ·    documents relied upon;

   ·    orders sought;

   ·    a table of the parties’ assets and liabilities; and

   ·    a summary of argument. 

   I propose to provide the parties 14 days in which to file that document. 

6. After that date, I intend to make orders barring either party filing any further material.  Both parties have had ample opportunity to put material before the Court to articulate their case.  There must be an end.  With each passing day and with the filing of more documents, the case become more unwieldy and difficult to understand and manage.  So I will make an order in those terms.

7. Further, in my view, it is necessary to make an order, again, for the respondent to attend personally to argue his case.  It is completely unsatisfactory that he chooses not to participate in these proceedings.  The reality is that if he does not attend on the listed hearing date, the applicant will seek, as has been foreshadowed, to proceed with her application on an undefended basis.  There is a real prospect, if the respondent does not comply with orders for his attendance, that that application will succeed. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 8 August 2019.

Associate: 

Date:  8 August 2019