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

1. 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. 

2. 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 which Ms N has given evidence challenging Ms N with a view to her accepting his proposition that Ms N is biased against him.  The father told me that in due course he will endeavour to rely on the observations in Bass & Bass[1] where it was held that in some limited circumstances scope may exist to contend that a court-appointed expert witness may be found to be biased.  To that end, the father has foreshadowed that he will endeavour to bring this case within the purview of the observations of Pagone J in Fagenblat v Feingold Partners Pty Ltd.[2]

   [1] (2008) FamCAFC 67.

   [2] (2001) VSC 454 (at [8] et seq).

3. So far, over the many days that Ms N has responded to questions put by the father, she has not accepted his principal thesis that she is biased against him. 

4. Immediately prior to the luncheon adjournment today the father put to Ms N that Ms N’s husband, a family law barrister, may have privately communicated to Ms N certain aspects of the family in issue in this case in breach of an obligation of confidentiality that bound Ms N’s husband. 

5. It is relevant to point out that Ms N’s husband had been retained in late 2017 on the instructions of the father who briefed him. 

6. It transpires that Ms N, in 2017, apprehended that an issue may later arise in this case if either the father or the mother thereafter contended that Ms N should not have continued to remain in the case, she having been involved since well prior to 2017.  The mother’s solicitors had the presence of mind to draft a handwritten record dated 1 November 2017 to record how both the father and the mother certified that neither had any objection to Ms N’s involvement as report writer in the case.  The document was signed by the father personally and by the mother personally.  That document was marked as exhibit AAA on this ruling.  It is utile to set out in precise terms the content of that 1 November 2017 document.  It was as follows –

   To [Ms N].

   This is to certify that neither the husband, [Mr Gin] or the wife [Ms Hing] has any objection to your involvement as report writer in their case.

   Dated 1 November 2017.

7. At the bottom it was signed personally by the husband and by the wife. 

8. Ms N apparently wrote to the father and to the mother’s solicitors on 6 July 2017 recording in very strong terms that the parties may have future concerns about apprehended bias, and in that 6 November 2017 letter, Ms N refused to accept an appointment as a single expert witness.  The letter dated 6 July 2017 was not produced for the purposes of this ruling.  However, it further transpired that the parties insisted that Ms N’s assessments proceed.  Dates on 31 January 2018 were arranged so that Ms N could see the mother with the child at 10:00am on that day and then for the father to attend with the child later the same day. 

9. Ms N wrote to the parties by letter dated 16 November 2017.  In that letter she recorded the fact that the parties were insistent that she provide her assessment.  She also recorded her requirement for the parties to provide an assurance that they not only consented to the assessment but they waived all rights to raise apprehended bias in any way in any context moving forward. 

10. Ms N subsequently provided very sophisticated services to the family whose child is in issue in this litigation.  It may fairly be inferred that she did so in reliance upon the representation made in the 1 November 2017 memorandum and upon the assurance recorded in her 16 November 2017 letter that the parties waived all rights to raise apprehended bias in any way and in any context subsequent to November 2017.

11. Today the father attempted to ask Ms N questions directed to whether any communications were imparted between Ms N and her husband about the father or more generally about the mother, the father and the child in this case.  The questioning went very little distance before Mr Dixon SC complained about the line of questioning the father was to explore having regard to the content of the 1 November 2017 memorandum and also having regard to the assurance given by both parties as recorded in Ms N’s 16 November 2017 letter to the effect that the parties waived all rights to raise concerns about apprehended bias in any way and in any context moving forward. 

12. Mr Dixon SC submitted that the father should be fastened with the representation he gave Ms N and that it would be inequitable for the father, having given the assurance he gave as was recorded in the 16 November 2017 letter, to resile from that promise and now, over five years after he gave Ms N his assurance that he would not take any point about apprehended bias, for him to do so. 

13. In debate I raised with the father concepts of estoppel that seemed to forbid him from pursuing any line of questions about apprehended bias.  Specifically I took the father to the decision of Brennan J in Walton Stores v Maher.[3]  There Brennan J held as follows[4] –

    To establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.

    [3] (1988) 164 CLR 387.

    [4] Ibid at 428.

14. In the later case of Commonwealth v Verwayen,[5] the High Court again addressed estoppel.  Several statements of principle emerged.  Those included –

    [5] (1990) 170 CLR 394.

    (a)the observations of Mason CJ, where the chief justice held –

    There is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but not more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness;

    (b)the observations of Brennan J, where his Honour held –

    Equitable estoppel yields a remedy in order to prevent unconscionable conduct on the part of the party who, having made a promise to another who acts on it to his detriment, seeks to resile from the promise. The remedy is to effect the minimum equity needed to avoid the relevant detriment, i.e. detriment occasioned by reliance on the promise. While the relevant detriment does not consist in a loss attributable merely to non-fulfllment of the promise, in some situations, the minimum equity will not be satisfied by anything short of enforcing the promise;

    (c)the observations of Deane J, where his Honour held that –

    Once it is accepted that the general doctrine of estoppel by conduct extends to representations about future facts (including conduct), and that the operation of promissory estoppel in equity conforms with the operation of estoppel by conduct in law and equity, promissory estoppel should be accepted as but an emanation of the general doctrine of estoppel by conduct;

    (d)the further observations of Deane J, where his Honour held that –

    The prima facie entitlement to relief based on the assumed state of affairs which one party is estopped from denying will be qualified in a case where such relief would exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party. In such a case, relief framed on the basis of the assumed state of affairs represents the outer limits within which the relief appropriate to do justice between the parties should be framed;

    (e)the observations of Gaudron J, where her Honour held –

    The substantive doctrine of estoppel permits a court to do what is required to avoid detriment and does not require the making good of the assumption on which it is founded in every case. Even so, it may be that an assumption should be made good unless it is clear that no detriment will be suffered other than that which can be compensated by some other remedy; and

    (f)the observations of McHugh J, who held that –

    Because the equitable doctrines of estoppel create rights, they preclude the party estopped from denying the assumption of fact or law only as long as the equitable right exists. Once the detriment has ceased or been paid for, there is nothing unconscionable in a party insisting on reverting to his former relationship with the other party and enforcing his strict legal rights.

15. The Court also addressed waiver.  Of principle relevance was the observation of Gaudron J, where her Honour held that –

    A party to litigation will be held to a position previously intentionally taken with knowledge if, as a result of that earlier position, the relationship of the parties has changed, whether or not detriment is actually established.

16. The father argued that he was not bound by the two documents mentioned above and which were created in November 2017.  He said no disclosure had been made by Ms N prior to her 16 November 2017 letter in accordance with some alleged professional standard.  The applicability of that document and its alleged need for prior disclosure was not explained and, in any event, I take the view that by reason of the contents of the 1 November 2017 memorandum and the assurances given to Ms N by the father that he would take no point thereafter about apprehended bias and Ms N’s reliance upon those representation then her later performance of her ongoing role in this litigation, it would be manifestly inequitable and quite unconscionable to allow the father to attempt to take her to task on a matter of apprehended bias.  The two High Court decisions of Maher as well as Verwayen support that conclusion. 

17. I refuse the father permission to question Ms N in any way on matters that touch upon in any way facts that support a contention by him about apprehended bias. 

18. The father submitted that Ms N was bound by a duty to fully inform her clients.  He said Ms N failed to comply with such a duty.  I raised with the father the question pursuant to which obligation that duty allegedly rose.  He mentioned some rule of practice that is not presently in evidence.  There was no foundation in that submission.  It bore the hallmark of desperation without legal or evidentiary provenance.  The father said that Ms N will suffer no prejudice if the father is allowed to question Ms N.  I disagree.  Ms N expressly outlined to the parties the matters that were of concern to her prior to her 16 November letter, hence her requirement for the parties to give the assurance that they would take no point thereafter in respect of apprehended bias.  The father was today endeavouring to act entirely contrary to the assurance he gave to Ms N and upon which she proceeded subsequent to 16 November 2017.  In my view, he is met squarely with an estoppel that prevents him from resiling from his promise recorded in the 16 November 2017 letter. 

19. The father after debate withdrew his proposition that he wished to pursue apprehended bias with Ms N.  He now consents to the closure of the questioning of Ms N and for the case to move to its next phase.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson.

Associate:

Dated:       16 February 2023