Arena & Arena (No 5) - [2024] FedCFamC1F 362

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arena & Arena (No 5) [2024] FedCFamC1F 362

File number(s): WOC 1226 of 2019

Judgment of: CURRAN J

Date of judgment: 28 May 2024

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Where father made an oral application to re-open evidence of final hearing – Where father filed written submissions outside of filing table containing new evidence – Where mother and Independent Children’s Lawyer opposed the re-opening – where re-opening is refused

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: 21

Date of hearing: 27 May 2024

Place: Sydney

The Applicant: The Applicant father appeared in person

Solicitor for the Respondent: Ms Hewlett of Maguire & Mcinerney Lawyers

Solicitor for the Independent Children's Lawyer: Ms Ung of Legal Aid NSW
ORDERS

WOC 1226 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ARENA

Applicant

AND:
MS ARENA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

28 MAY 2024

THE COURT ORDERS THAT:
1.The oral application made by the father for the final hearing to be reopened is refused.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:

These reasons for judgment were delivered orally and have been corrected from the transcript.
INTRODUCTION
Yesterday, there was an application made orally by the father to re-open the final hearing.
These proceedings are competing applications for parenting orders in respect of the children X, (currently 15 years old) and Y, (currently 13 years old) (“the children”). They are the children of the applicant mother, Ms Arena, (“the mother”) and the respondent father, Mr Arena (“the father”).
The matter was listed for final hearing before me for four days commencing on 28 August 2023, it was re-opened for further evidence on the application of both parties on 21 November 2023. Orders were made on 5 April 2024 for final submissions in respect of certain aspects including holiday and make-up time with a timetable to be filed by 10 May 2024.
On 23…

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 Arena & Arena (No 5)

Details

AGLC: Arena & Arena (No 5) [2024] FedCFamC1F 362
Case: [2024] FedCFamC1F 362
Decision Date: 28 May 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an application by Mr Arena to reopen the evidence of a final hearing. The matter involved a dispute over the care and custody of the parties' children. Ms Arena and the Independent Children’s Lawyer opposed the application. The Court was tasked with determining whether the application should be granted and, if so, whether the new evidence presented warranted reopening the final hearing.

The primary issue before the Court was whether the father's application, made orally during the final hearing, to reopen the evidence should be granted. The Court had to consider the legal principles surrounding the reopening of evidence in family law matters, the timing and content of the father's application, and the effect of the new evidence on the outcome of the case. Additionally, the Court needed to assess whether the father's written submissions, filed outside the prescribed time, contained new evidence that could justify reopening the evidence.

The Court found that the father's oral application to reopen the evidence was made too late, and the written submissions filed outside the prescribed time did not present new evidence that was both material and could not have been reasonably adduced at the final hearing. The Court held that reopening the evidence would not be in the best interests of the children and would unnecessarily delay the proceedings. Consequently, the Court refused the father's application.

The Court ordered that the father's application to reopen the evidence of the final hearing be refused. The form of the order was subject to entry in the Court’s records, and the reasons for judgment might be subject to minor corrections or variations as permitted by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Orders

Orders of the court

WOC 1226 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ARENA

Applicant

AND:

MS ARENA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

28 MAY 2024

THE COURT ORDERS THAT:

1. The oral application made by the father for the final hearing to be reopened is refused.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	WOC 1226 of 2019
Judgment of:	CURRAN J
Date of judgment:	28 May 2024
Catchwords:	FAMILY LAW – PRACTICE & PROCEDURE – Where father made an oral application to re-open evidence of final hearing – Where father filed written submissions outside of filing table containing new evidence – Where mother and Independent Children’s Lawyer opposed the re-opening – where re-opening is refused
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:	21
Date of hearing:	27 May 2024
Place:	Sydney
The Applicant:	The Applicant father appeared in person
Solicitor for the Respondent:	Ms Hewlett of Maguire & Mcinerney Lawyers
Solicitor for the Independent Children's Lawyer:	Ms Ung of Legal Aid NSW

WOC 1226 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR ARENA Applicant
AND:	MS ARENA Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CURRAN J
DATE OF ORDER:	28 MAY 2024