Apuzzo & Apuzzo
[2022] FedCFamC1F 330
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Apuzzo & Apuzzo [2022] FedCFamC1F 330
File number(s): BRC 9896 of 2018 Judgment of: JUSTICE JARRETT Date of judgment: 4 April 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to re-open evidence – order for further report pursuant to s 62G of the Family Law Act 1975 (Cth) Legislation: Family Law Act 1975 (Cth) Cases cited: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 4 April 2022 Place: Brisbane Counsel for the Applicant: Mr Baston Solicitor for the Applicant:: Advance Family Law The Respondent: Litigant in Person ORDERS
BRC 9896 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR APUZZO
ApplicantAND: MS APUZZO
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
4 APRIL 2022
THE COURT ORDERS THAT:
1.The Respondent Mother has leave to re-open her case.
2.Mr C prepare a further report pursuant to s.62G of the Family Law Act 1975 (Cth).
3.The parties shall equally share the costs of the updated family report.
4.The Respondent Mother file and serve no later than 4.00pm on 26 April, 2022 an affidavit of evidence in relation to the matters raised in her affidavit filed on 23 March, 2022.
5.The Applicant Father file and serve any affidavit in response no later than 4.00pm on 17 May, 2022.
6.The matter be adjourned to 9.30am on 8 June, 2022 for case management hearing in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
7.Pursuant to s.67U of the Family Law Act 1975 (Cth), a recovery order do issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the children X born in 2010, Z born in 2009 and Y born in 2007 (the children) and to deliver the said children to the Applicant Father at E Street, Suburb D in the State of Queensland, or such other place as the Applicant Father and the person effecting such recovery agree to be appropriate; and
(b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.
8.The Respondent Mother, her servants and/or agents are hereby restrained from removing or attempting to remove or causing the removal of the children from the Respondent Father’s care until further order of the Court.
9.The recovery order issued pursuant to order 7 herein lie in the Registry and shall issue for execution upon the filing of an affidavit from the solicitor for the Applicant Father that the children are not spending time with him in accordance with the orders of 14 June, 2019.
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 the pseudonym Apuzzo & Apuzzo is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J
This is an application by the mother of three children to reopen the evidence in proceedings that are presently reserved for judgment by me. The trial was heard back in 2020 and judgment remains reserved.
The issue in the proceedings initially was whether there was an unacceptable risk of harm to the children from the father by reason of his physical abuse and emotional abuse of them. That was determined by an earlier proceeding or earlier trial in which I made findings of fact about physical abuse. That was done on the basis that, if there was a finding that there was no unacceptable risk of harm of physical abuse, then recommendations made by the family report writer, Mr B, would be acceded to and orders made in the terms of the report writer’s recommendation would be acceptable.
As it turns out, after the findings were made in the unacceptable risk part of the trial, there was then a recanting of the position by the mother. That seems to have resolved by the time the matter came to trial, because in her case outline and her position at the trial was that I should make orders that were consistent with the recommendations of the report writer. There were interim orders in place to that effect, and they have been in place ever since.
The father’s position changed, notwithstanding what was said by him through his counsel, or his solicitor at the time I listed the preliminary issue of unacceptable risk for separate determination. At the trial of the proceedings on a final basis, he sought orders that the children live with him.
In the meantime, since the case was reserved for judgment, the mother says there have been a number of matters that have arisen, all recounted in her most recently filed affidavit. She says that those matters need to be considered by the report writer and that a further report under s 62G of the Family Law Act 1975 be obtained. She says it is important because the ages of the children and their behaviour indicate that their wishes may have changed and that things, she says, have been happening in the father’s care which require some careful consideration. The mother’s evidence, such as it is in her affidavit most recently filed, is not answered by the father.
There is correspondence exhibited to the mother’s affidavit that suggests that the father was indeed in agreement with the preparation of a further report, and that seems to indicate that there are indeed matters that have arisen since the last trial that require consideration by the expert. The father’s position expressed in that correspondence was not simply that there should be a further s 62G report, but there should also be further psychiatric examinations of each of the parties, but his consent to the further family report was contingent on the mother agreeing to further psychiatric examinations.
The tests for reopening evidence in a case where the trial has been completed are well stated in many authorities. The Court needs to be satisfied that the evidence that is sought to be adduced was not available to be led by the party at the hearing that is sought now to be reopened and that the justice of the case requires that leave to re-open be granted. In a sense, the mother’s application is inelegantly worded, because she seeks to lead or reopen her case through a further family report. That is, in a sense, the manufacturing of further evidence. Until the report is undertaken, there is no evidence. But, upon the report being undertaken and prepared, there is further evidence of an expert nature from the relevant report writer. What, essentially, she is asking to do is to lead further evidence about the factual matters that she says will underlie a further opinion by a report writer and those factual matters being those matters set out, at least in some form, in her most recently filed affidavit.
Having regard to the ages of the children and the matters raised by the mother and the stance of the father set out in the letter to which I earlier referred, my own view is that it is appropriate to accede to the mother’s request and to permit a reopening of these proceedings and a further family report. I will make orders to that effect.
It will be necessary for the mother to file a further affidavit of evidence prior to the undertaking of the family report writer’s interviews, and the father to do so too if he wishes to do so. Neither party will be under any compulsion to do so, but it is necessary to bear in mind the rules that relate to expert opinion talked about, for example, by the High Court in cases like Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. The mother can file and serve any further affidavit material in relation to the matters that she has generally referred to in her most recently filed affidavit no later than 4 pm on 26 April, 2022. The father can do the same in response no later than 4 pm on 17 May, 2022.
I understand there are some appointments available with the family report writer soon, and the parties can agree on which one is convenient for all of them so that that can be attended to. Once the report is released, the matter needs to come back to Court for further management.
There is one other issue that I need to deal with. The application asks for the appointment of an Independent Children’s Lawyer. I decline to make that further appointment. No basis is demonstrated in the material for doing so.
At the moment, there are presently orders in place. There is no application before me to set aside, discharge or vary those orders. Indeed, the orders that are in place are the very orders that the mother asked the Court to make at the conclusion of the trial. She says now that situations have occurred and the factual matrix is different such that those orders might not be appropriate. At least that is what I think she says but that remains to be determined. Part of a parent’s parenting capacity is simply not to be a passive facilitator. It is entirely appropriate that there be a recovery order issued and that it be acted upon if the orders that are presently in place are not complied with.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 16 May 2022