Gin & Hing (No 2) - [2020] FamCA 734

FAMILY COURT OF AUSTRALIA

GIN & HING (NO. 2)

[2020] FamCA 734

FAMILY LAW – PARENTING – Respondent formerly represented by senior and junior counsel – now unrepresented at resumed trial, scheduled to run a further 5 days, making 10 days in total – a practising solicitor – mother’s evidence concluded.

FAMILY LAW – NEW EVIDENCE – alter close of mother’s case – father (self-represented) seeking leave to rely on material put forward on sixth day of trial – application refused.

Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517

APPLICANT:

Mr Gin

RESPONDENT:

Ms Hing

INDEPENDENT CHILDREN’S LAWYER:

Macgregor Barristers & Solicitors

FILE NUMBER:

MLC

4528

2010

DATE DELIVERED:

31 August 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

The Honourable Justice Wilson

HEARING DATE:

31 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Not applicable

COUNSEL FOR THE RESPONDENT:

Mr F. Dixon SC

with Mr A. Robinson

SOLICITOR FOR THE RESPONDENT:

Clancy And Triado

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr D. Whitchurch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Macgregor Barristers & Solicitors

Order

I refuse leave for Mr Gin to rely on his affidavit affirmed 26 August 2020 and the exhibits thereto.

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

Mr Gin

Applicant

And

Ms Hing

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

The trial of this proceeding ran in its first tranche on 26, 27, 28, 29 and 30 August 2019. The estimate of its duration was inaccurate. As a result the proceeding was adjourned part heard. Debate emerged in the case on a date in October 2019 in respect of evidence in the form of translations from various sound files. After debate on the point I produced written reasons the upshot of which was to require a neutral third person to translate the sound files and for that to become of what has been called the “authorised transcript” of sound recordings upon which the father wishes to rely in this case.
In early 2020 the COVID-19 pandemic emerged requiring the case to be refixed. After several directions hearings the case was fixed to resume for a further 5 days commencing today. Last week – that is to say on 26 August 2020 – the father affirmed an affidavit with a very large number of exhibits to it.…

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 (No 2)

Details

AGLC: Gin & Hing (No 2) [2020] FamCA 734
Case: [2020] FamCA 734
Decision Date: 31 August 2020

CaseChat Overview and Summary

The case of *Gin & Hing (No 2)* concerned parenting orders. The respondent father, who had previously been represented by senior and junior counsel, appeared unrepresented at a resumed trial. The mother had concluded her evidence, and the trial was scheduled to continue for a further five days, making a total of ten days. The father, who is a practising solicitor, sought leave to rely on new material that had been put forward on the sixth day of the trial, after the close of the mother's case.

The primary legal issue before the court was whether to grant the unrepresented father leave to adduce new evidence after the conclusion of the mother's case. This involved considering the principles governing the admission of fresh evidence in family law proceedings, particularly when it is sought to be introduced late in the trial.

Wilson J refused the father's application. The court applied the principles that govern the admission of fresh evidence, which generally require that the evidence must be relevant, credible, and that its admission would not cause unfair prejudice or undue delay to the proceedings. In this instance, the court found that the material sought to be introduced was not of such a nature that it could not have been discovered with reasonable diligence earlier in the proceedings, and its admission at this late stage would have caused significant prejudice to the mother and disrupted the trial. The court also noted the father's status as a practising solicitor, implying a higher degree of awareness regarding procedural fairness and the proper conduct of litigation.

Orders