Yuan & Shun - [2023] FedCFamC2F 603

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yuan & Shun [2023] FedCFamC2F 603

File number(s): MLC 6943 of 2017

Judgment of: JUDGE HARLAND

Date of judgment: 15 May 2023

Catchwords: FAMILY LAW – oral application to adjourn trial – application made when trial due to begin – previous trials vacated – repeated non-compliance – procedural fairness – case management – adjournment refused

Legislation: Evidence Act 1995 (Cth), s50

Cases cited:
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27

Morgan & Valverde [2022] FedCFamC1A 133

Tate & Tate (2003) FLC 93-138

Zane & Allan [2008] FamCAFC 115

Division: Division 2 Family Law

Number of paragraphs: 17

Date of last submission/s: 15 May 2023

Date of hearing: 15 May 2023

Place: Melbourne

Solicitor for the Applicant Fumens Pty Ltd

Counsel for the Applicant Mr Goussis

Solicitor for the Respondent Stephen Peter Byrne Lawyer

Counsel for the Respondent Mr Ellis

ORDERS

MLC 6943 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR YUAN

Applicant

AND:
MS SHUN

Respondent

order made by:

JUDGE HARLAND

DATE OF ORDER:

15 May 2023

THE COURT ORDERS THAT:
1.The Applicant’s oral Application for an adjournment be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
The matter is listed for a 3 day trial due to commence today to resolve outstanding property matters. An oral application has been made by the Applicant husband for the trial to be adjourned which is opposed by the Respondent wife. It is necessary to refer to some of the history of this matter. The applicant commenced parenting proceedings on 12 July 2017 which I dismissed on 22 July 2022 due to Children Court proceedings being on foot, resulting in this Court no longer having jurisdiction. The respondent introduced property proceedings in her Response to Initiating Application filed 2 October 2017.
The applicant has been represented by various lawyers throughout these proceedings and has also appeared without legal representation. His current lawyers filed a Notice of…

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 Yuan & Shun

Details

AGLC: Yuan & Shun [2023] FedCFamC2F 603
Case: [2023] FedCFamC2F 603
Decision Date

CaseChat Overview and Summary

This case involved an application by the Applicant, Mr Yuan, for an adjournment of a three-day trial in a property dispute with the Respondent, Ms Shun. The case was before Judge Harland in the Federal Circuit and Family Court of Australia (Division 2). The matter had a long history, with the Applicant originally commencing parenting proceedings in 2017, which were dismissed by the Court. The Respondent subsequently introduced property proceedings in response to the Applicant's initiating application. The matter had faced numerous delays, partly due to the Applicant's criminal proceedings and subsequent imprisonment.

The key legal issues before the Court were whether the trial should be adjourned, and if so, what the implications would be for procedural fairness and case management. The Applicant argued that an adjournment would allow him to comply with the Court's previous orders and that denying the adjournment would deny him procedural fairness. The Respondent opposed the adjournment, citing the Applicant's history of non-compliance with Court orders and the impact of the delay on her and their child.

Judge Harland considered the legal precedents and the specific circumstances of this case. The Court noted that procedural fairness meant both parties had the opportunity to be heard, but it was not a requirement that the trial be listed at a time convenient to a litigant. The Court also had to consider the impact of the adjournment on other litigants and the Court's workload. The Court concluded that an adjournment was unlikely to result in the Applicant complying with the previous orders, and that the delay would prejudice the Respondent, who had sole care of their child and was reliant on Centrelink. The Court also noted that the Respondent intended to make a claim for compensation in the County Court, which could be affected by the outcome of this case.

For these reasons, the Court dismissed the Applicant's application for an adjournment. The Court's decision was based on the need for effective case management, the Respondent's position, and the potential impact on other litigants. The Court did not find that the Applicant's arguments for an adjournment were sufficient to warrant a delay in the proceedings.

In summary, the Court refused the application for an adjournment in this property dispute case, finding that the Respondent would be prejudiced by a delay and that the Applicant's history of non-compliance with Court orders did not warrant an adjournment. The Court emphasised the importance of procedural fairness and effective case management in reaching its decision.

Orders