Arena & Arena (No 5)
[2024] FedCFamC1F 362
•28 May 2024
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 May 2024 the parties were advised the matter was listed for judgment delivery on 27 May 2024. The father had filed a document outside the filing timetable which encompassed both further submissions and fresh evidence on 21 May 2024. The mother objected to the material filed outside the timetable and the fresh evidence being read.
As a consequence, the matter was listed for mention on 27 May 2024 and judgment delivery was deferred.
The father remains unrepresented and as a consequence it was explained to him that if he sought to re-open the proceedings and call fresh evidence, he would be required to make an application. The relevant legal and procedural considerations were explained to him.
The mother and Independent Children's Lawyer (“ICL”) ultimately did not oppose those parts of the late filed submissions that were submissions in reply being read and considered by me, however, they both opposed any new evidence being read, and opposed the re-opening of the matter.
The father pressed the re-opening application. I heard oral submissions from all parties. I have now read and considered the new evidence proposed by the father to be relied on and I refuse his application to re-open. These are my reasons.
MATERIAL RELIED UPON
Mother
The mother made oral submissions opposing the proposed new evidence on the basis it would further delay the finalisation of the matter, that the matters raised were not of great significance, that it represented a form of ongoing control of the mother, and that it would cause unnecessary and disproportionate additional legal costs to be incurred by the mother. These are all relevant factors.
Father
The father relied upon the document entitled written submissions dated 20 May 2024 which was filed on 21 May 2024, attaching various text exchanges between the mother and father from May 2024 at Appendix A. He made submissions as to the mother failing to conduct herself in the best interests of the children in support of his application and cited that material as evidence of her conduct.
Independent Children’s Lawyer (“ICL”)
The ICL made oral submissions opposing the admission of further evidence but also consented to the late submissions in reply being read and considered in the final determination of the matter. Her submission was that the additional proposed evidence was in further evidence of an inability of these parties to effectively communicate or agree on matters in respect of the children.
THE LAW
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].
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.
In this case, the evidence proposed to be called relates to events that occurred after the final hearing. The material related to conflict over proposed make-up time following a missed visit on 11 April 2024 when the boys were sick but had a negative COVID-19 test. The evidence also included some text exchanges from 8-10 May and 15-17 May 2024 seeking for Y to come over on a different day to watch a football game with his father. The upshot of the messages was that the parties could not agree, and make up time or a variation of time did not occur by consent. I note this is just part of the evidence presented by the father.
THE FATHER’S ORAL APPLICATION
The father submitted that that the evidence sought to be admitted was probative as it illustrated that the mother was not acting in the children’s best interests, and was rigid and lacked flexibility in respect of variations to the orders. He also highlighted that the evidence showed that the mother would be unlikely to agree to any increase and that proscriptive orders rather than orders that she could control were necessitated.
I specifically asked the father to address me on any further of the identified categories from ASIC v Rich above, in support of his application. He did not raise any other matters. However, I note that the evidence sought to be adduced is about events which occurred after the close of evidence at trial and therefore was not available at the trial; the evidence sought to be adduced is probative to one of the central issues in the trial being the inflexibility of the parties and their inability to communicate; and, I note, other than costs and delay, there is likely no prejudice to the mother in reopening.
The mother and ICL highlighted the fact that the evidence was really more of the same – that is, that the conflict between the parents remains to exist, that there is an inflexible and intractable approach that both parties seem to adopt when either party seeks to make a change to existing arrangements or otherwise communicate with one another.
Nothing in the proposed evidence persuades me that reopening the matter is in the interests of justice. After careful review of the evidence and submissions and application to the relevant consideration as set out earlier, I am not persuaded. The evidence is not particularly probative when at its highest it may indicate an inflexible attitude of the mother (noting she has not had an opportunity to provide any evidence in reply). The communication shows an ongoing difficult communication style between the parties of which there is significant evidence of this issue already before me from the trial. The communication shows that Y is still being placed in the middle of the parental dispute with a text indicating that “he would like to come over Friday night”, which again, is consistent with evidence already before the court.
I find that the evidence is not sufficiently relevant or probative to my determination at final hearing despite its recency. I find that the interests of justice are better served to not allow the final hearing to be reopened to admit the evidence of the father in relation to the interaction between the mother and the father in respect of proposed makeup time in April and May 2024.
As such, the father’s oral application to re-open following his filing of his late filed additional submissions with evidence is refused. I note that the mother and the ICL did not oppose the filing of the submissions as far as they were in reply to the written submissions already received, and accordingly, I have received and considered the submissions, but have not considered the new evidence.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 28 May 2024
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