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 is so material that the interests of justice require its admission;

(b) the further evidence, if accepted, would most probably affect the result of the case;

(c) the further evidence could not by reasonable diligence have been discovered earlier;  and

(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.

(Citations omitted)

3.        In addition, I refer to the High Court decision of Smith & New South Wales Bar Association (1992) 108 ALR 55 at 61-61, where it was said:

If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re- open should be exercised.

4.        In this matter, I consider that we are in the former category, that is, where judgment has yet to be delivered. 

5.        In the context of family law proceedings, I also refer to a decision of Murphy J, as he then was, in Summit & Summit & Ors (Re-opening) [2009] FamCA 365 at 16-19, where his Honour stated:

[16] 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)

[17] A recent decision of the Supreme Court of Queensland, EB v CT (No 2) [2008] QSC 306 was referred to by both counsel for the husband and wife. That case involved an application for property settlement under (then applicable) State law with respect to a de facto relationship. In that case, Applegarth J summarised, by reference to earlier authorities, the (common law) principles applicable to a re-opening:

[2] The guiding principle in deciding whether to grant leave to re-open is whether or not the interests of justice are better served by allowing or rejecting the application. Reference is made in Finbrough Investments Pty Ltd v Airlie Beach Pty Ltd and in the cases referred to in it to the need for finality and litigation.

[3] In Smith v New South Wales Bar Association the High Court stated that different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment had been delivered. As to the former situation, the court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side.

[4] In Reid v Brett 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, was said to be as follows:

The further evidence is so material that the interests of justice require its admission;

(b) the further evidence, if accepted, would most probably effect the result of the case;

(c) the further evidence could not by reasonable diligence have been discovered earlier;

(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.

[Footnotes and references omitted]

[18] In addition, his Honour held that:

[5] Reference by the High Court to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigant. The prejudice caused by delay in the delivery of an expected judgment at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs. The interests of justice is served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.

[19] I consider that that is particularly true of litigation in this court generally, and in this case specifically. I will return to this issue below.

6.        The father seeks to admit a number of categories of evidence. First, is an email from the partner of the father’s brother to the Independent Children’s Lawyer, dated 3 July 2015, which relates to, as submitted by the father, a situation where the mother sought refuge in response to an alleged assault, on the part of Mr B, the mother’s current partner.  The material relates to a period of time prior to orders being made on a final basis on 10 October 2016 by Monaghan J, and prior to interim orders being made on 12 October 2017 by Judge Henderson, as she then was. 

7.        That email has been in the possession of the father since 2015.  The Application is made where the totality of the email train is not proposed to be tendered.  That evidence would not alter the result in the proceedings because it does not relate to an issue in dispute. That is the mother and Mr B have acknowledged that acts of family violence have in the past occurred, including in July 2015. Accordingly, I do not admit that evidence.

8.        Second, the father has sought an adjournment for the purpose of the father accessing video footage of an incident that the father alleged occurred at the entrance to the Court at 2pm on Tuesday 23 July 2019. The father anticipates that video footage will show an incident where Mr B held his ‘middle finger’ up towards the father and his family, while walking into the Court. The footage may or may not exist. The father has indicated that he wishes to tender the footage into evidence if it exists.

9.        That footage, if it exists, is potentially relevant only to the issue of Mr B’s credit. This is because, in the proceedings, it has been made quite clear that both the father and Mr B have a poor opinion of each other. Accordingly, if it exists, this would be further evidence confirming that to be the case and as such, is not likely to influence the outcome of the case.

10.      The video footage, conceded by counsel for the mother, may potentially go to the issue of credit insofar as Mr B said, in evidence that he did not so hold his finger up as described above.  However, the authorities establish that lack of credit in respect to one issue does not necessarily impact upon the credibility of the witness in respect to all issues: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155.

11.      If the father does establish, through the video evidence that possibly exists, the manner in which he alleges Mr B interacted with the father and the father’s family, it may go to the issue of credit in respect to whether Mr B has been open and honest. However, I accept the contention of the counsel for the mother, that the real issue I have to be satisfied of in these proceedings is the credibility of Mr B’s evidence to the effect that he has attempted to address and acknowledge his inappropriate behaviour in respect to his relationship with the mother. Specifically, the fundamental issue in this case is whether the child, X, born in 2013 (‘the child’), would be exposed to risk of emotional harm and/or relevantly, psychological injury in witnessing acts of family violence or potential family violence between the mother and Mr B. 

12.      In the course of these proceedings, if it were to be established that Mr B was not honest in respect of whether he did or did not hold his middle finger up towards the family, this would have only marginal relevance to my determining the fundamental and live issue, namely, Mr B’s commitment that he has endeavoured to address and indeed has addressed those issues that in the past have led to incidents of admitted family violence. In that context, the evidence, if it exists, is not of such significance that it has the potential to influence the outcome in these proceedings.

13.      Accordingly, I do not grant an adjournment for the purpose of that video evidence potentially being ascertained and revealing what the father anticipates may be shown.

14.      Third, the father seeks to admit emails that go back to 2014 in respect to circumstances in which the father submits he was not allowed to see the child during periods that the child remained in the mother’s care and, during which, the mother denied the father the opportunity to spend time with the child.  The denial of that opportunity is admitted by the mother, as is the fact that the father made numerous requests to see the child.  In that context, applying the principles that I have referred to, I have concluded that evidence would not influence the outcome of the case. 

15. Fourth, the father seeks to admit a print out of a Facebook post which the father contends the mother posted making adverse comments in respect to the father’s non-payment of child support. The father contends that material contains unpleasant comments about him which were made by the mother. Even assuming that to be the case, the issue regarding the mother’s opinion of the father in respect to non-payment of child support is, again, an issue that has been made clear in these proceedings. The mother is clearly concerned about the non-payment of child support, and even if posts show that the mother made strong criticism of the father in respect to the non-payment of child support it is not relevant to the fundamental issues I have to determine in these proceedings, namely, those matters set out in s 60CC of the Family Law Act 1975 (Cth) (‘the Act’) including, most relevantly, the issue of risk.

16.      Fifth, the father seeks to admit copies of a Facebook page or an internet page that the father contends were posted and maintained by the mother which are relevant to the issues in dispute between the parties. It appears that the father seeks to tender that material in response to material that has been tendered by the mother regarding a Facebook page, namely ‘I miss my [X]’, that was maintained by the father.  Again, such evidence does not have the potential to influence the outcome of this case.  This is because it is quite clear that, certainly from 2014, the parents have had an extremely poor view of each other.  The father acknowledges that that material would have been in his possession for some three (3) years.  He has had every opportunity to present it as evidence in his case at an earlier point in time and accordingly, I do not admit that evidence.

17.      Sixth, the father seeks to admit a series of emails that go from 30 November 2014 through to January 2017.  The father contends that those emails will establish the mother has a history of breaching Court orders. The father has already given that evidence in the proceedings that, according to him, both he and the mother have contravened orders of the Court.  Again, that evidence is already before the Court, and the emails will not take the evidence any further. Accordingly, I do not admit that evidence.

18.      Seventh, the father seeks to admit a text message sent on 30 November 2014 wherein the father says it will establish that the parties had an “amazing” co-parenting relationship before Mr B and the mother began a relationship.  Again, that text message predates the orders made by Judge Monahan on 10 October 2016 and the interim orders made by Judge Henderson on 10 November 2017.  Further, evidence has been given in these proceedings that the parties’ relationship in or about November 2014 was certainly one that was much happier and more cooperative than it is currently.  Accordingly, this evidence will not influence the outcome of the proceedings, and hence I do not accept its tender.

19.      Eighth, the father seeks to admit a series of emails in which the father alleges it is said the mother was offered the opportunity to communicate with the child during the period that the child was living with the father in 2017 and during which the mother contends the father withheld the child from the mother. That material has been in existence since 2017.  The father has had the opportunity of presenting evidence in respect of that matter.  Admitting that evidence at this point in time would deprive the mother putting on any evidence in response to that evidence. The tender of such evidence at this point in time would also be in circumstances where counsel for the mother would not have the opportunity to cross-examine the father in respect to the material. Accordingly, I do not accept its tender because such tender would deny the mother procedural fairness and does not go to the central issue in these proceedings. That is, as referred to above, whether the child would be exposed to the risk of emotional or psychological harm or injury by potentially witnessing acts of family violence between the mother and Mr B.

20.      Finally, the father seeks to admit an email, in respect to a communication regarding the issue of the mother’s request that the father sign a passport application for the child.  I have read that material.  It, in my view, potentially goes to the issue of whether an order should be made for sole parental responsibility. I propose to admit the email exchange in respect to the mother’s request for a passport, which I will mark as ‘Exhibit I’ in the proceedings.

21.      That concludes the evidence that I admit in these proceedings.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 25 July 2019.

Associate: 

Date:  19 August.2019