Shuren & Fang (No 11) [2025] FedCFamC1F 769 (22 October 2025)

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are my ex tempore reasons for judgment.
2. These proceedings, including pursuant to s 79A of the Family Law Act 1975 (Cth) ("Act"), were listed for trial commencing on 25 August 2025 for 10 days. By the ninth day, being 4 September 2025, it was clear that the trial would not conclude within the allotted time. The applicant wife's case had closed, and the respondent husband's case was yet to open. At the end of the day on 4 September 2025, the trial was adjourned part-heard for another eight days, on the estimates of counsel. It was initially adjourned to resume on 20 October 2025, and was subsequently adjourned to this day, being 22 October 2025.
3. Before I adjourned on 4 September 2025, Senior Counsel for the husband foreshadowed that a summary dismissal application of part of the wife's s 79A application would be brought, said to be arising out of concessions elicited by him in cross-examination, in particular, from the applicant wife. Senior Counsel properly concedes that, at no stage that day, did he indicate that such application would be sought to be made at the resumption of the trial this day, rather than in the intervening period of the adjournment, as might reasonably have been expected. That would have enabled me to hear, consider and determine that discrete interlocutory application in time for the resumption of the trial this day.
4. In that intervening period, between 4 September - 22 October 2025, there has been a deafening silence on the part of the husband. Applications in this Court are required to be brought in writing, in the ordinary course, by Initiating Application for Final Orders or Application in a Proceeding, or in Responses thereto. That is not to say that, in appropriate circumstances, leave will not be granted to make an oral application, such as in the running of a trial, without any intervening period, as has occurred here. Whilst form does not take precedence over substance, not only is there no Application in a Proceeding, there is not even a minute of orders sought specifying, with any degree of precision, what is actually sought, nor any outline of case, so that the proposed application may be properly understood and considered. Nevertheless, today, for the first time since the trial was adjourned part-heard nearly seven weeks ago, the respondent husband seeks leave to make an oral application for summary dismissal, as foreshadowed on 4 September 2025.
5. In considering the question of leave, the Court must consider questions of prejudice and delay. Nearly seven weeks have elapsed since the trial was adjourned part-heard and, as I have observed, there has been a deafening silence on the part of the husband.
6. Senior Counsel for the husband could only proffer two explanations for the delay: first, that the parties participated a mediation on 3 October 2025 (which, self-evidently, was unsuccessful) and, secondly, that leave was required to file any Application in a Proceeding, pursuant to orders I made on 3 April 2025, by reason of the multitude of interim / interlocutory applications (including in responses) that had already been filed, contrary to paragraph 6.17 of the Court's Central Practice Direction: Family Law Case Management. Neither of those factors explain at all, to my satisfaction, why the proposed application, including for leave, was not filed in the preceding seven weeks. Neither the mediation, nor the orders that I made on 3 April 2025, would have precluded such application being made.
7. As to prejudice, the only prejudice the husband could point to (if it even be that) is that, if he is granted leave to make oral application for summary dismissal and is successful, it may save time. Any prejudice by the case taking the full remaining eight days allotted to it, rather than less time, is more a matter for the Court than for the husband or, indeed, the wife. The case which was listed for 10 days will now have up to 17 days.
8. Senior counsel for the husband did not argue, in support of any possible prejudice, any issue of the costs of these proceedings and any asserted inability to fund them. Costs notices filed on behalf of the husband and the wife disclose that they have spent, cumulatively, millions of dollars in legal fees and disbursements in these and related proceedings in the Supreme Court of Victoria. In the event the husband is ultimately successful in opposing the wife's applications, including, relevantly, pursuant to s 79A of the Act, he can, and presumably will, make a costs application.
9. Turning to prejudice to the wife, her counsel handed up, without objection, an exchange of WeChat messages between the husband and Ms S, who is another witness in this case and who is yet to be cross-examined, which, prima facie, go to the heart of the disclosure complaint in this case, which is one limb of the wife's s 79A application
10. In circumstances where the document was handed up without objection, I shall mark that document exhibit W-28. Counsel for the wife said, without objection or disagreement on the part of Senior Counsel for the husband, that such documents were sought as early as February 2025, but were only inexplicably provided on 15 October 2025, less than 10 days ago, notwithstanding that the messages in question were apparently translated on 6 April 2025.
11. I also take into account that the wife's application before the Court is not only pursuant to s 79A of the Act, but also for leave to review out of time (and, if successful, to review) the making of the subject orders by a registrar on 1 October 2020, and that the evidence in relation to the former application may well also be relevant to the latter.
12. The husband will not be deprived of any substantive rights by a refusal of leave to make an application for summary dismissal (oral or otherwise), nor will he suffer any, or any relevant, prejudice if leave to do so is refused. In closing addresses, he will still be able to make such arguments, through his Senior Counsel, as may be seen fit in relation to the wife's s 79A application. Form, as I have said, does not take precedence over substance; however, similarly, expediency does not take precedence over justice.
13. In all the circumstances, taking into account the husband's delay, which has not been satisfactorily explained, and what I consider to be a lack of any, or any substantive, prejudice to him, as opposed to prejudice to the wife in the prosecution of her applications, I refuse leave to the husband to make oral application for summary dismissal.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.