Fiato and Chimin
[2020] FamCA 61
•15 January 2020
FAMILY COURT OF AUSTRALIA
| FIATO & CHIMIN | [2020] FamCA 61 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Leave to re-open – where the mother filed an application to re-open the proceedings to adduce further evidence – where the father and the Independent Children’s Lawyer oppose the application – order made granting the mother leave to re-open to adduce further evidence in a limited manner |
| Family Law Act 1975 (Cth) |
| ASIC v Rich (2006) 235 ALR 587 CDJ v VAJ (No. 1) (1998) 197 CLR 172 Suell & Suell (Re-Opening) (2009) 40 Fam LR 690 |
| APPLICANT: | Ms Fiato |
| RESPONDENT: | Mr Chimin |
| INDEPENDENT CHILDREN’S LAWYER: | Faraday Law |
| FILE NUMBER: | BRC | 10018 | of | 2015 |
| DATE DELIVERED: | 15 January 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 15 January 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Looney of Queen’s Counsel with Ms Pendergast |
| SOLICITOR FOR THE APPLICANT: | Page Provan |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Indigo Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGregor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Faraday Law |
Orders
IT IS ORDERED THAT
The Respondent mother has leave to re-open the proceedings to adduce further evidence limited to the following:
(a)the evidence as contained in paragraphs 4-8 inclusive of the mother’s affidavit filed on 15 January 2020; and
(b)the evidence as contained in paragraph 11 of the mother’s affidavit filed 15 January 2020; and
(c)the evidence as contained in pages 10-14 inclusive of the Bundle of Documents marked as Exhibit 1 in the proceedings today; and
(d)the evidence as contained in paragraph 12 and 13 of the mother’s affidavit filed 15 January 2020; and
(e)as contained in paragraphs 15-21 inclusive of the mother’s affidavit filed 15 January 2020.
AND IT DIRECTED THAT
By 12.00 pm on 22 January 2020, the legal representatives for the mother file and serve written submissions detailing the manner in which it is submitted, on behalf of their client, the evidence now admitted should be considered in the determination of the proceedings for final orders.
By 12.00 pm on 23 January 2020, the legal representatives for the father and the Independent Children’s Lawyer file brief written submissions strictly in reply if thought necessary.
AND IT IS ORDERED BY WAY OF INTERIM ORDER THAT
The Applicant and Respondent attend in person at the Brisbane Registry of the Family Court of Australia at 3.00 pm on 24 January 2020 to receive Judgment.
The Respondent Mother, Ms Fiato, shall personally bring the child, B, born … 2013, to Child Dispute Services in the Harry Gibbs Commonwealth Law Courts, Corner of Tank Street and North Quay, Brisbane, on 24 January 2020 at 2.30 pm so the child can be placed into the Family Court’s child care facility where she is to remain until the Orders to be made on 24 January 2020 are explained to her.
Pursuant to s 65L of the Family Law Act 1975 (Cth), a Family Consultant nominated by the Manager, Child Dispute Services of the Brisbane Registry of the Court shall assist the parties in relation to compliance with, and the carrying out of, the Orders to be made on 24 January 2020 by:
(a)explaining the terms of that Order to the child, B, born … 2013; and
(b)explaining the Reasons for Judgment delivered in support of those Orders to the extent that this is possible and in terms that are appropriate given the age of the child.
AND IT IS FURTHER ORDERED THAT
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
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 Fiato & Chimin 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 BRISBANE |
FILE NUMBER: BRC 10018 of 2015
| Ms Fiato |
Applicant
And
| Mr Chimin |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
I have today an Application by the mother to re-open the proceedings and for leave to adduce certain evidence filed in support of that Application.
In determining the Application I have taken into account that: in the event I exercise the discretion in favour of the Applicant and permit her to re-open the proceedings and to adduce certain aspects of the evidence sought to be adduced, no party requires her, or the author of any report admitted in the exercise of that discretion, for cross-examination; and that all parties submit that, in such an event, the receipt of whatever evidence is permitted to be received be accompanied by submissions (either made orally, today, or in a short time) to address the manner in which such evidence should be considered in the determination of the final proceedings, which are currently reserved.
Speaking generally, the exercise of the judicial discretion involved in the determination of an application for leave to re-open proceedings to adduce evidence involves the application of the principle of whether the interests of justice are better served by acceding to such application or rejecting it.
Many authorities have distilled matters relevant to the determination of such applications generally.[1] In this jurisdiction, Murphy J in Suell & Suell (Re-Opening)[2] distilled a number of factors his Honour considered relevant to the exercise of the discretion in determining applications such as the one before me today.
[1] See ASIC v Rich (2006) 235 ALR 587.
[2] (2009) 40 Fam LR 690.
I accept that it is not necessary for a party moving on such application to satisfy all of the matters His Honour identified before the discretion to determine an application for leave to re-open in their favour can be achieved. It seems to me that the matters identified by Murphy J in Suell& Suell (Re-Opening)[3] are but a series of factors his Honour helpfully identified as relevant in proceedings such as the current parenting proceedings. As stated, the overriding principle, it seems to me, is whether the interests of justice are better served by acceding to an application or refusing it.
[3] (2009) 40 Fam LR 690.
In this case, Counsel for the father and for the Independent Children’s Lawyer oppose the grant of leave sought by the mother; each Counsel have made submissions in support of their respective positions.
As noted, if the application for leave to re-open and adduce evidence contained within the affidavits filed in support of such an application is granted in a limited way, and certain aspects of the evidence sought to be relied upon is admitted, no party seeks to cross-examine the mother or the author of any admitted evidence; all accept that submissions can be made in a way which will minimise the further delay in the finalisation of the matter.
Applying the principles to which I have adverted – noting the overriding requirement to exercise the discretion in a manner that accords to and meets the interests of justice and noting the caution expressed by Murphy J in Suell& Suell (Re-Opening)[4] about the manner in which the discretion needs to be exercised in parenting cases[5] – I am persuaded in this case to exercise the discretion in favour of permitting the Applicant to re-open the proceedings and adduce evidence in a limited manner.
[4] (2009) 40 Fam LR 690.
[5] See Suell& Suell (Re-Opening) (2009) 40 Fam LR 690 at [27]; CDJ v VAJ No. 1 (1998) 197 CLR 172 at [117].
The evidence will be limited to the following:
a)the evidence about supervised time between the child and her father, since the matter was reserved, as contained in paragraphs 4 to 8 inclusive of the mother’s affidavit sealed 15 January 2020; and
b)that B has attended counselling with Ms H; and
c)in particular:
i)paragraph 11 of the mother’s affidavit, sealed 15 January 2020; and
ii)pages 10 to 14 inclusive of the bundle of the documents that are Exhibit 1 for the purpose of this application; and
iii)the evidence contained in paragraphs 12 and 13 of the mother’s affidavit, sealed 15 January 2020; and
iv)the mother’s evidence as to the communications from the father by text message, as set out at paragraphs 15 to 21 inclusive of her affidavit, sealed 15 January 2020.
I am not persuaded, though, in relation to the remaining aspects of the evidence that the mother relied upon as forming proper basis for a re-opening, that the interests of justice require the receipt of the same: I am not persuaded, having regard to the matters identified by Murphy J in Suell & Suell (Re-Opening)[6] that such evidence should, properly, be admitted and I decline therefore, to grant leave to the Applicant to re-open the proceedings in relation to that aspect of her evidence; I also decline, therefore, to grant leave to her to adduce those aspects of her evidence.
[6](2009) 40 Fam LR 690.
I also note, in particular, that a further factor I have taken into account in determining to exercise the discretion in the manner that I have is that Counsel for the father and the Independent Children’s Lawyer have informed me that they are in a position today to make submissions in relation to the manner in which the now admitted evidence should be considered in the final proceedings, currently reserved before me.
So that the delay in the finalisation of the matter is minimised, I have decided that final judgment will be delivered at 3.00 pm on 24 January 2020; in order to accommodate this, Directions will be made to enable to legal representatives for the mother to file and serve, by noon on 22 January 2020, written submissions detailing the manner in which it is submitted, on her behalf, that the evidence now admitted should be considered in the determination of the proceedings for final parenting orders and to afford to the father’s legal representatives and the Independent Children’s Lawyer leave to file brief written submissions in reply, if thought necessary, by noon on 23 January 2020.
To facilitate the finalisation of the matter, I also intend to make orders in terms of those which were made in Chambers on 20 December 2019.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 January 2020.
Associate:
Date: 15 January 2020
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