Callas & Gordon
[2021] FedCFamC1F 3
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Callas & Gordon [2021] FedCFamC1F 3
File number(s): MLC 3486 of 2017 Judgment of: MCGUIRE J Date of judgment: 3 September 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by father seeking leave to reopen – Principles Applicable – Application opposed by the mother – Application granted in part. Legislation: Family Law Act 1975 (Cth) s 69ZN Cases cited: Urban Transport Authority of NSW v NSEISER (1992) 28 NSWLR 471
Suell & Suell (re-opening) [2009] FamCA 55
Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 24 August 2021 Place: Hobart Counsel for the Applicant: Mr Tesoriero Solicitor for the Applicant: Sayer Jones Pty Ltd The Respondent appearing in person: In Person Counsel for the Independent Children's Lawyer: Mr Goddard Solicitor for the Independent Children's Lawyer: Alexander McCormack ORDERS
MLC 3486 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CALLAS
ApplicantAND: MS GORDON
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
3 SEPTEMBER 2021
THE COURT ORDERS:
1.That the applicant father, Mr Callas have leave to re-open his case in respect of parenting issues but limited only in respect of matters raised in his Affidavit of 16 August 2021 as to paragraphs [23] – [31].
2.That within 14 days of the date of this Order the mother make, file and serve any further Affidavit on which she intends to rely specifically in respect of the matters on which the father is permitted to re-open being set out in his Affidavit of 16 August 2021 at paragraphs [23] – [31].
3.That the Independent Children’s Lawyer make, file and serve any further Affidavit on which he intends to rely specifically in respect of the matters on which the father is permitted to re-open being set out in his Affidavit of 16 August 2021 at paragraphs [23] – [31].
4.That the matter be listed for further hearing in respect only of the taking of evidence on the issue permitted for re-opening together with final submissions before His Honour Justice McGuire at the Federal Circuit and Family Court of Australia at Hobart on 13 October 2021 at 10.00am by Microsoft TEAMS.
5.Pursuant to rule 19.05 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
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 pseudonyms Callas & Gordon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J.
APPLICATION
Mr Callas is the applicant father in parenting proceedings in respect of the parties’ one child namely X born in 2012 (aged 8 years). In her Response, the mother, Ms Gordon, seeks orders for setting aside, pursuant to s 79A of the Family Law Act 1975 (‘the Act’) of final property orders made by consent on 19 April 2018.
I now have before me an Application in a Case filed by the father on 18 August 2021 seeking leave to adduce further evidence in respect of the parenting issues. That Application is supported by an Affidavit of the father affirmed 16 August 2021.
The Application is opposed by the mother. The Independent Children's Lawyer (“ICL”) supports the application in part only.
Evidence has been taken thus far in this matter over nine days variously between 21 December 2020 and 23 August 2021. The current Application was filed prior to the taking of evidence from the Court appointed expert, Dr B, on 23 August 2021 whereupon the evidence is otherwise completed.
The applicant father has been represented throughout these proceedings by solicitors and counsel during the trial. The mother has at all times been self-represented. It is proper to observe and note that the mother has, at times, exhibited her frustration as to the length of the trial and delays in taking and completing the evidence. She has, however, from my observations, conducted the trial in a most competent manner including as to her cross-examination of lay and expert witnesses.
Parenting orders made by consent on 14 May 2018 provide for the parties to have equal shared parental responsibility for X and for X to live primarily with the mother and to spend time with the father for five nights per fortnight.
RELEVANT LAW
The fundamental principle to be applied in exercising the discretion whether to grant an Application to re-open is whether the interests of justice are better served by allowing the Application or rejecting it.[1]
[1] Urban Transport Authority of NSW v NSEISER (1992) 28 NSWLR 471 at 478.
Relevant considerations in respect of the re-opening of a case include:
(a)Whether the evidence intended to be given or adduced was reasonably available at the time of the applicant giving his or her evidence;
(b)Whether the evidence is material to the interests of justice;
(c)The prejudice, if any, to the other party, including of any consequent delays, by the exercise of the discretion in favour of the applicant; and
(d)The Court’s mandate pursuant to s 60CA to regard the best interests of the child as the paramount consideration.
Having regard to the conduct of parenting proceedings in this Court pursuant to Division 12A of the Act, Murphy J in Suell & Suell (re-opening)[2] noted the following:
[2] [2009] FamCA 55.
7. Division 12A of the Act now governs the conduct and hearing of parenting cases in this Court. Its wide-ranging provisions have a potential to impact on the current application.
8.Prior to the introduction of Division 12A, it might broadly be said that common law principles governed applications to reopen in this Court. (see eg Gelley & Gelley (1992) FLC 92-290 and the cases there discussed).
9.Those principles make it clear that the granting of leave to reopen is discretionary. That discretion is guided by the interests of justice. 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. (see eg 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).
10.In cases where reasons for judgment have not been delivered, the High Court has held that the primary consideration should be embarrassment or prejudice to the other side. (see Smith above, at 266-267).
11.Prejudice or embarrassment, though, 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.
12.Parenting orders, however, involve – and involve crucially a person who is not a litigant. This Court is compelled legislatively (and, in any event, is continually aware) in such cases to be aware that the primary interests are those of the child.
13.The High Court has held, in the context of an application to admit further evidence on appeal, that such an order is not a ‘parenting order’ in terms of s 64B of the Act (see CDJ v VAJ [1998] FLC, 92-828). The effect of that, as the High Court pointed out, is that the ‘paramountcy principle’ predominating the best interests of children does not directly apply.
14.However, the High Court went on to say:-
“…nevertheless the Full Court of the Family Court was plainly right in concluding that the principle was relevant to the question whether further evidence should be admitted by the Full Court…. In an appeal in which the upholding, varying or setting aside of a parenting order is the ultimate matter at issue, the principles which govern the resolution of that case are the same for the Full Court as they are for the Judge at first instance. Consequently, the Full Court is bound to have regard to the best interests of the child as a paramount consideration when determining the appeal.” (at para 87 per McHugh, Gummow and Callinan JJ).
The Act itself at Part VII, Division 12A, s 69ZN provides principles for the conducting of child-related proceedings as follows:
Application of the principles
(1) The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b)in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to 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.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
CONSIDERATION
The Father’s Application
The father's Application is brought on three limbs. Firstly, it is argued that the mother has entered into a course of email communication. Significantly, in his affidavit at [6] – [9] he deposes:
6.From about January 2021 onwards, [the mother] has sent emails to my solicitors and the Independent Children's Lawyer (“ICL”) that I would describe as concerning.
7.I have observed that [the mother’s] emails have become increasingly erratic. Further, while [the mother’s] emails were initially directed to my solicitors, the ICL and the Honourable Justice McGuire, she is now also sending emails to the Honourable Chief Justice Alstergren.
8.More recently, [the mother] has been copying in to her emails various media outlets including Media 1 and Media 2, other Courts and organisations including Members of Parliament including Ms C and the Mr D.
9.Given [the mother] has copied in media organisations to her emails, and given she also said in her email to the Court on 4 June 2021 “You’ve forced me into media and international involvement… there’s no other way I can get protection for myself or my Child”, I hold serious concerns that [the mother] may be publishing or intending to publish details of these proceedings.
The father goes on to suggest that he is concerned as to the mother's mental health condition given her propensity for the use of email communication and the the contents of those emails.
The father's Affidavit is supported by some 222 pages of annexures generally providing copies of emails allegedly sent by the mother as set out above.
I am not satisfied that this is evidence such that leave should be given to the applicant father to re-open his case. Firstly, this is not new evidence, but rather, as I think conceded by the father's Counsel during his submissions, simply further examples of evidence already given and adduced.
The father's trial Affidavit was affirmed 30 November 2020. It comprises 59 pages and 316 paragraphs. Annexed to that Affidavit are 382 annexures. The Affidavit is replete with assertions as to communications from the mother, including some that the father claims to be abusive. The annexures provide many examples of the mother’s prolific communications including for example at annexure 33.
The mother was cross-examined as to the contents and assertions in the father's affidavit, including her communications.
Consequently, I am not satisfied that this is new evidence. I note, in any event, the father's own affidavit of 16 August 2021 which states at [6]:
From about January 2021 onwards…
It is well-established that leave is not available for a party to re-open simply to shore up previous evidence given or adduced by way of simply providing further examples.
Where the father does not profess to have any specialist medical qualifications, but where he has previously made assertions as to his view of the mother's mental health, this is again not new evidence or evidence that was not previously available to him. Unless contrary to any federal or state law, the mother has the right to communicate generally, but within the boundaries of s 121 of the Act and she is, of course, able to voice her opinion as to the competence or otherwise of all involved in her case including this Judge.
Secondly, the father seeks leave to re-open to give or adduce evidence in respect of the current living arrangements of the mother and hence those that she provides for X. In his Affidavit at [23] and following under the heading of ‘concerns that Ms Gordon [the mother] and X may be homeless', he deposes:
23.On 7 August 2021, Ms Gordon sent me a text message and asked that I collect X’s pets. I agreed and collected them from [the mother’s] home at F Street, Suburb G at 1:30 pm on 7 August.
24.On 8 August, [the mother] sent me a text message stating that changeover the following day would take place at Suburb H McDonalds. This was unusual as changeover normally takes place outside [the mother’s] home. I agreed.
25. At changeover on 11 August 2021, X said to me “Mum said not to tell you, but I'm staying in a hotel room”. She also said to me “My toys are in storage” and “We have given the house back to the people who own it”. She was crying when she told me this, and also said words to the effect of “I am scared because last time Mum moved she lost J (a dog) and I couldn’t see you for a long time. I don't want that to happen again”. I comforted her and reassured her that would not happen, and that I would take good care of her pets.
26. Order 11 of the Final Orders dated 14 May 2018 provides that [the mother] and I must keep each other informed of our residential addresses and advise each other of any changes to our addresses within 48 hours.
The ICL supports the father's Application to re-open on this discrete issue but not in respect of the other limbs.
Prima facie the father gives evidence of a change in the mother's living arrangements. The mother is currently the primary parent for X. She seeks orders so as to retain that role. The mother herself has previously given evidence as to some volatility and lack of certainty in her living arrangements. She has previously relocated from the Suburb H area to K Region without prior consent from the father. The provision of accommodation is a factor to be taken into account by the Court in respect of the capacity of each of these parents to attend to X’s needs.
The ICL indicates that the mother has communicated with him in respect of matters concerning her accommodation but that he has honoured her request, at least in the short term, that such information not be disclosed to the father or otherwise disclosed.
At this stage, the mother has not provided an affidavit in response to that sworn by the father on 16 August 2021. This possibility was raised with the mother prior to the hearing of this Application, but where she gave an indication that she was not inclined to provide an affidavit at least in the short term. In any event, should the Court accede to this Application to re-open then mother would, of course, be given the opportunity to respond to the father's material.
I am persuaded that the father should be given leave to re-open on this particular point as to the mother's accommodation circumstances and those that she currently provides for X. X is a young child and the status and availability of accommodation is a relevant consideration for the Court. The father has prima facie raised an issue and it will impact on X's best interests. The material relied upon is new and not previously available to him.
I am mindful of the delay to the parties, including the mother, and the impact on X of these proceedings being adjourned to accommodate the taking of this evidence, including a response from the mother. However, on balance, I am of the view that the material is of such probity and potentially directly relevant to X's best interests that its probative value outweighs the prejudice of further delay. Suffice to say that the Court will endeavour to accommodate the taking of this evidence and any forthcoming from the mother in response, at the earliest possible date.
Thirdly, the father seeks leave to re-open his case and give evidence in respect of one particular communication by the mother being from 10 August 2021 and referenced at [33] of his Affidavit as:
33.By way of example, on 10 August 21, [the mother] sent me a text message stating, inter alia “ …Go have sexual relations with men. Just coz other girls r there, doesn’t make it less gay. I see you….I don’t want none of u. Accept that you’re a fagot n you’ll stop being such a tortured sole (sic) that has to terrorise the only women (sic) stupid enough to have a kid with u”.
My consideration as to exercising my discretion in respect of this limb of the Application is perhaps best summed up by the father's own Affidavit [32] where he says “[The mother continues (my emphasis) to be abusive towards me”. Suffice to say that the father’s trial affidavit sets out in some considerable detail his assertions as to abusive communications to him from the mother. This is, therefore, not new evidence but simply another particular of evidence already given or adduced, and I will not exercise my discretion so as to allow the father to re-open on this limb of his Application.
28 I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Justice McGuire.
Associate
Dated: 3 September 2021
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