Gin & Hing (No 2)
[2020] FamCA 734
•31 August 2020
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 | of | 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. The affidavit itself is 22 pages in length and the exhibits are 160 pages in length. The father did not have leave to file, serve or rely on that evidence.
Up until very recently, Mr Gin was represented by Ms Stoikovska of Senior Counsel who at one stage appeared with a junior. Following my ruling in October 2019,[1] the case proceeded to a mediation before the Honourable Peter Young AM QC, the upshot of which was unsuccessful. Mr Gin appeared before me robed as counsel and he has conducted this morning’s evidence representing his personal interests.
[1]Gin & Hing [2019] FamCA 779
The fact that Mr Gin is a solicitor was the subject of observation by Justice Cronin who wrote about that in the context of whether Mr Gin’s status as an unrepresented litigant enlivened considerations relevant to the Full Court’s decision in Re F: Litigants in Person Guidelines.[2] His Honour took the view that it was unnecessary for his Honour to point out the stipulations of that case as the form of guidelines referred to in that case were more appropriate to lay persons who appear on their own representation.
[2] (2001) 27 Fam LR 517.
The affidavit upon Mr Gin wishes to rely traverses events as long ago as 2012 purportedly to provide a response by Mr Gin of issues alleging psychological abuse. The evidence of Mr Gin also purports to put in issue disputed facts that were said to arise after Ms N provided her July 2020 report, the last of her many reports in this case. The affidavit upon which Mr Gin relies also purports to include evidence of discussions between Senior Counsel for the parties which I assume was communications of a privileged and without prejudice nature, wholly inappropriate for an affidavit. The affidavit also purports to include a version of the translation of recordings previously ruled inadmissible and which has been eclipsed by the authorised version of the recordings.
Mr Gin argued at length that he should be permitted to rely on the entirety of his affidavit. I take a different view. I do not regard it is acceptable other than in the most extreme of circumstances for evidence of this nature which goes to a factual issue, available to the respondent and which should have been the subject of his trial affidavit, to be adduced after the close of the applicant mother’s case. The matters Mr Gin asserts are so fundamental to the proper presentation of his case are now advanced after his Senior Counsel opened his case on the first day of the trial. To the extent that they address matters appropriate for Ms N, then those matters can in fact be put to Ms N. I do not accept that Ms N’s report of July 2020 provoked Mr Gin into the filing of the information that he now seeks to assert in his 26 August affidavit. Nor do I accept that the exchange by email or text messages with the mother as recently as July of this year is a sufficient justification on the sixth day of the trial after the close of the applicant mother’s case for Mr Gin to have a wholesale recasting of factual matters that go back to 2012 and thereabouts.
The affidavit material also purports to include documentation of an unknown author about parental alienation. How that material can be at all probative in this case given the involvement of Mr J and Ms N is beyond me. Mr Gin said that the mother does not need to call additional response evidence (described by Mr Gin as “re-examination”) in order to conduct a fair trial. I disagree. It is contrary to some of the most fundamental tenents in the conduct of litigation that an applicant close her, his or its case in the full knowledge of the case that is to be put against that applicant. That will not the case if Mr Gin succeeds in his application today.
Mr Gin submits that the child has a distorted reality. The best person to give that evidence is Ms N and Mr Gin will have every opportunity, so long as he does it in an admissible way, to put to Ms N the substance of the matters that arise from the material upon which he now wishes to rely in affidavit form. It seemed to me that it would be wholly antithetical to the proper conduct of a trial to allow Ms N to do what he wants to do. He says that only recently did the “flavour of the case” change such that he was provoked into obtaining information that he now wishes to put before me in the form of the affidavit and exhibits 26 August 2020. I do not accept that. He can put to various future witnesses whatever he says he wanted to put in documentary form.
Mr Gin said he should have leave to rely on the totality of his affidavit and exhibits, but if that I am against him on that, then he wishes to rely on only some of the affidavit material. The material is either in or it is out. I have formed the view that it would not be conducive to the proper conduct of the trial to permit Mr Gin to rely on the affidavit affirmed 26 August 2020 and the exhibits thereto, which I reject.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 31 August 2020.
Associate:
Date: 4 September 2020
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