ZOLA & LODGE
[2012] FMCAfam 1360
•11 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZOLA & LODGE | [2012] FMCAfam 1360 |
| FAMILY LAW – Property – property application. PRACTICE AND PROCEDURE – Transfer of Proceedings – where proceedings transferred to Family Court – Litigation Guardian – where applicant’s mother appointed litigation guardian – where applicant currently incarcerated in China – length and complexity of proceedings – whether resources of the Federal Magistrates Court are sufficient to hear and determine the proceedings. |
| Federal Magistrates Act 1999 (Cth), s.39 Federal Magistrates Rules 2001 rr.8.02, 8.04, 11.08, 11.10, 11.11 |
| Applicant: | MS ZOLA |
| Respondent: | MR LODGE |
| File Number: | SYC 7761 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 December 2012 |
| Date of Last Submission: | 11 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Eldershaw |
| Solicitors for the Applicant: | Needs Chan & Monahan |
| Solicitor for the Respondent: | Mr Hearl |
| Solicitors for the Respondent: | Delany Lawyers |
ORDERS
The Conciliation Conference before a Registrar listed for 12 December 2012 is vacated.
In accordance with Rule 11.11 MS W is appointed Litigation Guardian to continue the proceedings in the interests of the Applicant Wife.
In accordance with s.39 of the Federal Magistrates Act 1999 the Application is transferred to the Family Court of Australia at Sydney and is to be listed before a Registrar on 4 February 2013 at 10:00 am.
IT IS NOTED that publication of this judgment under the pseudonym Zola & Lodge is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7761 of 2011
| MS ZOLA |
Applicant
And
| MR LODGE |
Respondent
REASONS FOR JUDGMENT
Application
The substantive Application is an Application for property orders. Certain issues have arisen that have led to the filing of an Application in a Case seeking:
a)The appointment of the Applicant’s mother as her Litigation Guardian;
b)The transfer of the proceedings to the Family Court of Australia; and
c)Various procedural orders.
Background
The Applicant wife commenced proceedings on 21st December 2011 by filing an Application for property orders relating to items of real estate at [H] and [F], New South Wales.
On 8th May 2012 the parties were ordered to attend a Conciliation Conference with a Registrar on 3rd September 2012. An interpreter in the Mandarin language was ordered for the assistance of both parties conference.
The Conference did not proceed on 3rd September as the Respondent husband had travelled to China to undergo medical treatment. The Registrar noted that the Respondent expected to be in China for several months and the Applicant lives in China.
A fresh date of 12th December 2012 was set for the Conference. However, an Application in a Case was filed seeking various orders as the Applicant was arrested on 29th October 2012 and detained in Beijing. She remains in custody.
The Application in a Case
The Application was supported by:
a)the affidavit of Ms W affirmed on 7th December 2012; and
b)the affidavit of Ms Y affirmed 7th December 2012.
Ms W is the Applicant’s mother and she deposes that her daughter was residing with her in [omitted] in China when she was arrested. The Applicant remains in custody. The Applicant’s mother engaged the services of Ms Y, a lawyer, to assist her daughter.
Ms W and Ms Y travelled to Australia on 30th November 2012 to meet with the Applicant’s Australian lawyer, Mr L, and to attempt to continue the property proceedings.
Ms Y deposed that she had only been permitted to meet the Applicant on one occasion. She has ascertained that the Applicant is being investigated in relation to allegations of irregular business practices and bribery of public officials. The Applicant has not yet been charged with any offence.
Ms Y deposed at paragraph [7] of her affidavit:
Under Chinese law, my client can be detained for a period of 2 months while the authorities investigate the allegations and decide whether to prosecute her with an offence. If the authorities decide to prosecute my client, there is a further period of about 2 months to consider the prosecution materials and evidence. The time between investigation before prosecution and for the matter comes before the Court depends on the complexity of the case and the time required for preparation. At present, the matter is still in the investigation stage and the outcome is pending. If formal prosecution is made, bail application is usually very strict and difficult to be granted, and leaving the country Is not allowed.
Conclusions
Rule 11.10 provides that a person may be a litigation guardian in a proceeding if he or she is an adult and has no interest in the proceeding adverse to the interest of the person needing the litigation guardian.
Under Rule 11.11, the Court may, at the request of a party or of its own motion, appoint a litigation guardian. The person sought to be appointed must file an affidavit of consent in the proceeding.
I am satisfied that the Applicant is likely to remain in custody in China for some time to come and is therefore not capably of adequately conducting, or giving adequate instruction of the conduct of, the proceeding (r.11.08(1)).
I am also satisfied that the Applicant’s mother, Ms W, is a suitable person to be appointed litigation guardian, as she has filed an affidavit consenting to the appointment and has deposed that she has no interest in the proceeding adverse to the interest of the Applicant.
The financial information needed to be obtained is relatively complex. The Conciliation Conference scheduled to be held on 12th December 2012 will be vacated.
The property proceeding, when it is ready to be heard, will be of some length and complexity, especially as the parties and other possible witnesses will all require the interpreter assistance in the Mandarin language. I am not satisfied that the resources of this Court are sufficient to hear and determine the proceeding. There is agreement between the parties’ legal advisers that the Application will require more than four hearing days to deal with all the evidence.
This is a suitable matter for transfer to the Family Court, which I propose to do under the provisions of s.39 of the Federal Magistrates Act 1999.
The Applicant’s lawyers seek various other procedural orders, but they can be dealt with in the Family Court.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 12 December 2012
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