Gin & Hing (No 7)

[2023] FedCFamC1F 116

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Gin & Hing (No 7) [2023] FedCFamC1F 116   

File number	MLC 4528 of 2010
Judgment of	WILSON J
Date of judgment	28 February 2023
Catchwords	FAMILY LAW – PRACTICE AND PROCEDURE – application to invoke the overarching purpose of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to limit the length of the fathers’ closing submissions – held, the father’s submissions are limited to the remainder of 28 February 2023 and one hour at the resumption of the trial on 4 July 2023.
Legislation	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rule 1.04
Division	Division 1 First Instance
Number of paragraphs	7
Date of last submission	28 February 2023
Date of hearing	28 February 2023
Place	Melbourne
Counsel for the Applicant	Litigant in person
Solicitor for the Applicant	M Legal
Counsel for the Respondent	Mr F. Dixon SC and Mr A. Robinson
Solicitor for the Respondent	Clancy & Triado
Solicitor 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	28 FEBRUARY 2023

I ORDER that the father’s final address is limited to the balance of today, 28 February 2023, plus one hour on the resumption date of the trial in this proceeding on 4 July 2023 and that 4, 5 and 6 July 2023 are fixed for final addresses. 

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. Today is the 30th day of the trial of this proceeding which was commenced many years ago.  Even recognising the intervention of COVID, this case did proceed electronically for a period, but nevertheless it has had a life that is vastly longer than could reasonably be expected in litigation in this court.  The proceeding itself was commenced in 2010.  We are now in the year 2023. 

2. The child the subject of the litigation has been affected by its longevity and for the foreseeable future will continue to be.

3. Part of the delay of the forward progress of the case lies in the manner in which the father has conducted the case.  He was represented by senior counsel early in the proceeding.  For reasons that have not been explained to me, nor should they have, his representation by senior counsel vanished and for most of the trial he has conducted the case himself.  That has had certain problems by reason of his unfamiliarity with court craft and the proper presentation of a case in its economic and efficient timeliness.  For many rulings I have forgiven that by reason of his status as a litigant in person, for all intents and purposes.

4. I allocated two days for final addresses in this case some time ago, confidently hoping that two days would see out all that could be said on all issues by all parties.  I invited the parties to explore the possibility of putting their thoughts on paper so that even more time could be saved in the presentation of the case.  Well into the afternoon, after two days of final address by the father, he has circled round, as Mr Whitchurch calls it, but come back to a point that he regards as indispensable, namely, parental alienation.

5. I have heard many hours of his submissions on the points that he says go to his contentions about parental alienation. I have asked him to move on several times. He adopts a peculiar style of hearing my request for him to move on, yet he comes back time and again to the same point despite my indication. That has prompted Mr Dixon, not for the first time in this case, to invite me to invoke the overarching purpose of rule 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. In essence, those rules require all participants to litigation in this court to have regard to the overarching purpose of the rules, to facilitate the just resolution of disputes according to law, and importantly, as quickly, inexpensively and efficiently as possible. Thirty days of a parenting case seems to be antithetical to those overarching purposes. The balance of rule 1.04 implores parties to litigation and legal representatives in litigation in this court to abide by the overarching purpose of rule 1.04.

6. Mr Dixon, who is joined by Mr Whitchurch, has submitted late in the afternoon on the 30th day of the trial that the father has had more than a fair go at putting all that he wants to say about parental alienation. Mr Dixon has invited me to make a direction under rule 1.04 to end Mr Gin’s repeated and purposeless repetition of the same point and, further, that some indication be given beyond which the father will not be permitted to go when this case resumes on day three of final addresses. To my mind, there is a great deal of substance in the point that both Mr Dixon and Mr Whitchurch urge. I rule that the father has addressed exhaustively on his contentions on parental alienation and I order that under rule 1.04 the father is limited in his final address to the balance of today plus one hour on the resumption date of 4 July 2023.

7. The case has gone on long enough.  The father should have been much more efficient in his presentation.  He has an argumentative and largely dogmatic style of presentation of his submissions.  He will not abide by intimations from me that I have absorbed his points and he need not repeat them.  Instead, he goes to yet further illustrations of the point which he says he, on the one hand, does not need to make in view of my intimation, yet he doggedly pursues each point over and over.  He has had more than enough time in the context of a case that has been around longer than it should have been.  I order that he completes his address during the balance of today and he has one further hour when we resume on 4 July.

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

Associate:

Dated:       28 February 2023