Gin & Hing (No 3) - [2022] FedCFamC1F 759

Federal Circuit and Family Court of Australia
(DIVISION 1)
Gin & Hing (No 3) [2022] FedCFamC1F 759

File number(s): MLC 4528 of 2010

Judgment of: WILSON J

Date of judgment: 5 October 2022

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – application for leave to re-open – application refused.

Legislation: Family Law Act ss 60B, 60CA, 60CB and 60CC

Cases cited:
KMB & PRL [2005] FamCA 1202

Naczek v Dowler (No 4) [2008] FamCA 653

Stone & Clifford [2016] FCCA 2045

Suell & Suell (Re-Opening) [2009] FamCA 55

Division: Division 1 First Instance

Number of paragraphs: 21

Date of last submission/s: 29 September 2022

Date of hearing: 29 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
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:

5 October 2022

THE COURT ORDERS THAT:
1.The father’s re-opening application is dismissed.

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).
REASONS FOR JUDGMENT
WILSON J
Introduction

On the 24^th day of the trial of this proceeding the father applied for leave to re-open his case for the purpose of adducing further evidence recorded in an affidavit he made on 28 September 2022. On 29 September 2022 I refused that application, indicating that I would give reasons in due course. These are my reasons.
The trial of this proceeding is part-heard. The evidence has not closed. Ms N, clinical psychologist, is part way through her cross-examination by the husband. She has been cross-examined by the husband for several days. No apparent end is in sight.
The father is a professional. For a number of years he operated his own business. He currently holds a professional certification with corresponding professional insurance. He operates business of which he is the sole shareholder and director. He said he has not had clients for a considerable time. Since 2020 he has cultivated a career in what he described as “[child-related studies]” (although he gave very scant details of…

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 3)

Details

AGLC: Gin & Hing (No 3) [2022] FedCFamC1F 759
Case: [2022] FedCFamC1F 759
Decision Date

CaseChat Overview and Summary

The case of Gin & Hing (No 3) involved an application by the father, Mr Gin, for leave to re-open his case to adduce further evidence in the form of an affidavit. The application was made during the trial, which was part-heard at the time. The trial was a parenting case, focusing on making orders that were in the best interests of the child. The mother, Ms Hing, opposed the father's application, and the Independent Children's Lawyer also opposed it.

The legal issues before the court were whether the proposed new evidence had a significant impact on the case as already presented to the court, and whether it was in the best interests of the child to allow the re-opening of the case. The court considered authorities such as Stone & Clifford, KMB & PRL, Naczek v Dowler (No 4), and Suell & Suell (Re-Opening) in making its decision.

The court found that the proposed new evidence did not have a significant impact on the case or the best interests of the child. The father's affidavit mainly contained subjective observations of the child's routine during the time she spent with him, and other details that were not relevant to the best interests of the child. The court concluded that the father was attempting to raise issues of parental alienation and bolster his own virtues as a father, rather than better inform the court about the best interests of the child. As a result, the court refused the father's application for leave to re-open his case.

The court's reasoning was based on the need to exercise the power to re-open sparingly and with circumspection, as well as the requirement that the new evidence must have a significant impact on the case and the best interests of the child. The father's evidence did not meet these criteria, and the court was of the view that granting leave to re-open would raise irrelevant issues and cause significant time delays in the trial.

Orders