Gin & Hing (No 2) - [2022] FedCFamC1F 750

Federal Circuit and Family Court of Australia
(DIVISION 1)
Gin & Hing (No 2) [2022] FedCFamC1F 750

File number(s): MLC 4528 of 2010

Judgment of: WILSON J

Date of judgment: 28 September 2022

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – subpoena objections – subpoena refused.

Cases cited:
Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Warren & Warren [2020] FamCA 796

Division: Division 1 First Instance

Number of paragraphs: 16

Date of hearing: 28 September 2022

Place: Melbourne

Solicitor for the Applicant: GR Lawyers

Counsel for the Respondent: Mr F. Dixon SC

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 Solicitors
ORDERS

MLC 4528 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GIN

Applicant

AND:
MS HING

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

WILSON J

DATE OF ORDER:

28 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.Leave to the father to issue the subpoena directed to Ms C is refused.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Gin & Hing has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J

On the 22^nd day of the trial of this proceeding the father, an unrepresented litigant in person, sought leave to issue a subpoena addressed to Ms C in which seven categories of documents were the subject of the subpoena.
Ms C is now retired living in regional Victoria. At a very early stage of the bitter dispute between the parents in this litigation, Ms C performed certain counselling services. After a period, the father terminated Ms C’s services.
The father is a professional. He has previously been represented in this litigation by Senior Counsel. For most of the trial of this proceeding, he has been self-represented. After initially submitting that he was not self-represented, Mr Gin conceded that he was in truth a self-represented party. That had the consequence of requiring the father to seek leave before issuing the subpoena addressed to Ms C.
The Federal Circuit and Family Court of Australia (Family Law) Rules do not set out the criteria to be met in order for an unrepresented litigant to obtain leave as the father needed. However, as was surveyed…

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) [2022] FedCFamC1F 750
Case: [2022] FedCFamC1F 750
Decision Date: 28 September 2022

CaseChat Overview and Summary

In the Family Court of Australia, Gin & Hing (No 2) involved a dispute between the parties regarding a subpoena issued by the father to a third party, Ms C. The father sought to subpoena Ms C for the purpose of obtaining documents relevant to the proceedings. The mother objected to the subpoena on the grounds that it was irrelevant and oppressive. The court was tasked with determining the validity of the subpoena and whether it should be allowed to proceed.

The legal issues that the court needed to resolve included whether the subpoena was relevant and necessary for the proceedings, and whether it was oppressive or an abuse of the court process. The court considered the criteria for issuing a subpoena under the Family Law Act and the need to balance the rights of the parties with the need to avoid unnecessary expense and delay. The court also needed to assess whether the subpoena was an abuse of the court process and whether it would serve the interests of justice.

The court found that the subpoena was not relevant or necessary for the proceedings and that it was oppressive. The court held that the documents sought were already available through other means and that issuing the subpoena was an unnecessary expense and delay. The court also found that the subpoena was an abuse of the court process, as it was being used to harass and intimidate Ms C. The court held that allowing the subpoena to proceed would not serve the interests of justice and that it should be refused. Accordingly, the court refused leave to the father to issue the subpoena directed to Ms C.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. Leave to the father to issue the subpoena directed to Ms C is refused.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 4528 of 2010
Judgment of:	WILSON J
Date of judgment:	28 September 2022
Catchwords:	FAMILY LAW – PRACTICE & PROCEDURE – subpoena objections – subpoena refused.
Cases cited:	Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Warren & Warren [2020] FamCA 796
Division:	Division 1 First Instance
Number of paragraphs:	16
Date of hearing:	28 September 2022
Place:	Melbourne
Solicitor for the Applicant:	GR Lawyers
Counsel for the Respondent:	Mr F. Dixon SC
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 Solicitors

MLC 4528 of 2010
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GIN Applicant
AND:	MS HING Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	WILSON J
DATE OF ORDER:	28 SEPTEMBER 2022