Darley & Darley (No 11)
[2024] FedCFamC1F 558
•23 August 2024
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Darley & Darley (No 11) [2024] FedCFamC1F 558
File number(s): BRC 2317 of 2013 Judgment of: HOGAN J Date of judgment: 23 August 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant sought leave to re-open the proceedings to adduce further evidence – Where the applicant has already adduced evidence about the very issues to which the evidence she seeks leave to adduce is directed – Where the applicant’s application for leave is dismissed – Where the respondent made an oral application for leave to re-open the proceedings – Where leave is granted to the respondent to adduce one document Legislation: Family Law Act 1975 (Cth) Cases cited: Suell & Suell (Re-Opening) (2009) 40 Fam LR 690; [2009] FamCA Division: First Instance Number of paragraphs: 10 Date of hearing: 11 July 2024 Place: Brisbane Applicant: Litigant in person Respondent: Litigant in person ORDERS
BRC 2317 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DARLEY
Applicant
AND: MR DARLEY
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
23 AUGUST 2024
THE COURT ORDERS THAT:
1.The mother’s application for leave to re-open the proceedings to adduce further evidence, as contained in the Amended Application in a Proceeding filed 11 June 2024, is dismissed.
2.The father’s oral application for leave to re-open the proceedings is granted.
3.The father has leave to adduce the document marked Exhibit 1 on 11 July 2024.
4.All outstanding applications in which the relief sought is for leave to reopen and adduce evidence are dismissed.
NOTATION:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Darley & Darley has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
By Amended Application in a Proceeding dated 11 June 2024, the mother sought to reopen the evidence in the current proceedings (which were the subject of hearing before me on 28 August 2023, 4 September 2023, 5 September 2023, 21 September 2023, 22 September 2023 and 11 December 2023) in order to adduce the evidence contained within further affidavits from her – namely, those sworn 21 April 2024 (sealed 23 May 2024) and sworn 10 June 2024 (sealed 11 June 2024) and sworn 9 July 2024 (sealed 11 July 2024).
The father did not oppose nor consent to the application and said that he would follow the Court’s determination.
The father made an oral application to re-open the evidence in his case to enable him to adduce evidence of Y’s most recent school report. The mother opposed this application.
Relevant principles
The principles to be applied in determining how to exercise the discretion to permit reopening of evidence prior to the delivery of judgment in a matter are well known and include:
(a)that it is well settled that re-opening of a case prior to the delivery of judgment is an exception to, rather than the usual course of a trial; and
(b)that the question to be considered is whether the interests of justice are better served by allowing or rejecting the application; and
(c)whether the evidence is so material that the interests of justice require its admission; and
(d)whether the evidence, if accepted, is likely to affect in a substantial way the ultimate finding or findings that would otherwise have been available on the evidence at the hearing; and
(e)whether the further evidence is relevant to issues directly affecting children's best interests and the ultimate decision about that; and
(f)the nature and extent of any prejudice likely to be caused to a party in responding to any such evidence within a reasonable time; and
(g)whether the children are likely to suffer detriment if the evidence is admitted and the trial reopened and, if so, the nature and extent of any detriment; and
(h)proper recognition of the principle that it is in the children's best interests, and that of their parents, that parenting litigation be finalised as soon as possible; and
(i)recognition of the fact that proceedings for parenting orders are not in the nature of ordinary inter partes proceedings but may involve a broader enquiry into the best interests of children than that which is prescribed by the issues identified by parents in any particular case.[1]
[1] See, for example: Suell & Suell (Re-Opening) (2009) 40 Fam LR 690 per Murphy J at [27] and [28].
The mother’s application
The evidence which the mother seeks to adduce if given leave to reopen the proceedings may be broadly summarised as follows:
(a)that the father has failed to ensure that Y has attended on her specialist medical appointments (with the consequence that she now has no active referrals to the relevant medical clinics) – which is relevant to the assessment of his parenting capacity; and
(b)that the father has neglected Y’s education and that, in his care, she has: been suspended from school; been reprimanded on a number of occasions at school; a number of outstanding assessments; a number of absences per week (with most of them being late to class or leaving early) and four unexplained absent days;[2] and
(c)her evidence to the effect that the father continues to commit fraud, as well as an excerpt of a transcript from proceedings in another court which she asserts establishes that the father agreed with her assertions about his alleged behaviour; and
(d)an article entitled “Combatting Child Sexual Exploitation Legislation Amendment Bill 2019” along with: a supplementary submission from the President of the Law Council of Australia to the Chair of the Senate Legal and Constitutional Affairs Committee dated 3 September 2019; a letter from the President of the Law Council of Australia to the Chair of the Senate Legal and Constitutional Affairs Committee dated 18 March 2019; and a joint submission to the Inquiry into Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 – which does not appear to be addressed within her affidavit;[3] and
(e)a letter from the Queensland Police Service in 2024 in respect of the mother’s application under the Information Privacy Act 2009 (Qld) – which was refused as it was said to contain ‘child exploitation material’ and the mother contended is a result of the father’s parenting;[4] and
(f)chains of correspondence between the mother and another court in respect of the proceedings dated between 2022 and 2024 which attached a Request for Subpoena and a Subpoena – which does not appear to be addressed within her affidavit;[5] and
(g)a transcript of the part heard domestic violence proceedings in another court in early 2024 – which the mother says, amongst other things, is proof that the father has committed perjury, attempted to mislead the Court and attempted to pervert the course of justice;[6] and
(h)an incomplete transcript of the part heard domestic violence proceedings in another Court in mid-2024 – which the mother says, amongst other things, is proof that the father has committed perjury, attempted to mislead the Court and attempted to pervert the course of justice;[7] and
(i)an email from Dr AG dated 21 June 2024 including an article relating to domestic abuse;[8] and
(j)an email from Dr AG dated 6 July 2024 including an article relating to coercive control.[9]
[2]Affidavit of the mother filed 23 May 2024, annexure MSD2, pages 32-33; affidavit of the mother filed 11 June 2024, annexure MSD7, pages 237-239.
[3] Affidavit of the mother filed 11 June 2024, annexure MSD2, pages 60-91.
[4] Affidavit of the mother filed 11 June 2024, annexure MSD4, pages 95-96.
[5] Affidavit of the mother filed 11 June 2024, annexure MSD6, pages 219-231.
[6] Affidavit of the mother filed 11 June 2024, annexure MSD5, pages 97-217.
[7] Affidavit of the mother sworn/affirmed 9 July 2024, annexure MSD1, pages 27- 95.
[8] Affidavit of the mother sworn/affirmed 9 July 2024, annexure MSD2, pages 103-106.
[9] Affidavit of the mother sworn/affirmed 9 July 2024, annexure MSD2, pages 97-102.
The evidence adduced by the mother during the trial included the assertions that:
(a)the father lacked the capacity to parent the children because, amongst other things, he had failed to contact various medical specialists and/or attend the children’s appointments with the same and/or had failed to ensure that the children maintained their medical treatment and/or attend on appropriate appointments;[10] and
(b)the father had neglected Y’s education, lacked the capacity to ensure that she achieved her potential, failed to manage her performance and attendance at school and generally lacked the capacity to ensure that Y behaved appropriately at school;[11] and
(c)the father had previously and continued to commit what was described as fraud;[12] and
(d)the children had been influenced by the father to make the adverse comments about her parenting of them that they made when interviewed; and
(e)the father is a long-term perpetrator of domestic violence toward her and the children, including by way of coercive control; and
(f)the father had a history of misleading the Court, attempting to pervert the course of justice and committing perjury.[13]
[10]See, for example (but certainly not limited to): the mother’s affidavit sworn 22 August 2023 at paragraphs 117, 417-418, 425, 654 and 753.
[11]See, for example (but certainly not limited to): the mother’s affidavit sworn 22 August 2023 at paragraphs 37(b), 234-242 and Annexure ‘MSD15’ at pages 2395-2432.
[12]See, for example (but certainly not limited to): the mother’s affidavit sworn 22 August 2023 at paragraphs 70, 195, 215, 473-487.
[13]See, for example (but certainly not limited to): the mother’s affidavit sworn 22 August 2023 at paragraphs 70, 71c, 195, 198.
Given that the mother has already adduced evidence about the very issues to which the evidence she seeks leave to adduce is directed, I am not persuaded, in the exercise of the discretion, that the interests of justice are better served by permitting reopening of the evidence to adduce the evidence which the mother now seeks to adduce; I am also unpersuaded that such further evidence is likely to affect, in a substantial way, the ultimate finding or findings that would otherwise have been available on the evidence at trial. At its highest, it amounts to little more than further examples of the father’s asserted conduct (and further discussion about the same) which the mother has already sought to emphasise in the evidence upon which she relied at the trial.
The mother also sought to exclude the evidence given by Ms AF, Court Child Expert, during the trial on the basis that she submitted that, as the witness had not read any of the substantive material or subpoena material, her evidence was not founded upon facts and was misleading. Whilst the time for such objection has passed, the mother had already included such contentions in the August 2023 affidavit she relied on at the trial.[14]
[14]See affidavit of the mother sworn 22 August 2023, paragraphs 104, 344-345, 394-395, 610-635, 640-820 in which the mother provided a detailed response to Ms AF’s report dated 7 August 2023.
The father’s application
The father sought to re-open his case to adduce evidence of Y’s relatively recent report card. Such evidence is clearly relevant to the issues before the Court, particularly where one of the mother’s contentions at trial was that Y’s attendance at school and her performance there generally had significantly deteriorated following her move to live with the father in 2022.
Given this, I am persuaded, in the exercise of discretion, that the interests of justice are better served by permitting reopening of the evidence to enable the father to adduce Y’s recent school report and/or that such further evidence is likely to affect, in a substantial way, the ultimate finding or findings that would otherwise have been available on the evidence at trial.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 23 August 2024
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