Arena & Arena (No 2)

[2023] FedCFamC1F 1011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Arena & Arena (No 2) [2023] FedCFamC1F 1011

File number(s):

WOC 1226 of 2019

Judgment of:

CURRAN J

Date of judgment:

21 November 2023

Catchwords:

FAMILY LAW – PRACTICE & PROCEDURE – application in a proceeding – application to reopen evidence of final hearing – evidence from each party relating to events that occurred shortly after final hearing while judgment reserved – leave to reopen granted   

Legislation:

Family Law Act 1975 (Cth) s 102NA

Cases cited:

Australian Securities and Investments Commission v Rich (2006) 235 ALR 587

Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240

Sweep & Sweep [2018] FamCAFC 228

Division:

Division 1 First Instance

Number of paragraphs:

23

Date of hearing:

21 November 2023

Place:

Sydney

Counsel for the Applicant:

Mr Lawrence

Solicitor for the Applicant:

Maguire & Mcinerney Lawyers

Counsel for the Respondent:

Mr Cataldi

Solicitor for the Respondent:

John Stonham & Co

Solicitor Advocate for the Independent Children's Lawyer:

Ms Dodson

Solicitor for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

WOC 1226 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ARENA

Applicant

AND:

MR ARENA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CURRAN J
DATE OF ORDER:	21 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The applicant mother be granted leave to reopen the proceedings for the purpose of relying on the affidavit of Ms Arena filed 15 September 2023.

2.The respondent father be granted leave to reopen the proceedings for the purpose of relying on the affidavit of Mr Arena filed 19 October 2023.

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 Arena & Arena has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

CURRAN J:

1. These reasons for judgment were delivered orally and have been corrected from the transcript.

   INTRODUCTION

2. These proceedings are competing applications for parenting orders in respect of the children X, born 2009 (currently 14 years old) and Y, born 2010 (13 years old) (“the children”). They are the children of the applicant mother, Ms Arena, born 1975 (“the mother”) and the respondent father, Mr Arena, born 1973 (“the father”).

3. The matter was listed for final hearing before me for four days commencing on 28 August 2023. On the final day of this hearing, final orders were made by consent in respect of certain matters, and the remaining issues in dispute were reserved.

4. On 18 September 2023, the mother filed an Application in a Proceeding and supporting affidavit seeking that the matter be reopened for the purpose of accepting into evidence her affidavit affirmed on 15 September 2023.

5. Upon the filing of this Application in a Proceeding, the matter was listed for mention on 21 September 2023.

6. The matter was listed for interim defended hearing today, with the aim of continuing the final hearing and any cross examination if the application was granted. Further orders were made for the father to file response material; the parties to file written submissions; and an order pursuant to section 102NA of the Family Law Act 1975 (Cth) (“the Act”). I note that the father is now represented.

7. The father filed his Response to Application in a Proceeding on 19 October 2023.

8. The father also sought an order that the final hearing be reopened and judgment reserved, but sought that his affidavit affirmed on 18 October 2023 be admitted into evidence.

   MATERIAL RELIED UPON

   Applicant Mother

9. The mother relied upon the following documents:

   (a)Application in a Proceeding filed 15 September 2023;

   (b)Affidavit of Ms Arena filed 15 September 2023; and

   (c)Case Outline Document filed 14 November 2023, annexing Written Submissions.

   Respondent Father

10. The father relied upon the following documents:

    (a)Response to Application in a Proceeding filed 19 October 2023;

    (b)Affidavit of Mr Arena filed 19 October 2023;

    (c)Written Submissions filed 13 November 2023; and

    (d)Case Outline Document filed 17 November 2023.

    Independent Children’s Lawyer

11. The Independent Children's Lawyer (“ICL”) relied upon Written Submission filed 17 November 2023 and a Case Outline Document filed 20 November 2023.

    THE LAW

12. According to the Full Court in Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240 at [272], the fundamental principle to apply in an application to reopen a hearing after judgment has been reserved is “whether the interests of justice are better served by allowing the application or rejecting it.” This statement was cited with approval by the Full Court in Sweep & Sweep [2018] FamCAFC 228 at [45].

13. In determining whether the interests of justice are better served, consideration may be given to ‘discretionary factors’ set out in Australian Securities and Investments Commission v Rich (2006) 235 ALR 587 at 593 (“ASIC v Rich”) being:

    (a)        the nature of the proceeding;

    (b)whether the occasion for calling the further evidence ought reasonably to have been foreseen;

    (c)the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;

    (d)the extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case-in-chief;

    (e)the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;

    (f)the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;

    (g)the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;

    (h)the public interest in the timely conclusion of litigation; and

    (i)what explanation is offered by the plaintiff for not having called the evidence‑in-chief.

14. In this case, the evidence relates to events that occurred after the final hearing.

    THE MOTHER’S APPLICATION

15. It was submitted on behalf of the mother that the evidence sought to be admitted was probative in relation to the following central issues at trial, including:

    (a)The father’s capacity to regulate his behaviour and emotions;

    (b)The father's insight about the impact on the children, especially Y, of the father's behaviour;

    (c)The involvement of and exposure of the children to the parental conflict;

    (d)Whether reports made by Y about his father are truthful;

    (e)The father returning the children to the mother late; and

    (f)The mother's apprehensiveness.

16. In addressing categories from ASIC v Rich above, Counsel for the mother submitted that:

    (a)The evidence sought to be adduced is about events which occurred after the close of evidence at trial and therefore was not available;

    (b)The evidence sought to be adduced is probative to each of the central issues identified; and

    (c)Other than costs and delay, there is no prejudice to the father in reopening.

17. In addition, it was submitted on behalf of the mother that the interests of justice required the case to be reopened on the basis that the evidence sought to be adduced supports the mother’s and the Court Child Expert’s evidence that “the father knowingly behaves in a manner that causes distress to the children and exposes the children to conflict”. This may establish that the father breached an injunction made by consent just days earlier.

18. I find that the evidence is relevant and probative to my determination at final hearing and that the evidence was not available at the time of the final hearing concluding. I find that the interests of justice are better served to allow the final hearing to be reopened to admit the evidence of the mother in relation to the interaction between the children and the father on Father’s Day, being the weekend after the conclusion of the final hearing. As such, the mother’s Application in a Proceeding filed 15 September 2023 is granted. I note that the father did not oppose the reopening of the final hearing, nor the admission of the mother’s affidavit.

    THE FATHER’S APPLICATION

19. The evidence sought to be admitted by the father is contained in his affidavit filed 19 October 2023. It is, in effect, evidence in reply to the mother’s affidavit in relation to events between himself and the children on Father’s Day, as well as evidence about the mother withholding the children since that event.

20. The father consented to the orders sought by the mother for the final hearing to be reopened. He sought that his affidavit be admitted into evidence.

21. The father’s written submissions were primarily in reply or explanation to the evidence contained in the mother’s affidavit. He did not address the criteria as to why his affidavit should be admitted based on the principles enumerated above.

22. However, I find that the affidavit of the father filed 19 October 2023 is relevant and probative to the central issues in the final hearing and should be admitted on that basis, as well as on the basis of procedural fairness. There is no prejudice to the mother in admitting the affidavit of the father, as at the date of interim hearing the mother has had approximately 4 weeks’ notice of his application and the evidence he seeks to adduce, and will have an opportunity to test the evidence through cross-examination.

23. Accordingly, the father’s Response to Application in a Proceeding filed 19 October 2023 is also granted.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran.

Associate:   

Dated:       23 November 2023