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.

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 Zhuo & Ji (No 2)

Details

AGLC: Zhuo & Ji (No 2) [2023] FedCFamC1F 640
Case: [2023] FedCFamC1F 640
Decision Date

CaseChat Overview and Summary

In the matter of Zhuo and Ji (No 2), Harper J of the Federal Circuit and Family Court of Australia considered a case involving ongoing non-compliance by the husband with court orders, particularly regarding disclosure and injunctive orders. The husband had a history of non-compliance, which led the court to issue orders on 10 May 2023, requiring him to file a Further Undertaking as to Disclosure and an affidavit detailing his disclosure by 31 May 2023. The court also made it clear that any further non-compliance would result in the dismissal of his response and permit the wife to apply for the matter to be listed for final hearing as if undefended. Despite these orders, the husband failed to comply, filing his documents on 12 July 2023. This non-compliance led to the dismissal of his response and the scheduling of the matter for a final hearing as if undefended.

The legal issues before the court were whether the husband's failure to comply with the court’s orders constituted a breach warranting the dismissal of his response and whether the proceedings should be listed for a final hearing as if undefended. The court had to balance the husband’s right to a fair hearing against the overarching purpose of the family law practice and procedure provisions, which aim for a quick, inexpensive, and efficient resolution of proceedings. The court referenced the Federal Circuit and Family Court of Australia Act 2021 and the Family Law Act 1975 to support its authority in enforcing compliance and the consequences of non-compliance. The court also considered the husband’s submission that his non-compliance did not prejudice the wife, but disagreed, noting the broader impact of his non-compliance on the proceedings.

The court found that the husband's non-compliance was both indisputable and ongoing, violating his duty under the Act to promote the overarching purpose of the court’s proceedings. The court noted the husband’s lack of satisfactory explanation for his actions and determined that there was no reason to deviate from the earlier orders. Consequently, the husband's response was dismissed, and the matter was listed for final hearing as if undefended, in accordance with the prior court orders. The court also reserved the costs of the mention on 13 July 2023 for further determination.

In conclusion, the court ordered that the proceedings be stood over for a final hearing on 14 and 15 August 2023, as if undefended by the husband. The court dismissed the husband's response and noted that if he participated in the hearing, the court would consider an application for him to cross-examine the wife and make submissions at the end of the trial. The court's decision underscored the importance of compliance with court orders in family law proceedings and the consequences of non-compliance.

Orders