Gin & Hing (No 5) - [2023] FedCFamC1F 63

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gin & Hing (No 5) [2023] FedCFamC1F 63

File number MLC 4528 of 2010

Judgment WILSON J

Date of judgment 15 February 2023

Catchwords FAMILY LAW – ALLEGED APPREHENDED BIAS – application for recusal – where ore tenus application made on the morning of 27^th day of the trial – application dismissed.

Legislation
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04

Cases cited
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Charisteas v Charisteas (2021) 95 ALJR 824

Division Division 1 First Instance

Number of paragraphs 24

Date of last submission 15 February 2023

Date of hearing 15 February 2023

Place Melbourne

Counsel for the applicant in person

Solicitor for the applicant M Legal

Counsel for the respondent Mr F. Dixon SC

Solicitor for the respondent Clancy & 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

15 FEBRUARY 2023

THE COURT ORDERS THAT the applicant’s application made ore tenus on 15 February 2023 for me to recuse myself from this proceeding on the ground of apprehended bias 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J

Today is the 27th day of the trial of this parenting application. The evidence is not yet complete. Ms N has been required to attend for cross-examination. She has spent four days to date in the witness box. She is presently due to return to the witness box tomorrow for the fifth day of her evidence, most (although not all) of which has been taken up by the father asking questions to Ms N, a great deal with which Ms N takes issue. She disagrees with a great deal of the points put by the father.
Today at 9.50am, the father filed an affidavit that he said supported an application he said he brought verbally for me to disqualify myself on the ground of apprehended bias.…

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 5)

Details

AGLC: Gin & Hing (No 5) [2023] FedCFamC1F 63
Case: [2023] FedCFamC1F 63
Decision Date

CaseChat Overview and Summary

In the case of Gin & Hing (No 5), the applicant, Mr Gin, sought the recusal of the judge, Wilson J, on the grounds of apprehended bias. This application was made on the 27th day of the trial of a parenting matter, which had already lasted for an extensive period. The respondent, Ms Hing, opposed the application, as did the Independent Children's Lawyer. The primary legal issue before the court was whether Wilson J should recuse themselves from the case due to the alleged apprehended bias.

The court thoroughly examined the evidence and arguments presented by both parties. Mr Gin claimed that a conversation he had with a barrister on 6 September 2022, where the barrister allegedly warned him about potential adverse rulings by the judge, constituted grounds for his recusal. However, the court found the application to be without substance. It was noted that the father had not brought this matter to the court's attention at any earlier stage of the proceedings, and the other party to the conversation was not called as a witness. Additionally, the father had not provided any affidavit from the barrister to substantiate his claims. The court concluded that there was no basis to believe that a fair-minded lay observer, properly informed, might think that the judge could not bring an impartial mind to bear on the determination of this proceeding.

In light of these findings, Wilson J dismissed the application for recusal. The court emphasised the importance of maintaining the integrity of the judicial process and the significant consequences that granting the application would have on the parties and the child involved. The court's decision was in accordance with the principles set out in Charisteas v Charisteas and Aon Risk Services Australia Ltd v Australian National University.

The final orders of the court were that the application for recusal made by Mr Gin on 15 February 2023 was dismissed. The trial continued with Wilson J presiding over the case.

Orders