Gin & Hing (No 6) - [2023] FedCFamC1F 68

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gin & Hing (No 6) [2023] FedCFamC1F 68

File number: MLC 4528 of 2010

Judgment of: WILSON J

Date of judgment: 16 February 2023

Catchwords: FAMILY LAW – ESTOPPEL & WAIVER – Day 28 of the trial of a parenting proceeding – family consultant on day 5 of cross-examination – father unrepresented – father endeavouring to establish that family consultant has exhibited apprehended bias – counsel for the mother objecting to father’s cross-examination by reason of the father’s previous agreement given in November 2017 to take no point in this litigation to the effect that the family consultant exhibited apprehended bias – father seeking to resile from his earlier representation that he would not take such a point – held, father estopped from cross-examining family consultant on the point.

Cases cited:
Bass & Bass (2008) FamCAFC 67

Commonwealth v Verwayen (1990) 170 CLR 394

Fagenblat v Feingold Partners Proprietary Limited [2001] VSC 454

Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Division: Division 1 First Instance

Number of paragraphs: 19

Date of last submission: 16 February 2023

Date of hearing: 16 February 2023

Place: Melbourne

Counsel for the Applicant: 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

MLC4528 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

16 FEBRUARY 2023

THE COURT ORDERS BY CONSENT that the father is forbidden from all questioning of Ms N in relation to any allegation of apprehended bias.
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

Ms N has been in the witness box for almost five full days, most of which time having been spent answering questions put to her by the father, an unrepresented litigant in-person but who is a professional.
The father has contended for some time that Ms N is biased in her evidence against him. The father has spent very considerable time over the many days during…

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 6)

Details

AGLC: Gin & Hing (No 6) [2023] FedCFamC1F 68
Case: [2023] FedCFamC1F 68
Decision Date

CaseChat Overview and Summary

The case of Gin & Hing (No 6) involved the father, an unrepresented litigant, attempting to cross-examine the family consultant regarding a claim of apprehended bias against her. The father sought to argue that the family consultant was biased, despite having previously agreed in 2017 not to raise this issue in the litigation. The mother objected to this line of questioning, citing the father's prior representation as a bar to him now raising the issue of bias.

The legal issues before the court were whether the father was estopped from raising the issue of apprehended bias against the family consultant and whether the father had waived his right to raise this issue. The court considered the principles of estoppel and waiver as established in previous cases, including Walton Stores (Interstate) Ltd v Maher and Commonwealth v Verwayen. The court also considered the father's argument that the family consultant had a duty to fully inform her clients, which the father claimed she had failed to do. However, the court found that this argument lacked legal or evidentiary support.

The court held that the father was estopped from raising the issue of apprehended bias against the family consultant. The father had previously assured the family consultant in writing that he would not raise this issue, and the family consultant had relied on this assurance in providing her services in the case. Allowing the father to now raise this issue would be inequitable and unconscionable, as it would cause the family consultant detriment in reliance on the father's prior representation. The court also found that the father had waived his right to raise the issue of apprehended bias by his prior conduct.

The court therefore refused the father permission to question the family consultant on matters that touched upon facts that supported a contention by him about apprehended bias. The father consented to the closure of the questioning of the family consultant and for the case to move to its next phase.

The court's decision highlights the importance of parties adhering to their prior representations and conduct in litigation, particularly where those representations and conduct have induced reliance by another party. The court found that the father's attempt to raise the issue of apprehended bias after having previously assured the family consultant that he would not do so was inequitable and unconscionable, and therefore prevented him from pursuing this line of questioning.

Orders