FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Zan & Wen (No 2) [2023] FedCFamC1A 130
Appeal from: Wen & Zan [2023] FedCFamC1F 233 Appeal number: NAA 109 of 2023 File number: MLC 11085 of 2016 Judgment of: AUSTIN, TREE & CHRISTIE JJ Date of judgment: 11 August 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appellant appeals from final property settlement orders – Procedural fairness – Where the appellant asserts he was denied procedural fairness – Where the appellant was self-represented at times throughout the trial – Length of trial – Where the matter was heard over four years – Where reasons for delay cannot be imputed to the primary judge – Time constraints on submissions not unreasonable – Where appellant was incarcerated for entire period of trial – Where the appellant’s physical location during the trial does not amount to procedural unfairness – Where the primary judge made accommodations for the appellant to understand and answer the case – Where various asserted issues neither individually nor cumulatively constitute procedural unfairness – Whether exercise of discretion was unjust, inequitable and/or plainly wrong – Where no error in the exercise of discretion is found – Adequacy of reasons – Where complaint about the primary judge’s reasons relate to treatment of parties’ assets overseas – Where the primary judge took into account existence of assets overseas – Where no ground of appeal has merit – Appeal dismissed – Slip rule – Where the primary judge’s orders do not reflect her intention – Where the primary judge intended for the first respondent to assume responsibility for mortgage liability and to transfer her interest in companies to the appellant – Where appellant did not approach the primary judge to amend the orders under the slip rule – Exercise of r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by appellate court – Costs ordered. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.01, 7.26, 10.13
Cases cited: Aitken v Aitken (2023) 66 Fam LR 314; [2023] FedCFamC1A 69
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Chang v Su (2002) FLC 93-117; [2002] FamCA 156
Johnson v Johnson (1997) FLC 92-764; [1997] FamCA 32
Kingsley & Secretary, Department of Communities and Justice [2021] FamCAFC 10
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Number of paragraphs: 79 Date of hearing: 2 August 2023 Place: Melbourne Counsel for the Appellant: Mr Gunson SC & Ms O’Connell Solicitor for the Appellant: Easton Legal Counsel for the First Respondent: Mr McCormick Solicitor for the First Respondent: Goldsmiths Lawyers The Second Respondent: Litigant in person (did not participate) The Third Respondent: Litigant in person (did not participate) ORDERS
NAA 109 of 2023
MLC 11085 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
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- Zan & Wen (No 2) [2023] FedCFamC1A 130
- Case
- [2023] FedCFamC1A 130
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CaseChat Overview and Summary
The primary legal issues revolved around whether the appellant's rights to procedural fairness were compromised by the primary judge's handling of language translation, expert evidence, and valuation evidence. Specifically, the court considered whether the primary judge adequately ensured the appellant's understanding of proceedings, whether the rejection of adversarial evidence was justified, and if the acceptance of single expert valuation evidence constituted a breach of procedural fairness.
The court found that the primary judge took several measures to ensure that the appellant understood the proceedings, including providing opportunities for translation and additional time for interpretation. Regarding the expert evidence, the court held that the appellant was entitled to seek updated valuations but failed to do so. The court rejected the notion that the reliance on single expert evidence constituted a denial of procedural fairness, as the appellant had the right to challenge the expert's conclusions and present alternative evidence. The court further determined that the primary judge's acceptance of single expert valuation evidence was justified as the appellant did not provide a basis for an alternative valuation and was not entitled to give his own non-expert opinion.
The court concluded that the primary judge did not deny the appellant procedural fairness. The appellant's submissions regarding language barriers and expert evidence were not substantiated, and the primary judge's decisions were within the bounds of procedural fairness. The court upheld the primary judge's determination.
Orders
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Background
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Decision
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