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

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.
The child the subject of the litigation has been affected by its longevity and for the foreseeable future will continue to be.
Part of the delay of the forward progress of the case…

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 7)

Details

AGLC: Gin & Hing (No 7) [2023] FedCFamC1F 116
Case: [2023] FedCFamC1F 116
Decision Date

CaseChat Overview and Summary

In this case, the applicant, Mr Gin, and the respondent, Ms Hing, are engaged in protracted family law proceedings before the Federal Circuit and Family Court of Australia. The dispute primarily concerns the duration and scope of Mr Gin's closing submissions, which the respondent and the Independent Children's Lawyer seek to limit due to their length and repetitive nature. The case has extended beyond reasonable expectations, significantly impacting the child involved, and the court has been faced with the challenge of managing the proceedings to ensure they are resolved justly, quickly, and efficiently in accordance with the overarching purpose of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

The primary legal issue before the court was whether to invoke Rule 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to limit the length of the father's closing submissions. This rule requires all participants in litigation to facilitate the just resolution of disputes according to law, and as quickly, inexpensively, and efficiently as possible. The court had to balance the father's right to present his case against the overarching purpose of the rules and the impact of prolonged proceedings on the child. The respondent and the Independent Children's Lawyer argued that the father's submissions were repetitive and not contributing new or necessary information, thereby unnecessarily prolonging the trial.

Justice Wilson concluded that the father's submissions on parental alienation had been sufficiently explored and that further repetition was not necessary. The court ruled that the father's final address should be limited to the remainder of 28 February 2023, and an additional one hour on the resumption of the trial on 4 July 2023. The judge emphasized the need for the proceedings to be resolved as quickly and efficiently as possible, considering the undue impact the prolonged litigation had on the child. The court fixed 4, 5, and 6 July 2023 for final addresses to ensure all parties could conclude their submissions within a reasonable timeframe.

The court's order limited the father's final address to the balance of the day on 28 February 2023 and one additional hour on 4 July 2023, aiming to bring the extensive litigation to a close in an efficient and timely manner.

Orders