Crowther and Tothill

[2017] FamCA 307

FAMILY COURT OF AUSTRALIA

CROWTHER & TOTHILL [2017] FamCA 307

FAMILY LAW – PRACTICE AND PROCEDURE – Application to reopen proceedings – Where the mother seeks to adduce evidence of events following trial – Where the father and the Independent Children’s Lawyer oppose the application – Where the evidence is not likely to impact the result of the parenting proceedings – Where it is not in the best interests of the child to delay the proceedings further – Application dismissed.  

Naczek & Dowler (No. 4) [2008] FamCA 653
Re Australasian Meat Industry Employees Union (WA Branch) ex parte Ferguson (1986) 67 ALR 491

Watson & The Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88

APPLICANT: Ms Crowther

RESPONDENT: Mr Tothill

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 4457 of 2013

DATE DELIVERED: 16 May 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 15 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Ingleby

SOLICITOR FOR THE APPLICANT: Marshalls & Dent Lawyers

COUNSEL FOR THE RESPONDENT: Mr Anderson

SOLICITOR FOR THE RESPONDENT: Nicholls Gervasi & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. The Application to reopen the proceedings filed 12 May 2017 is dismissed.

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 Crowther & Tothill 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 PARRAMATTA

FILE NUMBER: ADC 4457 of  2013

Ms Crowther

Applicant

And

Mr Tothill

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction

1. This is an application made by the mother in parenting proceedings to reopen the proceedings after the evidence was closed and the proceedings adjourned pending submissions.  The evidence which the mother seeks to adduce is contained in a six-page affidavit and deposes to changeovers and the father’s time with the child since the conclusion of the final hearing in March 2017.

2. Counsel for the mother submits that the evidence sought to be adduced is highly relevant and would affect the result of the proceedings. Counsel submits that the central issue in the proceedings is the mother’s capacity to promote the child’s time and relationship with the father in the future and the mother’s affidavit provides direct evidence as to that issue. 

3. The application to reopen is opposed by the father and in particular it is raised, on his behalf that the father will be prejudiced if the proceedings are reopened and the lack of significance of the proposed evidence. The father disputes the mother’s evidence and he submits that the application to reopen is a desperate effort on the part of the mother to avert orders for the child to live with the father.  

4. The Independent Children's Lawyer (‘ICL’) also opposes the application. The ICL’s counsel submits that the evidence will not impact the outcome of proceedings as the mother’s conduct in the two months following the conclusion of the final hearing in March 2016 would carry little weight when compared to the mother’s conduct in the three years prior to the final hearing.

Background

1. The parenting proceedings to which this application to reopen relates concern six year old B (‘the child’), the daughter of Mr Tothill (‘the father’) and Ms Crowther (‘the mother’).

2. The parties began a relationship in January 2010 and following a short relationship during which the child was conceived, the parties separated in December 2010.

3. The child was born in 2011, approximately two months after separation.

4. The father spent inconsistent and sporadic time with the child following her birth and no time with the child subsequent to February 2012 for reasons that are the subject of dispute between the parties.

5. The parenting proceedings in the Federal Circuit Court in Adelaide were commenced by the father in November 2013.

6. In August 2014 orders were made for the appointment of an expert psychologist, Dr I, to assess the family. 

7. Following the release of the expert’s report dated 20 December 2014 orders were made for the parents and the ICL to select an appropriate professional to assist the parents with reintroducing the child to the father. 

8. Between January and April 2015 the father spent time with the child under the supervision of the mother or the selected professional on a handful of occasions.

9. In June 2015 the proceedings were transferred to the Family Court of Australia. Subsequently the mother objected to the continued involvement of the professional and the father did not spend any time with the child until November 2015 when orders were made for the father to spend time with the child in the presence of the mother in D Town where the mother and child were living.

10. In January 2016 the mother unilaterally relocated with the child to Adelaide without informing the father.

11. In February 2016 a Recovery Order was issued for the return of the child and orders were made restraining the mother from moving the child’s place of residence from D Town.

12. The final hearing commenced on 4 October 2016 and was adjourned after four days. During the hearing it came to light that the child had not always been attending school regularly and had not spent unsupervised time with the father since prior to the commencement of proceedings despite there being orders for such time.

13. On 7 October orders were made for the child to be enrolled in a school in the D Town area and for the father to spend time with the child without the mother being present. The father had, on the whole, spent unsupervised time with the child until the date of the proceedings. 

14. At the resumption of the final hearing on 14 March 2017 the mother, who was then unrepresented and seeking a grant of legal aid, made an application for the proceedings to be adjourned until her request for legal aid was approved. Her application was dismissed and I delivered reasons for my decision ex tempore.

15. Subsequently, the mother made a second application for adjournment on the basis that the child had fallen ill and was in the hospital. I dismissed her application and delivered ex tempore reasons for my decision. The hearing proceeded over the following days and the evidence was completed on 17 March 2017.   

16. On 17 March 2017 I made orders that the parties file written submissions in relation to the parenting proceedings and that the matter would be listed for oral argument once those submissions were received in chambers.

17. The mother filed written submissions on 7 April 2017, the father filed written submission on 10 April 2017 and the ICL filed written submissions on 11 April 2017.

18. The matter was listed for oral submissions on 15 May 2017.

19. On 12 May 2017 the mother filed the present application to reopen proceedings. This application came to the attention of the court on the morning of 15 May 2017 and the parties, each of whom was represented by counsel, were given the opportunity to be heard in relation to the application.

20. Following those oral submissions I dismissed the mother’s application and indicated that I would deliver reasons for decision at a later date. These are those Reasons. 

Law & Discussion

1. There are a number of decisions in civil proceedings other than family law that provide guidance as to the legal principles relevant to the reopening of proceedings. In Watson & The Metropolitan (Perth) Passenger Transport Trust[1] (‘Watson’) a single judge of the Supreme Court of Western Australia said that fresh evidence should be admitted only:

   a)when it was so material that the interests of justice required it;

   b)the evidence if believed, would most probably affect the result;

   c)the evidence could not by reasonable diligence have been discovered before; and

   d)no prejudice would ensue to the other litigant because of the lateness of that evidence.

   [1][1965] WAR 88.

2. In Re Australasian Meat Industry Employees Union (WA Branch) ex parte Ferguson[2] (‘Ferguson’) Toohey J, in the Federal Court of Australia, handed down reasons for judgment in an inquiry under the Conciliation and Arbitration Act 1904 (Cth) into a union election and the union sought to reopen the case to adduce further evidence. His Honour, in that case, distinguished the proceedings from a normal inter partes dispute and was of the view that the principles relating to reopening had to be considered in a context where court’s obligation was to reach a satisfactory conclusion whether or not that avenue had been pursued by the parties.

   [2] (1986) 67 ALR 491.

3. Both of the aforementioned cases were discussed in Naczek & Dowler (No. 4)[3], a judgment of a single Family Court judge, Cronin J, when dealing with a similar application, being an application to reopen proceedings to adduce further evidence after his Honour had reserved to deliver judgment in a parenting matter.

   [3][2008] FamCA 653.

4. Cronin J noted that while the determination of parenting case is different to the determination of cases in other jurisdictions in that the focus is on the best interests of the child, there were particular parallels between Ferguson and parenting cases in that the court is required to pursue a satisfactory conclusion for the children. His Honour determined that the principles in Ferguson and Watson provided some guidance for applications to reopen parenting proceedings in the Family Court.  

5. His Honour noted that these parenting proceedings are determined to a large degree, but not exclusively, by the parameters of the proposals of the parties and his Honour said, at [6]:

   When new evidence is available, its reception has to be considered (not necessarily accepted) if it will affect the outcome of the case even in circumstances where the civil courts might shut it out for pragmatic reasons such as the way in which the parties have conducted their cases.

6. Cronin J also had particular regard to the fact that these proceedings were conducted under Division 12A of Part VII of the Act which requires the court to give effect to certain principles in the section in performing duties, exercising powers and making decisions about the conduct of child related proceedings. His Honour had particular regard to the active direction, control and management of the proceedings by the trial judge and the way in which the court was to decide the manner in which evidence comes before it. He said, at [26]:

   It is clear therefore that the focus in a child-related proceeding should be on determining what evidence will assist in determining what is in the best interests of a child. Those principles and the provisions strongly point to the fact that a court is to decide what evidence will assist it. Whilst there is undoubtedly a requirement that all litigants be accorded natural justice, the judge ultimately bears the responsibility under Division 12A to decide what of the proffered evidence, he or she will find of assistance in the determination.

7. Cronin J further remarked at [12]:

   Importantly therefore the question to be asked is whether the further evidence proposed by the husband will affect the determination I have to make.

8. The various matters arising from the civil cases generally and in particular the matters referred to by his Honour in Naczek & Dowler (supra) will be considered the mother’s application to reopen these proceedings.

9. Counsel for the mother accurately submits that a central issue in these parenting proceedings is whether the mother has the capacity to facilitate the child’s relationship with the father.

10. Both the father and the ICL oppose the mother’s application on the basis that the evidence sought to be adduced would not affect my determination of the matter. Counsel for the ICL submits that the proposed evidence concerning the mother’s conduct relating to the child’s time with her father over the two months following the close of the evidence would hold very little weight in the proceedings. I accept this submission in the context of all the evidence.   

11. The mother’s proposed evidence is to the effect that during the ten weeks of changeovers and time between the father and child subsequent to the final hearing the parents have behaved civilly and cooperatively with one another with no adverse effects upon the child. It is also to the effect that she has had a positive approach towards the father’s time and has conveyed this to the child.  

12. Regardless of whether this is a last resort effort by the mother to demonstrate a capacity to facilitate the child’s time with the father as he contends, the evidence does not in my view provide any new information.

13. It has always been the mother’s position throughout the proceedings, and particularly throughout the course of the final hearing that she has been cooperative with the father and has sought to facilitate his time with the child. There is some evidence in the proceedings which the mother contended in the trial indicates cooperative changeovers between the parents and the child spending time with the father unimpeded by the mother. The father’s case has always been that although the mother claims she is cooperative and facilitates the child’s relationship with the father the court should not find that this occurred. There is evidence through Dr I of a particularly civil and cooperative interchange at Child Dispute Services on the last day of the proceedings.

14. The mother’s affidavit deposing to the ten weeks subsequent to the final hearing is simply more of the same evidence the mother has provided throughout the proceedings. The weight to be attached to the conduct of the parents and attitude of the mother is the subject of submissions made by the parties. As such, the evidence is not likely to affect the result in the parenting proceedings.

15. As highlighted by Cronin J, any determination of an application to reopen in the Family Court must be made with the best interests of the child in mind.

16. What became clear over the course of the final hearing, particularly from the evidence of the single expert Dr I, is that the child in the proceedings is being seriously negatively affected by the conflict between her parents and is learning to adapt to the conflict in a way that is damaging to her mental health and future development. The single expert was of the opinion that orders ending the proceedings were in the best interests of the child. This was a point noted by counsel for the ICL in her submissions.

17. If I were to allow the mother’s application and reopen proceedings, I agree with the submission of the father’s counsel that procedural fairness would require that I allow the father time to file evidence in response to the mother’s affidavit. That would require an adjournment and for the proceedings to be continued for weeks, if not months.

18. A delay in finalising the proceedings which have already been on foot for three and a half years and the final hearing of which has already taken nine months is not in the best interests of the child.

19. Having regard to the various findings that have been made, I do not grant leave for the proceedings to be reopened.

20. The orders made are set out at the forefront of these Reasons for judgment.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 May 2017.

Legal Associate: 

Date:  16 May 2017