Collu and Rinaldo (No 3)

[2010] FamCA 482

FAMILY COURT OF AUSTRALIA

COLLU & RINALDO (NO. 3) [2010] FamCA 482

FAMILY LAW - CHILDREN - leave to tender new evidence after the conclusion of the evidence and submissions but before the delivery of judgment

APPLICANT: Ms Collu

RESPONDENT: Mr Rinaldo

FILE NUMBER: PAC 1204 of 2008

DATE DELIVERED: 2 June 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 2 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Curran

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Ms Adams

Orders

1. The mother’s application made today, for leave to adduce further evidence in her case, by way of affidavit, be dismissed. 

IT IS NOTED that publication of this judgment under the pseudonym Collu & Rinaldo is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:   PAC 1204 of 2008

MS COLLU

Applicant

And

MR RINALDO

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The mother today has made a second application since the hearing ended, to be granted leave to adduce further evidence in her case.  She has provided an affidavit that she has sworn today, 2 June 2010.  I will deal with the material in that affidavit in the order that it appears.  I was provided this affidavit before I have come into court so I have been able to read it and consider it. 

2. The first thing she wants to do is tender a letter from her brother, which sets out the basis of employment opportunities that he offers her.  Notably, it does not actually indicate what monies she would be paid by way of remuneration for her employment.  The nature of some of the employment that is being offered is a little vague and otherwise the letter details more fully, the living arrangements and schooling arrangements the child would have in Papua New Guinea (“PNG”).

3. The possibility of the mother living in PNG was the subject of oral evidence by the mother during the hearing, and certainly when the case started before me, her case outline document had PNG as an option where she might reside.  Having carefully looked at the brother’s letter, I do not allow reopening of the case to admit that evidence on the bases:

   3.1.That it is not so material that the interests of justice require its admission, nor, given the conclusions that I will shortly publish, is it likely to affect the result of the case.

   3.2.The mother has not explained, given that she proposed PNG as an option in her case outline, why this information could not by reasonable diligence, have been discovered earlier.  

   3.3.I conclude that considerable prejudice may flow to the father by way of the late admission of the evidence.  The main prejudice is the case would not come to a conclusion, and I otherwise find that that would not be in the child’s best interests. 

4. Accordingly, I do not allow reopening for the purpose of admitting the evidence contained in the letter from the mother’s brother.

5. The next piece of evidence that the mother wishes to tender is an email the father sent to the mother on 31 May 2010.  Part of that email might be inadmissible, because it contains evidence of negotiations, but part of it relates to a telephone conversation that the child had with his mother at Cairns airport on Sunday 30 May.  In the email, the father writes:

   You spoke to him on Sunday and I even let him speak to you without speakerphone as you regularly request.  Now, you know why I always put him on speakerphone, because he does get more involved with the phone calls.

6. Counsel for the mother says that that throwaway line in that email proves that the father did not tell the truth when he said at trial, according to counsel for the mother, that he does not always put him on speakerphone.  Counsel for the mother submits that it goes to the father’s credit and therefore the case should be reopened for that reason.

7. The father would have to be given an opportunity for there to be an exploration as to whether or not there was an explanation of what he said in that email.  Given the judgment that I am shortly to publish, I am aware of all the other evidence I have taken into account in relation to the issue of credit and even if it was established that the father had not been truthful in relation to that particular aspect, it is not a matter that would affect the result of the case in any material way and this evidence is not so material that the interests of justice require its admission.  Again, the father would be prejudiced by reopening of the case and so would the child.

8. The next part of the material the mother wants to rely upon is paragraphs 7 through to 18, (although I notice counsel for the mother said paragraphs 9 through to 17).  I have already excluded the substance of all of this material when I dealt with the previous application to reopen by the mother on 26 May 2010.  I will give my reasons today for the orders I made on that day, dismissing the first application for leave to reopen; they are at paragraph 503 of the judgment I will publish today.  I have read all the emails annexed to the most recent affidavit and there is nothing in those emails that would cause me to deviate from the original view that I expressed for the reasons I will shortly publish. 

9. The final thing the mother wishes to tender is a translation of a document which was rejected at trial because it was a document in the Arabic language without any translation.  The translation which is offered today indicates that the document was an offer to the mother of a position of 2 October 2009.  The document says the position was with an engineering company as a senior project manager.  There are no further details as to what the offer might entail.  The document says the terms of the appointment would be sent separately.

10. The mother’s explanation as to why this material was not available at the time of the trial was because, “She did not think or know it to be necessary to have this document translated into English.”  The mother was represented at all times in the hearing before me by counsel, as I understand it on a direct brief, and I just do not accept that with reasonable diligence the mother could not have obtained the translation earlier.  In addition, it is not a document where, in my view, the interests of justice require its admission, and its admission would not probably affect the result of the case if it was admitted.  Again, the father would be prejudiced by reopening of the case and so would the child. 

I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts.

Associate: 

Date:  17.6.2010