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 Address for service on 7 July 2022 and remain on the record and appeared today. The matter has been considerably delayed in no small part by the applicant facing serious criminal charges and it not being fair to him to proceed to trial, particularly as both parenting and property proceedings were on foot whilst that matter remained unresolved. There were also further delays in the County Court of Victoria and having the mater reach trial, noting the impact that Covid-19 had on the Courts, particularly in criminal matters. The County Court proceedings were resolved and the applicant was convicted in mid-2022 of serious sexual offences against the respondent. He was sentenced to a term of imprisonment.
The applicant has been brought from prison to appear today. Both parties required interpreters which have been provided.
The matter was first listed for trial in 2017 by Judge Williams (as she then was), to commence on 9 December 2019. A further trial date was given before me to commence on 1 March 2021 which was vacated in December 2020. The matter was subsequently listed for a directions hearing on 11 July 2022 before me. I note on that date, the applicant was represented by the same counsel and solicitor appearing before me today and who also appeared before me on the compliance mention on 06 March 2023.
On 11 July 2022, the applicant had not filed any material since his solicitors came on the record. The applicant has been on notice that the respondent sought to agitate her application for property adjustment orders and had made complaints about the applicant’s non-compliance with orders and his disclosure obligations. Indeed, some of the history shows several appearances before Judicial Registrars, many regarding subpoena objections after the respondent’s lawyers issued several subpoenas to various individuals and institutions in order to understand the applicant’s financial position. It is significant to note that the respondent’s lawyer filed an affidavit on 31 August 2021 referring to information found in subpoenaed material, disclosed and referring to several entries that posed issues that were suggestive of considerable sums of money withdrawn at and near B Venue in Suburb C. The applicant has clearly been on notice from that time of the respondent raising serious allegations of wastage in this case.
When the matter came before me on 6 March 2023 for a compliance mention, the hearing date commencing today was confirmed and the parties consented to an order extending time for the applicant to comply with the trial directions made in 2022. I further directed the Applicant to file an Affidavit in Response to the Affidavit filed by the respondent’s solicitors on 30 and 31 August 2021 within 28 days.
Further, order 5 was made granting the parties liberty to apply to chambers to list the matter for further directions. Neither party sought that liberty to apply. The applicant has not filed any further affidavit material. A case outline was filed by the applicant and indicated that the applicant sought to rely on his affidavit and financial statement filed on 28 November 2017. His case outline alleges the Australian Tax Office debt has grown considerably as to what he deposed to earlier, but no evidence has been provided to support it as a case outline is not evidence.
The applicant’s lawyers did not reply my Chambers correspondence in respect to compliance checks, except that he would attend in person when told his attendance was required to explain why no material had been filed and to further explain the ignoring of Chambers correspondence.
The applicant argues that he would be denied procedural fairness if the application to adjourn is not granted. His Counsel stated that he would be able to comply within 6 weeks, and so the delay to the trial would not be substantial, assuming the Court could accommodate an early date. Counsel for the Applicant referred to difficulties in obtaining instructions and preparing documents given the applicant’s detention. Counsel for the Applicant also complained about a Section 50 summary of the Evidence Act 1995 (Cth) served before the trial by the respondents’ lawyers with respect to the number of bank statements and entries the respondent sought to rely on as part of her argument for wastage. The applicant’s lawyers had the affidavits of the respondent’s lawyer’s affidavit setting out the detailed allegations of wastage and the documents relied upon to establish this. He did not comply with the order to respond to that affidavit. Counsel for the respondent advised the Court that the applicant’s lawyers advised them they would be seeking an adjournment on Tuesday of the previous week. No such indication of this adjournment sought was given to chambers, no Application in a Proceeding was filed, and not a single document is filed to support the adjournment request now.
I have real doubts that adjourning the trial would result in the applicant filing material. Procedural fairness is about both parties having the opportunity to have their cases heard, it is not a requirement that the Court list the trial at a time convenient to a litigant. The critical issue is the parties having an opportunity to be heard, whether the litigant takes this opportunity is another matter.
In considering an adjournment application, the Court must consider the position of the other litigant seeking to have the matter determined and in addition to that the need to actively case manage matters. The High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 set out the precedent for risk management and discussed various risk factors to consider when adjourning a trial. It is not just the impact on the parties that is to be taken into consideration, but the Courts work and other litigants waiting for their matters to be heard. The other trial listed today resolved. As there is no other trial listed before me, 3 days of court time would be unutilised if the trial is adjourned. It would not be possible to list it before February 2024 which is my next availability for legacy matters without over listing and prejudicing other litigants.
The applicant offers to pay costs thrown away and says the wife would not be prejudiced by the adjournment if he paid her costs. When asked how he would meet these costs, he indicated that he has the assistance of family members. The wife’s Counsel apposed the adjournment referring to Zane & Allan [2008] FamCAFC 115 drawing my attention particularly to paragraph 180, and Tate & Tate (2003) FLC 93-138. Before taking the morning adjournment I referred the parties to the decision of Morgan & Valverde [2022] FedCFamC1A 133 which also deals with the issue of adjournments of trials and procedural fairness.
It is clear from the wife’s case outline, her affidavit and that of her lawyer, she argues that there has been, significant family violence, significant non-disclosure, significant wastage, and refers to the fact that she has sole care for the parties only child, X who is now 10 years old who the applicant has not seen her since 2018. The respondent does not receive child support and is unlikely to for the next several years whilst the applicant remains incarcerated. The main known asset of the parties is the former matrimonial home which the applicant had purchased subject to a mortgage. It is the wife’s case that she seeks the whole of the equity in that property. The wife’s evidence in her financial statement and affidavit also refers to her financial circumstances where she is reliant on Centrelink and she is not able to meet her expenses from that income without the assistance of her mother who has advanced her various lump sums.
A delay of the trial would mean a delay with respect to the wife having any opportunity to receive anything from the proceeds of sale of the former matrimonial home. I note too that the wife has indicated her intention to make a claim for compensation in the County Court and flags if this Court were to make orders that awarded the applicant part of the equity in the home, this would be stayed pending that application.
In all of the circumstances, I am not confident an adjournment would result in the applicant complying with the orders previously made and I am not satisfied that any prejudice to the wife being delayed would be cured by a cost order, noting that the applicant is in Court with the benefit of Counsel, his instructing solicitor, and an interpreter, just as in Morgan & Valverde where the applicant also had the opportunity to cross-examine through Counsel and to test the evidence.
For these reasons I refuse the application for an adjournment.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 23 May 2023
3
0