ANDREWS & GRANT - [2015] FCCA 952

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANDREWS & GRANT

[2015] FCCA 952

Catchwords:
FAMILY LAW – Parenting – 7 year old Child – five day trial in October 2014 – judgment reserved – Mother seeks to reopen – long history of parental conflict – evidence adduced does not warrant reopening – in Child’s best interests for litigation to end.

Legislation:

Family Law Act 1975, s.69ZN(3)-(7)

Australian Securities and Investments Commission v Rich (2006) 235 ALR 587
CDJ v VAJ [1998] FLC, 92-828
King & King [2014] FCCA 163
Reid v Brett [2005] VSC 18 at 41
Smith v NSW Bar Association (1992) 176 CLR 256
Suell & Suell (Re-opening) [2009] FamCA55
Suess & Jackson (2009) FamCA 164
Zau & Uong(No.2) [2015] FamCA 56

Applicant:

MR ANDREWS

Respondent:

MS GRANT

File Number:

SYC 3007 of 2009

Judgment of:

Judge Sexton

Hearing date:

30 March 2015

Date of Last Submission:

30 March 2015

Delivered at:

Sydney

Delivered on:

17 April 2015

REPRESENTATION

Counsel for the Applicant:

Mr R. Schonell S.C

Solicitors for the Applicant:

Mills Oakley Lawyers

Counsel for the Respondent:

Mr Blackah

Solicitors for the Independent Children's Lawyer:

S Davitt Family Lawyers

ORDERS

The Mother’s application to adduce further evidence filed on 18 February 2015 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Andrews & Grant is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3007 of 2009

MR ANDREWS

Applicant

And

MS GRANT

Respondent

REASONS FOR JUDGMENT

Introduction

A five day parenting hearing between the parties to this Application in a Case concluded on 24 October 2014. Judgment was reserved and has not yet been delivered. The proceedings relate to the parties’ only child, [X], who is 7 years of age. There has been a long history of conflict between the parties and the issues in the case are complex. Each party makes serious allegations about the other. [X] has always been in the primary care of the Mother. The Father and the Independent Children’s Lawyer propose that [X] be moved to the Father because of the risk issues involved if she is left in the primary care of the Mother. The Father has remarried.
By Application in a Case filed on 18 February 2015, the Mother seeks orders:
a)To reopen the hearing and adduce more evidence.
b)The Father be directed to provide consent to Dr G to speak to the Mother and keep the Mother informed of [X]’s therapy;
c)The Father and Ms D, the Father’s wife, be restrained from taking [X] to any form of family therapy without the Mother’s consent;
d)The Father provide notice, prior to the commencement of school at 8.30a.m, to the Mother if he is late taking [X] to school or if [X] is not at school.
e)The Father ensure that [X]’s mobile phone is charged and switched on and he facilitates her calling and provides her with privacy whilst doing so.
By Response filed 5 March 2015, the Father seeks an Order that the Mother’s Application in a Case be dismissed and that the Mother pay the Father’s costs.
The Mother’s Application in a Case was before the Court for hearing on 30 March 2015, as was the Father’s Application in a Case in relation to [X]’s arrangements for the April 2015 school holidays. I decided the April school holiday issue on that date and gave short reasons for my decision. I reserved my decision on the Mother’s Application to re-open the proceedings to adduce further evidence.
In her Affidavit filed on 18 February 2015 in support of this Application, the Mother alleges the Father has breached Court orders as well as deposing to the further evidence she seeks to adduce. Rather than attempting to separate the issues, I set out all the matters relied on by the Mother as follows:
a)Since the hearing, [X] has reported to the Mother that the Father and Ms D have been drinking alcohol in front of her, in breach of Orders made on 25 March 2011. In particular the Mother says:[1]
[1] At paragraphs 6 to 8 of Mother’s affidavit sworn on 18 February 2015
i)When [X] was returned to her care on 1 January 2015, [X] said to her “both daddy and [Ms D] drank alcohol while we were in Tasmania.”
ii)[X] has told her how Ms D broke her foot while with her at Chinatown “after she had been drinking”.
iii)She is “very concerned that less than 2 months after final hearing Mr Andrews and Ms D are drinking again and in front of [X]. I am afraid that [X]’s role models are unable to control their drinking and have resumed drinking now that the final hearing is over.”
b)[X] told her (when in the care of the Father on the phone to the Mother) that the Father intended to take her to Port Douglas “next time I see him”. The Mother said the Father is using [X] as a messenger, as the Father had not notified her of a proposed interstate holiday. The Mother contends this is in breach of his shared parental responsibility obligations.[2]
[2] Ibid at paragraphs 12 and 13
c)Since the hearing, the Father has failed to comply with orders relating to [X]’s telephone communication with her. She says she calls every 4 days in accordance with the orders “and am frustrated on every occasion.”[3] The Mother refers to Order 8 of Orders made on 20 December 2013 which provides for “the caring party to ensure [X] speaks to the other party every 4 days, and to facilitate [X] calling the other party when considered helpful to [X].” When she does speak to [X], the Mother alleges that [X] has no privacy as she is put on speaker phone.[4] In particular, the Mother says:
[3] Ibid at paragraph 15
[4] Ibid at paragraph 17
i)On Christmas Day 2014 between 10.30p.m and 11.00p.m. [X] called the Mother from the Father’s house 4 times and left 4 messages asking the Mother to call her. Calls were made from a new phone the Father had bought [X]. The Mother was asleep and the phone number was blocked so the Mother did not realise [X] had called until she checked her messages the following afternoon. She said that the only reason she knew [X]’s new number was because [X] had contacted her. She said she tried to return [X]’s calls, but none were answered or returned.
ii)On 27 December 2014, the Mother rang [X] and the phone was off. The Mother sent an email to the Father asking why she could not reach [X]. The Father responded that they were in Tasmania. The Mother says [X] told her by telephone that they were going to Port Douglas. She said that she received no notice from the Father that he was taken [X] interstate.
iii)On 29 January 2015, the Mother left a message asking [X] to call her. The Father responded “No”. The Mother deposes to the Father refusing telephone contact “when he is angry at me.”[5]
[5] Ibid at paragraph 19
iv)When she has tried to initiate phone calls from [X] to her Father, the Father will send “abusive and untrue emails so I am afraid to help [X] to call.”[6]
[6] Ibid at paragraph 18
v)The Mother says the Father has failed to facilitate telephone access with [X]. She says she calls once or twice a day and receives no return phone call. She says [X] asks her why she does not call. She says she has received no phone calls from [X] initiated by the Father. She says that all their phone calls are on speaker phone.
d)The Father holds [X] back from school so she cannot see the Mother.
e)The Father does not communicate or cooperate regarding [X]’s schooling and homework which impacts adversely on [X].[7]
[7] Ibid at paragraph 20
f)[X]’s increased time with the Father since the hearing has seen “my bright, wilful child become withdrawn and nervous.” The Father’s behaviour has worsened. He is unlikely to co-parent with her cooperatively in the future.[8]
[8] Ibid at paragraph 21
g)The Father has not paid child support since May 2014 and as at 15 February 2015, owed the Mother $7,661.08.[9] The Agency has told her that the Father has restructured his financial affairs to reduce his child support liability.[10] The Mother refers to an SSAT decision of June 2012. She says the Father is enjoying extravagant holidays and spoils [X] while failing to meet his child support obligations. The Mother says the Agency has advised her to file an enforcement warrant.
[9] Ibid at paragraph 23 to 24
[10] Ibid at paragraph 28
h)During “family therapy” with Dr G, [X] is being asked inappropriate questions, because the Mother says [X] told Dr G she wanted to live with the Father, and then said she told Dr G she had made that up. The Mother believes the Father seems “determined to undermine my relationship with our daughter and does not support me being in [X]’s life.”[11]
i)The Mother says she does not believe it is in [X]’s best interests for both parents not to be permitted to attend the school, even though “our relationship is high conflict and destructive and we should limit all interactions.”[12]
j)Since the final hearing, Ms D has attended school reading on Tuesday mornings during [X]’s time with the Mother, and behaved rudely towards the Mother, failing to acknowledge her on the grounds of [A] School. Ms D has not supported the Mother’s relationship with [X].[13]
k)On 20 November 2014, at a school open day and concert for [X], the Mother greeted the Father and Ms D who did not return her greeting in front of other mothers.
l)The Father does not cooperate regarding [X]’s homework. This means [X] does not have the correct homework and is constantly late handing in her work and gets behind. [X]’s 2014 end of year report stated that [X] was not consistent in completing her homework and wearing her uniform (as a result of the Father’s failure to cooperate with the Mother).[14]
m)The Father does not do the set homework when [X] is with him which affects [X]’s time with the Mother because she is required to do “double homework.”[15]
n)Since the school year started, the Father has not returned [X]’s belongings to the Mother so she is not always appropriately dressed for school and does not always have her required books or uniform. On 28 November 2014, [X] was returned without her library bag. These issues upset [X].[16]
o)The Mother has attended therapy since the final hearing which she has found helpful as she now understands “that some fathers are very vindictive and she [the therapist] said with [the Father’s] make up he would file applications for [X]’s entire life…[name omitted] [the therapist] helped me to understand that there are fathers who sadly are not able to move on from a marriage break-up and many years later still file applications in court and refuse to cooperate.… in relation to my breaches of Court orders…she has helped me to see I was emotionally exhausted and broken down…. [Mr Andrews] is a vexatious litigant….”[17]
p)The Father has told Dr G not to speak to her about [X]’s therapy. Her therapist has advised her to go back to Court to ensure she is kept informed.[18]
q)The Mother has not breached Court orders since the final hearing “as promised in Court”.[19]
[11] Ibid at paragraphs 32 to 33
[12] Ibid at paragraph 35
[13] Ibid at paragraph 36
[14] Ibid at paragraph 40
[15] Ibid at paragraph 41
[16] Ibid at paragraph 42
[17] Ibid at paragraphs 46 and 47
[18] Ibid at paragraph 49
[19] Ibid at paragraph 50
The Mother’s counsel refers in his Outline of Case to additional evidence on which the Mother would seek to rely if her application to reopen was successful. However, I agree with Senior Counsel for the Father that the Court cannot have regard to matters referred to in the Mother’s counsel’s case outline and written submissions, when not referred to in the Mother’s Affidavit evidence.
In his Affidavit sworn on 5 March 2015, the Father denies all the allegations made by the Mother. He says the same issues raised by the Mother were ventilated at the final hearing. He confirms that he and Ms D have not consumed alcohol when [X] has been in their care and Ms D has not consumed alcohol at all. He says Ms D broke her foot in Chinatown when she tripped on a footpath repair. He confirms that he has not called [X] when she has been in the Mother’s care because “I do not believe that is beneficial for [X] in the circumstances.”[20] He says that the Mother has been in regular phone contact with [X] and that 29 January 2015 was not the Mother’s day for contact as she alleges. He did not allow phone contact on that day because he feared what the Mother would say to her, and that [X] would be confused about what was happening on her first day back at school. The Father had told [X] her Mother would be at school to see her, and that he and Ms D would drop her off in the car line. [X] was not late to school on her first day. The Father acknowledges being in arrears of child support and says he has been in regular contact with the Child Support Agency about his circumstances. The Father says he has paid $21,000 in fees for Dr R, and the Mother has not contributed as agreed which would have affected the level of his child support arrears. He has paid all of [X]’s fees at [A], the costs of her speech therapy, medical expenses, uniforms and extracurricular activities. The Father and Ms D attended the open day school concert, said “hello” to [X] afterwards but as the Mother was present, they did not stay for the school picnic and class open day. The Father ensures [X] is dressed appropriately for school, that she does her homework and he always returns school items. [X]’s teacher, with whom he is in weekly contact, has not raised any concerns with him. The Father deposes to taking [X] to see Dr G each fortnight, and to having advised Dr G at the first session that she is free to speak to the Mother or to involving the Mother in family therapy. The Father deposes to Dr G telling him that the Mother has been leaving phone messages at her office and that she has left a message for the Mother “explaining that I will see how things go with [X]. I told her I am just getting to know [X] and I will contact her if I consider it is appropriate for her to attend family therapy.” The Father says he believes it is a matter for Dr G to make recommendations as to how to proceed with [X]’s therapy, and not a matter for him.
[20] At paragraph 11 of Father’s affidavit filed on 5 March 2015
In her affidavit sworn 5 March 2015, Ms D confirms the matters deposed to by the Father. In addition, she denies the making of statements attributed to her by the Mother. Ms D says the Father facilitates [X]’s phone contact with the Mother more frequently than every 4 days. Ms D says that she did see the Mother one morning when she attended for reading at the school, despite timing her arrival after [X] should have been in her classroom. However, [X] arrived with the Mother after the other children had gone to the classroom and therefore Ms D had to walk past her. She agreed it was uncomfortable for [X] so Ms D has since limited her school reading to days [X] is living with her and the Father. Ms D says that prior to 24 October 2014 (when [X]’s time with the Father was increased), [X] was not in their care on any homework nights. Since the hearing, both the Father and Ms D supervise [X]’s homework on the nights [X] has homework. Ms D confirms that she and the Father ensure that [X] is dressed properly for school, and that all necessary school items are returned to the Mother. Ms D says, in respect to the Mother’s allegation that she and the Father have refused to speak to her or cooperate with her, that the Mother has not contacted her in any way since the hearing was finalised.

Legal Principles

The question of whether the Court should grant leave to reopen is a discretionary one “guided by the interests of justice”.[21] While the Mother’s counsel referred to the authorities of King & King[22] and Australian Securities and Investments Commission v Rich [23], and the Father’s counsel to the decision of Zhou & Uong (No.2)[24], the factors to be considered by the Court in exercising its discretion are set out in similar terms in a number of the authorities.[25]
[21] Suell & Suell (Re-opening) [2009] FamCA55 at paragraph 9
[22] [2014] FCCA 163
[23] (2006) 235 ALR 587
[24] [2015] FamCA 56
[25] Suell & Suell [2009] FamCA 55; Reid v Brett [2005] VSC 18 at 41; Zau & Uong(No.2) [2015] FamCA 56; Suess & Jackson (2009) FamCA 164; Australian Securities and Investments Commission v Rich (2006) 235 ALR 587
His Honour Justice Murphy in Suell says:[26]
The essential question is, is the court more able to do justice in the facts and circumstances of the particular case if the application is granted.[27]
His Honour refers to the High Court decision in Smith v NSW Bar Association (1992) 176 CLR 256 in which the High Court has held that where reasons for judgment have not been delivered, the primary consideration should be embarrassment or prejudice to the other side. His Honour said this[28]:
Prejudice or embarrassment… is a broad concept and is not limited merely to cost or expense. The significant stress imposed upon litigants, particularly where the prior litigation history has been lengthy, has been widely recognised as an element of prejudice. Moreover, litigants have a right to expect finality in litigation.
And where a child is involved (who is not a litigant), the Court is compelled legislatively to be aware that the primary interests are those of the child.[29]
In the case of re-opening a parenting trial, it must be borne in mind that, at issue in the substantive proceedings is the initial determination of what is in the best interests of the child.
[26] Suell & Suell [2009] FamCA 55 at paragraph 9
[27] See for example Smith v NSW Bar Association (1992) 176 CLR 256; Urban Transport Authority v NSEISER (1992) 28 NSWLR 471 at 478 and EB v CT (No. 2) [2008] QSC 306
[28] Suell & Suell [2009] FamCA 55 at paragraph 11
[29] Suell & Suell [2009] FamCA 55 at paragraphs 12 and 16
In the matter of Zau & Uong(No.2), her Honour Justice Macmillan said:[30]
Although the High Court in CDJ & VAJ held that an application to admit further evidence was not a “parenting order” and hence the requirement that the Court consider as paramount the best interests of the child or children in question did not apply, it did go on to say that the Full Court in that case had been right in concluding that the best interests of the child is relevant to the question of whether further evidence should be admitted.
[30] Zau & Uong (No.2) [2015] FamCA 56 at paragraph 14
As stated by Murphy J in Suess & Jackson (2009) FamCA 164 (cited with approval by Macmillan J in Zau & Uong[31]), this Court must give effect to the principles outlined in s.69ZN (3)-(7) because the Mother’s application involves a decision about the conduct of child-related proceedings.[32] The Court must “consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.”[33] The Court must also conduct the proceedings “without undue delay and with as little formality, and legal technicality and form, as possible.”[34] As submitted by Senior Counsel for the Father, these principles clearly relate to the impact of litigation on children.
[31] Zau & Uong (No.2) [2015] FamCA 56 at paragraph 15
[32] Suess & Jackson (2009) FamCA 164 at paragraph 22
[33] Section 69ZN(3) of the Family Law Act 1975 and paragraph 26 of Suess & Jackson (2009) FamCA 164
[34] Section 69ZN(7) of the Family Law Act 1975
The Mother’s counsel referred to the decision of King & King [2014] FCCA 163, in which Judge Kemp adopted a statement of discretionary factors set out by Austin J in Australian Securities and Investments Commission v Rich (2006) 235 ALR 587 to be applied when exercising discretion to adduce further evidence after a case has been closed. While those factors broadly accord with the list of factors included by Murphy J in Suell’s case,[35] I have found it convenient to adopt Justice Murphy’s list (a parenting case) as the relevant factors to be considered in exercising my discretion. Those factors include[36]:
a)Is the further evidence relevant to issues directly affecting the Child’s best interests and the ultimate decision about that?
b)Is the further evidence likely to affect, in a substantial way, the ultimate finding or findings that would otherwise have been available on the evidence at the hearing?
c)Could the further evidence have, with due diligence and preparation, been discovered so as to be led at the trial and, associated therewith has there been undue delay on the part of the applicant in bringing the application, particularly in light of s.69ZN(7)
d)The nature and extent of any prejudice which is likely to be caused to the respondent in responding to any such evidence within a reasonable time
e)Is the Child likely to suffer detriment if the evidence is admitted and the trial re-opened, and, if so, the nature and extent of any such detriment;
f)Recognition of the principle that it is in the Child’s best interests (and his parents) that parenting litigation be finalised as soon as possible;
g)Recognition of the fact that proceedings for parenting orders are not in the nature of ordinary inter-party proceedings; they may involve a broader inquiry into the best interests of children than that which is circumscribed by the issues identified by the parties;
h)The fact that the discretion to admit further evidence “… needs to be exercised with much care in parenting cases”. (See CDJ v VAJ @ Para [117].
[35] At paragraph 27 of Suell’s case, relying on the criteria enumerated by the Victorian Supreme Court in Reid v Brett [2005] VSC 18 at 41, cited with approval by Applegarth J in EB v CT [2008] QSC 306
[36] At paragraph 27 of Suell’s case

I have given careful consideration to each of the above factors.

Discussion and Determination

The substantive proceedings concern future parenting arrangements for [X], aged 7 years. The parties separated when she was a baby. There has been a long and difficult litigation history since [X] was 19 months of age. Interim orders were made in relation to [X]’s time with the Mother in 2009 and 2010, and an expert report was prepared by the Court expert Dr R, psychiatrist, before final parenting orders were made by the Family Court on 25 March 2011. Those orders provided for [X] to live with the Mother and spend time with the Father on a gradually increasing basis. As the Mother acknowledged at final hearing, she failed to comply with those orders on many occasions. On 19 February 2013, the Father filed a contravention application in this Court, returnable before me on 11 April 2013. This Court varied the final orders of March 2011 in relation to [X]’s time with the Father. The parties were directed to attend UNIFAM to assist them to develop the ability to communicate with each other directly and to improve their co-parenting skills. On 31 July 2013, the matter was again before this Court. Orders were made for the parties to attend all UNIFAM appointments, and comply with Orders made on 11 April 2013 during the period of the adjournment. On 18 November 2013, the Court noted that the parties had been unable to reach agreement as to school holiday time, and that [X] had not spent any time with the Father between 9 September 2013 and 15 October 2013. The Father was granted leave to make an oral application to vary the 2011 orders (as amended by orders made in April 2013) and an Independent Children’s Lawyer was re-appointed. On an interim basis, the Court ordered that any changeovers away from [A] take place in the foyer of [omitted] police station. The parties were mutually restrained from abusing/harassing one another or their respective families, denigrating one another by text message, discussing the proceedings with [X] or using her as an intermediary in relation to changes to parenting arrangements. The parties were ordered to facilitate [X]’s therapy with Ms B. An order was made for both parties to comply with orders made 25 March 2011 as varied on 11 April 2013. On 19 November 2013, the Father filed his application to vary the Orders made in March 2011 (and amended in April 2013). On 12 December 2013, the Mother filed a Response seeking to retain the March 2011 orders except she sought to eliminate any weekday time with the Father. On 20 December 2013, the Court made orders in relation to [X]’s time with the Father during the upcoming Christmas school holidays and 2014 school holiday periods. The changeover location was changed. An Order was also made in relation to [X]’s telephone time. On 24 February 2014, the Court re-appointed Dr R as the court expert. On 3 June 2014, the Court noted that the Mother’s legal representative had agreed to advise the Mother of the importance of complying with Court Orders and the potential ramifications of not doing so. On 18 July 2014, the Court ordered that neither party consult any therapist for [X] pending the outcome of the proceedings and placed [X]’s name on the airport watch list. The Mother was restrained from cancelling [X]’s enrolment at [A], or enrolling [X] at any other school. A schedule of precise times that [X] was to spend with the Father was annexed to the Orders. On 22 September 2014, the Father filed an Amended Application seeking orders for sole parental responsibility and for [X] to live primarily with him. The final hearing commenced on 13 October 2014. On 24 October 2014, the final day of hearing, the Mother’s counsel sought to admit a report dated 23 October 2014 from a psychologist whom the Mother had consulted for the first time in the 8 day period of the adjournment between 16 and 24 October 2014. The Court determined to reject the tender. On 24 October 2014, the final day of hearing, the parties agreed to vary the orders in place at that time. Interim orders were made, by consent, for [X]’s time with the Father to be extended and for [X] to attend upon Dr G, psychotherapist, for therapy on 28 October 2014, and thereafter as Dr G recommended. On 28 January 2015, the Father filed an Application in a Case seeking that the matter be relisted urgently in relation to a restraint on the Mother attending at [X]’s school in the Father’s time. However that Application did not proceed and was dismissed. On 18 February 2015, the Mother filed this Application to reopen which was listed before me at short notice on 6 March 2015. With the consent of all parties, the Application was adjourned and listed for hearing on 30 March 2015. On 26 March 2015, the Father filed an Application in a Case seeking orders in relation to the April 2015 school holidays. That Application was heard and determined on 30 March 2015.
One of the important issues at final hearing concerned the Mother’s capacity and/or willingness to support [X]’s relationships with her Father and her step-mother because of the Mother’s persistent breaching of Court orders and the resulting conflict between the parties, to which [X] was exposed. The Father and the Independent Children’s Lawyer proposed that the Court move [X] to live primarily with her Father, a move supported by the Court expert if the Court made certain findings, including that the Mother was likely to continue to breach Court orders, which would result in a continuation of the conflict, so damaging to [X].
The Mother appears to recognise the significance of this issue when, in these proceedings, she seeks to adduce evidence to establish that, since the hearing was finalised, the Father has been breaching Court orders, while she has stopped breaching orders. In particular, the Mother contends that the Father and his wife have been drinking alcohol around [X], that the Father has obstructed [X]’s telephone contact with her, has failed to notify her of a proposed interstate holiday, and caused difficulties for [X] at school by not completing homework, not returning school items and uniforms, and not getting her to school on time. The Mother seeks to have the opportunity to prove that since [X]’s time with the Father has increased (after the end of the hearing), [X] has lost her spark, and her school work has suffered.
The Mother’s counsel submits that if these allegations are proved,

Dr R’s recommendations may change, given that breaching Court orders was such a critical issue at final hearing. Counsel argues that Dr R’s opinion on these matters should be considered before the Court makes a final determination, given the “grave outcome being contemplated.” Counsel says the Court should also have regard to the Father’s filing of two applications after the final hearing seeking to prevent the Mother from attending at [A], demonstrating his lack of focus on [X]’s needs. Counsel further submits that the Mother has not been kept informed of [X]’s therapy with Dr G, which commenced shortly after final hearing. Evidence about [X]’s therapy from Dr G should be led through the Court expert, Dr R. In written submissions, counsel refers to other matters about which the Mother seeks to adduce further evidence, though not articulated in the Affidavit she relies on. In relation to its probative value, counsel submits that much of the evidence sought to be adduced will be provided in documents including telephone records, school records, email correspondence, and further evidence from Dr R. Counsel submits that none of the evidence the Mother is seeking to adduce could have been called at the hearing, because it did not exist before the trial.
Senior Counsel for the Father submits that the Court should not proceed on the basis that the Mother’s allegations are factually true.
In relation to the allegation that the Father and his wife were consuming alcohol around [X], counsel points out that the sole source of the evidence is [X]. The Father denies the allegation. Given the history of this matter, Dr R’s concerns about the Mother’s behaviours, the impact of the parties’ entrenched conflict on [X]’s development, the Court could not rely on what [X] may have told her Mother as factually true, nor on the truth of the Mother’s allegation.
Counsel submits none of the material the Mother includes in her affidavit is new evidence, but a variation of more of the same. The evidence at final hearing included the Mother’s belief that what [X] told her was factually correct, whether or not denied by the Father or anyone else. The Mother again raises child support issues, issues about telephone calls, issues about [X]’s therapy, all canvassed at the hearing. Counsel submits that what is contemplated by the Mother’s counsel if the proceedings are re-opened is further evidence from each party, from Ms D, from Dr G, from Dr R, from the Mother’s therapist, as well as a substantial volume of further documents. This could potentially mean another 5 days of hearing, and there is no evidence as to whether or when Dr R would be available, or when the Court could hear the matter. Counsel submits that no consideration is given by the Mother to the impact of further litigation on [X] and the Mother has had plenty of opportunities to put all her complaints before the Court. Counsel submits that the Mother’s application to continue the litigation is odd given the Mother deposes in her supporting affidavit to being exhausted by litigation, which she contends has been solely the result of the Father’s conduct. Counsel argues that the application is inconsistent with the principles in s.69ZN and highly detrimental to [X].
The Independent Children’s Lawyer submits that the evidence sought to be adduced by the Mother is not new, and all issues raised by the Mother are already before the Court. In particular, the Independent Children’s Lawyer submits that it is plainly a matter for Dr G when and whether she wants to involve the Mother in [X]’s therapy, or discuss it with her, not a matter for the Father. The Independent Children’s Lawyer highlights the Mother’s antagonism towards Ms B when the [X] was engaged in therapy with her.

Determination

There is a notation (not an order as asserted by the Mother) in the Orders made by the Family Court on 25 March 2011 providing:
… the Father and Ms D agree not to consume alcohol for a period of at least 12 hours prior to and during caring for [X].
I do not accept that the Mother’s allegations about the Father and Ms D consuming alcohol around [X] is a new issue. I agree with the Father’s counsel that the Mother’s concerns about this issue were explored extensively at the final hearing. Moreover, the Mother’s reliance on the accuracy of statements made by [X], whatever alternate explanation might have been provided by the Father or anyone else, was of considerable concern to Dr R. There were many examples in the evidence at trial of the Mother accepting [X]’s comments/complaints without question, and relentlessly pursuing those complaints whatever the Father’s explanation. A prime example was when [X] told her Mother she had seen the Father’s therapist Mr J and he had given her a fish. The Mother’s belief that [X]’s version meant [X] had been in therapy with Mr J could not be shaken. In relation to the Mother’s preferring [X]’s account over Mr J’s account, Dr R said “that concerns me.”
I am not satisfied the Mother’s allegation about the Father not telling her he planned to take [X] to Port Douglas “next time” is a new issue. The Mother’s concern that the Father failed to communicate adequately with her about a range of issues concerning [X] was addressed at the hearing.
I agree with the Father’s counsel and the Independent Children’s Lawyer that the matters raised by the Mother about [X]’s telephone communication are a repeat of matters raised at the hearing. I find nothing new in these allegations.
I agree with the Father’s counsel that the matters raised by the Mother about the Father failing to help [X] with homework, not getting to school on time, and failing to return school items, are a repeat of matters raised by the Mother at the hearing. I find nothing new in these allegations.
I find that the Mother’s expressed concern that she is not being kept informed about [X]’s therapy with Dr G, is very similar to her complaint when [X] was consulting Ms B, psychologist, for therapy in early 2014, a topic canvassed extensively at the final hearing. The Mother’s communications with Ms B when [X] was in therapy, on the recommendation of [A], and in accordance with a Court order, and her decision to withdraw [X] from therapy with Ms B despite those circumstances, caused Dr R significant concern at final hearing. In

Dr R’s opinion, the Mother wanted to control [X]’s ‘other’ relationships, including [X]’s relationship with her therapist. I find her need to speak to Dr G about [X]’s therapy another example of this. According to the Father, Dr G received numerous messages from the Mother from shortly after the therapy began, and Dr G advised the Mother by return message that she would contact her if the Mother was required for family therapy. On 18 December 2014, the Father’s solicitor wrote to the Mother’s solicitor[37] in relation to the therapy, and the Mother’s “excessive” contact with Dr G’s office. I find it noteworthy, particularly after hearing Dr R’s evidence on this issue as it related to [X]’s therapy with Ms B, that the Mother has not accepted that it is a matter for [X]’s therapist, in this case Dr G, as to how to manage the therapy. It is not a matter for the Mother or for the Father.
[37] At Annexure A to Father’s affidavit sworn on 5 March 2015
The child support issues raised by the Mother are not new evidence, nor are the Mother’s complaints about the Father and Ms D failing to cooperate with her. The Mother’s concerns about these issues were addressed at length during the hearing.
In relation to the Mother’s evidence about her therapy, an application to introduce evidence of the Mother’s recently commenced therapy was made by the Mother’s counsel on the last day of the hearing and finalised on that day. That application was dismissed. I am not satisfied the Mother’s evidence about her ongoing therapy would assist the Court to determine [X]’s best interests. One of the central concerns in this case identified by Dr R was [X]’s continued exposure to the conflict between the parties. The therapy as described by the Mother would not appear to diminish that concern. I note here that the Mother’s counsel’s submission that the Father’s application to stop both parties being at [A] at the same time was contrary to Dr R’s evidence, was not correct. (The Mother referred to two applications, the first of which was dismissed without being heard.) Dr R said, on balance, while it would mean [X] missing out, “she needs to be protected from their behaviour.”[38] I find the Father’s application to ensure [X] is not exposed to interactions between the parties, is consistent with Dr R’s opinion.
[38] At page 36 of transcript of proceedings on 16 October 2014
In summary, I am satisfied that the evidence sought to be adduced by the Mother contains similar, if not identical examples, of her concerns examined in detail during the final hearing. While I accept the Mother’s counsel’s submission that some of the matters deposed to by the Mother in her affidavit are alleged to have occurred after Judgment was reserved, I am not satisfied this further evidence is likely to affect the findings that would otherwise have been available on the evidence at the hearing, or would affect the Court’s ultimate decision about [X]’s best interests. I find that [X] is likely to suffer detriment if the evidence is admitted and the trial re-opened. According to the Court expert, [X] is being seriously damaged by the ongoing acrimony between her parents. Dr R said at the hearing, “something has to change for this child. And I just really hope it’s not too late for her development.” There is urgency in her remarks. I reject the Mother’s counsel’s submission that “the timely conclusion of litigation is not a section 60CC factor and in a parenting case …this factor has diminished importance.” [39] I have regard to the principle that it is in the Child’s best interests that parenting litigation be finalised as soon as possible, and to the principles set out in section 69ZN outlined earlier. The High Court in CDJ & VAJ said that the discretion to admit further evidence “needs to be exercised with much care in parenting cases”[40] and that the best interests of the child is relevant to that exercise. [X] has been the subject of litigation since she was a baby. She has been developmentally damaged by the ongoing conflict. In accordance with s.69ZN (3)-(7), the Court must consider the impact of this litigation on [X].
[39] Mother’s written submissions
[40] CDJ v VAJ [1998] FLC, 92-828 at paragraph 117
I am not persuaded the Court is more able to do justice in the facts and circumstances of the particular case if the Mother’s application is granted. I am also satisfied that [X]’s best interests will be served by the matter being finalised.
For all these reasons, the Mother’s Application in a Case is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Associate:

Date: 17 April 2015