Correia & Davila - [2019] FamCA 558

FAMILY COURT OF AUSTRALIA

correia & Davila

[2019 ] FamCA 558

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to reopen – Where an adjournment would be required to obtain possibly existing evidence –Where evidence was in a parties possession for an extended period – Where a party has sought leave to reopen evidence – Where evidence had concluded and submissions had commenced – Where the majority of the evidence is not relevant in determining the fundamental and live issue of risk – Where leave is granted to admit evidence on a selected issue.

Family Law Act 1975 (Cth) s 60CC.

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8

Reid v Brett [2005] VSC 18

Smith & New South Wales Bar Association (1992) 108 ALR 55

Summit & Summit & Ors (Re-opening) [2009] FamCA 365

APPLICANT:

Ms Correia

RESPONDENT:

Mr Davila

Independent children’s lawyer:

Brian Samuel & Associates

FILE NUMBER:

SYC

4374

of

2014

DATE DELIVERED:

25 July 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

25 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Blacka

SOLICITOR FOR THE APPLICANT:

WMD Law

THE RESPONDENT in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

IT IS NOTED that publication of this judgment by this Court under the pseudonym Correia & Davila 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 Sydney

FILE NUMBER: SYC 4374 of 2014

Ms Correia

Applicant

And

Mr Davila

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. In this matter, Mr Davila, the Respondent father (‘the father’), has made an oral Application seeking to reopen evidence at a point in the proceedings where evidence had been closed and, indeed, counsel for the Applicant mother, Ms Correia (‘the mother’), had completed his submission. The evidence that the father seeks to tender is primarily copies of electronic communication but also includes possible video footage, if it exists, of an incident that the father alleges occurred outside the Court during the course of the hearing. The obtaining of such possibly existing video footage would require the proceedings to be adjourned until at least tomorrow.

The relevant law considered and applied

2. In Reid v Brett [2005] VSC 18 at 41, Habersberger J summarised the principles regarding the courts discretionary power to reopen evidence, as follows:
The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows:
(a) the further evidence…

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 Correia & Davila

Details

AGLC: Correia & Davila [2019] FamCA 558
Case: [2019] FamCA 558
Decision Date: 25 July 2019

CaseChat Overview and Summary

In *Correia & Davila*, the applicant sought leave to reopen evidence after the evidence had concluded and submissions had commenced. The dispute concerned an application for leave to reopen evidence in family law proceedings. The matter was heard by McClelland DCJ.

The primary legal issue before the court was whether to grant the applicant leave to reopen the evidence, particularly given that an adjournment would be required to obtain potentially existing evidence which had been in the party's possession for an extended period. The court also considered the relevance of the proposed evidence to the fundamental and live issue of risk.

McClelland DCJ reasoned that while the evidence had been in the applicant's possession for a significant time and the proceedings had reached an advanced stage, the majority of the evidence was not relevant to the core issue of risk. However, the court found that some of the proposed evidence was relevant to a selected issue. Accordingly, leave was granted to admit evidence on that specific, selected issue.

Orders