Gin & Hing (No 3)

Case [2024] FedCFamC1A 124

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Gin & Hing (No 3) [2024] FedCFamC1A 124

Appeal from: Gin & Hing (No 8) [2023] FedCFamC1F 954
Appeal number: NAA 353 of 2023
File number: MLC 4528 of 2010
Judgment of: ALDRIDGE, CAREW & SCHONELL JJ
Date of judgment: 7 August 2024
Catchwords:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence on appeal – Where the appellant sought leave to issue a subpoena to a regulatory body to obtain further evidence in aid of a ground of appeal – Leave granted to issue the subpoena – Where the Court need not address the ensuing application to admit further evidence as the appeal is otherwise allowed – Application dismissed.

FAMILY LAW – APPEAL – Appeal from final parenting orders – Adequacy of reasons – Where the primary judge erred in his treatment of s 60CC(3)(d) – Where the primary judge wrongly attributed the views of a 10 year old to those of a teenager – Inordinate delay – Appeal allowed.
Legislation:

Family Law Act 1975 (Cth) s 60CC (repealed)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Evidence Act1995 (NSW)

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

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

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

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Fowles & Fowles (No 2) [2024] FedCFamC1A 115

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lucas Industries Ltd v Hewitt (1978) 18 ALR 555

Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61

National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Number of paragraphs: 72
Date of hearing: 29 April 2024 
Date of last submissions: 22 July 2024
Place: Heard in Melbourne, delivered in Sydney
The Appellant: Litigant in person
Counsel for the Respondent: Mr Dixon SC and 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, CAREW, SCHONELL JJ

DATE OF ORDER:

7 AUGUST 2024

THE COURT ORDERS THAT:

1.The Application in an Appeal filed 2 July 2024 to adduce further evidence is dismissed.

2.The appeal is allowed.

3.The orders made 22 November 2023 are set aside from the first listing of the remitted matter before a judge of this Court.

4.The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 1) other…

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AGLC
Gin & Hing (No 3) [2024] FedCFamC1A 124
Case
[2024] FedCFamC1A 124
Decision Date

CaseChat Overview and Summary

In the case of Mr Gin versus Ms Hing, the appellant sought to challenge the final parenting orders made by the Family Court. The appeal was primarily concerned with the adequacy of the reasons provided by the primary judge and whether there was an error in the treatment of section 60CC(3)(d) of the Family Law Act 1975. Additionally, the appellant argued that the primary judge had wrongly attributed the views of a 10-year-old child to those of a teenager and that there was an inordinate delay in the proceedings.

The court was required to determine if the primary judge had erred in his treatment of section 60CC(3)(d), whether there was a failure to provide adequate reasons, and if the primary judge had correctly attributed the child's views. Furthermore, the court needed to assess whether the delay in proceedings was justified.

The court found that the primary judge had indeed erred in his treatment of section 60CC(3)(d) and that there was a failure to provide adequate reasons for his decisions. The court also determined that the primary judge had wrongly attributed the views of the 10-year-old child to those of a teenager. Given these findings, the court allowed the appeal and set aside the orders made on 22 November 2023. The matter was remitted for rehearing before a different judge. The court also granted costs certificates to both parties in relation to the rehearing.

The court dismissed the application to adduce further evidence on the appeal as the appeal was allowed on other grounds. The court ordered that the appeal was allowed, the orders made on 22 November 2023 were set aside, and the matter was remitted for rehearing before a different judge. Both parties were granted costs certificates in relation to the rehearing.

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, CAREW, SCHONELL JJ

DATE OF ORDER:

7 AUGUST 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed 2 July 2024 to adduce further evidence is dismissed.

2. The appeal is allowed.

3. The orders made 22 November 2023 are set aside from the first listing of the remitted matter before a judge of this Court.

4. The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.

5. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the disbursements incurred by him in the appeal.

6. The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in the appeal.

7. The appellant and respondent are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred by them in relation to the rehearing.

AND THE COURT DIRECTS THAT:

A. The Principal Registrar of the Court is requested to provide a copy of these Reasons for Judgment together with the appellant’s affidavit purportedly witnessed on 1 July 2024 and the affidavit of the respondent’s solicitor filed 15 July 2024 to the Law Institute of Victoria and the Victorian Legal Services Commissioner for their consideration.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For reasons that will become apparent, we are satisfied, notwithstanding challenges to the integrity of the trial process, that the appeal should otherwise succeed. In those circumstances it is otiose to consider those grounds as the matter will be remitted for hearing before a judge other than the primary judge.BACKGROUND The parties are the parents of the only child the subject of the proceedings. The child was born in March 2010. Either late in March 2010 or early April 2010 the parties separated. In May 2010 the appellant commenced proceedings for parenting orders. The parties have been in almost continuous litigation since that time. Since at least 2014 the child has lived with the respondent and spent time with the appellant in varying time regimes. On 6 February 2018 orders (“the February 2018 orders”) were made by consent for the child to spend time with the appellant for six nights a fortnight. This was the time arrangement that existed at the time of the hearing. The parties’ affidavits were filed in May and June 2019 in anticipation of the hearing commencing in August 2019. While the appellant subsequently filed updating evidence in 2020 and again in 2022, the respondent did not. In addition to the lay evidence, a number of expert reports were relied upon, including nine reports prepared by the single expert clinical psychologist. The last of her reports was dated 20 July 2020. In that report she recorded the child wanted to spend less time with the appellant and more time with the respondent. The child was 10 years old at the time her views were expressed. The hearing took place over 31 days. The days were not continuous but regrettably spread out over four years. It commenced with five days in August 2019. There was then a single day a year later in August 2020, four days in September 2020, and then a break of a month with a further three days in October 2020. There were then two days in July 2021, a single day in November 2021, three days in February 2022, two days in March 2022, a single day in April 2022, three days in September 2022, four days in February 2023 and finally two days in July 2023. Judgment was delivered on 22 November 2023.THE PRIMARY JUDGE’S REASONS The primary judge in the opening paragraphs of the reasons observed:1The child relevant to this litigation has been the object of long term disputation between her parents for all but one year of her life. The child is almost 14 years of age. Her parents continue to wage war over parental responsibility for her, with whom the child will live and the time the child should spend with each parent.2Each parent has remarried and has had other children. The child moves happily between households coping perfectly well with her half-siblings and with the new spouses of each parent. According to expert evidence adduced in this litigation, the child is performing well at school and in her extra-curricular activities.…16No evidence exhibited that the child has difficulty when living at either parent’s household or in mixing with the other half-siblings in the homes of each parent. 17If anything, the evidence reveals that the child copes extremely well in her current circumstances. This child has been described as intelligent and mature for her years.

Evidence

Evidence Before The Court

To facilitate such a result, directions were then made for the filing of the subpoena and for written submissions. Disposition of application to adduce further evidence Each of the parties, following production and inspection of the subpoenaed documents, prepared written submissions as to the reception of the further evidence in the appeal. We have considered those submissions. As we are satisfied that the appeal should be allowed on other grounds, then consistent with the principles of judicial economy and the objects of the Act calling for the quick resolution of disputes and the efficient delivery of justice, we need not address the application to admit further evidence on the appeal (Boensch v Pascoe (2019) 268 CLR 593) and it will be dismissed.THE APPEAL While the Further Amended Notice of Appeal addressed five separate grounds, it is dispositive of this appeal to only consider Ground 2. The ground broadly contended error on the part of the primary judge by failing to give adequate reasons. The Summary of Argument identified with slightly more precision six discrete instances of asserted error. One such instance was an averred failure by the primary judge to provide reasons and/or consider s 60CC(3)(d). To succeed on an appeal contending error in the exercise of discretion, the appellant must meet the challenge posed by the plurality of the High Court in House v The King (1936) 55 CLR 499 at 505 namely: It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Whilst the appellant’s ground was cast in terms of an absence of reasons and/or failure to consider a relevant consideration, as will become apparent, it is open to include that the primary judge also erred in his treatment of s 60CC(3)(d). The section was cast prior to the 2024 amendments in the following terms:60CC How a court determines what is in a child’s best interests…Additional considerations(3) Additional considerations are:…(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i) either of his or her parents; or(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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