By Orly Strum, Law Clerk and Antony Kahn, Special Counsel

Applying the High Court Rules in the Federal Circuit and Family Court of Australia

Wei & Xia [2024] FedCFamC1A 65

This case involved an appeal against orders made by a judge of the Federal Circuit and Family Court of Australia in property settlement proceedings between a husband and wife, where the husband’s parents were the second and third respondents.

The husband and wife married in about 2001 (the date of the marriage and many other factual matters were disputed) and they had one child, who was born in 2006. The parties, including the husband’s parents, were from Country F. The husband and wife immigrated to Australia and were granted permanent residency in 2005.

The principal issue in dispute in the primary proceeding related to funds totalling approximately AUD $13 million which originated from Country F and were in large part used to acquire assets in the names of the husband and wife in Australia. At trial, the wife argued that the funds belonged to the husband, whereas the husband’s parents, supported by the husband, argued that the funds brought to Australia and the assets purchased using those funds belonged to them.

The wife, the husband and the husband’s parents were all found to be unreliable witnesses by the trial judge. Notwithstanding their unsatisfactory evidence and failure to provide disclosure, the primary judge found in favour of the husband’s parents with respect to the disputed funds.  Accordingly, the funds were excluded from the pool of assets available for division between the husband and wife.  The wife appealed the decision of the trial judge.

The husband’s mother died prior to the hearing of the wife’s appeal and, while letters of administration of her estate had been sought, they had not been granted by the time the matter came before the Full Court on appeal.

On hearing the wife’s appeal, the Full Court observed that there was no provision in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (Family Law Rules) which empowered the Court to appoint a legal personal representative pending a grant of probate or letters of administration.

Notwithstanding the lacuna in the Family Law Rules, the Full Court was able to rely upon section 56(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which relevantly provides that where the Family Law Rules are insufficient, the Rules of the High Court of Australia may apply, insofar as they are capable of applying.

In this instance, the Full Court was able to utilise rule 21.06.2(b) of the High Court Rules 2004 (Cth), which empowers the Court to appoint a legal personal representative of the deceased person’s estate for the purpose of a proceeding.

The Full Court was satisfied that the husband’s father had consented to representing his wife’s estate, and appointed him as her legal personal representative for the purpose of the appeal.

Ultimately, the wife’s appeal was dismissed by the Full Court, which found no error on the part of the trial judge, who had encountered witnesses who were less than candid and a large body of evidence that was often confusing and contradictory.