Gin and Hing (No 5)

[2021] FamCA 129

FAMILY COURT OF AUSTRALIA

GIN & HING (NO. 5) [2021] FamCA 129

FAMILY LAW – PARENTING – ruling – resumption of lengthy trial with only evidence of the family consultant remaining – counsel for the wife and counsel for the ICL having little to put to the family consultant – the father, now unrepresented, indicating he will cross-examine family consultant for up to 2 days – wife and ICL submitting father should pay the costs of the family consultant for one and a half days – orders made for that.

APPLICANT: Ms Hing

RESPONDENT: Mr Gin

INDEPENDENT CHILDREN’S LAWYER: Macgregor Barristers & Solicitors

FILE NUMBER: MLC 4528 of 2010

DATE DELIVERED: 11 March 2021

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Wilson J

HEARING DATE: 11 March 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr F. Dixon SC

SOLICITOR FOR THE APPLICANT: Clancy And Triado

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Not applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr D. Whitchurch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Macgregor Barristers & Solicitors

Orders

1. The trial of this proceeding resume as previously fixed on 26 July 2021.

2. Prior to Ms N giving evidence, her fees for two days of evidence must be paid by 4pm on 28 June 2021 –

   (a)       as to $2,500 by the mother; and

   (b)       as to $7,500 by the father.

3. The parties have leave to make submissions after the trial of this proceeding adjusting any such payment.

4. Each party’s costs of and incidental to this application are his, her or its costs in the cause.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gin & Hing has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4528 of 2010

Ms Hing

Applicant

And

Mr Gin

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. The trial of this proceeding resumes on 26 July 2021.  It will resume as to the viva voce evidence of Ms N whose evidence could not be led during the many epochs during which this case has been part heard since its commencement several years ago.  Today I was informed by Mr Gin, who is unrepresented and is conducting the case himself, that he intends to challenge Ms N on factual matters that underpin certain of the assumptions upon which she relies in order to base her many reports and the opinions expressed therein.

2. Mr Gin has told me that he may take up to two days in cross-examining Ms N.  Mr Dixon SC on behalf of the wife has indicated that it is unlikely that he and Mr Whitchurch of counsel, collectively, would take anywhere near that amount of time with Ms N.  Mr Dixon has proposed that his client be responsible for half of one day’s fees to be sought and recovered by Ms N.  That is to say the wife will pay $2,500 of the one day’s fees totalling $5,000 as rendered by Ms N.

3. Mr Gin has informed me today that he will be conducting a searching factual examination of Ms N and putting to her that such information upon which she relies has been provided by the wife which, in turn, may itself be unreliable thereby rendering Ms N’s opinion more dubious or at the very least that ultimately I should place little weight on Ms N’s recommendations. 

4. The inquiry that Mr Gin intends to undertake is likely to be very time consuming and goes beyond the parameters of a challenge to a family report writer of the sort that Ms N is in this case.  Irrespective of whose witness Ms N actually is, to take her to factual matters which will aggregate one and a half days’ worth of cross-examination seems to me to represent a degree of searching at a factual level that will most likely be akin to an inquisitorial investigation as opposed to it being probative by way of cross-examination.

5. It seems to me that a much more considered, searching and focused cross‑examination could easily be conducted within one day, not two.  In those circumstances, I do not accept that Ms N’s fees, having been met equally to date should continue to be met equally.  Mr Gin intends to conduct something akin to a Royal Commission in his examination of Ms N and he should pay for that from his own funds.

6. In those circumstances I order as follows –

   a)the trial of this proceeding is to resume as previously fixed on 26 July 2021;

   b)prior to Ms N giving evidence, her fees for two days of evidence must be paid by 4pm on 28 June 2021 –

   i)as to $2,500 by the mother; and

   ii)as to $7,500 by the father; and

   c)I give leave to the parties to make submissions after the trial of this proceeding adjusting any such payment.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 11 March 2021.

Associate: 

Date:  16 March 2021