Chisler and Gatenby - [2019] FamCA 200

FAMILY COURT OF AUSTRALIA

CHISLER & GATENBY

[2019] FamCA 200

FAMILY LAW – PRACTICE AND PROCEDURE – Application to reopen a case following hearing and prior to the delivery of judgment – whether it is in the interests of justice to reopen the case – where the proceedings underlying the application are child related proceedings for the purposes of Division 12A of the Family Law Act 1975 (Cth) – importance of Principle 1 for an application to reopen – interests of justice and the needs of a child – impact of the proceedings upon a child – potential impacts of prolonging litigation.

Family Law Act 1975 (Cth) s 69ZN

Camden & Chalk [2009] FamCAFC 10
Mallard & Mallard [2011] FamCA 876
Suell & Suell (Re-opening) [2009] FamCA 55

APPLICANT:

Ms Chisler

RESPONDENT:

Ms Gatenby

FILE NUMBER:

MLC

3057

2016

DATE DELIVERED:

3 April 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

20 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Stoikovska

SOLICITOR FOR THE APPLICANT:

Leanne Cain & Associates

COUNSEL FOR THE RESPONDENT:

Mr Wilson

SOLICITOR FOR THE RESPONDENT:

Marshalls & Dent & Wilmoth Lawyers

Orders

Leave is granted to reopen the child related proceedings the subject of a final hearing on 29 October - 1 November 2018.
The matter is relisted for Directions at 9.30am on Wednesday 17 April 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chisler & Gatenby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: MLC 3057 of 2016

Ms Chisler

Applicant

And

Ms Gatenby

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are Ms Chisler, the Applicant Mother (“Ms Chisler”), and Ms Gatenby, the Respondent Mother (“Ms Gatenby”). The parties were in a de facto relationship from late 2000 to early 2016. There are three children of the relationship: B, born in 2006; C, born in 2008; and D, born in 2008.
In April 2016, Ms Gatenby initiated proceedings in the Family Court of Australia. A final hearing for both property and parenting matters was held over a period of five days, commencing on 13 November 2017 and concluding on 17 November 2017. Justice Bennett made Final Orders on 17 November 2017.
Ms Gatenby filed an appeal in relation to the parenting orders. The appeal was allowed by consent in May 2018. A rehearing of the parenting matter was held over period four days, commencing on 29 October 2018 and concluding on 1 November 2018. Judgment was reserved.
On 19 February 2019, Ms Chisler filed an application seeking leave to reopen the aforementioned parenting matter. Ms Chisler seeks to adduce evidence relating to matters that have occurred since the hearing.[1] The issue of whether the parenting matter should be reopened is the subject of this decision.
[1] Affidavit of Ms Chisler, filed 19 February 2019, [4].

Material Relied On

Ms Chisler relied on the following:
a)Application in a Case, filed 19 February 2019;
b)Affidavit of Ms Chisler, filed 19 February 2019;
c)Affidavit of Ms O, filed 19 February 2019;
d)Affidavit of Ms Chisler, filed 18 March 2019; and
e)Affidavit of Ms O, filed 18 March 2019.
Ms Gatenby relied on the following:
a)Response to an Application in a Case, filed 13 March 2019;
b)Affidavit of Ms Gatenby, filed 13 March 2019;
c)Affidavit of Ms DD, filed 13 March 2019; and
d)Affidavit of Ms EE, filed 13 March 2019.

Legal Principles

The Court has a discretionary power to reopen a case prior to judgment.[2] In general, this discretion is to be exercised in accordance with the interests of justice.
[2] See, e.g. Camden & Chalk [2009] FamCAFC 10.
The general principles applicable to the exercise of the discretion to reopen a case prior to judgment were set out by Fowler J in Mallard & Mallard:[3]
91.      The fundamental principle to be applied in determining whether to grant 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: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 per Clarke JA at 476 with whom Mahoney JA and Meagher JA agreed; Gelly and Gelly (No 1) (1992) FLC ¶92-290 per Treyvaud J at 79, 146-148; Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 per Brennan Dawson, Toohey and Gaudron JJ at 266-7 and Gaspaldi and Gaspaldi [2008] Fam CAFC 134 (unreported, Family Court of Australia, Bryant CJ, Thackray and Le Poer Trench JJ, 2 October 2007); Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240.
92.      The court has discretion to reopen a hearing and allow fresh evidence where:
a)        the fresh evidence was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence and
b)        the fresh evidence is so material that the interests of justice require it and
c)        if believed, the fresh evidence would most probably affect the result of the trial and
d)        there would be no prejudice to the other party by reason of its introduction at a late point in time.
[3]Mallard & Mallard [2011] FamCA 876, [91]-[92].
These principles are modified in child related proceedings by the operation of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”). Section 69ZN applies the principles for the conduct of child related proceedings to performing duties and exercising powers in relation to child related proceedings, and to making other decisions about the conduct of child related proceedings.
The underlying proceedings that are the subject of the application here are child related proceedings. Determining whether to allow reopening of those proceedings is either the exercise of a power in relation to child related proceedings or is otherwise a decision about the conduct of those child related proceedings.
The principles contained in s 69ZN are as follows:
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.
Although Principle 4 could in some circumstances have application, in this case it should not be expected that either the refusal or acceding to the application will promote cooperative and child-focused parenting. While Principle 5 speaks of the avoidance of undue delay, in reality it is the operation of Principle 1 that will lead to a determination of whether the delay is undue.
Of all of the principles, it is Principle 1 that is most relevant to the determination of the present application.
Principle 1 does not necessarily point in a single direction when it comes to determining an application such as this. The needs of a child in terms of the determination of long term best interests may conflict with the immediate impact upon the child of the reopening of the proceedings.
Here there is a close connection between the interests of justice and the needs of the children. The interest of justice are closely related to the proper determination of the case, which in these proceedings relates to what is in the best interests of the children. Where the evidence to be led potentially impacts upon the determination of what is in the best interests, the needs (as described in Principle 1) of the child tend toward the reopening.
At the same time, the prolonging of litigation after the point at which all had a right to expect that the hearing was at an end, is another important consideration, not least because the prolonging of the litigation impacts upon the children (as described in Principle 1). The reopening of litigation has the potential to impact adversely on a child in the manner described by Murphy J in Suell & Suell:[4]
I am acutely aware that success in the application brought by the mother, means that the litigation will not be finalised until after the re-opened proceedings and judgment is delivered.
I am acutely aware that this has the potential to add to (or at least not diminish) the high conflict between [V’s] parents.
It has the potential to impact adversely on [V], although, I note, as observed above, there is no direct evidence to that effect before me in the context of this application.
I am acutely aware that I am under an obligation under the legislation to consider, as a matter uppermost in my mind, that parenting proceedings should be conducted without undue delay and brought to finality as soon as possible.
I am also under any obligation (which, quite apart from its statutory foundation, the court feels acutely) to do whatever the court can to remove the stress on V that might be occasioned by these proceedings.
[4]Suell & Suell (Re-opening) [2009] FamCA 55, [84]-[88].
That is, the very fact of delay is a matter which tells against reopening because of the potential impact upon the child of the delay in the resolution of the proceedings.

The proposed evidence

At the trial in October 2018, one incident had occurred of B running away from Ms Gatenby. The reasons for B’s running away were the subject of dispute, being a dispute as to whether the responsibility for the conduct should be sheeted home to Ms Gatenby or to Ms Chisler. The resolution of this issue had the potential to impact on how questions as to parental capacity, willingness and ability to foster B’s relationship with the other parent, and the nature of the relationships between B and each parent should be characterised. These were important questions in the proceedings.
What is sought to be led by Ms Chisler is what she has described as a further 16 incidents involving B and C to add to the single incident that was in play at the time of the trial. These are said to evidence a degradation of the relationship between Ms Gatenby and B and C such as to further support the orders sought by Ms Chisler.
Those incidents spanned a period from 2018 through to 2019 and included B leaving school on her own, running away from school, and seeking to return to Ms Chisler early. They involved episodes of B avoiding Ms Gatenby. Incidents also included C running away and not wanting to spend time with Ms Gatenby.
For Ms Gatenby, it was put that the court would not be assisted by the mere fact of each of the 16 incidents, as it would be necessary to deal with what pressure upon the children was causing the incidents. This assessment appears to be correct. Pointing to the question of cause Ms Gatenby noted significant text streams from Ms Chisler while the children were in Ms Gatenby’s care and a lack of any explanation by Ms Chisler as to steps that she had taken to impose consequences for the conduct engaged in by B.
It was said that this was simply more of the same as was in evidence at trial. In particular Ms Gatenby pointed to the evidence of the Single Expert at trial, Dr Q, who was not surprised that an incident of running away had occurred, connecting it to the pressure imposed upon the children because of the ongoing legal matters which were resulting in a loyalty struggle and the need to form alliances.
It was therefore said that there was no change in the way that Ms Chisler puts her case as opposed to the manner in which she put it at trial and so reopening would serve no useful forensic purpose.
It was also correctly observed that the reopening would cause delay and the prolonging of the proceedings which would provoke further stress, pressure and uncertainty. This was described as inimical to the best interests of the children.
It was suggested that the reopening would result in a further two to three days of trial. Ms Gatenby asserted that her circumstances were such that she would be forced to represent herself for this portion of the trial.

The balance

The fresh evidence, (which was not available at the time of trial, as it relates to matters occurring since the trial), speaks to important issues within the proceedings. While there was a single instance of running away in evidence at the trial, these further incidents have the capacity to speak to growing issues in the relationships between B, C and Ms Gatenby and, depending on the evidence that is called, to the source of those issues. It may be that they show a change in relationships so as to justify the orders sought by Ms Chisler. It may be that they show that there is problem in the relationship with and parenting by Ms Chisler that points towards the result sought by Ms Gatenby.
Whatever the outcome, the proposed evidence carries significant potential to impact the determination of what orders are in the best interests of each of the children.
Despite the prolonging of proceedings (the earliest likely continuation of the trial being in June 2019) and the potentially deleterious effect upon the children, the interests of justice call for the reopening of the case to allow this further evidence to be given, in order that a proper determination of what is in the best interests of the children might be made.
This is the case despite the difficult position this places Ms Gatenby in, in having to face further proceedings and face them potentially without legal representation.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 3 April 2019.

Associate:

Date: 3 April 2019