Zhuo & Ji (No 2)
[2023] FedCFamC1F 640
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zhuo & Ji (No 2) [2023] FedCFamC1F 640
File number(s): SYC 3409 of 2022 Judgment of: HARPER J Date of judgment: 13 July 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where husband has a history of non-compliance with Court orders particularly with respect of disclosure and injunctive orders intended to prevent him from dissipating assets – Court made orders on 10 May 2023 requiring the husband to file a Further Undertaking as to Disclosure and an affidavit detailing his disclosure in the proceedings by no later than 31 May 2023 – Court made a further order that in the event of any further non-compliance with Court orders the husband’s Response would be dismissed and the wife was given leave to apply for the matter to be listed for final hearing as if undefended – Where husband did not file a Further Undertaking as to Disclosure or Affidavit until 13 July 2023 – Husband’s Response dismissed pursuant to Order 11(a) of 10 May 2023 and the matter was listed for final hearing as if undefended. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 68 Cases cited: Zhuo & Ji [2023] FedCFamC1F 357 Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 13 July 2023 Place: Sydney Solicitor for the Applicant: Mr Gittoes-Caesar, Lander & Rogers Counsel for the Respondent: Mr Cairns Solicitor for the Respondent: Jeffrey Choy Legal ORDERS
SYC 3409 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ZHUO
Applicant
AND: MR JI
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
13 JULY 2023
THE COURT ORDERS THAT:
1.The proceedings be stood over to 10.00 am on 14 and 15 August 2023 for final hearing, as if undefended by the Respondent Husband (“husband”).
2.Costs of the mention on 13 July 2023 stand reserved.
THE COURT NOTES THAT:
A.Pursuant to Order 11(a) made on 10 May 2023 the husband’s Response stands dismissed.
B.In the event the husband participates in the hearing on 14 and 15 August 2023, the Court will entertain an application for him or his representatives to be permitted to cross-examine the wife and to make submissions at the end of trial. However, any such application will be determined on its merits, as and when it is made.
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 Zhou & Ji has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Harper J
These are property proceedings which have an unfortunate history, some of which I detail in Zhuo & Ji [2023] FedCFamC1F 357 (“Zhuo & Ji”). That judgment considered the applicant wife’s (“wife’s”) application for a range of injunctive orders and orders relating to disclosure by the husband. Orders were made substantially as the wife proposed against a background of numerous earlier orders by the Court which were designed to progress the matter it final hearing, as well as impose certain restraints upon the husband in relation to a range of properties which were held in a slightly complex structure of companies and trusts.
In particular, Orders 10, 11 and 12 of orders made on 10 May 2023 were in the following terms:
10. By no later than close of registry filing on 31 May 2023, the husband shall file:
(a)further Undertaking as to Disclosure in accordance with the Rules;
(b)An affidavit detailing his disclosure in these proceedings in accordance with orders of the Court and the Rules.
11. In the event there is any non-compliance by the husband with any undischarged or other order of this Court which is not yet exhausted in these proceedings, including Order 10 above, after the date of these orders:
(a) His Response shall stand dismissed; and
(b) The wife may apply to the chambers of the Docket Judge to list the proceedings for final hearing as if undefended.
12. For the purposes of Order 11, the wife may file and serve an affidavit detailing the evidence said to demonstrate non-compliance by the husband.
The wife filed an affidavit on 30 June 2023, which set out in considerable detail her contentions regarding breaches of injunctive orders and other orders of the Court relating to disclosure, which took place since 10 May 2023.
I listed the matter for mention on 13 July 2023 in order to hear from the parties and especially the respondent husband (“husband”) concerning the evidence of his non-compliance and any submissions he wished to make concerning the application and consequences of Order 11.
On 13 July 2023, it became apparent that the day before, the husband filed an affidavit and an undertaking as to disclosure, which was said to be, at least in part, to remedy non-compliance with Order 10 made on 10 May 2023. But it was beyond argument that the husband had failed to comply with Order 10. That indisputable fact taken with the evidence of the wife detailed in her affidavit of 30 June 2023 satisfies me that there has been ongoing and material non-compliance by the husband since 10 May 2023.
Accordingly, I am satisfied that in the circumstances detailed, by force of Order 11(a) made on 10 May 2023, the response of the husband stands dismissed. The question, then, becomes whether the Court should proceed to list the matter for hearing as if undefended in accordance with Order 11(b). Paragraphs [29]–[31] of Zhuo & Ji are in the following terms:
29.Having said that, it is sufficiently clear that the Court has endeavoured to move the proceedings forward with procedural orders, and to bring about disclosure and to preserve assets on an interlocutory basis, but the husband has not complied and has demonstrated an unwillingness to co-operate adequately with the functioning of the Court’s processes. I conclude that he has failed in his obligation, set forth in s 68 of the Act to act consistently with the overarching purpose of the family law practice and procedure provisions for a quick, inexpensive and efficient resolution of the proceedings (s 67 (1)). In particular, by impeding the satisfaction of the objectives for the just determination of all proceedings, the efficient use of the judicial and administrative resources available for the purposes of the Court, and the efficient disposal of the Court’s overall caseload (s 67(2)(a), (b), (c) and (d)).
30.The family law practice and procedure provisions include the Rules (s 67(4)(b)). Rule 1.04 sets out a further statement of the overarching purpose and r 1.06 gives the Court extensive powers to achieve the overarching purpose, including the making of a self-executing order. By r 1.33(2), where a party does not comply with the Rules or a procedural order the Court may dismiss all or part of the proceeding, determine the proceeding as if undefended, or make any other order the Court considers necessary, having regard to the overarching purpose of the Rules.
31.In addition to the orders sought by the wife which I am prepared to make, in light of the overarching purpose and the provisions in the Rules mentioned above, I will also order the husband to file a further Undertaking as to Disclosure and file an affidavit setting out the disclosure he has made in accordance with the orders at the start of these reasons. I will also make a self-executing order dismissing the husband’s Response in the event of any further non-compliance and permitting the wife to apply to list the proceedings for final hearing as if undefended.
In my view, it was made clear to the husband by my judgment that the Court viewed his non‑compliance to that date and any future non-compliance in the most serious terms, and that continued non-compliance would constitute a serious violation of his duty to promote the overarching purpose set out in s 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Although the husband filed an affidavit on 12 July 2023 and an undertaking as to disclosure, he has provided no evidence which explains completely or satisfactorily why he has taken such a lackadaisical approach to progressing the matter to final hearing.
His counsel submitted to me his failure to comply with Order 10 caused the wife no prejudice.
However, I disagree with that submission, and as the solicitor appearing for the wife pointed out, any prejudice to the wife goes far beyond all compliance with Order 10 to a long period where her attempt as applicant to progress the matter to final hearing of being frustrated by the mercurial attitude of the husband and his refusal to focus upon what is required by the Court to the bring the matter to finality.
In those circumstances, I can see no reason why the matter should not be listed for final hearing as if undefended in accordance with Order 11.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper delivered on 13 July 2023. Associate:
Dated: 1 August 2023
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