Zhong & Yao (No 2)
[2023] FedCFamC1F 1060
•13 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zhong & Yao (No 2) [2023] FedCFamC1F 1060
File number(s): SYC 1477 of 2019 Judgment of: SCHONELL J Date of judgment: 13 December 2023 Catchwords: FAMILY LAW – PROPERTY – Where the husband sought payment of a money sum from the parties’ joint account – Where a financial agreement is in effect between the parties – Where an application to set aside the financial agreement was dismissed – Where the Court has no power to make the order sought by the husband and the application is therefore incompetent – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 71A, 79, 90K
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.33
Cases cited: Citta Hobart Pty Ltd v Cawthorn (2022) 400 ALR 1; [2022] HCA 16
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Hazeldell Ltd v Commonwealth (1924) 34 CLR 42; [1924] HCA 13
Zhong & Yao [2023] FedCFamC1F 626
New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26
R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190; [1979] HCA 6
Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 1 December 2023 Place: Sydney The Applicant: Litigant in person The Respondent: Did not appear Solicitor for the Independent Children's Lawyer: Farah Lawyers, Solicitors & Barristers ORDERS
SYC 1477 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ZHONG
Applicant
AND: MS YAO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
13 DECEMBER 2023
THE COURT ORDERS THAT:
1.The applicant husband’s Application in a Proceeding filed 4 November 2023 is 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 the pseudonym Zhong & Yao has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Application in a Proceeding filed 4 November 2023, the applicant husband (“the husband”) sought a payment of approximately $22,500 along with any accrued interest from a Westpac joint share trading account.
On 10 November 2023, the Court made orders for the husband’s application to be served and for the respondent wife (“the wife”) to file any Response to an Application in a Proceeding and supporting affidavit. The application was otherwise listed for interim hearing before me on 1 December 2023.
The wife did not file any Response or evidence in relation to the husband’s application. The wife has a history of non-compliance and failure to attend court events. On the day of the hearing, at approximately 3.34 am, the wife sent an email to my associate in which she said she would be unable to attend the hearing due to having an illness. A medical certificate dated 29 November 2023 was attached to the email. The medical certificate stated only that the wife was medically unfit from 29 November 2023 to 4 December 2023.
I am satisfied the wife has been served and had notice of the hearing. The medical certificate is of no evidential weight. Beyond a generic statement that the wife is coincidentally unfit for work for the week in which the hearing occurred, it does not explain why the wife could not comply with directions or appear. For expert evidence to be admissible, the process of reasoning must be apparent (see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588). I place no weight on the certificate or the email.
The respondent has been served and there is no proper explanation for her non-appearance. Rule 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that if a party does not comply with an order, the Court may proceed to determine the proceedings as if it were undefended.
In the circumstances, I am satisfied that it was appropriate to proceed in the absence of the wife.
The husband relied upon the following documents:
(1)Application in a Proceeding filed 4 November 2023;
(2)Affidavit of husband filed 4 November 2023;
(3)Affidavit of husband filed 13 November 2023; and
(4)Case outline document filed 24 November 2023.
BACKGROUND
The husband was born in 1975 and is currently 48 years of age.
The wife was born in 1979 and is currently 44 years of age.
The parties commenced cohabitation in 2009, married in 2011, separated on a final basis in April 2017 and divorced in 2019.
Following separation, on or about 10 July 2017, the parties entered into a financial agreement.
The husband commenced proceedings on 11 March 2019 seeking parenting orders only, which he subsequently amended to include financial orders.
By his Amended Initiating Application, he sought final parenting orders and a suite of financial orders including the payment of monies, the setting aside of a Child Support Agreement and an order setting aside the financial agreement pursuant to s 90K of the Family Law Act 1975 (Cth) (“the Act”).
On 1 August 2023, Altobelli J dismissed the husband’s application to set aside the financial agreement. Relevantly, his Honour recorded in his judgment Zhong & Yao [2023] FedCFamC1F 626 as follows:
26.Amongst the documents produced on subpoena and tendered into evidence is a document described as a deed of financial agreement pursuant to s 90UC of the Family Law Act 1975 (Cth) (“the Act”) which refers to financial agreements during de facto relationships. This is notwithstanding the fact that the parties were in fact married. Indeed, the entire agreement seems to be predicated on the basis that the husband and the wife had never married but were in a de facto relationship between […] 2008 and […] 2017. This issue was not raised before the Court in submissions, but was raised by the wife in her Points of Defence. The Court will consider the potential consequences of this after addressing the matters raised in the husband’s case.
…
40.The Court notes that at all relevant times the onus of proof was on the husband to adduce the evidence necessary to prove the case that he ran under s 90K of the Act. He has not met the burden of proof. His evidence is inadequate and unsatisfactory. His application must be, and is, dismissed.
41.The unfortunate situation which arises, however, is that the agreement entered into and signed by the parties purports to be something that it is not. Doing the best the Court can, the agreement was meant to be one under s 90C of the Act being an agreement during marriage, noting that divorce did not take place until […] 2019. It is regrettably framed as an agreement under s 90UC of the Act i.e. one entered into during a de facto relationship. Notwithstanding that there is reference to Part VIIIA of the Act, rather than Part VIIAB of the Act. All of these matters were identified by the wife in her Points of Defence, but seemingly ignored by the husband.
42.This matter proceeded on an undefended basis. The husband was seemingly unaware of this problem, as surprising as that may seem given that he is currently legally represented. In theory, rectification of the agreement is possible: Senior & Anderson (2011) FLC 93-470. Recently, Aldridge J sitting as the Full Court in Birdwood & Gravino [2023] FedCFamC1A 114 expressed concerns as to whether rectification is available at all to correct binding financial agreements at [2]–[16]. I respectfully concur with Aldridge J for the reasons he gives. In any event the wife cannot make this application as she did not participate in the proceedings, no evidence was relied on by her, and her Points of Defence were struck out. In any event the husband, one surmises, would not want rectification of an agreement that he was trying to set aside.
43.The drafting of the agreement, and the subsequent litigation over it, is beset with difficulty and seeming inattentiveness by the lawyers, including counsel, involved in the case.
44.Whilst the Court has reservations about the validity and enforceability of the agreement, it feels compelled merely to deal with the application presented before it and to dismiss it for the reasons given above.
DISCUSSION
The husband appeared before the Court unrepresented. It is clear that he struggles with English and that it is not his first language. It was apparent before me that he did not understand much of what was said. He will continue to have difficulty presenting his case (noting that there remain undetermined parenting proceedings and a contempt application) while he remains unrepresented and his command of English is such that he does not appear to understand what is being said.
His documents appear not to have been prepared by a lawyer (albeit at times the actuality of legal representation can be deceiving) and do not therefore address the relevant issues. The observations of Altobelli J referred to earlier continue to remain apposite.
It is well established that a court must first determine whether it has power to grant relief before it can proceed to hear and determine a matter (see Hazeldell Ltd v Commonwealth (1924) 34 CLR 42; R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190; New South Wales v Kable (2013) 252 CLR 118; Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476).
Pursuant to s 71A of the Act, the Court has no power to make orders pursuant to s 79 where there is in place a financial agreement which is binding on married parties.
The husband sought payment of a sum of money. As best I could understand the husband’s submissions, he contended that the money he sought be paid to him comprised of funds in a joint account held with his former wife that had been contributed to by him and that the wife had not contributed to since 2014.
The husband could not articulate the basis upon which I would have power to make the order he sought where the financial agreement is still binding on the parties and Altobelli J had dismissed the husband’s application to set it aside.
In those circumstances, the husband’s application is incompetent and will be dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 13 December 2023
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