Fiato and Chimin (No. 2)

[2020] FamCA 63

FAMILY COURT OF AUSTRALIA

FIATO & CHIMIN (NO. 2) [2020] FamCA 63

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to re-open – where the mother filed an application to re-open the proceedings to adduce further evidence – order made granting the mother leave to re-open to adduce further evidence.

Family Law Act 1975 (Cth)

CDJ & VAJ (No. 1) (1998) 197 CLR 172
Suell & Suell (Reopening) (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: 29 January 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 29 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Looney QC

SOLICITOR FOR THE APPLICANT: Page Provan

COUNSEL FOR THE RESPONDENT: Ms Bertone

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

1. The mother has leave to re-open the proceedings to adduce further evidence as contained within her affidavit filed 29 January 2020. 

2. The matter is listed for further mention and the determination of any objections to the mother’s affidavit filed 29 January 2020 to not before 4.30 pm on Friday, 7 February 2020.

AND IT IS FURTHER ORDERED BY CONSENT ON AN INTERIM BASIS THAT

1. The child, B, born … 2013, shall spend time with her father from 10.00 am until 4.00 pm on Saturday, 1 February 2020 with changeover to occur at McDonald’s Restaurant, J Town.

AND IT IS FURTHER ORDERED THAT

1. Child Dispute Services at the Harry Gibbs Commonwealth Law Courts, Corner of Tank Street and North Quay, Brisbane is authorised to deliver the child, B, born … 2013, into the care of her mother at the conclusion of the proceedings today.  

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

1. I will give very, very short reasons in relation to the decision I have made to grant to the mother leave to reopen her case for the purpose of adducing the affidavit sworn by her on 29 January 2020, and filed on that same date. 

2. The principles to be applied in determining such applications are well known.  They have been helpfully summarised by Murphy J in Suell & Suell (Reopening).[1]

   [1] (2009) 40 Fam LR 690 at [27].

3. Having regard to that helpful summary of the applicable principles, I am persuaded that it is appropriate to grant to the mother leave to reopen her case to adduce evidence of what she asserts occurred on the weekend that has just passed – following the making of the orders that I made on 24 January 2020 that saw B spend unsupervised time with her father during periods from then until 2.30 pm today. 

4. I consider that the further evidence sought to be adduced by the mother is relevant to issues that directly affect B’s best interests and the ultimate decisions about that. 

5. I am also persuaded that there is a prospect that the further evidence may affect ultimate findings that would otherwise have been available on the evidence as it stood prior to the application to adduce the evidence – noting, of course, that the reference there is to findings, not to orders that are to be made. 

6. I am also persuaded that, subject to affording to the father an appropriate opportunity to be heard in relation to what, if anything, he seeks to do by way of an application to reopen his case for the purpose of adducing additional evidence following this ruling, I will be able to ensure that any prejudice to him – as a consequence of my acceding to the application – is managed appropriately. 

7. I also take into account the principle that proceedings for parenting orders are not in the nature of what is described as “ordinary inter-party proceedings” and that, by virtue of their very nature, often involve a broader inquiry into the best interests of children, including a broader inquiry than that circumscribed by the issues identified by the parties.

8. As I have already said during the course of discourse, Murphy J’s reference to the principle that the discretion to admit further evidence needs to be exercised with much care in parenting cases is, it seems to me – given his Honour’s reference to CDJ & VAJ (No. 1)[2] – clearly intended to refer only to applications to adduce evidence at the hearing of an appeal, rather than applications such as that with which I am currently dealing.

   [2] (1998) 197 CLR 172.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 January 2020.

Associate:     

Date:              29 January 2020