Gin & Hing - [2024] FedCFamC1A 36

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gin & Hing [2024] FedCFamC1A 36

Appeal from: Gin & Hing (No 8) [2023] FedCFamC1F 954

Appeal number: NAA 353 of 2023

File number: MLC 4528 of 2010

Judgment of: ALDRIDGE J

Date of judgment: 20 March 2024

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Appellant sought extension of time for filing his Summary of Argument and an Amended Notice of Appeal, the vacation of the hearing date and leave to issue a subpoena – Notice of Appeal is prolix and difficult to understand – Appellant has had difficulty obtaining counsel – Appellant claimed he could not brief a barrister without the transcript or the Appeal Book – Appellant declined to provide communications with barristers regarding availability – Where the appellant’s difficulties are largely of his own making – Where the interests of justice are best achieved by giving an extension of time for filing but not to vacate the hearing date – Where the application for the subpoena needs to be heard by the Full Court hearing the appeal per r 13.34 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Application for subpoena adjourned.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.10 and r 13.34

Cases cited:
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Number of paragraphs: 29

Date of hearing: 20 March 2024

Place: Sydney (via video link)

The Appellant: Self-represented litigant

Counsel for the Respondent: Dr Smith

Solicitor for the Respondent: Clancy & Triado
ORDERS

NAA 353 of 2023
MLC 4528 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR GIN

Appellant

AND:
MS HING

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

20 MARCH 2024

THE COURT ORDERS THAT:
1.The time in which the appellant is to file and serve a Summary of Argument is extended up to and including 4.30 pm on 15 April 2024.
2.Leave is granted to file and serve an Amended Notice of Appeal on or before 4.30 pm on 15 April 2024.
3.In the event that either the Amended Notice of Appeal or the Summary of Argument or both documents are not filed by 4.30 pm on 15 April 2024 the appeal stands dismissed.
4.Leave is granted to the respondent to file and serve a further Summary of Argument on or before 4.30 pm on 24 April 2024.
5.The application for the issue of a subpoena to the Australian Health Practitioner Regulation Agency is adjourned to be heard by the Full Court at 10.00 am on 29 April 2024.
6.Costs of the Application in an Appeal are reserved to the hearing of the appeal.

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…

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 Gin & Hing

Details

AGLC: Gin & Hing [2024] FedCFamC1A 36
Case: [2024] FedCFamC1A 36
Decision Date: 20 March 2024

CaseChat Overview and Summary

The appellant, Mr Gin, sought an extension of time to file his Summary of Argument and an Amended Notice of Appeal in an appeal against Ms Hing in the Federal Circuit and Family Court of Australia. Mr Gin also sought to vacate the hearing date and to be granted leave to issue a subpoena to the Australian Health Practitioner Regulation Agency. The appeal arose from a decision of the Family Court in a matter involving the custody of a child. The appeal was complex, and the Notice of Appeal was prolix and difficult to understand. Mr Gin had difficulty obtaining counsel to brief the appeal and claimed he could not brief a barrister without the transcript or the Appeal Book. Mr Gin declined to provide communications with barristers regarding their availability.

The court had to decide whether to grant Mr Gin’s applications. The court found that while Mr Gin’s difficulties in obtaining counsel were genuine, they were largely of his own making. The court considered that the interests of justice were best achieved by giving Mr Gin an extension of time for filing the Summary of Argument and the Amended Notice of Appeal. However, the court decided that the hearing date should not be vacated, and the appeal would stand dismissed if the documents were not filed by the extended deadline. The court also decided that the application for the subpoena needed to be heard by the Full Court, pursuant to rule 13.34 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

The court ordered that the time in which Mr Gin was to file and serve a Summary of Argument be extended to 15 April 2024. Leave was granted to file and serve an Amended Notice of Appeal on or before the same date. If either document was not filed by that date, the appeal would stand dismissed. The respondent, Ms Hing, was granted leave to file and serve a further Summary of Argument by 24 April 2024. The application for the subpoena was adjourned to be heard by the Full Court at 10.00 am on 29 April 2024. The costs of the Application in an Appeal were reserved to the hearing of the appeal.

Orders

Orders of the court

NAA 353 of 2023

MLC 4528 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR GIN

Appellant

AND:

MS HING

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

20 MARCH 2024

THE COURT ORDERS THAT:

1. The time in which the appellant is to file and serve a Summary of Argument is extended up to and including 4.30 pm on 15 April 2024.

2. Leave is granted to file and serve an Amended Notice of Appeal on or before 4.30 pm on 15 April 2024.

3. In the event that either the Amended Notice of Appeal or the Summary of Argument or both documents are not filed by 4.30 pm on 15 April 2024 the appeal stands dismissed.

4. Leave is granted to the respondent to file and serve a further Summary of Argument on or before 4.30 pm on 24 April 2024.

5. The application for the issue of a subpoena to the Australian Health Practitioner Regulation Agency is adjourned to be heard by the Full Court at 10.00 am on 29 April 2024.

6. Costs of the Application in an Appeal are reserved to the hearing of the appeal.

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 353 of 2023 MLC 4528 of 2010
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR GIN Appellant
AND:	MS HING Respondent

Appeal from:	Gin & Hing (No 8) [2023] FedCFamC1F 954
Appeal number:	NAA 353 of 2023
File number:	MLC 4528 of 2010
Judgment of:	ALDRIDGE J
Date of judgment:	20 March 2024
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Appellant sought extension of time for filing his Summary of Argument and an Amended Notice of Appeal, the vacation of the hearing date and leave to issue a subpoena – Notice of Appeal is prolix and difficult to understand – Appellant has had difficulty obtaining counsel – Appellant claimed he could not brief a barrister without the transcript or the Appeal Book – Appellant declined to provide communications with barristers regarding availability – Where the appellant’s difficulties are largely of his own making – Where the interests of justice are best achieved by giving an extension of time for filing but not to vacate the hearing date – Where the application for the subpoena needs to be heard by the Full Court hearing the appeal per r 13.34 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Application for subpoena adjourned.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.10 and r 13.34
Cases cited:	CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Number of paragraphs:	29
Date of hearing:	20 March 2024
Place:	Sydney (via video link)
The Appellant:	Self-represented litigant
Counsel for the Respondent:	Dr Smith
Solicitor for the Respondent:	Clancy & Triado

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	20 MARCH 2024